Administrative Separation

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Service members may be involuntarily separated from the military by administrative discharge for a myriad of reasons, including minor misconduct, medial issues, and homosexual conduct. Although the consequences of an administrative discharge are less severe than a discharge imposed by a court-martial, they can still have a lifelong significant effect on your employability, eligibility for Veterans’ Benefits, educational goals, and social standing.

Administrative Discharge Overview

Notification Processing and Board Processing are the two different processes for administrative discharge. Notification procedures are the most common, where the notification and the member's response are limited to written materials. If a member is entitled to have his or her case heard by an administrative discharge board, however, board procedures are used.

A service member recommended for separation (referred to as the Respondent) must be offered a hearing by an administrative discharge board if the command seeks to characterize the Respondent’s service as under Other Than Honorable Conditions. There are other criteria, which are sometimes service-specific, that entitle the Respondent to a board hearing. For example, rank, time in service, or specific types of alleged misconduct may require that the board procedure be used before a member may be separated.

An administrative discharge board is comprised of three members senior in rank to the Respondent: a Legal Advisor (typically a JAG), a Defense Attorney, and a Recorder, who serves as the “prosecutor” and represents the command.

Board proceedings are administrative in nature, and the board is not required to follow the formal rules of evidence, which means it may consider information which might not be admissible at a court-martial.

A Respondent facing separation at an administrative board hearing has certain rights, including:

• The right to appear in person before the board, with or without counsel;
• The right to challenge any voting member of the board for cause; that is, by showing that the member cannot render a fair and impartial decision;
• The right to submit an oral or written statement on the Respondent's own behalf. The Respondent may also testify on his/her own behalf; or the Respondent may remain silent;
• The right to request the attendance of witnesses at the hearing;
• The right to submit any answers, depositions, sworn or unsworn statements, affidavits, certificates, or stipulations; and
• The right to question any witness who appears before the board, or have counsel question the witnesses on behalf of the Respondent.

When the administrative board convenes, the board considers all the evidence, both for and against the Respondent. In closed-session deliberations, the board members then vote both on whether the evidence supports the alleged misconduct and whether to recommend retention or separation. If the board votes to separate, they will also vote on characterization of service to recommend for the discharge: Honorable, General, or Other than Honorable (OTH).

Military discharge basis and characterization will likely follow the service member for the rest of his or her life. Therefore, it is imperative that a military member facing administrative discharge is represented by a lawyer experienced in military law and discharge board litigation. For this reason, you should not wait to contact a military criminal defense lawyer at Military Justice International.