How Do You Fight Administrative Separation?
When you sign up for a military career, you expect to retire at the end of your enlistment contract. However, sometimes, a service member’s conduct, disciplinary issues, the convenience of the government, or medical issues may result in administrative separation. Administrative discharges, which are the military equivalent of being fired from a job, can cause a significant negative impact on your life and your future.
If you have been notified of a proposed separation or are facing administrative separation, speak with a legal advisor as soon as possible. An experienced military defense counsel can advise you on your rights as an active service member, represent you at an Administrative Separation Board, help gather witness statements and evidence to support your defense, and help prevent a military discharge.
At Cannon & Associates, we have significant experience helping service members fight against administrative separation. Our founder and managing attorney, John Cannon, is an active service member and Judge Advocate in the Oklahoma National Guard. He has experience defending soldiers through administrative discharge cases and in all areas of military law at Fort Sill, Tinker Air Force Base, and Vance Air Force Base.
Our priority is to defend your military service, protect your freedom, and secure your future. As your Fierce Advocates, our military defense attorneys will do everything in their power to ensure a favorable outcome in your case.
Call us today to schedule a free consultation with a Fort Sill military defense lawyer at 405-591-3935.
What is Administrative Separation?
Administrative separation or administrative discharge is when your military service prematurely ends voluntarily or because of disciplinary issues. A voluntary administrative discharge may happen if you have an illness or family issue that requires you to leave the military early.
However, involuntary administrative discharge action can occur because of disciplinary issues with a military member, administrative matters, or the convenience of the government. Some reasons for administrative discharge processing could include:
- Drug or alcohol abuse problems
- A pattern of minor misconduct
- Nonperformance of duties
- Entry-level performance and conduct
- Discharge instead of trial by a court martial
Separate from administrative discharge, military members may also be subject to punitive discharge by a court martial. Punitive discharges may arise after a dishonorable discharge or a bad conduct discharge ruling by a military court. Unlike administrative proceedings, punitive discharges can result in a criminal conviction and harsh penalties. Soldiers may opt for administrative discharge to avoid going through a criminal trial for misconduct, where possible.
Types of Administrative Separations in Oklahoma
There are three different types of administrative separations in Oklahoma, depending on the circumstances of your case. The type of administrative separation that you could face will rest on your conduct and performance during your time in service, your rank within the military, the length of time in service, and the nature of your conduct.
An Honorable Discharge is the highest discharge characterization level. This type of administrative discharge is for soldiers that have met the standards of acceptable conduct and performance of duty for military personnel. It is possible to reenlist after an Honorable Discharge.
General Discharge (Under Honorable Conditions)
A General Discharge may occur when a military member’s negative conduct outweighs the positive aspects of their conduct. This characterization of service can cause your GI Bill and education payments to be lost, in addition to other veterans’ benefits. Those who have been the subject of a General (Under Honorable Conditions) discharge will unlikely be able to reenlist in the military.
Other Than Honorable (OTH)
An Other Than Honorable (OTH) discharge is the most severe characterization of service discharge. This type of discharge is usually based on a pattern of behavior rather than one incident of misconduct. However, the Administrative Discharge Board and separation authority may decide to issue an OTH discharge characterization based on just one serious incident.
Generally, the pattern of behavior or acts must be a significant departure from the general conduct expected of a military member. Examples of acts or behaviors could include:
- Use of excessive force or violence which resulted in death or serious bodily injury
- Acts or omissions that endanger national security
- Abuse of a superior position or position of trust
- Deliberate omissions or acts that seriously endanger the safety of other people
In most cases, a military member that receives an Other Than Honorable discharge will be ineligible to reenlist in the military service. If you are facing an OTH administrative discharge, it is vital that you contact a military discharge lawyer to help you defend your case. An experienced lawyer can help get your case heard before an Administrative Discharge Board, represent your case, and help protect your future.
Administrative Separation Process
Most administrative discharges are dealt with through notification processing. This means that a military member is informed of an administrative discharge through writing, and does not go through a board. However, when a military member is entitled to a board hearing, they will go through board proceedings. You may be entitled to a board hearing if you are facing an Other Than Honorable (OTH) discharge or if you meet certain conditions.
An Administrative Separation Board comprises a Respondent, a Legal Advisor or Judge Advocate, and a Recorder (prosecutor). During the administrative separation process, the board will listen to both sides of the case and make a decision on separation and characterization of service. The hearing is based on administrative proceedings and does not have strict rules on evidence, so the board members may consider most types of evidence and motions submitted by all parties.
The separation authority will make a final decision on separation and characterization after all the evidence has been submitted, both against and in favor of the Respondent. To prove guilt, the recorder needs to show that the preponderance of evidence supports your guilt, and does not need to prove guilt beyond a reasonable doubt. The decision of the separation authority will be based on the recommendation of the Administrative Discharge Board.
Rights of Military Members
As a military member facing an administrative discharge, you have several rights that should be honored. These rights include:
- The right to appear before the Administrative Separation Board, with or without legal counsel
- The right to challenge voting members of the board for cause, by demonstrating that they are unable to render a fair and impartial decision
- The right to request witnesses to attend your hearing
- The right to submit written or oral submissions on your behalf, to be considered by the board
- The right to testify on your own behalf in front of board members
- The right to remain silent
- The right to examine evidence and question witnesses, or have your legal representative do this
- The right to submit depositions, a sworn or unsworn statement, affidavits, answers, certificates, or stipulations to the board hearing
To ensure that your rights are honored during an administrative separation board hearing, it is important to have a strong legal representative. In most cases, the Recorder and Judge Advocate will have significant experience with military law and they require little evidence to discharge you from your services. An experienced Fort Sill military discharge lawyer can help your case protecting your legal rights at all stages and ensuring that you receive a fair and just hearing.
How Can a Military Defense Attorney Help Me?
There are several reasons that you should consider hiring military defense counsel if you are facing administrative separation. First, the consequences of an involuntary administrative discharge action can be severe and have a major impact on your future. You will lose your job, be potentially left without income, and have to find an ordinary job to support your family.
Besides ending military careers, administrative separations can impact military benefits and entitlements. If you have served for a long time and have built up significant benefits, these could be seriously impacted. As administrative discharge is like being fired from a regular job, it can also have a significant negative impact on your future civilian job searches and opportunities in education. As such, military members may find it difficult to readjust to civilian life after an honorable discharge.
Because of the severe consequences of an administrative discharge, and the complexities required with military law and discharge board litigation, you will need to hire a military defense lawyer to represent your case. They can help you by building a powerful defense against your administrative separation case, helping you submit written matters for consideration by the Administrative Separation or Discharge Review Board, guiding you through the administrative proceeding, representing you throughout the proceedings, and filing an appeal on your behalf if necessary.
An experienced Fort Sill military defense attorney will help ensure that you are well advised on military law and the consequences surrounding your case and ensure that you get a favorable outcome in your board hearing.
How Do You Fight Administrative Separation?
Although an administrative separation is not the same as receiving a criminal conviction from a court-martial, the consequences of being discharged can be extreme. You could be discharged from service, lose your post-service benefits, experience social ostracization, and face difficulties with future civilian job searches and education.
When you come up against an Administrative Separation Board, it is essential that you have an experienced military defense attorney by your side. Just because you have been brought before a board hearing for administrative separation, it does not mean that you are guilty. A military defense lawyer will ensure that you receive a fair hearing and help ensure that you are found innocent of any misconduct and not discharged from service.
At Cannon & Associates, our Fort Hill military defense lawyers are ready to help you fight against an administrative separation and ensure that your legal rights are protected. John Cannon is an active service member and Judge Advocate in the Oklahoma National Guard. He has a deep understanding of administrative separation issues, and he can help protect your rights and presumption of innocence.
John Cannon has experience helping military members with cases throughout Fort Sill, Tinker Air Force Base, and Vance Air Force Base. Our priority is ensuring that your future is protected and that you get a fair hearing.
Call us today at 405-591-3935 to schedule a free consultation with one of our Fort Sill military defense lawyers.
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