Army Separation BoardsSeptember 19, 2019
Army separation boards are governed by AR 635-200 and AR 15-6.The following article is meant as a general overview. There are many complexities to Army separation boards that require a more thorough review of a Soldier’s specific case and consultation with a military lawyer familiar with AR 635-200 and AR 15-6.
Army Separation Boards: Initiation
The Army enlisted separation process is initiated by a Commander. Generally speaking a Company Commander will initiate separation; however, there are times when a Company Commander refuses and a higher Commander therefore initiates instead. Regardless, the separation process begins when the Commander formally counsels a Soldier with the separation packet itself (legal documents and supporting evidence). Separation does not begin when a Soldier starts going to their separation appointments (medical, mental, CIF, etc). It is common practice for the chain of command to require a Soldier to go to their appointments prior to formal initiation of separation. There is nothing legally wrong with this practice.
Separation can be initiated for a variety of reasons. While this list is not exhaustive, the most common reasons are the commission of a serious offense (AR 635-200, paragraph 14-12c), a pattern of misconduct (AR 635-200, paragraph 14-12b), or unsatisfactory performance (AR 635-200, chapter 13). Both unsatisfactory performance and a pattern of misconduct require that the Soldier be counseled and given a chance to rehabilitate; importantly, no such requirement exists for the commission of a serious offense. Regardless of the reason for separation, it must be supported with evidence. Evidence can include sworn statements, police reports, counseling statements, pictures, text messages, an investigation, etc.
Army Separation Boards: Eligibility
There are two types of separations, regardless of the reason for initiation: those requiring separation boards and those that do not. There are two categories of Soldiers who are eligible to have their separation cases heard by a separation board: those Soldiers with 6 or more years of service and those Soldiers who the chain of command is trying to give an other than honorable (OTH) discharge. Some examples:
- A Soldier with 4 years of service who the command is trying to give a general discharge (GEN) is not eligible for a separation board.
- A Soldier with 8 years of service who the Command is trying to give a GEN is eligible for a separation board.
- A Soldier with 3 months of service who the Command is trying to give an OTH is eligible for a separation board.
- A Soldier with 18 years of service who the Command is trying to give an honorable (HON) discharge is eligible for a separation board.
If a Soldier is at all confused about their eligibility for a separation board they should speak to a military lawyer before making any decisions or progressing in the process anymore.
Army Separations without Boards
Those Soldiers who are not eligible for a separation board only have the ability to contest a separation or request a better discharge in writing. They can also ask to speak to separation authorities (higher Commanders) using their open-door policies. There is no requirement in AR 635-200 that Soldiers be given an in-person meeting with the separation authority.
The separation authority varies depending on the reason for initiation. Generally speaking, however, if a Soldier is not entitled to a separation board, the Brigade or Battalion Commander will be the separation authority.
Once separation is initiated formally (see above) it is important that Soldiers act fast. They only have set number of days to make their formal, written response. Soldiers should seek a military lawyer immediately, even before, formal separation initiation begins. This will give them the most amount of time to respond.
Army Separation Boards: Procedures
A separation board consists of three board members. One member has to be in the rank of Major or above. If there is an enlisted member, they must be in the rank of SFC or above. The majority of the members will be officers or warrant officers. What this means is that there is generally a Major, a Captain/Warrant Officer, and a SFC (sometimes higher) that sit on most separation boards. Certain groups of Soldiers (minority members, reserve members, i.e.) have additional rights for the composition of the board. Most of the time board members are appointed from outside of the Soldier’s Brigade; however, this is not a requirement. The only requirement is that they are unbiased.
The rules of evidence, with the exception of relevance and some other legally technical exceptions, do not apply. This generally leads to a very relaxed proceeding. The prosecution is on one side of the board and the Soldier and the Soldier’s Defense Counsel, are on the other side of the board.
The prosecutor will advocate (using witnesses and evidence) for the Command's goals (usually to separate with a certain discharge characterization). The defense attorney will usually advocate using character witnesses, letters of character, and evidence that mitigates or rebuts the reasons for the board. Both sides get to make a closing argument.
Once arguments are complete, everyone leaves the room and the board starts their closed session deliberations. The board deliberates for as long as they need to before coming to a majority vote on whether the prosecution proved the underlying reasons for the separation, whether those reasons warrant separation, and if so, what type of discharge the Soldier should get. The board then calls everyone back in and reads the findings of the board to the Soldier. After the findings are read, the board process is over.
Army Separation Boards: Post Board Action
A board’s findings and recommendations are somewhat binding on the separation authority (usually a General, but can sometimes be a Brigade Commander). Basically, the separation authority cannot take action any worse for the Soldier than a board recommends. He/she can, however, take action that is better for the Soldier. Here are some examples:
- A board convenes and finds that a Soldier did commit the underlying reasons for separation, but that he/she should be retained in the service. The separation authority has no choice but to retain the Soldier
- A board convenes and finds that a Soldier did commit the underlying reasons for separation, should be separated, and should get a GEN discharge. The separation authority can retain the Soldier, give him/her an HON discharge, or give him/her a GEN discharge. The separation authority cannot give him/her an OTH discharge.
- A board convenes and finds that a Soldier did commit the underlying reasons for separation, should be separated, and should get an OTH discharge. The separation authority can retain the Soldier or separate him/her with any discharge.
An added wrinkle is if the board finds that a Soldier should be separated, but the separation should be suspended for a certain number of months. A suspension means that if a Soldier stays out of trouble for the probation period, they will not be separated. The important thing to note is that the suspension is not binding on the separation authority. Here is an example:
- A board convenes and finds that a Soldier did commit the underlying reasons for separation, should be separated, should get an OTH discharge, but the separation should be suspended for 6 months. The separation authority can retain the Soldier, separate him/her with any discharge, or suspend the separation and put the Soldier on probation for 6 months or less.
A separation authority’s action after the board can be very confusing and it is best to consult with a military lawyer. Furthermore, there is still a lot of advocacy that can be completed on the Soldier’s behalf after a board convenes. One thing a Soldier should remember: if they are retained by the board, its over. They will be retained in the Army and the chain of command can no longer separate them for the reasons the board convened.
Army Separation Boards: Concurrent Medical Evaluation Board Processing
It is very common for a Soldier to be undergoing medical separation at the same time as administrative separation. Only certain types of separation (commission of a serious offense, pattern of misconduct, i.e.) trump the medical separation process. For example, if a Soldier is being separated for unsatisfactory performance and is also being separated medically, the medical separation takes priority.
If a Soldier is undergoing a medical separation and one of the separations that is not trumped, then the actions both proceed concurrently and a General Officer picks between the two. The Medical Evaluation Board is usually paused before going to the Physical Evaluation Board. The administrative separation process proceeds through the separation board (if eligible) and to the General. The General then decides between administrative separation (if the board recommended separation) or medical separation.
There is no binding guidance in AR 635-200 to guide the General. The General usually will not chose medical separation unless there is some sort of nexus between the medical condition and the reason for administrative separation. Even with a nexus, some Generals almost never pick medical separation. Others are much more inclined to pick medical separation. A military lawyer can help advocate for the medical separation over the administrative separation.
Army Separation Boards: Retirement Eligible Soldiers
Soldiers that are retirement eligible are NOT protected from administrative separation. Unfortunately, it is not uncommon for retirement eligible Soldiers to be forced to go through the administrative separation process. The only difference in the process is that Soldiers with over 18 years of service cannot waive their board (usually inadvisable anyways) and their separation cannot be approved by anyone except HRC. A retirement eligible Soldier has the most to lose with an administrative separation. If separated instead of being allowed to retire, they lose their pension and all benefits.
AR 635-200 was updated in June of 2021, allowing retirement eligible enlisted Soldiers to request retirement in lieu of separation; previously, this option was only available to Officers. If the Soldier in question is pending separation under AR 635-200, paragraph 14-12c (commission of a serious offense), he/she can request to be retired instead of being separated. The Secretary of the Army is the approval/denial authority. If the Secretary of the Army approves the retirement, he/she can also determine what grade the Soldier in question last served satisfactorily in. For example, a MSG pending separation under AR 635-200, paragraph 14-12c, who requests to be retired in lieu of separation, may be retired in any rank from MSG to E1. Likely, if the misconduct in question occurred recently, the MSG will be only reduced one retirement grade, or none at all; however, it is possible to be reduced more than one grade.
It may or may not be advisable to submit a retirement in lieu of separation. For example, if an NCO is retained at the Separation Board, then his/her retirement grade won't be affected. Any retirement eligible NCO facing an Army Separation Board should consult an experienced Military Defense Lawyer immediately.
This article was written by Attorney Matthew Barry