Administrative Separation from the Military

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Facing an Administrative Separation (ADSEP) Board in California: Military Law Center Can Help.

Facing an Administrative Separation (ADSEP) Board in California can be a daunting and stressful experience for any service member. This process, also known as an “administrative separation hearing,” determines whether you will be separated from active duty. Understanding the process, your rights, and the potential consequences is crucial to navigating this challenging situation effectively.

What is an ADSEP Board?

An ADSEP Board is not a court-martial. It is an employment hearing designed to answer three key questions:

Is there a basis to separate the service member?
Should the service member be retained or separated from military service?
If separation is recommended, what characterization of service has the service member earned for their current enlistment?

The Department of Defense Instruction 1332.14 outlines the Department’s policy for enlisted administrative hearings. Each service branch (Marine Corps, Navy, Army, Air Force, and Space Force) has its own policies and procedures based on this guidance.

What is a No-Board ADSEP?

For service members with less than six years of service, an ADSEP Board may not be necessary. In such cases, they may receive a notice of separation without a hearing, known as a no-board ADSEP. This typically involves separation with a general discharge (under honorable conditions) due to an allegation of misconduct, serious offense, or other reason for ending the service agreement early.

Who Can Initiate an Administrative Separation?

Not every commanding officer has the authority to initiate separation proceedings. Typically, officers with the rank of O-5 (Lieutenant Colonel) or higher, or those with delegated authority, can start an ADSEP. However, the final decision to retain or separate a service member rests with the separating authority, often a general in the service member’s chain of command.

Why Might the Military Separate a Service Member?

There can be several reasons why the military might choose to separate a service member through an ADSEP Board. Some common reasons include:

Misconduct:
This can encompass a wide range of behaviors, including minor disciplinary infractions, patterns of misconduct, or committing a serious offense.
Failing to uphold service values:
The military expects its members to demonstrate integrity, honor, and loyalty. Service members who engage in actions that contradict these values may face separation proceedings.
Civilian convictions:
Serious criminal offenses or other legal issues can lead to an ADSEP, particularly if they raise concerns about a service member’s suitability for continued service.
Medical reasons:
In some cases, physical or mental health conditions may make it impossible for a service member to perform their duties effectively.

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Civilian Military Attorney, Gary S. Barthel, Founder - Military Law Center

“Ten months ago I was wrongfully accused of conspiring with other students to violate the command’s Academic Honor Code at the Surface Warfare Medical Institute here in San Diego, CA. In addition, I was accused of Obstructing Justice. Pretty serious allegations. I retained Gary Barthel’s services after being notified by my command that they were going to administratively separate me for misconduct. He immediately went to work on my behalf. His diligence and unquestionable expertise in preparation for my Administrative Separation Board resulted in a unanimous vote of no misconduct. No basis for separation! Having never been involved in a legal proceeding before, I had many doubts over the course of those long ten months leading up to the board. My case in particular seemed complicated, to me that is. But once the board started and the first witness was called, I knew I was in good hands. For fourteen hours I watched Mr. Barthel finesse his way through a complicated case with ease! From the timing of specific witnesses to keeping the board members educated and engaged… the poor JAG representing the government never stood a chance. If you’re wrongfully accused of criminal activity, you want Mr. Barthel in your corner. If your Military career is on the line, you want Mr. Barthel in your corner. For fourteen long hours Mr. Barthel owned the room… I cannot stress it enough that this is the man you want in your corner.” – Dean G.

Where Do ADSEP Boards Take Place?

ADSEP Boards can be conducted anywhere, as long as the military command ensures that the service member’s procedural and substantive due process rights are protected. This typically occurs in a courtroom, modified courtroom, or conference room equipped for both sides to present their cases. The ability to call witnesses in person, telephonically, or via video call should also be available.

What Rights Do Service Members Have at an ADSEP Board?

Service members have a crucial set of rights at an ADSEP Board, including:

The right to be notified of the basis for proposed separation, including the circumstances and reference to relevant regulations.
The right to be informed of potential consequences, such as discharge, release from active duty, or other forms of separation.
The right to know the least favorable characterization of service possible for the proposed separation.
The right to consult with counsel: This can be a military attorney appointed by the convening authority or a military attorney of their own choice, subject to availability and regulations.
The right to obtain copies of documents that will be forwarded to the separation authority in support of the proposed separation, excluding classified documents which may be summarized.
The right to request a hearing before an administrative board.
The right to present written statements instead of participating in board proceedings.
The right to representation at the hearing by either:
- Military counsel appointed by the convening authority
- Military counsel of their choice, if reasonably available
- Civilian counsel at their own expense
The right to remain silent under Article 31(b) of the Uniform Code of Military Justice (UCMJ). This grants them the right to not make any statements that could be used against them.
The right to a fair process under the Fifth Amendment of the U.S. Constitution. This includes the right to a fair hearing, impartial tribunal, and the right to cross-examine witnesses called by the government who are presenting evidence against them.

What Rights Do Service Members Have During a No-Board ADSEP Case?

While service members with less than six years of service facing a no-board ADSEP have fewer rights than those facing an ADSEP Board, they still have some crucial protections:

The right to remain silent:
This allows them to decline to answer questions that could potentially incriminate them.

The right to submit a written rebuttal:
This window for rebuttal is typically short (3-7 days), so seeking legal counsel promptly is crucial. The rebuttal allows them to contest the allegations or propose mitigating factors for a more favorable discharge characterization.

The right to consult with counsel:
Although not guaranteed legal representation, they can seek guidance and advice from a military attorney or their own civilian attorney (at their own expense) to understand their rights and navigate the process.

Civilian Military Defense Attorney, Kevin M. Courtney

“Kevin is one of the most effective attorneys I’ve seen. He’s a creative problem solver, always professional, and gets top results. Not a plea pusher, he advocates for his clients and is not afraid to call out the government for their shortcomings. He left active duty service with one of the most impressive records at court-martial and is an invaluable asset for the team. Highly communicative, he is always available for a call and can explain the issues and options in a way that is easily understandable.” – Client

The Potential Cost of an ADSEP Board:

While there are no direct financial costs associated with an ADSEP Board, the potential consequences of an unfavorable outcome can be significant:

Loss of benefits:
An unfavorable discharge (other than honorable or general under honorable conditions) can result in the loss of valuable benefits, such as:

GI Bill education benefits
VA home loan eligibility
VA healthcare
Preference in federal employment

Impact on future employment:
An unfavorable discharge can make it more challenging to secure civilian employment, particularly in fields that require security clearances or place a high value on character and military service.

Therefore, seeking legal representation from an experienced military attorney can be crucial to protect your rights and ensure the best possible outcome during an ADSEP Board.

Types of Issues Handled at Administrative Separation Hearings:

The range of issues that can be addressed at an ADSEP Board is broadly categorized as follows:

Minor infractions:
Examples include minor disciplinary issues, such as repeated tardiness or minor dress code violations.

Misconduct patterns:
A series of disciplinary infractions, even if minor individually, can raise concerns about character and warrant separation proceedings.

Serious offenses:
Offenses like theft, assault, drug use, or other major violations of the UCMJ or civilian law can lead to an ADSEP Board and potentially more severe consequences.

Civilian convictions:
A criminal conviction, even if not directly related to military service, can be grounds for separation if it raises concerns about the service member’s suitability for continued service.

Failure to meet military standards:
This can include failing to meet fitness standards, failing to qualify for promotion, or demonstrating a lack of leadership or other qualities considered essential for continued service.

Mandatory Processing Cases:

Certain categories of offenses require mandatory processing through an ADSEP Board, meaning the service member will always have a hearing regardless of their length of service. These cases typically involve allegations of:

Domestic violence
Sexual assault or harassment
Drug abuse

Can Witnesses Be Called at an ADSEP Board?

Both sides can present witnesses at an ADSEP Board to support their respective cases. This can include:

Fact witnesses:
Individuals with firsthand knowledge of the events or circumstances surrounding the allegations.
Character witnesses:
Individuals who can speak to the service member’s overall character, performance, and reputation.

It’s important to note that witnesses must be personally available to testify or provide a sworn written statement for their testimony to be considered by the Board.

What Evidence Can be Presented at an ADSEP Board?

Both the government and the service member can present relevant evidence at an ADSEP Board. This may include:

Military documentation:
This could include performance evaluations, disciplinary records, medical records, and personnel files.
Witness testimony:
As mentioned earlier, both sides can call witnesses to offer their accounts of events.
Physical evidence:
This could include items like drugs, weapons, or other confiscated materials directly related to the allegations.
Electronic evidence:
This could include emails, text messages, social media posts, or other digital data relevant to the case.

Do the Rules of Evidence Apply at an ADSEP Boards?

No, the formal rules of evidence used in criminal courts do not apply to ADSEP Boards. However, certain legal privileges still hold weight, such as attorney-client privilege, spousal privilege, and the right against self-incrimination. This means that certain types of protected information cannot be used as evidence during the hearing.
What is the Burden of Proof at an ADSEP Board?

The burden of proof at an ADSEP Board is lower than in criminal court. The government, also known as the moving part, must prove their case by a preponderance of the evidence. This means they must show that it is more likely than not that the service member committed the alleged misconduct or otherwise warrants separation. This is a less stringent standard compared to the “beyond a reasonable doubt” requirement in criminal court proceedings.
Possible Outcomes at an ADSEP Board:

There are three possible outcomes following an ADSEP Board:

“No Basis” for Separation:
If the Board finds insufficient evidence or determines that no regulation was violated, it can recommend retaining the service member without a discharge.

Retention Despite a Finding of Basis:
The Board may find misconduct or other grounds for separation, but still recommend retaining the service member with potential consequences like a reduction in rank or loss of security clearance.

Separation with a Discharge:
The Board may recommend separation with one of the following discharge characterizations:

Honorable: This signifies exemplary service and is the most desirable outcome.
General (Under Honorable Conditions): This indicates satisfactory service but falls short of honorable.
Other Than Honorable (OTH): This suggests substandard performance or misconduct.
Dishonorable: This is the most severe discharge and is typically reserved for the most serious offenses, such as desertion or treason.

Appeals Process:

While there are limited options for appealing the outcome of an ADSEP Board, it’s crucial to seek legal guidance to explore all possibilities. These may include:

Requesting reconsideration:
This involves submitting a request to the separation authority asking them to review the Board’s decision and reconsider the case.
Board of Review:
A higher-level board can review the case and recommend changes to the discharge characterization. However, this is only available in certain circumstances, such as claims of legal errors or procedural irregularities.
Secretary of the Service:
The service member can petition the Secretary of their respective military branch (e.g., Secretary of the Army) to review the case and consider a change to the discharge characterization.
Federal courts:
In rare situations, service members may have the right to challenge the Board’s decision in federal court on legal grounds.

It’s important to keep in mind that navigating the appeals process can be complex and requires a thorough understanding of military regulations and legal procedures. Consulting with an experienced military attorney can be invaluable in exploring these options and determining the most effective course of action.

Can Civilian Attorneys Represent Service Members at ADSEP Boards?

Yes, civilian attorneys can represent service members at ADSEP Boards. While military attorneys appointed by the convening authority are readily available, having the option to choose qualified civilian legal counsel can be beneficial. Civilian attorneys may offer:

Specialized expertise:
They may have specific experience representing service members in ADSEP Boards or related areas of military law.
Fresh perspective:
As outsiders to the military system, they may offer a different perspective and challenge assumptions made by the government.
Additional resources:
They may have access to resources beyond those available to military attorneys, allowing for a more comprehensive defense.

Upgrading a Discharge:

While an ADSEP Board outcome isn’t always set in stone, veterans can seek an upgrade of their discharge under certain conditions. This process typically involves:

Submitting an application to the appropriate discharge review board.
Providing substantial evidence to demonstrate that the original discharge was unjust or unfair, such as newly discovered evidence, procedural errors, or significant mitigating factors not previously considered.

The process for upgrading a discharge can be lengthy and complex, and it’s highly recommended to seek legal counsel from an experienced military law attorney to maximize the chances of a successful outcome.

Facing an ADSEP Board in California can be a challenging and stressful experience for any service member. It’s essential to understand your rights, the potential consequences, and the legal options available. Seeking legal guidance from an experienced military law attorney is crucial to ensure proper representation, explore all available options, and navigate the process effectively. By being fully informed and taking proactive steps, you can increase your chances of a successful outcome and protect your future after service.

Make sure that you get the right help from a qualified Administrative Separation Defense Attorney, in San Diego or Worldwide, built to support your needs. Military Law Center Is Ready to Help You – Right Now. Military Law Center will aggressively advise and defend you – Know Your Military Legal Rights.