Air Force Separation BoardsSeptember 20, 2019
Air Force separation boards are governed by AFI 36-3211, recently updated in June of 2022. The following article is meant as a general overview of the process. There are many complexities to Air Force separation boards that require a more thorough review of an Airman’s specific case and consultation with a military lawyer familiar with AFI36-3211.
Air Force Separation Boards: Initiation
Separation is initiated by a Commander with a formal counseling that includes the supporting documentation.
Separation can be initiated for a variety of reasons. While this list is not exhaustive, the following are specified reasons: parenthood, insufficient retainability for required training, conditions that interfere with military service, erroneous enlistment, fraudulent entry, entry level performance and conduct, unsatisfactory performance, rehabilitation failure (drugs, alcohol, etc.), misconduct, discharge in the interest of national security, failure in prisoner rehabilitation, and failure in the fitness program.
Air Force Separation Boards: Board Eligibility
The following are the categories of Airmen who are eligible to have their separation cases heard by a separation board: Airmen who are NCOs at the time the discharge process starts, Airmen with 6 or more years of service at the time the discharge process starts, Airmen recommended for an Other than Honorable (OTH) discharge, when a discharge in the interests of national security is recommended, or when the Airman is a commissioned or warrant officer in the Reserves. Here are some examples:
-An Airman (not an NCO) with 5 years of service, who the command is trying to give a general discharge (GEN), is not eligible for a separation board.
-An Airman with 3 years of service, who the command is trying to give a GEN discharge, who is an NCO at the time the discharge process starts, is eligible for a separation board.
-An Airman with 10 years of service, who the Command is trying to give a GEN discharge, is eligible for a separation board.
-An Airman with 10 days of service, who the Command is trying to give an OTH, is eligible for a separation board.
-An Airman with 26 years of service, who the Command is trying to give an honorable (HON) discharge, is eligible for a separation board.
If an Airman 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.
Air Force Separation Boards: Separations without Boards
Airmen in this category can only write a written response to the separation authority. A lawyer can assist the Airman in writing a high quality response with supporting documentation (letters of support and evidence).
The separation authority varies depending on the reason for initiation. Generally speaking, however, if an Airman is not entitled to a separation board, the Special Court Martial Convening Authority (SPCM) is the approval authority. The only exceptions are when an honorable discharge is recommended for misconduct, when the Airman in question has made an unrestricted report of sexual assault and wants review by the General Court Martial Convening Authority (GCM), or when the SPCM wants an Airman retained in cases of sexual misconduct or drugs. In those cases, the GCM is the approval authority.
Airmen only have set number of days to make their formal, written response. An Airman should speak to a military lawyer immediately if he/she believes a separation action is pending against them.
Air Force Separation Boards: Board Procedures
An Air Force board consists of anywhere from three to five board members. The board must be a majority of commissioned officers and one officer must be a field grade. Additionally, the Airman can request an NCO be appointed to the board. Board members cannot be biased and the Airman and his lawyer will be given the chance to question each one.
Generally speaking, the rules of evidence do not apply at a separation board; however, all evidence must be material, relevant, and competent. Furthermore, Air Force separation boards have some built in hearsay protection. It is imperative that a military lawyer make appropriate objections to hearsay evidence. This protection is unlike any other military service's procedures.
A separation board is very much like a trial. A prosecutor and defense attorney will both present their cases to the separation board. The prosecution is advocating for the Command's goals and the defense attorney is advocating for the Airman in question. The defense can present character evidence and/or evidence that undercuts the reasons for the separation board. The Airman in question can also testify if he/she desires.
After closing arguments from both sides, the board decides the following questions by majority vote: whether the prosecution proved the underlying reasons for the separation, whether those reasons warrant separation, and if so, what type of discharge the Airman should get.
Air Force Separation Boards: Post Board Action
After the board has reached its findings and recommendations, it forwards them to the separation authority. The separation authority cannot take action any worse for the Airman than a board recommends. He/she can, however, take action that is better for the Airman. The separation authority can also suspend the separation and place the Airman on probation. If the separation is suspended and the Airman stays out of trouble, he/she will not be separated. Any recommendation for probation is not binding on the separation authority.
A separation authority’s action after the board can be very confusing and it is best to consult with a military lawyer.
Air Force Separation Boards: Concurrent Medical Evaluation Board Processing
If an Airman is undergoing medical separation at the same time as any other type of involuntary separation, both actions are forwarded to the Air Force Personnel Council (AFPC) for a decision. The AFPC then decides whether the Airman will separate medically or not.
Air Force Separation Boards: Airmen with between 16 and 20 years
These Airmen are considered to have “lengthy service.” If these Airmen are recommended by separation by a board without a recommendation for probation, their cases can be referred to HQ AFMPC/DPMARS2 for further review. Importantly, an Airman must request this further level of review.
Air Force Separation Boards: Retirement Eligible Airmen
Airmen that are retirement eligible are NOT protected from administrative separation. If an Airman is not allowed to retire and is separated instead, he/she will lose their pension and all other military retirement benefits.
This article was written by Attorney Matthew Barry