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Military Justice 101 - Part III

(Page 3)

The Administrative Discharge Board. The Separation Authority appoints to the Administrative Board at least three experienced commissioned, warrant, or noncommissioned officers. Enlisted personnel appointed to the Board must be in grade E-7 or above, and must be senior to the respondent. At least one member of the Board must be serving in the grade of O-4 or higher, and a majority of the board must be commissioned or warrant officers. The senior member is the president of the board. The Separation Authority also may appoint to the Board a nonvoting recorder. A nonvoting legal advisor may be appointed to assist the Board.

If the respondent is an enlisted member of a Reserve component or holds an appointment as a Reserve commissioned or warrant officer, the Board must include at least one Reserve officer as a voting member. Additionally, all Board members must be commissioned officers if an Under Other Than Honorable Characterization (OTH) from the Reserve component is authorized to be issued. Voting members must be senior to the respondent's reserve grade.

The respondent may challenge a voting member of the Board or the legal advisor, if any, for cause only. The president presides and rules finally on all matters of procedure and evidence, but the rulings of the president may be overruled by a majority of the Board. If appointed, the legal advisor rules finally on all matters of evidence and challenges except challenges to him or herself.

The respondent may request the attendance of witnesses. In some cases, the respondent may submit a written request for temporary duty (TDY) or invitational travel orders for witnesses. The rules of evidence for courts-martial and other judicial proceedings are not applicable before an Administrative Board. The board is required, however to impose reasonable restrictions, concerning relevancy and competency of evidence.

Rights of the Respondent: The respondent may testify in his or her own behalf, subject to the provisions of Article 31(a), UCMJ (Self Incrimination). At any time during the proceedings, the respondent or counsel may submit written or recorded matter for consideration by the Board. The respondent or counsel may call witnesses in his or her behalf. The respondent or counsel may question any witness who appears before the Board. The respondent or counsel may present argument prior to when the Board closes the case for deliberation on findings and recommendations.

The Board is required to determine its findings and recommendations in closed sessions. Only voting members of the board may be present. The Board determines the following:

  • Whether each allegation in the notice of proposed separation is supported by a preponderance of the evidence.
  • Whether the findings warrant separation with respect to the reason for separation set forth in the Notice. If more than one reason was contained in the Notice, there must be a separate determination for each reason.
  • The Board makes a recommendation of or separation (Not guild or innocence).
  • If the Board recommends separation, it may recommend that the separation be suspended.
  • If separation or suspended separation is recommended, the Board recommends a characterization of service or description of separation.

In every case in which characterization of Service Under Other Than Honorable Conditions is recommended, the record of the Board's proceedings will be reviewed by a judge advocate or civilian attorney employed by the Military Department prior to action by the Separation Authority. Such review is not required when another characterization is recommended unless the respondent identifies specific legal issues for consideration by the Separation Authority.

If the Board recommends retention, the Separation Authority may take one of the following actions: approve the recommendation; or forward the matter to the Secretary concerned with a recommendation for separation based upon the circumstances of the case. In such a case, the Secretary may direct retention or separation. If the Secretary approves separation, the characterization of service or description of separation will be Honorable, General (under honorable conditions) or an Entry Level Separation.

If the Board recommends separation, the Separation Authority may: (1) Approve the Board's recommendation; (2) Approve the Board's recommendations, but modify the recommendations by suspending or providing a characterization more favorable than recommended; or (3) disapprove the Board's recommendation and retain the respondent.

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