ENLISTED SEPARATIONS MILITARY DEFENSE
As an enlisted service member in any branch of the military, there are multitude of potential basis for separation you may face. Being separated from the military and the characterization of service you receive when separated from the military can and will have lasting effects on your employment opportunities, retirement and Department of Veterans Affairs benefits, finances, and potentially confinement. All this is to say, it is essential that you obtain competent and zealous representation as soon as you are aware you are facing potential criminal charges or separation. Each branch of the military has regulations that dictate the basis, procedure, and due process involved for each type of separation from Court-Martial to retirement. This discussion will focus on Army Regulations for simplicity, but it is important to note the listed processes may not mirror your branch of service. Army Regulation 635-200, Active Duty Enlisted Administrative Separations, is the basis for separating enlisted soldiers from the Army. These processes may be command or soldier driven. The following grounds for separation, “Chapters”, are the most common in the Army.
Chapter Separations in Army
Chapter 5 – For the Convenience of the Government: Chapter 5 separations can be voluntary or involuntary and soldiers must be familiar with their due process rights. The grounds for Chapter 5 discharges are limitless, including, but not limited to: Surviving Sons and Daughters (para. 5-4); Parenting issues (para. 5-8); Unlawful Aliens (para. 5-10); Failure to Qualify Medically (para. 5-12); Personality Disorder (para. 5-13); Concealment of Arrest Record (para. 5-14); and Further Education (para. 5-16). In involuntary separation proceedings under Chapter 5, experienced military defense counsel will ensure the government meets their burden and your statement or rebuttal presents the relevant issues in the best light possible for your defense. In voluntary separations, experienced military defense counsel will ensure proper procedures are followed and you receive your maximum benefits.
Chapter 6 – Dependency & Hardship: Chapter 6 separations are for the convenience of the government and is an avenue to seek separation due to a Dependency or Hardship issue in the soldier’s personal life. Upon meeting the criteria, evidence, and procedures established in paragraphs 6-4 through 6-8, a soldier is entitled to separation; however, complying with the stringent requirements and convincing command of this right requires retaining experienced military defense counsel to advocate for your requested separation.
Chapter 7 – Defective Enlistment, Reenlistment and Extensions: This chapter concerns soldiers enlisted before the age of 18. Families with children who enlisted before reaching 18 years of age should obtain experienced counsel to assist them in working through this process.
Chapter 8 – Voluntary Separation of Enlisted Women for Pregnancy: This chapter concerns voluntary separation due to pregnancy. The process can result in a characterization fo service and it is important to have experienced counsel assist you through this process.
Chapter 9 – Alcohol and Drug Abuse Rehabilitation Failure: Soldiers with six or more years of active and reserve service are entitled to a board and soldiers with less time are entitled to submit a written rebuttal to their separation proceeding. It is crucial to retain experienced military defense counsel to assist you in preparing and presenting your hearing or rebuttal to being separated under this chapter.
Chapter 11 – Entry Level Performance and Conduct: The grounds for this type of separation is unsatisfactory performance or minor disciplinary infractions. This type of discharge is only applicable within your first 180 days of active duty service. The grounds or criteria for this separation are found in paragraph 11-2, as follows: Unsatisfactory performance and/or conduct evidenced by (a) inability; (b) lack of reasonable effort; (c) failure to adapt to military environment; (d) minor disciplinary infractions. You are entitled to counsel and the opportunity to respond or rebut your separation during this process. You should seek experienced military defense counsel to assist you in your response and advocating on your behalf with your command.
Chapter 13 – Unsatisfactory Performance: The grounds for this type of separation is simply unsatisfactory performance, just like the title; however, the criteria in paragraph 13-2: an untrainable soldier or a disruptive influence can be rebutted. You should seek experienced military defense counsel to assist you in your response and advocating on your behalf with your command.
Chapter 14 – Misconduct: The grounds for a misconduct discharge are broad and include a conviction by a civil or foreign court as well as patterns of misconduct. The criteria is found at paragraph 14-12 as states: “Discreditable conduct and conduct prejudicial to good order and discipline including conduct violating the accepted standards of personal conduct found in the UCMJ, Army regulations, the civil law, and time-honored customs and traditions of the Army.” You are entitled to counsel and the opportunity to respond or rebut your separation during this process. You should seek experienced military defense counsel to assist you in your response and advocating on your behalf with your command.
Chapter 10 – Discharge in Lieu of Trial by Courts-Martial: An avenue soldiers may exercise to resolve a military criminal matter or punitive matter pending in a courts-martial, following preferral or referral of charges.Soldiers may request a Chapter 10 Discharge in Lieu of Trial by Courts-Martial, but should obtain representation to assist in the process to ensure their rights are protected and they understand the forfeiture they are offering the government. The criteria for a Chapter 10, found at paragraph 10-1, only require the service member is pending a courts-martial with an offense punishable by a Bad Conduct Discharge (“BCD”) or Dishonorable Discharge. It is essential to have experienced counsel in a situation where a service member is considering offering a Chapter 10 discharge as he/she is facing a courts-martial proceeding with prison/confinement, financial consequences, future employment considerations, and other issues are on the line.
Consequences of Separation from the Military
You are entitled to a defense and you need one, if you are facing an involuntary separation or you are seeking a voluntary separation. CANNON & ASSOCIATES can assist you and ensure your rights are protected and the proper procedure is followed in your military justice case. You are entitled to the following at the very least in any separation action:
- Notice of the specific separation action
- Basis of your separation action
- Notice of the least favorable characterization of discharge you can receive
- Notice of the characterization of service your commander recommends
- Right to speak to a military defense attorney
- Right to submit matters and evidence on your behalf
- Right to request a board and counsel to represent you in a number of these Chapters
- Right to administrative board, if your commander is recommending an Other than Honorable (“OTH”); Bad Conduct Discarge (“BCD”); or Dishonorable Discharge
- Right to an administrative board, if you have more than 6 years of qualifying service
- Right to submit a conditional waiver (military justice version of an offer/plea agreement)
- Right to request witnesses on your behalf
Know your Options, if Faced with a Separation or other Military Justice Action
It is important to know your rights and retain an experienced military defense attorney, if facing any military justice action, including separation proceedings whether enlisted or commissioned. The fact your command has initiated a military justice action or separation does not mean you are guilty, nor does it mean you will be separated. You have rights and your attorney will ensure they are protected.
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John Cannon is a Fierce Advocate for every client and will use his experience and respected reputation to do everything possible to reach the best possible outcome in your military justice action. John has years of experience as a Judge Advocate, both as trial counsel and trial defense counsel; exhibited by, John being recognized as a Top 40 under 40 in Criminal Defense by the National Trial Lawyers Association. Additionally, he has an outstanding record of reaching the best possible outcome for hundreds of clients accused of the wide variety of military justice and separation actions, evidenced by receiving the highest possible AVVO rating – 10 (superb). Contact CANNON & ASSOCIATES today.
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