Administrative Separation from the Military
Enlisted servicemembers may be administratively separated from the service for a variety of reasons, but frequently the basis for separation includes an allegation of misconduct. An “allegation” of misconduct is sufficient for a command to initiate administrative separation processing. Unlike a court-martial, an administrative separation proceeding is an administrative hearing. Therefore, the rules of evidence do not apply and the burden of proof is only a “preponderance of the evidence” vice “beyond a reasonable doubt” as in a criminal trial.
An administrative separation board must make three determinations. First, the board must determine if the evidence substantiates the basis for separation. If so, then the board must determine if separation is warranted. If separation is appropriate, the board must determine what characterization of service is suitable based upon the offense and the servicemembers overall record.
An administrative separation board may award one of three “characterizations of service.” An “Honorable” characterization is appropriate when the overall quality of a military service meets acceptable standards of conduct and performance of duty. An Honorable discharge entitles the servicemember to all benefits authorized by law.
“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.”
A “General” (Under Honorable Conditions) characterization is appropriate when service has been honest and faithful, but significant negative aspects of a servicemember’s performance of duty or conduct outweigh the positive aspects. A General (under honorable conditions) characterization of service may deny the servicemember certain benefits, to include the use of G.I. Bill education benefits. Therefore, any contributions made by the servicemember toward their education benefits will be lost.
An “Under Other Than Honorable Conditions” (OTH) characterization is appropriate when the servicemember’s separation is based upon conduct constituting a significant departure from the conduct expected of military members. An OTH characterization essentially denies a servicemember of the benefits authorized by law, although the VA will make its own determination as to any potential VA benefits the servicemember may be entitled.
Given an administrative discharge proceeding is administrative in nature, combined with the potential loss of benefits, experienced counsel is essential to present the best evidence possible.
Facing an Administrative Separation?
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