Military Discharge Lawyer for Involuntary Administrative Discharge or Separation

Military Discharge Lawyer for Involuntary Administrative Discharge or Separation

An involuntary administrative discharge (also called administrative separation) is a very serious adverse action in which the military is attempting to terminate the employment of the military member – in other words, the military is trying to kick the member out of the military.

Why You Need a Military Discharge Lawyer

An involuntary administrative discharge action can have serious, long lasting consequences. Not only does an involuntary administrative discharge end the member’s military career, it can terminate the military benefits and entitlements the military member has been accruing over his/her career, the GI Bill may be lost, it prevents the military member from retiring and it can have a lasting stigma and impact on future civilian job searches and educational opportunities (such as seeking college or graduate school admission).

The different military branches refer to involuntary administrative discharge in different terms:

• “Admin Discharge”
• “Admin Separation”
• “AdSep”
• “Being “Chaptered” (Army reference to the chapter of administrative separation regulation, AR 635-200, such as Chapter 14 for misconduct)”

For military officers, involuntary administrative discharge action can be referred to as:

• “Administrative Discharge”
• “Administrative Separation”
• “BOI” or “Board of Inquiry”
• “Show Cause”

Defending military members facing involuntary administrative discharge

If a military member is facing involuntary administrative discharge action, it is critical that he or she consult with an experienced military law attorney. A qualified military lawyer can review the case and provide an assessment on the likelihood of success in fighting the discharge. He or she can also discuss available options and develop the best strategy based on the specific facts and circumstances of the case.

Some of the potential options in responding to proposed involuntary administrative discharge action include:

• Submitting matters in rebuttal and/or mitigation
• Requesting an administrative separation board
• Negotiating an agreement for a higher discharge characterization
• Argue to be retained in the military
• Argue for transfer to the IRR in lieu of discharge if eligible
• Request a disability evaluation if unfit to continue service for medical reasons

If administrative separation is inevitable, the focus becomes achieving the most favorable discharge characterization possible (Honorable, General, or Other than Honorable). This is because the discharge characterization can have a lasting impact on veteran benefits and employment opportunities after the military.

Grounds for Involuntary Administrative Discharge

Each military service branch has its own regulations spelling out the various bases upon which a service member may be involuntarily separated. Some of the most common grounds for involuntary administrative discharge include:

• Misconduct – Discharge based on minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, civilian conviction, or similar misconduct-based reasons.
• Unsatisfactory Performance – Failure to meet minimum standards of duty performance, proficiency, and competence.
• Drug Abuse – Illegal, wrongful, or improper use of controlled substances.
• Alcohol Abuse – Alcohol dependence or abuse leading to misconduct, unacceptable behavior, or impaired performance.
• Weight Control Failure – Inability to meet weight control standards.
• Parenthood – Sole parents or military couples with dependents under 18 (in lieu of family care plans).
• Entry Level Performance and Conduct – Members in their first 180 days of service who demonstrate inability to adapt to military requirements.
• Unsatisfactory Participation in the Ready Reserve – Members of reserve components who fail to meet minimum participation and training requirements.
• Secretarial Plenary Authority – Discharge in the best interests of the service as determined by the service secretary.

The specific regulations covering administrative separation for each military branch are:

• Army – Army Regulation 635-200
• Navy – MILPERSMAN 1910-010
• Marine Corps – Marine Corps Separation and Retirement Manual
• Air Force – Air Force Instruction 36-3208
• Coast Guard – Military Separations, COMDTINST M1000.4

Administrative Separation Process

While the details vary by service, the basic process for involuntary administrative separation involves the following steps:

1. Initiation and Notification – The command initiates discharge action and notifies the service member in writing.
2. Consultation with Counsel – The service member is advised of their rights and consults with military defense counsel.
3. Responding to the Notification – The service member provides a rebuttal and/or request for an administrative separation board.
4. Separation Authority Review – The separation authority reviews the case and decides whether separation is warranted.
5. Board Hearing (if requested) – A board hears the case and makes a recommendation to the separation authority.
6. Separation Decision – The separation authority makes a final decision on separation and characterization.
7. Appeal Options – The service member may appeal the decision to the Discharge Review Board and/or Board for Correction of Military Records.

Some key things to know about the administrative separation process:

• Right to Counsel – The service member has the right to consult with military defense counsel (appointed Judge Advocate General attorney) or hire civilian counsel at their own expense.
• Rebuttal – The service member has the right to present matters in rebuttal and/or mitigation responding to the basis of the discharge action.
• Board Hearing – The service member may request an administrative separation board, allowing them to present evidence and question witnesses.
• Appeal Options – The discharge may be appealed to the Discharge Review Board and/or Board for Correction of Military Records after separation.

Types of Discharge Characterizations

The Department of Defense has five basic types of discharge characterizations for administrative separations:

• Honorable – Highest characterization given, treated as fully honorable service.
• General (Under Honorable Conditions) – Treated as honorable for most purposes but potentially ineligible for some veteran benefits.
• Other Than Honorable (OTH) – Lowest characterization that can be given administratively. May result in loss of veteran benefits and stigma.
• Entry Level Separation (ELS) – Uncharacterized administrative separation during initial training period.
• Order of Release from Active Duty (RELAD) – Uncharacterized administrative separation from reserve active duty.