Enlisted? What to Expect When Facing a Military Administrative Separation Board (ASB)
There may come a time in the life of a serving enlisted military member when he or she is being processed for an involuntarily discharge from the military. There can be many reasons (“bases”) why an administrative discharge may occur, and each are no doubt extraordinarily stressful. This is why it is highly recommended you come to your board well-prepared, to carefully read each word, and, sometimes, to bring a civilian military lawyer with you, who is not only knowledgeable about all the intricacies of military separation law, but is also skilled and has no reluctance in powerfully asserting your rights.
Administrative Separation Board (ASB)
When Do I Get an Administrative Separation Board?
You will be entitled to a board hearing, as opposed to merely submitting a paper rebuttal (1) if you have more than 6 years of active duty service or (2) if your command has notified you may receive an under “Other Than Honorable (OTH) Discharge.” You are automatically entitled to a board in such circumstances because the consequences of a OTH are severe. For instance, if you happen to receive a OTH you will be automatically reduced to E-1, and potentially also lose your future VA benefits and educational benefits.
Who Will Be on my ASB?
ASB’s are comprised of three active duty military members superior in rank to you. Specifically, two commissioned officers and one senior enlisted member. Notably, if you are a minority or a female, you can ask for a minority or female member.
Recent Trends in Sexual Harassment and Assault Allegations.
Department of Defense Instruction (DoDI) 1332.14 authorizes ASBs to address sexual harassment and sexual assault allegations. Often times, these kinds of ASBs do not hear testimony from any witnesses, to include the complaining witness. Counsel for the enlisted member must fight again such “paper cases” by using legal tools, like bills of particular, solid voir dire, and motions to bifurcate. Simply put, the onus must be put on the government to prove its case, and any ties weighs in favor of the accused. Your lawyer must understand the nuances of these arguments in order to be successful.
What Type of Evidence Typically Comes into an Administrative Separation Board?
First and foremost, “hearsay” is absolutely admissible. Unlike a court-martial, there is no right to confront your accuser in person. Even so, the government must still “convincingly prove” the allegations by a preponderance of the evidence. You can also call your own witnesses, and either make a sworn or unsworn statement; but you are required to say nothing, and if you chose to assert the US Constitution that fact cannot be used against you in any way. Finally, each military branch has its own set of regulations which provide you with due process related protections
Administrative Separation Board Regulations
- U.S. Army Regulation (AR) 635-200
- U.S. Navy MILPERSMAN 1910-233
- U.S. Air Force AFI 36-3208
- U.S. Coast Guard COMDINST M1000.4
“Terms” Commonly Used During Administrative Separation Boards
Although each military branch conducts its ASB’s differently (i.e.: Army Separation Fact Sheet). It is critically important to keep in mind that each branch of service has different “retention factors.” It is absolutely critical to understand what they are, in your case, and how to utilize the best strategies to achieve a successful outcome related to them. In any case, the enlisted member being considered for discharge is always called the “Respondent.” The government representative is termed the “Recorder.” The so-called “Notification of Separation Memorandum” is like a charge sheet, and its “bases” must describe the specific allegations being brought against you. Next, the possible “Characterizations” of discharge include Honorable, General and the OTH discharge.
Separation Board Prosecutions are Not Criminal
The prosecution of a military separation board works differently than from a normal court of civil law. Again, the ASB is made up of three different [non-lawyer] members that are all senior in rank to the Respondent. They will, however, rely upon an impartial “legal advisor” for guidance on questions of law.
What Exactly Are My Due Process at an Administrative Separation Board?
If you are currently facing a board, you possess 10 powerful legal rights which will help you, and your counsel, prepare for a great outcome.
10 Game Changing Legal Rights You Have When Facing a Military Separation Board
- Due process places the burden to produce evidence “solely” upon the government recorder. Thus, you get the benefit of the doubt. You do not need to produce any evidence. If you chose not to, it cannot be held against you.
- Your lawyer can file something called a “Bill of Particulars” demanding the government better explain which factual allegations it claims justifies your separation, which is effective in diminishing “surprises.”
- You have the right to request the board be “Bifurcated” if the “Notice of Separation” fails to recite allegations which the government want to offer. Simply put, the government is not allowed to put on any additional “unnoticed” evidence unless and until the underlying “bases” and “separation recommendation” have been met by a preponderance of the evidence.
- You have the right to appear to the separation board with or without legal counsel.
- If you choose to do so, you have the right to submit a statement on your own behalf as the Respondent whether it be oral or written.
- You have the right to testify on your own behalf.
- You have the right to request the appearance of witnesses in your favor at your board.
- Your lawyer has the absolute right to ask questions of the board members prior to the taking of any evidence to ensure that they can be fair and impartial. In other words, if it becomes clear that they may have unfair biases, they might be removed “for cause.”
- Your lawyer has the right to question and/or cross-examine any witness during the separation board hearing or have your lawyer question any witness on your behalf.
- You have the right to submit evidence on your behalf in the form of sworn or unsworn statements, depositions, affidavits, certificates, social media, and videos.
Civilian Military Defense Lawyer
Why a Military Defense Lawyer is Important When Facing a Military Separation Boards
While preparing yourself in advance when facing a military separation board by understanding your rights and collecting evidence and statements is helpful for any Respondent, there is no denying the simple fact that the very best thing you can do is get yourself a lawyer who is experienced in military law defense, particularly when it comes to separation boards and administrative discharge.
While you have every right to defend your case all on your own, as mentioned previously, it will be far more beneficial to you to have legal counsel on your side with experience in military law (court martial defense, board of inquiry, and more). This will greatly increase the odds of you coming out on the other side of the separation board.
Civilian Military Defense Lawyer
Why a Military Defense Lawyer is Important When Facing a Military Separation Board
While preparing yourself in advance, by understanding your rights, and collecting evidence and statements, is helpful for any Respondent, there is no denying the fact that the very best thing you can do is get yourself a lawyer who is experienced in military law.
While you have every right to defend your case all on your own, or with detailed military defense counsel, free of charge, it can be often far more beneficial to you to have legal counsel on your side with broad experience in military law (courts-martial defense, boards of inquiry, and more). While never a guarantee, extra fire power can effectively increase the odds of you coming out on the other side of the separation board.
Contact Court & Carpenter
One of America’s “Best Reviewed” Civilian Military Defense Firm*
At Court & Carpenter we have an experienced and aggressive military defense lawyer team that will do everything in our collective power to make your case airtight for success. Our team had a long and successful track record. Feel free to contact us online through our free consultation form or by calling us at 1-206-357-8434 so that we can get started on your case as soon as possible.
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