Marine Separation BoardsSeptember 20, 2019
Marine separation boards are governed by Marine Corps Order (MCO) 1900.16. The following article is meant as a general overview. There are many complexities to Marine separation boards that requires a more thorough review of a Marine’s specific case and consultation with a military lawyer familiar with MCO 1900.16.
Marine Separation Boards: Initiation
The Marine enlisted separation process is initiated by any Commander. The most common reasons are misconduct and unsatisfactory performance; however, the complete list of reasons for separation can be found at MCO 1900.16-6201 through 6215. The Marine Corps, along with the Navy, has an additional requirement that other services do not (Army, Air Force) that helps protect Marines from multiple separation actions. At the time separation is initiated, all reasons for separation that meet the minimum criteria must be included. Therefore, if the Command makes a mistake and leaves a reason out, they should be precluded from separating a Marine based on that reason later on.
Marine Separation Boards: Board Eligibility
There are two categories of Marines who are eligible to have their separation cases heard by a separation board: those Marines with 6 or more years of service and those Marines who the chain of command is trying to give an other than honorable (OTH) discharge. Some examples:
-A Marine with 5 years and 2 months of service who the command is trying to give a general discharge (GEN) is not eligible for a separation board.
-A Marine with 6 years and one month of service who the Command is trying to give a GEN is eligible for a separation board.
-A Marine with 2 months of service who the Command is trying to give an OTH is eligible for a separation board.
-A Marine with 30 years of service who the Command is trying to give an honorable (HON) discharge is eligible for a separation board.
Marine Separation Boards: Separations without Boards
Marines who are not entitled to a separation board are very limited in their ability to contest a separation action. These kinds of Marines can only make a written response and a request to talk to his/her Commanders. There is no requirement in MCO 1900.16 that Marine be given an in-person meeting with the separation authority.
The separation authority varies depending on the reason for initiation. Generally speaking, however, the General Court-Martial Convening Authority (GCMCA) is the separation authority. The GCMCA can delegate separation authority in many cases to the Special Court-Martial Convening Authority (SPCMCA). The SPCMCA can only be delegated to give GEN and Entry Level Discharges.
Once separation is initiated it is important that Marines to seek a military lawyer immediately. If a Marine knows a separation action is forthcoming, they should act before the process formally begins.
Marine Separation Boards: Board Procedures
A Marine separation board consists of at least three unbiased board members that are appointed by a SPCMCA . One member has to be in the rank of O4 or above. If there is an enlisted member they must be in the rank of E7 or above. The majority of the members will be officers or warrant officers.
The prosecution will present the Command's case for separating the Marine. The Marine, usually through his lawyer, will present the Defense's case. This usually consists of letters of character, character witnesses, and sometimes evidence to undercut the prosecutions reasons for separation. The rules of evidence, with a few exceptions, do not apply to either side. The Marine in question can testify if he/she so desires.
Interestingly, the Marine Corps allows the introduction of polygraph evidence at separation boards. Given the inherent unreliability of these tests, this is alarming. If a Marine is facing a separation board with a polygraph, consultation with a military lawyer is advised.
Of note, the Marine Corps has a provision in MCO 1900.16 that the other services do not. Any named alleged victims of the respondent’s alleged conduct have the right to be present and make objections during the proceedings. The alleged victim’s counsel also has the same right to object on behalf of their client. Furthermore, the alleged victim is allowed to express his/her views on the retention of the respondent. In effect a Marine is facing two lawyers attempting to prosecute them (the actual prosecutor and the victim’s lawyer). This should concern any Marine in this situation and consultation with an experienced military lawyer is important.
Both sides get to make a closing argument. The board will come 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 Marine should get. If the Marine in question is retirement eligible, the board will also determine at what grade he/she should be retired in.
The Marine Corps has one interesting addition at this point in the process. If any board member did not agree with any of the board’s decisions (making it a 2-1 vote, i.e.), they are required to submit a minority report explaining their dissention. Unlike the Army and the Air Force, the Marine Corps requires that this minority report be submitted with the board proceedings. This can greatly assist a Marine who has an unfavorable recommendation from the board as a whole and needs to appeal the board results to the separation authority.
Marine Separation Boards: Post Board Action
A board’s findings and recommendations are somewhat binding on the separation authority (usually the GCMCA, but can sometimes be the SPCMCA, the Commandant of the Marine Corps (CMC), the Deputy Commander of Manpower and Reserves (DCMRA), or the Secretary of the Navy). With one exception (discussed below), the separation authority cannot take action any worse for the Marine than a board recommends. He/she can, however, take action that is better for the Marine. Marines can also be placed on probation instead of being separated. Any recommendation for probation is not binding on the separation authority.
There is one major caveat to the above information. The Command cannot take action worse than what a Separation Board recommends; however, if they disagree with the board’s recommendation of retention, they can forward the case to the Secretary of the Navy who becomes the separation authority. The Secretary of the Navy, in this case, can overturn the board’s decision and separate the Marine. This should concern Marines and makes quality legal counsel even more important if this were to happen.
A separation authority’s action after the board can be very confusing and it is best to consult with a military lawyer.
Marine Separation Boards: Concurrent Medical Evaluation Board Processing
Medical Separations do not take precedence over separations for any reason that could result in an OTH. For all other types of administrative separations, Medical Separations are not superseded and need to conclude prior to the finalization of the other type of separation. For any separation that a Marine is facing where an OTH is authorized, both actions are forwarded to the first General in the chain of command who choses between medical separation and the adverse separation.
Marine Separation Boards: Post Traumatic Stress Disorder (PTSD)/Traumatic Brian Injury Diagnosis
The Marine Corps has some added protection for Marines facing separation who have been diagnosed with PTSD/TBI. In these cases, the separation authority is always the GCMCA. Additionally, a mental health professional must make a report on if the diagnosed condition was a contributing factor to the conduct forming a basis for the separation action and also determine the effect of the condition on the Marines behavior and judgment.
Marine Separation Boards: Retirement Eligible Marines
Marines are afforded the opportunity to request retirement/transfer to the Fleet Marine Corps Reserve (FMCR) list in lieu of elimination if eligible; however, this is nothing more than a request and it can be denied by the CMC or the DCMRA. For retirement eligible Marines and those within 2 years of retirement, the DCMRA is the approval authority for an administrative separation.
Marine Separation Boards: Legal Representation
The Marine Corps has some alarming provisions about the right of Marines to a lawyer when facing an administrative separation. Generally speaking, a Marine is entitled to a lawyer (public defender) paid for by the Marine Corps; however, there are certain circumstances that allow the Command to force the Marine to seek guidance from a non-lawyer officer. These situations include: if the Marine is remote from Judge Advocate resources, if the Commanding Officer determines no qualified lawyer will be available within 5 calendar days and that the needs of the Marine Corps require processing of the separation action before a qualified lawyer is available. A non-lawyer counsel advising a Marine will likely have no idea what they are doing and therefore put the Marine in a risky situation. If a Marine finds themselves with a non-lawyer counsel while facing separation it is even more important that they consult with a civilian military lawyer.
This article was written by Attorney Matthew Barry