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Military Administrative Separations: Highly Punitive in Reality

In many jobs throughout this country there are administrative means utilized in order to terminate someone’s employment.  In the military, these fall into two categories, Administrative Separations for enlisted service members and Boards of Inquiry for officers.  What is unique about the military system though is that, while referred to as administrative, the consequences of the process are actually quite punitive.  Specifically, when is service member is administratively “fired” from the military, they face the possibility of being given either general discharge or an other than honorable discharge, which not only follows them for the rest of their lives and greatly effects future employment opportunities, but they also stand to nearly all of their benefits.  Now, you may say to yourself, so what?  They screwed up and did something wrong so they deserve. The problem, however, is that in the military, the administrative process is frequently abused and is used in place of a formal court-martial when commanders and their lawyers think that there will be an acquittal if the charges are sent to a court.  An example may help.  Consider a service member who pops positive for marijuana use.  After discovering that he/she failed the test, the service member, someone who has had a glowing record until this points, starts to think about how this possibly could have happened.  Then, they remember, a few days before the test they were at a local hookah bar smoking flavored tobacco with some friends.  This is not uncommon in the military since many service members who were previously deployed to the Middle East, where it is very popular, picked up the hobby from locals.  The service member then reads some online reviews and finds that there have been some complaints from customers that at times they smell and taste marijuana inside the hookah pipes.  So here is a logical explanation.  He could have smoked the tobacco from a pipe which had marijuana resin inside of it which caused his positive drug test.  Furthermore, this makes sense since the level he tested at was very low.  This evidence is provided to the commander and after consulting with his Staff Judge Advocate (like an in house counsel) they determine that based on this evidence they will not succeed in prosecuting the service member.  However, they are not done.  For whatever reason they decide that this person should still be held accountable, so they decide to process him/her for “administrative separation.”  And the reason why they elect this forum is because they are no longer burdened with the Constitutional protections afforded a service member at a court-martial.  Most importantly, the burden of proof is not beyond a reasonable doubt, but rather a preponderance of the evidence, which is just a fancy legal term which means more likely than not.  To put it a different way, if the members of the discharge board decide that there is a 51% chance or greater that the service member wrongfully used marijuana, then that is enough to kick him/her out of the military with an other than honorable discharge.  Also of great significance, all of the Military Rules of Evidence, which protect highly inadmissible, irrelevant, and/or prejudicial evidence, from being improperly used against a service member at court-martial, DO NOT apply.  So, if the senior member of the board arbitrarily decides, (I say arbitrarily because he/she is not a lawyer and has no legal training regarding what evidence is or is not admissible) that a particular piece of evidence is admissible, then that is the word of God.  Moreover, the members of the board are assigned by the very commander who convened the board in the first place.

Now, aside from being able to stack the Board however they see fit, commanders are afforded other significant powers over the service member.  For example, if the Board finds there is a basis for separation and that the service member should be separated but recommends that the separation be suspended (similar to a suspended sentence in a trial where the member is retained, but the discharge is held over there head for a period of time), that recommendation is just that, a recommendation.  The commander can simply deny it and separate the Marine anyways.  And this is what happens 9 times out of ten since that same commander is the one who wanted the service member gone to begin with.  Another power that the commander has is to separate the Marine with a general discharge when that Marine leaves the service, regardless of the Board recommended.  This is done by an administrative entry and counseling in their record at the time they leave the service whereby the commander just articulates that the service member’s service was not honorable.  Therefore, a service member could be processed for separation and sent to a Board and that Board could find no basis for separation and retain the member, but then at the end of their contract that commander can then decide that the service was not honorable and give them a general discharge anyways.

So that is a real life example of how these boards occur.  And that brings us back to this “administrative” thing.  The military is able to create processes like these, because they embrace this idea that they are somehow only administrative and do not carry punitive consequences.  Yet, at the same time, these boards are taking away service members’ benefits and giving them unfavorable discharges that will follow them for the rest of their lives.  Think about it.  All of you may not have served in the military before, but the vast majority of you I’m sure have filled out some kind of application, job, housing, etc.  On every single one of those applications they ask you, “have you served in the military,” or something to that effect.  And if the answer is yes, the next question is, “did you receive an honorable discharge?” These poor kids are cooked right there.  They can lie and answer no, hoping no one will ever find out, which creates new problems since when you are later asked about your recent employment history, there will then be a big gap.  Or they can answer yes, and likely not get the job, or the apartment, or acceptance into the school.  Furthermore, if a service member receives anything besides an honorable discharge, they will lose their G.I. Bill.  So to go back to the example above where the commander has the authority to give the service member a general discharge at the time they leave the service simply by articulating that he/she believes the member’s service was not honorable.  Well, that simple action by the commander will take away the G.I. Bill from that service member.  And that is what we are doing to our young men and women in the armed forces.  Kids right out of high school that had the guts to join an all-volunteer force during a time of war.

So if you hear from someone that administrative discharges in the military are not punitive, know that it is just plain wrong.  They are absolutely punitive and carry heavy penalties.  There are attorneys out there that specialize in the defense of administrative separations boards.  Our firm has the knowledge and experience to ensure that your rights are protected and that you obtain a just outcome.

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