San Diego Military Administrative Separation Lawyer
Non-Judicial Military Administrative Separation in San Diego
Administrative separation is the involuntary separation process of an enlisted service member by their command. If you or a loved one are currently serving on active duty and have been informed in writing by your command that you will be subjected to an administrative separation hearing this means that your command is trying to fire you. Unlike with a civilian job, if the military fires you in addition to losing your pay check, you may be faced with the loss of military housing and veteran benefits. Do not let this happen to you and your family, together you have already sacrificed so much and deserve to keep your benefits. You need a military criminal defense attorney who understands administrative separation proceedings and can prepare the best defense in your case.
AdSep v. Court Martial
Unlike court martial proceedings that try service members charged with offenses against military law, administrative separation is a non-judicial process for handling service members’ misconduct. In administrative separation, the only determinations to be made are whether or not a service member should remain in the U.S. armed forces or be separated and if separated which characterization of service to give. It is important to note that a service member in administrative separation proceedings cannot receive a bad conduct discharge. Whereas in court martial proceedings, service members can receive a bad conduct discharge, be sent to the brig, forfeit their pay, put on restriction, or receive a demotion of rank.
Purpose of Administrative Separation
Whether you are a service member enlisted in the Marine Corps, Navy, Army, Air Force, or Coast Guard, administrative separation serves to promote the readiness of the U.S. armed forces by providing your command with an orderly means to:
Evaluate your suitability to serve based on your ability to meet conduct, disciplinary and performance standards;
Maintain these standards through the characterization of service;
Achieve authorized force levels and grade distributions to provide an orderly means of discharge.
Service Members’ Rights in an Administrative Separation
Every service member enlisted in one of the five branches of services and facing administrative separation has a right the following:
Consult with a military lawyer, civil lawyer or both;
Request an administrative separation board hearing;
Receive a copy of the evidence submitted by their command to the separation authority;
Submit documentation for consideration as rebuttal evidence to the separation authority;
Provide witnesses to testify on the service member’s behalf;
Testify on their own behalf; and
Cross-examine the witnesses appearing before the board.
Basis for Administrative Separation
A commanding officer may recommend administrative separation for an enlisted service member for misconduct under the Military Personnel Manual. This misconduct is the basis for the involuntary separation of the service member by the separation authority. The most common reasons that service members end up before an administrative separation board is because of failure to perform their duties, poor performance of their duties, substance abuse, physical fitness assessment failure, insubordination, and patterns of misconduct.
Unexcused absences from scheduled training
Failure to satisfactorily complete annual training
Failure to report for a physical examination
Failure to report pertinent mobilization information to commanding officer
Failure to respond to official documentation
Illegal or wrongful use or possession of a controlled substance or prescription medication.
Positive urinalysis must be tested and confirmed by a Department of Defense approved lab.
The sale, transfer, or possession with the intent to sell or transfer controlled substances.
Physical Fitness Assessment Failure
Failure to achieve prescribed physical readiness standards in three physical fitness assessments.
Pattern of Misconduct
Having two or more non-judicial punishments, courts-martial or civil convictions.
Having three or more unauthorized absences.
A set pattern of failure to pay debts or contribute adequate support to dependents.
Failure to comply with civil court orders, decrees, or judgments concerning dependent support.
Administrative Separation Process
An administrative separation is the process required for the involuntary separation of a service member with more than six years of service or when the commanding officer is requesting an other than honorable characterization of separation for the service member. The commanding officer must bring forth the claim of service member’s misconduct to the separation authority, the administrative separation board. Next, you will receive a notification letter from your command informing you that you are being processed for administrative separation. The letter will include the basis for the separation recommendation, any evidence of misconduct against you, and a copy of your service record book.
Administrative Separation Board
The administrative separation board is made up of three military service members that are responsible for hearing the commanding officer’s allegations against the service member and reviewing the evidence to decide if misconduct occurred. The commanding officer will be required to present evidence of the service member’s misconduct. Generally, this evidence consists of a military record showing non-judicial punishments, negative evaluations, or letters of reprimand. Preponderance of the evidence is the subjective standard that the administrative separation board is held to in making the determination. This means that if the administrative board finds that the evidence of the service member’s misconduct is 51% or greater, they will recommend separation and service member will not be allowed to stay in service. Once the administrative separation board has decided the service member should be separated, they will have to recommend the characterization of separation.
Retention v. Separation
Retention is an enlisted service member’s continued military service. Separation is the involuntary discharge of a service member before their term of service is completed. Ultimately, the decision whether to retain or proceed with the involuntary separation of an enlisted service member lies with the administrative separations board. In order to make this determination at an administrative separation proceeding, the administrative separation board will consider the following factors in your case:
- Your military record;
- The seriousness of the circumstances forming the basis;
- The chances of recurrence of the circumstances forming the basis;
- Your rehabilitative potential for retention;
- Your ability to perform your military duties effectively now and in the future; and
- The effects of retention on fellow service members’ discipline, order and moral.
Characterization of Service
Characterization of service is the quality of an enlisted service member’s service in the military and in the civilian community. The separating authority will look at the service members’ personal conduct and performance of military duty to determine the quality of service at the time of separation. For enlisted service members who are processed for involuntary separation with less than 180 days of continuous military service, there will be no character of service. Instead, these service members are separated as Entry Level Separation. For any enlisted service member with at least 180 days or continuous military service, there are three characterizations of services that an administrative separation board can choose from for involuntary separation proceedings.
Service member has generally met the standards of acceptable conduct and performance of duty for the U.S. Armed Forces. As a result, the service member is eligible for all veteran benefits:
- VA health care
- VA travel benefits
- Military retirement
- G.I. Bill education
- Disability compensation
- Vocational rehabilitation
- Burial benefits
Service member had significant negative conduct or performance to outweigh the positive aspects of his record. As a result, the service member may not be eligible for the following benefits:
- Enlistment into another branch of service
- G.I. Bill Education
Other than Honorable
Service member’s conduct was a significant departure from the conduct that is expected of the U.S. Armed Forces. These include omissions or deliberate acts that endangered others’ welfare, the abuse of a position of trust or using force or violence to cause serious bodily injury or death. Under other than honorable characterization of service, the service member will not be eligible for the G.I. education bill. However, the service member may still be eligible for the other veteran services, if the Department of Veterans Affairs determines that for its purposes the discharge was not under dishonorable conditions. Also, it is important to point out that once you are in the civilian world having an OTH service characterization will make it difficult for you to find employment. Do not risk everything that you have worked so hard to build, contact Monder Law Group today!
Best Defense for Combating Administrative Separation in San Diego
If you are a military service member currently facing an administrative separation, you need to request a hearing before an administrative separation board in order to attack the allegations of misconduct against you. A lot of times service members waive the administrative separation board hearing because they are in a hurry to get out of military service, do not have the time or the resources to prepare for the hearing, or have been told at the legal clinic on base that their conduct does not stand a chance under review.
Please know that none of these are valid reasons to waive your right to an administrative separation. The consequences of an administrative separation are devastating to both you and your loved ones, you need to meet with an experienced civilian attorney to make an informed decision.
At Monder Law Group, we understand completely what is at stake during the administrative separation process and that is why we offer our military service members and their families a free consultation to review your case and inform you of the options you have available to you. As a civilian lawyer experienced in administrative military proceedings, Attorney Monder knows what evidence to look for in your case in order to mitigate the circumstances and what witnesses to bring forth to strengthen your defense. Attorney Monder will put all of his firm’s resources to work for you.
First, his mitigation specialist will help put together statements from your supervisors, coworkers, family member and friends attesting to your good character. Next, he will have his military specialist review your service record, noting any honors, awards, schools, or certificates that will demonstrate the character of your service. Attorney Monder will then review his team’s findings, the allegations of misconduct against you, and the Military Personnel Manual in order to prepare to cross-examine the witnesses against you. At Monder Law, our legal team of experts will fight aggressively to defend you and your family’s interests!
If you or a loved one are members of the military requiring private criminal defense for representation before a military court-martial or in an administrative separation process, contact Military Attorney Vik Monder today at (619)405-0063.