Coast Guard Separation BoardsSeptember 20, 2019
Coast Guard Separation Boards are governed by COMTINST M1000.4A and PSCINST M1910.1. The following article is meant as a general overview. There are many complexities to Coast Guard separation boards that require a more thorough review of a Coastguardsman’s specific case and consultation with a military lawyer familiar with the regulations listed above. Furthermore, this article does not cover Re-enlistment Boards or Chief Petty Officer competency boards, although many of the procedures are the same.
Coast Guard Separation Boards: Initiation
The Coast Guard enlisted separation process is initiated by a Commander in a formal counseling. Separation can be initiated for a variety of reasons; however, the most common reasons are misconduct, unsuitability and convenience of the Government. All of these reasons are defined very broadly, granting the Command the ability to initiate separation for almost any reason that they desire.
Coast Guard Separation Boards: Board 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 Coastguardsmen who are eligible to have their separation cases heard by a separation board: those with 8 or more years of service and those who the chain of command is trying to give an other than honorable (OTH) discharge. Some examples:
-A Coastguardsman with 7 years of service who the command is trying to give a general discharge (GEN) is not eligible for a separation board.
-A Coastguardsman with 9 years of service who the Command is trying to give a GEN is eligible for a separation board.
-A Coastguardsman with 1 month of service who the Command is trying to give an OTH is eligible for a separation board.
-A Coastguardsman with 25 years of service who the Command is trying to give an honorable (HON) discharge is eligible for a separation board.
If a Coastguardsman 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.
An important caveat to the information above is the Coast Guard’s ability to separate a Coastguardsman for the “Convenience of the Government.” This is defined broadly and includes separation when “the Commandant so directs for good and sufficient reasons.” For the most part, the regulations do not require that the Coast Guard use a separation board when they otherwise should have (those Coastguardsmen with over 8 years). This is a dangerous provision that has the potential for abuse by the Command. If a Coastguardsman finds themselves in this situation, consultation with an experienced military attorney is even more important.
Coast Guard Separation Boards: Separations without Separation Boards
Those Coastguardsmen who are not eligible for a separation board can only write a written response with letters of character and any evidence they can find. They can make an open door request to talk to the separation authority or any Commander along the way; however, these requests do not have to be approved. The separation authority (the one making the final decision) is the Commander of the Personnel Service Center, with a couple of exceptions.
Coastguardsmen should seek a military lawyer immediately, even before, formal separation initiation begins. This gives them the optimal amount of time to protect their career.
Coast Guard Separation Boards: Procedures
A separation board should consist of three unbiased board members that are appointed by the General or Special Court-Martial Convening Authority to serve as the “jury.” One member has to be in the rank of O4 or above, one has to be enlisted and an E8 or above and the other must be an officer. Coastguardsmen who are minorities are entitled to request minority representation on the board. With some very few exceptions, the rules of evidence do not apply.
A prosecutor will represent the Government and attempt to convince the board to separate the Coastguardsman with a specific discharge. The Coastguardsman and his lawyer will be present and will be given an opportunity to present evidence (i.e. letters of character, evidence contesting the reasons for the board) and challenge the government's evidence (i.e. cross examination). The Coastguardsman has the right to testify; however, this should be discussed thoroughly with a military lawyer.
Closing arguments will be given by the defense and the prosecutor. 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 Coastguardsman should get. If the Coastguardsman in question is retirement eligible, or within two years of being retirement eligible, the board will also recommend if the he/she should be allowed to retire. Finally, the board will recommend whether the Coastguardsman should be offered a probationary period before being separated. The Coastguardsman is then notified about the results. This can occur on the same day as the proceeding or at some other time.
Unlike like some services, the Coast Guard requires any board member who disagrees with a finding of fact, opinion, or recommendation of the board as a whole to submit a minority report explaining such disagreement. This requirement can greatly assist a Coastguardsman who did not achieve favorable results at a separation board.
Coast Guard Separation Boards: Post Board Action
After the board is over the results and a board report are served on Coastguardsman and his/her lawyer. The Coastguardsman has the opportunity to write a statement prior to the results/report being forwarded to the Commander of the Personnel Service Center for final action. It is important to note that if the Coastguardsman and his/her counsel do not state their objections to anything that happened during the proceeding, those objections are waived. This means that if there was legal error during the proceeding and the Coastguardsman’s lawyer does not object after the board, in writing, the errors are waived and he/she loses hope of getting any relief. This adds to the importance for a Coastguardsman to be represented by an experienced military lawyer during and after the board proceeding.
Unlike other services, a Coast Guard board’s findings and recommendations are NOT binding on the Commander of the Personnel Service Center (separation authority). Basically, the Commander of the Personnel Service Center can take any action that was available to the separation board; however, the board’s recommendation is very persuasive and should be given a great amount of deference.
The Coast Guard has a second chance program that allows the first General/Senior Executive Service (SES) Civilian in a Coastguardsman’s chain of command to waive certain types of separations. This can be a powerful tool for Coastguardsmen who properly use their military lawyer to advocate for it.
A separation authority’s action after the board can be very confusing and it is best to consult with a military lawyer. The assistance of a lawyer can help a Coastguardsman achieve his/her goals even after losing at the separation board.
Coast Guard Separation Boards: Concurrent Medical Evaluation Board Processing
It is very common for a Coast Guard member to be undergoing medical separation at the same time as administrative separation. Medical Separations do not take precedence over separations for misconduct; they do for all other types of separation.
Furthermore, the Commander of the Personnel Service Center can direct medical separation over any other separation, including misconduct. If a Coastguardsman finds themselves in a situation where they are being medically separated and separated for, or under investigation for, some other reason (i.e. misconduct), it is important to consult with a military lawyer.
Coast Guard Separation Boards: Retirement Eligible Coast Guard Members
Coastguardsmen are afforded the opportunity to request retirement in lieu of elimination if eligible - there is no requirement to approve this request, however. The bottom line is that Coastguardsmen who are retirement eligible and are facing elimination should be worried about losing their pension and other retirement benefits.
Coast Guard Separation Boards: Right to Legal Representation
The Coast Guard only requires that Coastguardsmen be represented by a lawyer if they are getting a General or worse discharge. This means that the Coast Guard can separate a Coastguardsman with an Honorable discharge without providing them a lawyer. The loss of a job and career, despite the Honorable discharge, can be devastating. If a Coastguardsman finds themselves in this situation, an experienced military attorney can be of great assistance.
This article was written by Attorney Matthew Barry. Any Servicemember facing the Coast Guard enlisted separation process who is serious about fighting it should want to be represented by an experienced and hard-working advocate. Click here to review Attorney Barry’s previous Results and Testimonials.