Military Administrative Separation Actions Attorney
Involuntary administrative separation from military service is the manner by which the military fires or otherwise terminates its members from further service and employment. When a military member is referred for involuntary administrative separation or Officer Elimination, two questions are posed. First, will the service member who is referred for separation actually be separated from military service? Second, if the member is to actually be separated, how will the service member’s prior military service be characterized, meaning what type of discharge will he or she receive: Honorable Discharge, General Discharge under Honorable Conditions, or Other Than Honorable (OTH) Discharge? Involuntary separation from service results in disappointment, dishonor, and loss of pay and benefits, both current military and future veteran’s benefits. The characterization of service or type of discharge a service member receives upon separation will dictate the extent of future benefits losses.
The common bases for involuntary administrative separation and officer elimination are:
- Criminal conduct (military or civilian);
- Displaying a pattern of misconduct;
- Illegal drug use;
- Moral or professional dereliction;
- Poor duty performance or participation; or
- Failing to meet physical fitness and/or height/weight requirements.
Service members referred for separation may be entitled to due process known as an administrative separation board. A service member is entitled to a board hearing if either the Command seeks to separate him under Other Than Honorable Conditions (OTH) or where the service member, or if enlisted or a Non-Commissioned Officer, he has six or more years of service.
This is an adversarial hearing where the service member is given the opportunity to be confronted with evidence and/or witnesses against him, which the government argues favor separation from service. The service member is afforded to challenge and/or respond to this information in his or her defense in attempt to avoid separation and remain in the military.
Service members who are both referred for administration separation and entitled to an administrative separation board are afforded a series of rights to include, but not limited to, the rights to be represented by counsel at the hearing; to be present at the board hearing; to receive advance notice of the hearing date the identity of the government’s witnesses and/or evidence; to challenge and/or cross examine the government’s witnesses and/or evidence; to present witnesses and/or evidence the service member’s own behalf; to testify or not to testify on one’s own behalf; and to present argument in one’s defense. These rights are best exercised through the efforts of a dedicated, knowledgeable and experienced military defense lawyer like Attorney John L. Calcagni III.
If you are facing a military separation board in the Army, Navy, Air Force, or Marines you should have the assistance of an experienced Military Defense Lawyer.
A separation board is comprised of a minimum of three experienced, impartial military Officers or Non-Commissioned Officers who are senior in rank to the service member pending separation. These board members are appointed by the service member’s Commander who as referred the separation action. The board members are required to receive the evidence of the parties, the government and the service member, and thereafter make a recommendation to the referring Commander regarding first, whether the service member should be separated from service, and if so, second, what type of discharge the service member should receive at the time of actual separation.
Once the board concludes and its members make their final recommendations to the referring Commander, the Commander must take final action. This may include approving the board members’ recommendation in whole or in part. However, in accordance with army regulations, the referring Commander may not impose a final action that is less favorable that the board members’ recommendation. The Commander may, however, impose final action that is more favorable to the service member than recommended. This is an important distinction. If, for example, the board members recommend that the Soldier be retained for further service, the Commander must implement this as his final action. Alternatively, however, the recommendation was in favor of separation, the Commander could disregard it and retain the service member. Because the final procedural step in the separation process is for the Commander to take final action, the service member is afforded one last opportunity to address the Commander directly regarding the underlying reasons for separation; the board members’ recommendation; the contents of the administrative separation board; and any other extenuating or mitigating information the service member wishes the Commander to consider before imposing final action. Petitioning to the Commander before he or she takes final action is best done through an experienced lawyer with military law experience, and usually the attorney who represented the service member at the board hearing.
Attorney John L. Calcagni, III has extensive experience working with service members in all facets of military law, to include administrative separations, with outstanding results. Attorney Calcagni is intimately familiar with military substantive law and procedure. As a former active duty and now reserve U.S. Army Judge Advocate, he has both prosecuted and defended countless administrative separation hearings for reasons ranging from criminal conduct, positive urinalysis and unlawful drug use, to substandard military performance issues. Representing a Soldier before an administrative separation board is a delicate task that requires legal counsel who is versed in military law, investigations and trial advocacy. Attorney Calcagni masters these subject matters, and more. He will thoroughly investigate your case and the basis for which the government seeks separation. He will also work with you as a team to build and prepare your defense, and will fully interview and analyze all government witnesses and/or evidence that will later challenge on your behalf at the hearing. After the hearing, he will petition the Commander on your behalf for your retention for future military service. Attorney Calcagni’s dynamic approach has yielded a proven record of success that transpires over many years.
If you are referred for administrative separation, contact Attorney John L. Calcagni by call today at (401) 351-5100 to schedule a free consultation and retain an experienced military defense lawyer who will start working on your case immediately and toward your ultimate retention for future military service.