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Administrative Discharge Boards are the process by which the Army, Navy. Air Force, Marine Corps and Coast Guard separate enlisted service members from the service. Although less serious than courts-martial, administrative separations carry substantial adverse consequences. A board can recommend separation from the service and a characterization of the discharge as Honorable, General under Honorable Conditions (General) or Other than Honorable (OTH). An OTH in particular can cause the loss of benefits and, even more importantly, place a black mark on the service member for years to come.
Fortunately, the “Respondent”, the accused service member, has certain due process rights. These rights are set forth in the regulations of each military service. These regulations are:
In terms of procedure, an administrative discharge begins with a letter to the respondent formally notifying him or her of the proposed separation. If the separation could result in an OTH, the service member has a right to a hearing before a board composed of three officers. The senior member of the board serves as the President of the Board. There is no separate judge. The Respondent is entitled to legal representation by either a military lawyer or a civilian defense counsel.
The presentation of evidence begins with the presentation of evidence by the Recorder, who essentially serves as a prosecutor. Formal rules of evidence do not apply; however, the evidence must be reliable. The evidence may be in presented buy documents, witnesses or both. Once the Recorder has presented the government’s case, the Respondent’s counsel can present evidence, either through documents or witness testimony. The Respondent may testify if he or she desires. Once the Respondent has presented his or her evidence, the Board deliberates and determine whether the Respondent engaged in misconduct. If it is determined that the Respondent engaged in misconduct, the Board must then recommend retention or separation and, if separation, the character of the separation, Honorable, General or OTH.
Following the completion of the Board, the Officer Convening the Board can make its recommendation. Ultimately, the Personnel Command of the Service will make an ultimate determination as to separation. Each of these steps provides the service member with another opportunity to argue his or her case. Failing to respond at any level signals to the service that the service member has simply given up.
Absolutely. We have represented military members, primarily Navy members, in well over 100 boards and achieved positive results in the vast majority of cases. Success does not always mean a finding of no misconduct or a recommendation of retention, although these outcomes happen. The most important victory is avoiding an Other than Honorable Discharge.
Ordinarily, one would expect sexual misconduct to be referred to a court-martial for trial and punishment. Sometimes, however, Department of Defense Instruction 1332.14 authorizes the services to address sexual assault and sexual harassment allegation through administrative discharge boards. This DOD Instruction is reflected in specific regulations for each service. These regulations are:
An administrative discharge board gives the government the advantage of relying upon written statements in a proceeding where there are no rules of evidence. There is no right of confrontation, as there would be in a court-martial, and hearsay evidence is admissible. A Respondent may be tarnished with an OTH and lose his or her military career, not to mention the stigma of be labeled a sex offender.
For convening authorities, this use of administrative process is compelling, particularly in weak cases that would never result in a court-martial conviction. The Respondent does have certain rights, however. The Respondent can call witnesses and present written evidence. He or she can make a sworn or unsworn statement (or decide to make no statement). In a case that is bases upon weak or contradictory evidence, a skilled defense counsel can call witness and make arguments to undermine the credibility of the government’s case. The key to success is aggressive representation.
First, there are times when it does not make sense to hire a civilian defense counsel. If the service member does not care about the characterization of his or her discharge and simply wants to get home as soon as possible, there is no reason to retain a civilian defense counsel. If the misconduct is serious and the evidence overwhelming, there is no reason to retain a civilian defense counsel.
However, there are times when an administrative discharge can be catastrophic. A senior enlisted member who has invested a substantial portion of his or he life to the military could lose the value of a pension worth hundreds of thousands of dollars if he or she is separated from the service before reaching retirement eligibility. An OTH could haunt a young soldier, sailor, Marine or airman for the rest of his or her life. In these cases, retaining a civilian defense counsel skilled in military law.
In most cases, the right military defense counsel has more experience than the young JAG officer who would be assigned to the case. With that experience comes the knowledge of how to put a persuasive defense together. A civilian counsel is also outside any military chain of command and consequently has more freedom to take actions an active duty officer could not. Contact us if you have questions or would like to discuss your options before an administrative discharge board.