Administrative Seperation Rebuttals

What is an Administrative Separation?

Administrative Separations are the means by which the military fires a service member before the expiration of their contracted term of service.  Commander’s use administrative separations as a means to eliminate subpar service members from their ranks, and to “get rid” of those who are perceived as “problems.”  The administrative separation is also used to remove service members early who may later develop into much larger legal issues such as a court-martial.

If you have served less than 6 years on Active Duty, you are not entitled to an Administrative Separation Board if the character of service is Honorable or General under Honorable Conditions.  These administrative separations utilize the “Notification Procedure.”  The Notification Procedure does not require a Board Hearing, but rather accomplishes the involuntary separation of the service member with a “paper file” only.

How is an Administrative Separation using Notification Procedures Initiated?

The Notification Procedure is initiated by the unit commander.  The initiating commander notifies the service member that they are considering separation based on certain conditions, usually misconduct, and that they are recommending either an Honorable or General Discharge.  Other components of the notification to the service member includes the least favorable characterization of service one could receive, that the intermediate commander is not bound by the initiating commander’s recommendation, and that the separating commander is not bound by subordinate commander’s recommendations.

Each branch of service has their own regulation governing administrative separations, including the Notification Procedure.  The National Guard and Reserve Component have their own regulations governing administrative separations.  The Active Duty regulations include the following:

• Air Force – AFI 36-3208 (Administrative Separation of Airmen)
• Army – AR 635-200 (Active Duty Enlisted Administrative Separations)
• Coast Guard – COMDTINST M1000.4 (Military Separations)
• Marine Corps – MCO 1900.16 (MARCORSEPMAN)
• Navy – NAVPERS 15560D MILPERSMAN

The military defense lawyers at the Law Office of Will M. Helixon have assisted service members throughout Europe and Germany contest unwarranted and unfair administrative separations utilizing the Notification Procedure.  We have prepared written rebuttals to Notification Procedures written directly to the approval authority commander laying out the reasons and justifications for retention of the service member in the military.

What are the Service Member’s Rights under the Notification Procedure?

Despite not being entitled to an Administrative Separation Board, service members receiving notice of separation utilizing the Notification Procedure are still afforded several significant rights.  These rights include the following:

• The right to a detailed military lawyer
• The right to hire a civilian military lawyer
• Copies of the evidence supporting the administrative separation
• The right to submit statements on one’s own behalf
• The right to present matters to the approving authority commander
• A reasonable amount of time to respond to the proposed separation
• The right to request additional time to respond (discretionary)

If a service member chooses not to respond to the proposed separation, or fails to file a rebuttal to the proposed separation, such rights are deemed waived.  This is why is it critically important to contact a military defense lawyer at the Law Office of Will M. Helixon as soon as notification of separation is served on the service member.

How Do I File a Rebuttal to an Administrative Separation using Notification Procedures?

One of the rights of a service member when notified of administrative separation using the Notification Procedure above is to rebut the matters in the separation packet, and provide a written statement on their own behalf.  Generally, a rebuttal to an administrative separation using Notification procedures should, at a minimum, include the following sections:  1) A legal analysis of the justification for the pending separation, 2) A factual rebuttal to the allegations contained in the notification procedure administrative separation packet, 3) Additional information and statements not included in the original notification procedure packet, 4) a statement of the service member detailing justifications for the underlying conduct or misconduct, and expressing the desire to continue serving in the military, and 5) letters of support (character letters) indicating that the service member should be retained in the military.

If the initiating commander submits additional matters or information is to the notification procedure packet after the service member submits their rebuttal, then the service member should be permitted to rebut the new information before it is forwarded to the intermediate commander and the approving commander.

If the service member does not submit a rebuttal to the Notification Procedure administrative separation packet, it is all but guaranteed that they will be separated with the characterization of serviced recommended by the initiating commander.  The greatest chance to be retained or receive an Honorable Discharge is to submit a fully prepared, professional, and organized rebuttal to the Notification Procedure administrative separation packet.  This can be achieved by convincing the approval authority commander to take favorable action on behalf of the service member on the proposed separation.

What Actions Can the Approval Authority or Separation Authority Take?

First, the approval authority or separation authority must evaluate the evidence contained in the Notification Procedure administrative separation packet to determine if there is sufficient evidence contained therein to warrant a separation of the service member.  If there is sufficient evidence, then the separation authority must consider the rebuttal materials submitted by the service member to determine if such a basis for separation still exists.  If not, the separation authority can disapprove the administrative separation.  If after considering the rebuttal information, the separation authority still believes there is sufficient evidence to warrant a separation, they will take one of three final actions:  1) retain the service member (based in part on the materials submitted in the rebuttal, 2) separate the service member and direct the characterization of the discharge, and 3) suspend the separation of the service member for a designated period of time.

The period of suspension can be for any period of time up to twelve (12) months.  This suspension time will give the service member the chance to prove to all levels of command that they are a good troop and deserve to be retained in the service.  It also gives the service member the ability to correct any deficiencies noted in the Notification Procedure packet and improve their overall performance.  Sometimes, the separation authority will direct that the service member be rehabilitatively transferred to another unit within the command to give them a “fresh start.”  Either way, once the service member has served the period of time for which the separation was suspended, the separation authority rescinds the otherwise approved separation.

What does the Separating Command Consider when Determining Characterization of Service?

The characterization of service at separation is based on two primary factors.  These factors include the quality of the service of the individual being separated and the reason for separation.

When considering the quality of service of an individual, the commander will evaluate such service according to the standard of personal conduct and duty performance for military personnel.  The commander will also take into account standards outlined in the UCMJ, military directives, service regulations, and the time-honored customs and traditions of military service.  Finally, commanders will give due consideration to the service member’s age, length of service, grade, aptitude, and physical and mental conditions.  Commanders are required to consider the effects of military sexual trauma and PTSD when making determinations regarding separation and characterization of service.

When evaluating the reason for separation, the separation authority commander will consider to what extent the quality of service is adversely affected by the conduct that is of a nature to bring discredit on the Army or is prejudicial to good order and discipline.  As a general matter, characterization of service will be based upon a pattern of behavior rather than an isolated incident.  There are circumstances, however, in which the conduct or performance of duty reflected by a single incident provides the basis for characterization.  In essence, the separation authority commander will balance the quality of the overall service of the individual with the seriousness of the misconduct giving rise to the separation when determining the appropriate characterization of service.

What is the Difference between an Honorable and General Under Honorable Conditions Discharge?

An Honorable Discharge is a form of military discharge given to a service member who has completed their service with distinction, has met or exceeded the standards for military conduct and performance, and has upheld the values and ideals of their branch of service.  This type of discharge is considered the highest form of discharge and can be granted for various reasons, such as completion of a term of service, medical reasons, or other circumstances that do not involve misconduct or poor performance.

A General Discharge is a type of military discharge given to a service member whose performance and conduct were considered satisfactory but less than honorable.  It is typically granted to service members who have not met some of the standards of military discipline or whose conduct or performance was not quite up to the highest levels required for an honorable discharge.  Some reasons for a general discharge may include minor disciplinary infractions, sub-par performance, or a failure to meet expectations.  A General Discharge can have negative consequences, such as making it more difficult to obtain civilian employment or military benefits and is considered a lower form of discharge than an honorable discharge.

A service member with a General Discharge may lose certain benefits that are typically associated with an honorable discharge, such as eligibility for GI Bill education benefits, VA home loans, and VA medical benefits.  They may also be limited in their ability to access certain military and veteran benefits, including military retirement pay, and may face more restricted employment opportunities in civilian life.  In general, a General Discharge is considered to carry negative connotations and may be viewed as a potential red flag to some employers, educational institutions, and other organizations that may be hesitant to work with individuals who did not receive an honorable discharge.

Can a Service Member Appeal their Separation or Characterization of Service?

Yes, a service member has the right to appeal an administrative separation if they believe that it was not warranted or not conducted fairly.  Generally speaking, the appeal process will involve submitting a formal appeal to a designated appellate authority within the military, along with relevant evidence and documentation to support their case.  If the appeal is granted, the service member may be able to have their separation overturned or revised, potentially allowing them to remain in the military.  If the appeal is denied, however, the separation will typically stand, and the service member will be discharged according to the original terms.

Additionally, a service member has the right to appeal the characterization of their military service upon separation, such as whether they were given an honorable or less-than-honorable discharge.  Like with appealing the administrative separation, the appeals process challenging the characterization of service also usually involves submitting a written appeal to a designated board that is responsible for reviewing these types of cases.  The service member may be required to provide evidence and documentation that support their case, as well as any relevant medical or psychological evaluations or recommendations.  If the appeal is successful, the service member’s discharge may be upgraded to a more favorable characterization such as honorable discharge.  However, if the appeal is denied, the original characterization of service will stand.

How Does a Service Member Appeal the Separation or Characterization of Service Discharge?

If you are appealing an administrative separation or a characterization of service in any branch of the military, you can appeal through the Service Board for Correction of Military Records or the Board of Correction of Naval Records.  These Boards provide current and former military personnel, their families, and other interested parties with a means to correct records or remove errors in their military records. They are responsible for reviewing and correcting military records of Navy personnel and Marine Corps, Army, Air Force, and Coast Guard service members.  Here is a list of the Service Boards of Correction of Military Records:

• Air Force and Space Force: Air Force Board of Correction of Military Records
• Army: Army Review Board Agency (includes the Army Board of Correction for Military Records and the Army Discharge Review Board)
• Coast Guard: Board for Correction of Military Records of the Coast Guard
• Navy and Marine Corps: Board for Correction of Naval Records 

For discharge upgrade requests denied by your Service Board of Correction for Military and Naval Records, you may also be eligible to apply to the newly-created DoD Discharge Appeal Review Board.

Contact the Law Office of Will M. Helixon Today.

The Law Office of Will M. Helixon has represented several service members facing Notification Procedure administrative separation by submitting powerful separation and characterization rebuttals.  If you have been notified of administrative separation and demand the best representation possible to submit your rebuttal matters, contact us today for your free consultation.