Military Law: Administrative Separations
Miami Military Lawyers
Administrative separations can occur in two forms that can lead to drastically different results. Under military regulations, voluntary separations and involuntary separations are used to release service members prior to or at the expiration of their term of service. Administrative separations are not handled under the Uniform Code of Military Justice (UCMJ) and therefore are not punitive by nature. Depending on the facts, and in large part, the discretion of the chain of command, a service member can be discharged for a variety of reasons with different characterizations of service. The "basis" is the reason for the separation of the military member while the "characterization of service" refers to the description of the member's quality of service.
The majority of the administrative separations are involuntary. A discharge at the end of a service member's term of service constitutes a voluntary separation. While the majority of soldiers, sailors and airman receive honorable discharges at the end of their terms of service, individual's with too many disciplinary actions or low performance reports can allow for the command to seek a general (under honorable conditions) discharge. The procedure for involuntary separations is fairly simple. Once the chain of command makes the decision to involuntarily separate a soldier, the process is quick as long as there is proper documentation to support the discharge and the command has followed all of the legal steps set forth in the regulations. Involuntary discharges can take longer if the service member is entitled to an administrative discharge board
The basis or reasons for separation in the U.S. military are extensive. The most common reasons for separating service members are: parenthood, physical or mental conditions, disability, minority enlistment, erroneous enlistment, fraudulent entry into military service, unsatisfactory performance, homosexual conduct, alcohol abuse rehabilitative failure, weight control issues or misconduct. Each branch of service has different regulations which cover all of these types of separations.
Characterization of Service
There are three types of characterization of service: honorable, general (under honorable conditions, and under other than honorable conditions. An honorable discharge will be awarded when a service member's service has generally met the standards of acceptable conduct and performance of duty for military service members. A general discharge will be awarded when a service member has been honest and faithful, but had significant deficiencies that were not able to be overcome despite attempts at counseling and rehabilitation. An under other than honorable conditions (OTH) discharge will be awarded to service members that displayed conduct that constituted a significant departure from the conduct expected from a member of the military. An OTH can cause military personnel to lose all of part of their VA benefits. The Department of Veterans Affairs will make an independent determination from military in deciding which members will retain or lose benefits.
Administrative Discharge Boards
Service members may be entitled to an administrative discharge board. A board will only appointed if a service member has enough time in service or the command is trying to issue an OTH. The commander issuing the separation authority will appoint an administrative board composed of officers and senior enlisted depending on the rank of the member subject to the involuntary separation. A board is somewhat like a mini trial where evidence and testimony can be considered by the board. The UCMJ and the rules of evidence do not apply to administrative separation board. A service member can be represented by military counsel or private counsel paid for at the member's expense.
If your chain of command is considering or has decided to administratively separate a military service member, contact
the Miami criminal lawyers at DMT. An experienced criminal attorney is available every day of the year, 24 hours a day to speak with you regarding your situation. Allow us the opportunity to help protect your rights and defend you case. You can call our office
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