Have you received notice that your military command has requested administrative separation? If administrative separation is approved, you will essentially be fired from the military. When you are fired, you may risk losing military housing, compensation, and many benefits extended to military veterans. At the Law Office of Vikas Bajaj, our San Diego attorneys can help you challenge administrative separation and/or seek the best possible discharge classification. Contact us today to schedule a free consultation with our skilled legal team.
Understanding Administrative Separation
Administrative separation is a non-judicial process used to forcibly remove you from active military duty.
How is it different from a court martial? Court martial is used to address removal when you violate the law. Separation is used to address issues of misconduct or non-performance.
Purpose of Administrative Separation
According to the Department of Defense, administrative separation promote the “readiness” of all active duty military personnel. It is used to maintain “high standards of performance, conduct, and discipline.” When these standards are not met, separation is used to ““strengthen the concept that military service is a unique calling.” You may be subject to administrative separation if you:
- Show a demonstrated lack of effort or care
- Have repeated incidents of misconduct, or
- Demonstrate other violations of the military code of conduct.
Notice of Administrative Separation
When your command requests administrative separation you must receive written notice. This notice must explain:
- The grounds for seeking administrative separation; and
- The classification of discharge sought.
Most administrative separation proceedings are conducted entirely on paper and decided in private by the Administrative Separation Board. There are limited times when you may be able to secure a formal hearing before the Board.
Administrative Separation Hearing
There are certain times when you may be entitled to a formal administrative separation hearing. You are entitled to a separation hearing if:
- You have more than 6 years of active duty military service
- Homosexuality is the basis of the separation request; or
- The discharge classification sought is “Other Than Honorable.”
The hearing is basically a small trial in front of the Administrative Board to determine if you should be involuntarily separated from the military. The Board, which is comprised of three military members, will hear arguments from your attorney as well as a military prosecutor. Both sides will also have an opportunity to present evidence and testimony.
The Administrative Board can only recommend administrative separation if it finds by a preponderance of the evidence that allegations of misconduct are true. The board can also suspend a request for separation and send the issue to the Separation Authority.
Grounds for Administrative Separation
When you receive notice of administrative separation, command must provide the grounds for the request. Reasons for separation may include:
- Poor duty performance
- Drug and/or alcohol abuse
- Civil criminal conviction
- Inability to control weight
- Health issues
- Mental health issues
- Failure to adapt to the military
- Unexcused absences from training
- Unsatisfactory performance of annual training
- Failing to respond to official correspondence, and more.
Classification of Administrative Separation Discharge
Your command must also recommend a classification for your discharge from the military. There are three possible classifications: honorable, general, and other than honorable.
Honorable: Honorable discharge is the highest possible classification a person separated from the military can receive. When you receive an honorable discharge you are entitled to retain benefits extended to veterans, including:
- GI Bill benefits
- VA health benefits
- Vocational rehabilitation, and
- Burial assistance.
General, Under Honorable Conditions: General discharge is the most commonly used characterization. It sounds positive, but it actually strips separated personnel of many of the benefits that are extended to veterans. General discharge is used when the negative aspects of your misconduct outweigh the positives of your service. When you receive a general discharge, you will not be eligible for most of the benefits extended to honorably discharged personnel. This includes reenlistment and GI Bill benefits.
Other Than Honorable: Other Than Honorable (OTH) is the lowest discharge categorization if you are separated. You will not be entitled to enjoy nearly all of the benefits extended to military personnel and veterans. You may also find that it is difficult to assimilate into civilian society and secure a meaningful job.
Are facing administrative separation and facing anything other than honorable discharge? If so, Vikas Bajaj will aggressively challenge your separation and characterization. If you ultimately are separated, you want to secure the highest possible discharge characterization to preserve benefits, social status, and civilian opportunities.
Knowing Your Administrative Separation Rights
You are entitled to enjoy certain rights when you are subjected to administrative separation. These include the right to:
- Request an administrative separation hearing before the Board
- Consult with an attorney (military, civil, or both)
- Receive copies of evidence submitted by command
- Submit evidence to rebut claims of misconduct
- Present witness and character testimony
- Cross-examine witnesses, and
- Testify in your own defense.
These rights are essential to a fair and unbiased process. Hiring an attorney who is experienced in military administrative separation proceedings will help you to secure the best possible result in your case. Call San Diego military attorney Vikas Bajaj today to schedule a free consultation.
Never Waive Your Right to an Administrative Separation Hearing
Just because your command has requested administrative separation does not mean that you should be forcibly removed from the military. You have the right to defend yourself and contest any allegations of misconduct or poor performance. The best way to defend yourself is to attack the basis of the separation before the Board. Waiving your right to a hearing will only hurt your chances of staying in the military and/or securing an honorable discharge.
As your attorney, Vikas Bajaj will thoroughly investigate your alleged misconduct. He will comb through military records, speak with your peers, and review evidence submitted by command. This investigation will allow him to craft a persuasive defense designed to convince the Board to retain your military service. Remember, the Board can only vote to separate if there is enough proof to show that:
- You are guilty of misconduct, and
- That misconduct warrants forcible separation.
If the military cannot make its case, the Board will be forced to suspend the request or retain your services.
Speak with a San Diego Military Administrative Separation Attorney
Are you facing administrative separation from the military in San Diego? If so, it is important to fight. Contact the Law Office of Vikas Bajaj to speak with our experienced military defense attorneys today. We will review the details of your separation notice, explain your rights, and determine the best strategy for your defense. It is important to act quickly, so do not hesitate to call us for help today.