"Ei Incumbit Probation Qui Dicit."

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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Installations We Serve

Adverse Administrative Separations Enlisted Army

The Army Regulation 635-200 covers adverse administrative separations for enlisted members of the U.S. Army. Administrative separations are non- punitive and they are based on the characterization of service of the respondent. These separations may be initiated because of several reasons:

  • Parenthood
  • Physical/ mental conditions including weight issues
  • Underage enlistment or faulty enlistment
  • Disability
  • Fraudulent enlistment
  • Non- satisfactory performance of duties
  • Misconduct

Written notice

The commander needs to serve the enlisted member with a written notice stating that administrative separation is being considered. This notice contains:

  • The reasons for considering adverse separation
  • Indication regarding the least favorable service characterization that may be given as a consequence of the separation
  • The intimation that the enlisted member has a right to hire military counsel (or civilian counsel at his own expense)
  • Intimation that that the enlisted member has a right to appear before a separation board for the hearing
  • Intimation that the enlisted member has a right to waive these rights, provided he does so in writing

The enlisted member is asked to sign an acknowledgment for having received the notice. A reasonable time period, not less than 3 working days, is given to the enlisted member so that he can consult with his attorney. The member can rebut the reasons outlined in the notice and/ or submit statement along with evidence supporting his stance. These need to be submitted before 8 days have passed from the time of notification. In case the respondent can prove good cause for requesting more time, an extension may be given. All the necessary documents are then forwarded to the separation authority.

The Separation authority and the separation board

The separation authority for adverse administrative separations is a General Court Martial Convening Authority (GCMCA). The GCMCA can authorize separations for enlisted members who have put in less than 18 years in Army service via convening a separation board. At least three voting members must sit on the Board with at least one of them being in the O-4 grade or above. The other enlisted board members should be in the E-7 grade and also be senior to the respondent. The presiding officer of this board has the final say as regards evidence and procedure but if a majority of the board members agree, they can overrule his decision.

During board proceedings

Arrangements are made to ensure the physical presence of witnesses, if any, during the hearing. Military Rules of Evidence do not apply under these circumstances and any relevant evidence can and will be shown. However, privileged communications ( e.g.: between client- counsel ) may be subject to certain rules. If a polygraph test result is being used as evidence the consent of the subject is necessary. Unsworn statements by the respondent are not permitted as evidence in adverse administrative separation procedures for army enlisted members.

Recommendation

The board comes to a decision on whether the evidence conclusively proves the guilt of the respondent in each allegation made against him. Further, they also determine if the findings support a decision to grant separation. After deliberation, the board may recommend any of the following:

  • Characterization of service
  • Suspension of separation
  • Retention or separation

The decision and board proceedings are reviewed by an officer to ensure that all the proceedings have taken place in line with regulations. If the board has recommended a discharge (other than honorable conditions) or limited use evidence was submitted, or legal issues have been brought to notice by the respondent, a judge advocate is called in to review the hearing proceedings. A separation authority takes a final decision on basis of the board's findings.

A note on characterization of discharge

The type of characterization makes a difference to the final outcome of the proceedings. For Army enlisted personnel the following limitations of characterization apply:

Honorable- Most favorable characterization; is appropriate when the respondent has met standards for conduct in the Army. All benefits will be received by the respondent.

General- Separation under honorable conditions; is issued when the respondent's has a satisfactory record but not a meritorious one. Respondent may lose his GI bill and other veteran benefits.

Other than Honorable- Least favorable characterization, which is appropriate when the respondent's act or acts do not match the standards expected of Army enlisted personnel. Substantial loss of benefits given to veterans is a risk that the respondent faces.

Given that the characterization can make such a significant difference to your benefits entitlement and your ability to find other employment, it is imperative that you leave your separation process in the hands of a capable, experience UCMJ attorney like Joseph Jordan. Mr. Jordan has secured several honorable discharges for his clients and brought about a suspension of separation for many others.

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