SGT Doe,
SGT Doe, report to CPT Smith’s office today at 1500. He intends to counsel you on your pending administrative separation for misconduct. Do not be late….
Nobody wants to see their career jeopardized over an accusation of misconduct. While many people are aware of trial by court-martial, many are less familiar with the administrative separation process that the government can use to end a Servicemember’s career. It is important to understand the separation process in order to mount a proper defense. For the sake of this article, we will primarily use the Army’s terminology and procedures, though each service branch utilizes generally similar processes.
When the military is attempting to separate you prior to your term of service, this is called an administrative separation. In some instances, it can be for benign reasons such as a medical issue or a family hardship. Other times, the Government is alleging that the Servicemember violated a policy or law in some way. Some frequent examples are; unsatisfactory performance, substance-use disorder, excessive body weight, physical fitness failures, and misconduct. Often, the term “chaptered” is used when describing separation for these reasons.
If a Servicemember is undergoing separation, the extent of their rights to fight the separation will depend on their length of service and whether they are facing an Honorable, General (Under Honorable Conditions), or Other Than Honorable discharge (OTH). For example, in the Army, an enlisted Soldier with over six years of service is entitled to a hearing, similar to a mini-trial. A soldier with less than six years is not entitled to a hearing, unless the Army is trying to issue them an OTH discharge. Even if a Soldier is not entitled to a hearing, they are still permitted to submit a brief with evidence as to why they should be retained.
While potentially ending a Servicemember’s military employment, administrative separations can have additional profound consequences. Unlike civilian employers, the military is not just a career. It is often the Servicemember’s retirement plan and healthcare provider, which will also be terminated in the event you are successfully separated. The financial ramifications of this are enormous and long lasting. These consequences are additional reasons why adverse separations should be vigorously fought at all stages.
When Servicemembers choose to challenge their separation, not only are they arguing for retention, but they are often simultaneously arguing for a more favorable characterization of service. The three types of administrative characterizations of service are more commonly known as honorable, general, OTH. The characterization of service is vitally important as it controls certain post-service benefits eligibility, such as VA disability and the 9/11 GI Bill. It is also extremely common for employers to ask veteran applicants whether they received an honorable, general, or OTH discharge. In particular, future employers are often reluctant to hire individuals with an OTH characterization of service.
If you are facing adverse administrative separation, it is important that you exercise all the rights available to you. Servicemembers should collect and prepare relevant evidence and argue for retention and the best possible characterization of service. Even if you are assigned a JAG, it is often advisable to seek an outside civilian attorney to ensure that your case receives extra attention. Do not simply resign yourself to being administratively discharged, take action and fight for your military career.
*This article is for informational purposes only and should not be construed as legal advice for any particular case or situation. The viewing or reading of this article does not create an attorney-client relationship.