Administrative Discharges

Military members may be involuntarily separated from the military by administrative discharge. The bases for administrative discharges are varied, and can range from minor misconduct to medical issues to convenience of the government. While an administrative discharge from the military is less severe than a court-martial, it can still have lifelong, significant effects upon one’s employability, eligibility for Veterans’ Benefits, and social standing. At JAG Defense, our Military Attorneys have represented hundreds of military members facing administrative discharge processing. If you have been informed that you are being considered for administrative discharge from the military, we encourage you to call JAG Defense for a consultation about your case and how our attorneys can help.

Administrative Discharge Overview

There are two different processes for administrative discharge: Notification Processing or Board Processing.  Most cases are processed using notification procedures, where the notification and the member’s response are limited to writings.  If a member is entitled to have his/her case heard by an administrative discharge board, however, board procedures are used.

A member recommended for discharge (Respondent) must be offered a hearing by an administrative discharge board if the command seeks to characterize the Respondent’s service as Under Other Than Honorable Conditions (also known as “UOTHC” or “OTH”).  In addition, there are other criteria that entitle a Respondent to a board hearing, though these criteria differ slightly from service to service.  Some examples of the criteria that would automatically entitle a Respondent to a board hearing are:

• Rank: If the member is a noncommissioned officer at the time discharge processing starts;
• Time In Service: If the member has a certain number of years of total service at the time discharge processing starts (this number varies service to service); or
• If the reason for the administrative discharge is in the interest of national security.

An administrative discharge board is comprised of three (3) members senior in rank to the Respondent, a Legal Advisor (typically a JAG), and a Recorder, who serves as the “prosecutor” and represents the command.  Board proceedings are administrative in nature and the board is not bound by formal rules of evidence.  Thus, the board may consider information which might not be admissible at a court-martial.  Further, the board’s decisions are based upon a preponderance of the evidence presented, rather than beyond a reasonable doubt.

At an administrative board, the Respondent has a variety of rights. These include:

• The right to appear in person before this board, with or without counsel;
• The right to challenge any voting member of the board for cause; that is, by showing that the member cannot render a fair and impartial decision;
• The right to submit an oral or written statement on the Respondent’s own behalf.  The Respondent may also testify on his/her own behalf; or the Respondent may remain silent;
• The right to request the attendance of witnesses at the hearing;
• The right to submit any answers, depositions, sworn or unsworn statements, affidavits, certificates, or stipulations; and
• The right to question any witness who appears before the board, or have counsel question the witnesses on behalf of the Respondent.

When the administrative board convenes, the board considers all the evidence, both for and against the Respondent.  In closed session deliberations, the board members then vote upon the following decisions:

• Findings of fact as to whether each allegation set out in the notification memorandum is supported by a preponderance of the evidence (more likely than not);
• A separate finding with regard to each allegation set out in the notification Memorandum;
• Findings as to whether a basis for discharge exists;
• A recommendation to discharge or retain;
• A recommendation concerning the characterization of service if the board recommends discharge (HON, GEN, or UOTHC/OTH); and
• A recommendation concerning Probation and Rehabilitation if the board recommends discharge (if member is eligible).

These findings of fact and recommendations are forwarded to the Respondent’s chain of command.  Generally, the board’s findings of fact and recommendations are binding upon the chain of command, although there are some service-specific exceptions.

Contrary to popular belief, one’s discharge or discharge characterization is not automatically upgraded after six (6) months.  While there are procedures in place whereby one can request relief from the Discharge Review Board or the Board for Military Corrections, as a general rule, one’s military discharge basis and characterization will likely follow them for the rest of their life.  For that reason, it is imperative that a military member facing administrative discharge is represented by a lawyer experienced in military law and discharge board litigation.

If you have been notified that your command seeks to administratively discharge you from the military, please contact JAG Defense for a consultation about your case.