Military Attorney Specializing in Administrative Separation Counseling
Administrative Discharge Overview
Military members may be involuntarily separated from the military by administrative discharge.
While the basis for administrative discharge varies between branches of service, the process is analogous in the civilian world to being fired.
Due to the possible negative characterization of discharge associated with an involuntary separation the Ad Sep process affords you much greater due process than many circumstances found in the civilian world.
Aden Wilkie, a military attorney represents military members facing administrative discharge processing. Located in Jacksonville, Wilkie serves the entire state of North Carolina as well as its surrounding states. He is also able to service any military installation located in the United States, but travel fees will apply. If you’ve been informed that you are being considered for administrative discharge from the military, call The Devil Dog Defender at 910-333-9626 for a free consultation about your case.
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Administrative Separation FAQs
Administrative discharge from the military is less severe than a court-martial. However, it can still have lifelong effects on ones employment, eligibility for benefits and military social standing.
When the initiating command and the separation authority aren’t located in the same region, processing typically takes 30 working days.
If a board is required, the action should be completed within 50 working days after notification of separation.
Types of Administrative Discharge
Three characterizations of administrative discharge include:
- general, and
under other than honorable conditions.
Service members may be separated from their branch of service through the Administrative Separation (Ad Sep) process. There are two types of administrative discharges: voluntary and involuntary.
Voluntary Administrative Separation
In the case of a voluntary Ad Sep you may be separated for something like a family issue requiring you to leave the military to care for a sick family member. The process is somewhat automatic and provides little in the way of due process type of rights.
Involuntary Administrative Separation
Involuntary administrative separation on the other hand, involves circumstances where the military is seeking to separate you for any number of reasons.
These can include but aren’t limited to:
- minor discipline,
- drug use,
- patterns of minor misconduct,
- substandard performance,
- physical/mental reasons,
- rehabilitation failure, or
failure to adapt.
Administrative Separation Recommendations
The Involuntary Ad Sep process has two distinct parts:
- First, a recommendation as to whether to separate you from the service or retain you in the service.
Second is a recommendation as to what characterization will your discharge be upon your being separated.
If characterization is anything less than an honorable discharge, you are entitled to a board.
Military Separation Basis
There are a number of basis upon which you may be processed for or separated outright from the military, including:
- minor misconduct,
- medial issues,
and in some cases, more serious misconduct that the government cannot successfully prosecute at a courts-martial.
Although the consequences of an administrative discharge are comparatively 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.
So, don’t be fooled into thinking it is “not as big a deal.” You have worked hard to be promoted and have invested much in your military career. With so much invested it makes sense to fight for your rights and put your best foot forward during the Ad Sep process.
The Ad Sep Process
The Ad Sep process begins either with Notification Processing or Board Processing which are the two roads to an administrative discharge. Most common is the processing under the Notification Process where the notification and the member’s response exist solely in the form of written materials. Alternatively, if a service member is entitled to have his or her case heard by an administrative discharge board, Board Processing method is used.
Administrative Discharge Hearing
A service member recommended for involuntary separation (in the Ad Sep process referred to as the Respondent) is afforded some “due process” in that they are entitled to a hearing by an administrative discharge board (made up of a panel of three members). This right to a hearing arises from the command’s pursuit of your service being characterized as Other Than Honorable (OTH). In addition to the OTH scenario there are other situations (varying somewhat between services) that may entitle the Respondent to a board hearing (e.g., rank, time in service, or specific types of alleged misconduct.)
The cast of characters at an administrative discharge board are as follows:
- Board made up of three members who must be senior in rank to the Respondent,
- Legal Advisor (typically an attorney),
- Defense Counsel (attorney), and a
Recorder (attorney), who serves as the “prosecutor” and represents the command.
The Ad Sep proceedings are administrative in nature, and the board is not required to follow the formal rules of evidence (with a few minor exceptions), which means it may consider information which might not be admissible at a court-martial. This leaves a lot of freedom for both the government and your defense attorneys to present all sorts of evidence and have wide latitude in making arguments on your behalf.
Typically, the attorneys assigned to both defend and prosecute you at an Ad Sep are the least experienced in the field of assignable Judge Advocates (the more experienced ones are working on the General and Special Courts-Martials). So, a less experienced defense counsel may not properly exploit all the opportunities to influence the board process by way of evidence and advocacy presented by a more experienced counsel.
Administrative Separation Rights
You have the right to:
- appear in person before the board, with or without counsel.
- challenge any voting member of the board for cause; that is, by showing that the member cannot render a fair and impartial decision.
- 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.
- request the attendance of witnesses at the hearing.
- submit any answers, depositions, sworn or un-sworn statements, affidavits, certificates, or stipulations.
question any witness who appears before the board, or have counsel question the witnesses on behalf of the Respondent
Once an Ad Sep begins, the three panel members considers all the evidence submitted, both for and against the Respondent (you).
When appointed to the panel the members are charged with two significant, independent mandates: determination as to whether the Respondent should be separated and a determination as to the proper characterization of the Respondent’s service Honorable, General, or Other than Honorable (OTH).
These two things are voted on by the panel members in a closed-session. The panel then votes 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.
Why You Need a Military Discharge Lawyer
While not equivalent to a misdemeanor or felony “conviction” that can be obtained if convicted at a courts-martial, an involuntary discharge from the military and anything less than a honorable characterization of that discharge will follow you for the rest of your life. It can impact things like future employment opportunities. Therefore, it is imperative that a military member facing administrative discharge is represented by a lawyer experienced in military law and discharge board litigation.
An involuntary administrative discharge action can have serious, long lasting consequences. An involuntary administrative separation not only ends a military career, it can terminate the military benefits and entitlements accrued over a career. The GI Bill is in jeopardy, it prevents the military member from retiring and can have a lasting stigma and impact on future civilian job searches and educational opportunities.
Given the possible consequences, an experienced and aggressive military discharge lawyer is crucial in an involuntary administrative discharge action, hearing or appeal.
If you’re currently AWOL or if there’s a desertion warrant out for you, time is not on your side. This is much different than administrative separation. If you believe you may be charged with UCMJ’s Failure to Report, contact Aden Wilkie today. Aden Wilkie is located in Jacksonville, NC and services armed forces at Camp Lejeune and Fort Bragg as well as other bases, camps, stations, and posts across the nation. Get in touch by calling 910-333-9626. Consultations are free and confidential.
The information contained here is meant for your education and a better understanding of the legal process and in no way should replace the personalized advice of an experienced criminal defense attorney. It is only after the attorney knows the particular facts of your case and matches those facts to the applicable law or regulations can you receive proper and helpful legal advice upon which you can meaningfully rely.