Active Officer Separation Actions and Boards
Military Separation Defense Attorney
Officer separations in the United States Army follow the guidelines of Army Regulation (AR) 600–8–24—Officer Transfer and Discharges. Whether you are at your ETS date, retiring, or being separated for an allegation of misconduct, AR 600–8–24 controls. However, this section will discuss involuntary officer separations and Boards of Inquiry. An involuntary separation from the Army may have serious consequences that may have a severe impact on your benefits.There are various reasons that can result in an involuntary separation for an officer under AR 600–8–24.
This can be, but is not limited to:
- Involuntary release from active duty due to maximum age (Chapter 2–10)
- Involuntary release from active duty due to maximum service (Chapter 2–11)
- Involuntary release from active duty to civilian criminal conviction (Chapter 2–14)
- Elimination for substandard performance of duty; misconduct, moral, or professional dereliction; and/or the interests of national security (Chapter 4)
Officer Eliminations of Chapter 4 of AR 600–8–24
Eliminations must be initiated is an officer is convicted of a sex offense that did not result in a dismissal at court-martial; if the officer has another alcohol or drug-related incident of misconduct during the 12-month period following the successful completion of the Army Substance Abuse Program; if the officer is identified as an illegal drug abuser; if the officer is involved in two serious incidents (an offense or a civil or military nature that is punishable under the UCMJ by confinement exceeding one year) of alcohol-related misconduct within a 12-month period; if the officer is involved in the illegal trafficking, distribution, possession, use or sale of illegal drugs; if the officer tested positive for illegal drugs a second time during their career; and if the officer is convicted of driving while intoxicated or driving under the influence a second time during their career.
Substandard Performance of Duty (Chapter 4–2a)
Elimination action may be initiated against officers if they fail keep pace with their contemporaries; fail to demonstrate necessary leadership skills; or display apathy in the execution of their duties among other reasons. Elimination actions must be initiated for the officer if they fail to make adequate progress under the Army weight control program or otherwise fail to maintain body/fat standards and fail two consecutive Army Physical Fitness Tests without a medical limitation.
Misconduct, Moral, or Professional Dereliction (Chapter 4–2b)
Elimination action may initiated against officers that fail to meet personal financial obligations; mismanage their personal affairs to that effect the officer’s duty performance or brings discredit to the Army; acts of personal misconduct; alcohol or drug-related misconduct; intentional neglect or failure to perform military duties; conduct unbecoming an officer; conduct that leads to the loss of a professional license, endorsement, or certification that is necessary to performance of military duties; the final revocation of an officer’s Secret security clearance; and act of child/spouse maltreatment or abuse and/or acts of family violence among other potential offenses.
Derogatory Information (Chapter 4–2c)
If the officer has received any of the following criteria, which in and of itself may not support elimination, in combination with other known deficiencies in the officer’s overall record may require elimination: nonjudicial punishment under Article 15 of the UCMJ; conviction by a court-martial; final denial or revocation of a Secret security clearance; a relief for cause OER; adverse information filed in the AMHRR; failure of a course at a service school; and any substantiated adverse finding or conclusion from an officially documented investigation, proceeding, or inquiry.
Soldiers Facing Separation
The Soldier facing separation is called the “Respondent.” Officers with six or more years of total active service on the date of the initiation of recommendation for separation and Soldiers notified of the potential of an Other than Honorable characterization of service are entitled to hear their case heard by a Board of Inquiry convened pursuant to AR 15–6 and AR 600–8–24.
Officer with less than six years of ADL service are considered “probationary” officers and may be eliminated without a Board of Inquiry so long as they are not facing an Other than Honorable characterization of service. Special rules exist for Warrant Officers depending on their service date.
Generally, a Board of Inquiry is tasked with three primary questions:
- By a preponderance of the evidence, did the underlying misconduct occur?
- If the board finds that the underlying misconduct did occur, does it warrant separation from the United States Army?
- If the underlying misconduct does warrant separation, how should the Respondent’s service be characterized?
There are three characterizations of service that an administrative separation board may recommend: Honorable; General under Honorable, and Other than Honorable. Only the local general court-martial convening authority (a general responsible for your installation) may appoint an administrative separation board with the authority to recommend an Other than Honorable characterization of service.
Who Serves on the Board?
The board is generally made up of at least three voting members. The president of the Board of Inquiry will be the grade of colonel or above; the other voting members will be of the rank of lieutenant colonel or higher and senior to the rank of the Respondent If the respondent is a member of a minority group, a female, or a special branch, the Respondent may request in writing to have a member of the same minority group, a female, or special branch officer respectively serve on the board if reasonably available.
What Happens at the Board?
The Government attorney—called the Recorder—presents evidence to the board relevant to the allegations for which the Respondent was notified. This can be in the form of documentary evidence or witness testimony. Witness testimony can be from previously written statements, telephonic, or in person testimony.
Once the Recorder finishes entering evidence, the Respondent has the opportunity to present evidence in rebuttal, mitigation, and extenuation through their counsel—the Respondent’s Counsel—in order to “show cause” why they should not be eliminated. A member of the JAG Corps will be detailed to represent the Respondent, but the Respondent may also obtain civilian defense counsel at no cost to the Government.
Dedicated Respondent Defense Attorney
The Respondent has no burden to present any evidence, and the Recorder must prove the underlying misconduct by preponderance of the evidence (more likely than not). If witnesses are presented for telephonic or in person testimony, the opposing counsel may cross examine that witness. Board members may also ask questions of the witnesses. Following the presentation of evidence, the Recorder presents argument followed by the Respondent’s Counsel. Following argument, the board closes for deliberations on the three above questions and votes on findings. The board will then announce the findings, which are then forwarded to the GCMCA.
Abusive Sexual Contact Penalties Reduced
Abusive Sexual Contact Career Saved
Administrative Separation Board Honorable Discharge
Administrative Separation Board Honorable Discharge
Cruelty & Maltreatment and Assault with a Firearm Charges Dismissed
Do-It-Yourself Move Fraud Avoided Separation Action
Domestic Violence and Assault Not Guilty
Illegal Drug Use Case Dismissed
Improper Oversight and Accountability Charge Dismissed
Rape & Sexual Assault Full Acquittal