Frequently Asked Questions on Military Criminal Defense Law in Virginia Answered by an Experienced Norfolk Attorney
What is an Administrative Separation from the military service?
Administrative Separation is a general term that includes discharge, release from active duty, and release from custody and control of the military services. Many times this is due to alleged misconduct on the military service member. An Administrative Separation is not considered a “Punitive Discharge” however it has many negative consequences that can affect the rest of your life.
What types of discharge characterizations are there?
There are four types of discharge characterization for administrative separations: honorable, general under honorable conditions, other than honorable, and entry level separation. The type and characterization of the separation received may affect your GI Bill, veteran’s benefits, future enlistment in another branch of government, obtaining a security clearance, or government or civilian employment.
To receive an honorable discharge, a service member must have received a rating from good to excellent for their service. Service members who meet or exceed the required standards of duty performance and personal conduct, and who complete their tours of duty, normally receive honorable discharges.
General (Under Honorable Conditions)
General discharges are given to service members whose performance is satisfactory but is marked by a considerable departure in duty performance and conduct expected of military members. Reasons for such a characterization of service can vary, but usually are preceded by some form of punishment either through nonjudicial punishment or courts-martial. A commander must disclose the reasons for the discharge action in writing to the service member, and must explain reasons for recommending the service be characterized as General (Under Honorable Conditions). The service member is normally required to sign a statement acknowledging receipt and understanding of the notification of pending discharge memorandum. They are also advised of the right to seek counsel and present supporting statements.
Other Than Honorable (OTH)
An OTH is the most severe form of administrative discharge. This type of discharge represents a serious departure from the conduct and performance expected of all military members. Service Members facing an OTH are guaranteed the right to have their discharge heard by an administrative discharge board, which is similar to a court-martial but is not a public forum. You have the right to have an attorney represent your interests and fight for your military career.
Recipients of OTH discharges are barred from reenlisting into any component of the Armed Forces (including the reserves). In addition, the majority of veterans’ benefits are not available to service members who receive an other than honorable discharge, which includes the Montgomery GI Bill, Post 9-11 GI Bill, and (in most cases) VA healthcare benefits.
What should I do if I’m being processed for Administrative Separation?
When you are notified that you are being processed for administrative separation, you have a right to consult with counsel and you SHOULD CONSULT AN ATTORNEY to determine your rights. You may have the right to request an administrative separation board, which is a hearing to fight the separation or characterization, or the right to request review of the decision to process you for separation. YOU CAN FIGHT THE ADMINISTRATIVE SEPARATION and you may FIGHT TO HAVE AN HONORABLE CHARACTERIZATION OF DISCHARGE.
What types of Court Martial are there?
Uniform Code of Military Justice (UCMJ) has three different types of courts-martial which are Summary, Special, and General courts-martial. These three different forums of courts-martial differ in their composition and make-up, and the punishments that may be imposed. The Military Rules of Evidence apply to all level of courts-martial and most importantly an accused must be proven guilty beyond a reasonable doubt.
A summary court-martial is a court that consists of a commissioned officer. The punishment which may be imposed depends on the rank of the accused. In the case of enlisted members above E-4, a summary court-martial may impose any punishment not forbidden by the law except death, dismissal, dishonorable or bad conduct discharge, confinement for more than 1 month, hard labor without confinement for more than 45 days, restriction to specified limits for more than 2 months, or forfeiture of more than two-thirds of 1 month’s pay.
In the case of all other enlisted members, the court-martial may also impose all of the previously mentioned punishments and may award a reduction-in-rate to the accused to the lowest pay grade of E-1. The accused has the absolute right to refuse trial by summary court-martial.
A special court-martial consists of not less than a jury of three military members and a military judge, or an accused may be tried by military judge alone upon request of the accused. A special court-martial may try all persons subject to the UCMJ, including officers and even cadets and midshipmen.
A special court-martial may impose any punishment authorized under R.C.M.1003 except death, dishonorable discharge, dismissal, confinement for more than 1 year, hard labor without confinement for more than 3 months, forfeiture of pay exceeding two-thirds pay per month, or any forfeiture of pay for more than 1 year.
A general court-martial consists of a jury not less than five members and a military judge, or an accused may be tried by military judge alone upon request of the accused.
A general court-martial may try all persons subject to the UCMJ, including officers, cadets, and midshipmen. A general court-martial may award any punishment which is not specifically prohibited by the UCMJ, including death when specifically authorized.
What is the Board of Correction of Naval Records (BCNR)?
The BCNR was created by Congress in 1947 to provide a method for correction of errors or removal of injustices from current and former Navy and Marine Corps service member’s records without the necessity for private legislations. This includes fitness reports, performance evaluations, courts-martials, punitive letters, derogatory information, leave adjustments, retroactive advancements, military pay and allowances, Physical Disability Retirements, Severance Pay, and other items. The BCNR is not a branch of the Navy Personnel Command, but it is a separate command under the direction and supervision of Assistant Secretary of the Navy. The law governing the BCNR is Title 10, U.S. Code, Chapter 79, sections 1551-1557. The function of the BCNR is to consider applications properly before it for the purpose of determining the existence of an error or injustice and, when appropriate, to make recommendations to the Secretary and to make final determinations on matters delegated to the Board.