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Proof lies on him who asserts, not on him who denies. The concept is that one is innocent until proven guilty. Regardless of what the law says about reasonable doubt, there is an unwritten presumption within the ranks of the military that if you are charged with sexual assault, then you are guilty. The stakes are your life! Your military counsel works for the same military that charged you. Consider that as you choose who represents you in your potentially life altering case.

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Administrative Separations – Army (Officers)

Army Regulation 600-8-24 and 15-6 dictates the procedure for administrative separations for Army officers. According to the regulation, there are several reasons why an Army officer can be separated from service. All military officers are expected to have proper conduct, a good character and to do their duty to the nation in a dignified manner.

When an officer no longer performs his duties well, or has to be discharged for other reasons, the separation board can decide to administratively separate the officer from the military.

Issues that lead to administrative separation

According to AR 600-8-24, separations can be divided into six different areas. Voluntary release, Involuntary release, Resignations, Eliminations, Retirement, and other types of separations. The reasons for an officer's voluntary release include pregnancy, the need to attend college, the end of obligatory service, hardships, or separation to take a position in the public office.

Officers can be discharged involuntarily for the following reasons:

  • The officer shows a decline in overall performance, and is not doing his duty as efficiently as is expected,
  • The officer is not progressing as compared to his colleagues in the same branch, batch or grade,
  • He fails to show leadership qualities which are expected from an officer of his level
  • The officer fails to provide appropriate instruction at training schools due to lack of leadership or academic qualifications,
  • The officer does not want to put an extra effort, and displays a bad attitude towards other personnel
  • The officer does not progress as required in the military's weight control program.

An army officer can be warranted a certificate of discharge for all of these above-mentioned reasons.

Types of discharges

There are two types of discharges that an officer can be furnished with. An Honorable Discharge Certificate (DD Form 256) is given to officers who are being separated from the United States Army with honor. This is generally given to officers, who have proved to be an asset to the army, and have demonstrated appropriate behavior. The army also takes into consideration their grade and capabilities.

A General Discharge Certificate Under Honorable Conditions (DD Form 257A) is furnished to officers, who do not have adequate merit to be conferred with an Honorable Discharge Certificate.

Procedure after recommendation for separation

Once an area commander receives a recommendation for separation from commanders of HQDA agencies, the area commander will thoroughly look through the case. If the area commander does not find enough evidence indicating a separation, he may choose to close the case and give it back to the recommending commander. If the proof seems adequate, he might retain the services of an investigating officer.

Once enough evidence is found to begin a separation, the area commander will contact the concerned officer and notify him of the situation. The area commander is required to give a show cause notice to the officer, which lists the reason for the elimination. The notice must also include the officer's options to either resign, submit a request for discharge, or retirement.

Probationary officers are officers who have been in the service for less than three years. They are not given a lot of options. They are not even eligible for a board, unless they have been given an OTH discharge. In the case of non-probationary officers, they are entitled to a board, and are also allowed to show cause for retention. Higher authorities may decide to retain the officer, at which point, all the elimination procedures must be terminated, until a decision is made.

Separation hearings

A separation board is present at the hearing. The board of inquiry is responsible for ensuring that the hearing is fair, balanced, and does not favor a particular party. The board contains a minimum of three voting members, a recorder, a counsel for respondent, and a legal advisor. The outcome of the inquiry must be submitted to the Board of Review, along with the rebuttal of the respondent, if any. Once the Board of Review goes through it, they convey their recommendations to the Secretary of the Army, who is responsible for the final decision. If the officer wishes to be retained, he must show proof for retention in the Army.

The rights of an officer

In the event of a separation, an officer is entitled to a certain set of rights. They are as follows:

  • The officer must be provided with copies of the documents that have been provided to the board. He can also request for copies of other documents, which can be released,
  • He can speak about his case with a consulting counsel,
  • He can defend his case in front of the board, but he will have to bear his own expenses,
  • At his hearing, he can choose his own civilian counsel, whom he will have to pay from his pocket, or get a military counsel to represent him, provided the counsel is readily available,
  • The officer can submit statements for himself,
  • Also, he can waive all the aforementioned rights in a written declaration
  • The officer can also revoke his waiver of rights, before the date when his case will be presented in front of the board of officers.

The impact of a separation on an officer

The officer can lose out on military benefits that he might have accumulated over the years of service. Servicemen and women can also find it difficult to secure a civilian job as an administrative separation has a stigma attached to it. However, such a stigma attaches only if you are given a General Under Honorable Conditions or Other than Honorable Conditions for the officer's characterization of service.

If you are facing a separation, contact military defense attorney, Joseph Jordan, who has more than ten years of experience, and has retained several officers, or has secured honorable discharges for them.

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