Administrative Separation Boards (ADSEP) or Discharge Boards are crucial components in the military justice system, ensuring that the conduct and performance of service members align with the standards and values of the United States military. This blog post will delve into the specifics of ADSEP and Discharge Boards, highlighting their governance, assembly, common reasons for discharge, the stakes involved, and tips on how to prepare for such proceedings.
Understanding ADSEP and Discharge Boards
Definition and Purpose
An Administrative Separation Board (ADSEP) or Discharge Board is a formal proceeding conducted to determine whether a service member (active duty, Reserve, or National Guard) should be separated from the military before their term of service is completed. The primary purposes of these board hearings is to maintain discipline, ensure the efficiency of the military, and uphold the standards of conduct expected from service members.
Boards have four primary decisions to make in the administrative separation process:
- First, was there is a “basis for discharge or separation.” In other words, is there enough evidence to establish that the service member committed misconduct or some act to justify discharge or separation?
- Second, should the member be discharged? Viewing the member’s entire military record, Boards determine whether the member, who committed an act justifying discharge or separation, should actually receive a military discharge.
- Third, if the member is discharged, what characterization of service should they receive? As explained below, a Board may impose an Honorable, Under Honorable Conditions (General), or Under Other Than Honorable Conditions (“OTH” or “UOTHC”) discharge.
- Finally, should the member be given an opportunity for probation and rehabilitation? In some cases, a Board may recommend a period of probation during which the member could prove their fitness to remain in the military.
In the case of an enlisted member, these proceedings are known as “ADSEP Board” or “Discharge Board.” In the case of an officer, these proceedings are known as a “Board of Inquiry.”
Governing Regulations
Each branch of the U.S. military has specific regulations governing ADSEP and Discharge Boards:
- Air Force: DAFI 36-3208
- Army: AR 635-200
- Marine Corps: MCO P1900.16F
- Navy: MILPERSMAN 1910-300
- Space Force: Governed by the same regulations as the Air Force (DAFI 36-3208), given its establishment as a branch under the Department of the Air Force
These regulations outline the procedures, grounds for separation, rights of the service member, and the composition of the board.
Board Assembly
An ADSEP or Discharge Board typically consists of:
- President: A senior officer who oversees the proceedings.
- Voting Members: Usually three members, including officers and sometimes enlisted personnel, depending on the rank of the service member being evaluated. The board members make findings and recommendations in the case.
- Recorder: An officer, often a judge advocate, who presents the case against the service member, similar to a prosecutor in a criminal case.
- Counsel for the Respondent: The service member may be represented by an appointed military attorney or civilian counsel at their own expense.
- Legal Advisor: A neutral and detached judge advocate who can answer any legal questions the Voting Members may have.
- Separation Authority: After the Board makes its findings and recommendations, the commanding officer with separation authority will take final action on the case.
The board reviews evidence, hears testimonies, and makes recommendations regarding the service member’s retention or separation.
Unlike a court-martial, where the Government’s case must be proven “beyond a reasonable doubt,” the standard of proof in a Board proceeding is a “preponderance of the evidence.” In other words, if it is more likely than not that you committed an act requiring separation, the Board can vote to discharge you.
Common Reasons for Discharge or Separation
Under military law, there are several reasons a service member might face an ADSEP or Discharge Board, including but not limited to:
Misconduct
Misconduct is a broad category that encompasses various infractions, such as:
- Violation of the Uniform Code of Military Justice (UCMJ): Includes serious offenses like assault, theft, and insubordination.
- Pattern of Misconduct: Repeated minor offenses that collectively demonstrate an inability to conform to military standards.
- Civilian Conviction: Being convicted of a civilian criminal offense.
Drug Abuse
The military maintains a zero-tolerance policy towards drug abuse. Any involvement with illegal substances, including possession, use, or distribution, can lead to an ADSEP or Discharge Board.
Unsatisfactory Performance
Service members who consistently fail to meet performance standards may be subject to separation. This includes:
- Failure to Qualify in Job Duties: Inability to perform assigned tasks or duties satisfactorily.
- Failure to Meet Physical Fitness Standards: Not meeting the physical requirements of military service.
Commission of a Serious Offense
This category includes serious violations that compromise the integrity and security of the military, such as:
- Sexual Assault
- Domestic Violence
- Sexual Harassment
The Stakes Involved in ADSEP or Discharge Boards
The outcome of an ADSEP or Discharge Board can have significant implications for a service member’s future, affecting their veterans’ benefits, military career, and reputation.
Loss of Benefits
One of the most critical aspects of an ADSEP or Discharge Board is the potential loss of benefits. These benefits can include:
- Military Career: Being discharged or separated involuntarily means the immediate end of your military career. For many military members, this alone is a devastating result.
- Retirement Benefits: Service members who are separated before completing the required years of service may lose their retirement benefits, which often amount in the hundreds of thousands or millions of dollars.
- VA Benefits: These include healthcare, disability compensation, and vocational rehabilitation for former members of the armed forces.
- GI Bill: Educational benefits provided to service members will be forfeited if they are discharged with anything less than an Honorable characterization of service.
Service Characterization and VA Benefit Entitlement
The characterization of a service member’s discharge plays a crucial role in determining their eligibility for benefits from the Department of Veterans Affairs. The types of discharge characterizations available for military personnel include:
- Honorable Discharge: Full access to all benefits, including VA benefits and the GI Bill.
- General Discharge (Under Honorable Conditions): Access to most VA benefits but may have some restrictions on educational benefits.
- Other Than Honorable (OTH) Discharge: Limited access to VA benefits; requires a review process to determine eligibility.
The characterization of the discharge depends on the nature of the offenses and the service member’s overall service record.
Preparing for an ADSEP or Discharge Board
Facing an ADSEP or Discharge Board is a serious matter that requires thorough preparation. It is essential that you work with an experienced and professional military lawyer to prepare for a Board. Here are three essential tips to help service members navigate this challenging process:
1. Understand Your Rights and the Process
Service members should familiarize themselves with the procedures of the ADSEP or Discharge Board, which generally protect your right to due process. The applicable procedures include:
- Notification of Separation: Service members must be notified in writing of the reasons for separation and their rights.
- Right to Counsel: Service members have the right to be represented by a military attorney at no cost or a civilian attorney at their own expense.
- Right to a Hearing: In most cases, service members are entitled to a hearing before the board.
- Right to Question Witnesses: If the Government is presenting a case against you, you have the right to question their witnesses and challenge their evidence.
- Right to Present Evidence: Perhaps most critically, any military member may present evidence in his or her defense, including statements and witnesses.
2. Gather and Present Evidence
Collecting and presenting evidence is critical to defending against separation. This can include:
- Character References: Letters from commanding officers, peers, and others who can attest to the service member’s character and performance may be submitted on the respondent’s own behalf.
- Service Records: Documentation of awards, commendations, and positive evaluations. These records can show that you should be retained in the military.
- Medical Records: If the separation is due to a medical condition, relevant medical documentation should be provided.
3. Obtain Quality Legal Representation
Having a knowledgeable and experienced military defense attorney is essential for navigating the complexities of an ADSEP or Discharge Board. A skilled attorney can:
- Provide Legal Advice: Explain the regulations and procedures, and offer strategic guidance.
- Prepare the Case: Assist in gathering and presenting evidence effectively.
- Advocate on Your Behalf: Represent the service member’s interests during the hearing and advocate for a favorable outcome.
- Appeal to the Discharge Review Board: If you are separated before the expiration of your term of service, an experience attorney can help you appeal to the Discharge Review Board for reinstatement or an upgrade to your service characterization.
In Summary
An ADSEP or Discharge Board is a critical proceeding that can significantly impact a service member’s future, including their benefits, career, and reputation. Understanding the process, gathering evidence, and obtaining quality legal representation are vital steps in preparing for such a board. If you or a loved one is facing an ADSEP or Discharge Board, it is essential to seek professional legal assistance to navigate this complex process effectively.
Speak to an Experienced Attorney
For more information or to schedule a free consultation, please contact The Military Defense Firm. Our experienced attorneys are here to help you through this challenging time and ensure that your rights are protected.