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Military Justice 101 - Part III

(Page 2)

The Discharge Process. Administrative Separations break down into two basic areas: voluntary separations and involuntary separations. A discharge at the end of one's term of service is an example of a voluntary separation. Many people believes that separating at the end of the normal term of service guarantees an Honorable Discharge. This is not so. All administrative discharges take into account the individual's conduct and performance. Too many disciplinary infractions or low performance report ratings may result in a General (under honorable conditions) discharge. Other authorized reasons for voluntary separations are: early release to further education, early release to accept public office, dependency or hardship, pregnancy or childbirth, conscientious objection, immediate reenlistment, separation to accept a commission, and sole surviving family member. However, as this is a series on "Military Justice," we'll concentrate on involuntary discharges.

The involuntary discharge process is fairly straightforward. The commander makes an election to pursue involuntary discharge proceedings and notifies the respondent in writing. The written notice includes the basis for the discharge (listed below), the worst characterization that can be applied for this basis, and the characterization that the commander is recommending. The respondent is allowed to consult with a military attorney (free of charge) or a civilian attorney at his/her own expense. The respondent may then attach evidence and statements to become part of the package. If the respondent has more than six years of total active military service, or if the basis of the discharge is for homosexuality, or the characterization recommended is "Other Than Honorable," he/she is entitled to have the case heard by an administrative discharge board.

Once the commander receives the attachments from the respondent, he/she determines whether or not to proceed with the discharge proceedings. If the commander elects to proceed an administrative discharge board is convened (if required). If the board is not required, the commander forwards the package to the approval authority (usually the installation commander) for final approval or disapproval.

There is a substantial investment in the training of persons enlisted or inducted into the Military Services. As a general matter, the various service regulations require reasonable efforts at rehabilitation prior to initiation of separation proceedings. Unless separation is mandatory (such as in the cases of serious misconduct or homosexuality, the potential for rehabilitation and further useful military service must be considered by the Separation Authority and, where applicable, the Administrative Board. If separation is warranted despite the potential for rehabilitation, the Separation Authority can Approve a "suspension" of the separation, in most cases. An alleged or established inadequacy in previous rehabilitative efforts does not provide a legal bar to separation

The Separation Authority may consider the following factors on the issue of retention or separation, depending on the circumstances of the case:

  • The seriousness of the circumstances forming the basis for initiation of separation proceedings, and the effect of the members continued retention on military discipline, good order, and morale.
  • The likelihood of continuation or recurrence of the circumstances forming the basis for initiation of separation proceedings.
  • The likelihood that the member will be a disruptive or undesirable influence in present or future duty assignments.
  • The ability of the member to perform duties effectively in the present and in the future, including potential for advancement or leadership.
  • The member's rehabilitative potential.
  • The member's entire military record. This may include: past contributions to the Service, assignments, awards and decorations, evaluation ratings, and letters of commendation; letters of reprimand or admonition, counseling records, records of nonjudicial punishment, records of conviction by court-martial and records of involvement with civilian authorities; and any other matter deemed relevant by the Board, if any, or the Separation Authority, based upon the specialized training, duties, and experience of persons entrusted with the separation decision.

Adverse matter from a prior enlistment or period of military service, such as records of nonjudicial punishment and convictions by courts-martial, may be considered only when such records would have a direct and strong probative value in determining whether separation is appropriate. The use of such records ordinarily are limited to those cases involving patterns of conduct manifested over an extended period of time.

Isolated incidents and events that are remote in time normally have little probative value in determining whether administrative separation should be effected.

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