Navy Separation BoardsSeptember 20, 2019
Navy separation boards are governed by MPM 1900 and MPM 1910. The following article is meant as a general overview of the process. There are many complexities to Navy separation boards that require a more thorough review of a Sailor’s specific case and consultation with a military lawyer familiar with MPM 1900 and MPM 1910.
Navy Separation Boards: Initiation
Separation is usually initiated by a Sailor's immediate Commander. The most common reasons are misconduct and unsatisfactory performance. The complete list of reasons for separation can be found in MPM 1900-100. The Navy has requires that, at the time separation is initiated, all reasons for separation that meet the minimum criteria must be included. This is a requirement meant to prevent the Command from repeatedly forcing a Sailor to face multiple separation actions.
Navy Separation Boards: Board Eligibility
There are two categories of Sailors who are eligible to have their separation cases heard by a separation board: those Sailors with 6 or more years of service and those Sailors who the chain of command is trying to give an other than honorable (OTH) discharge. Some examples:
-A Sailor with 4 years and 8 months of service who the command is trying to give a general discharge (GEN) is not eligible for a separation board.
-A Sailor with 15 years of service who the Command is trying to give a GEN is eligible for a separation board.
-A Sailor with 30 days of service who the Command is trying to give an OTH is eligible for a separation board.
-A Sailor with 21 years of service who the Command is trying to give an honorable (HON) discharge is eligible for a separation board.
If a Sailor 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.
Navy Separation Boards: Separations without Boards
These types of separations are meant to be easy for the Command. The Sailor can only gather evidence and make a written response. The assistance of a lawyer can greatly help.
The separation authority varies depending on the reason for initiation. Generally speaking, however, if a Sailor is not entitled to a separation board, Special Court-Martial Convening Authority (usually an O6) will be the separation authority. Sailors do have the right to request that the General Court-Martial Convening Authority review the case and become the separation authority.
Sailors should seek a military lawyer immediately, as soon as they find out that separation proceedings are being initiated. The more preparation time, the better.
Navy Separation Boards: Board Procedures
A separation board is appointed by a Special Court-Martial Convening Authority and it consists of at least three members. 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 board hears evidence from both the prosecution and the defense. The rules of evidence, with some technical exceptions, do not apply. A Sailor, through his lawyer, is allowed to present good character evidence and evidence that undercuts the reasons for the separation action. The Sailor can also testify if they wish. This should be discussed thoroughly with a military lawyer. Both sides have the option to give a closing statement.
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 Sailor should get. If the Sailor in question is retirement eligible, the board will also determine at what grade he/she should be retired in.
Navy 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 the Special Court-Martial Convening Authority, the Commander of Naval Personnel Command, the Chief of Naval Personnel, or the Secretary of the Navy). With one exception (discussed below), the separation authority cannot take action any worse for the Sailor than a board recommends. He/she can, however, take action that is better for the Sailor than a board recommends.
Separations can also be suspended; however, any recommendation for suspension from a board is not binding on the separation authority. A suspended separation essentially means that a Sailor will not be separated if he/she can stay out of trouble for a set number of months.
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. MPM 1900 and 1910 do not specifically say that the Secretary of the Navy can separate a Sailor when a board has recommended retention/suspension; however, the regulations imply that he/she can. This should concern Sailors and makes quality legal counsel even more important if this were to happen.
Furthermore, if the Command was required to initiate separation by MPMs 1900 and 1910 (violent misconduct, unlawful use of illegal substances, possession of drug paraphernalia, sexual misconduct, certain types of sexual harassment, supremacist or extremist conduct, certain alcohol rehabilitation failures, certain physical fitness failures, i.e.) and the board recommends retention or suspension of separation, then the case must be forwarded to the Navy Personnel Command/Secretary of the Navy for final action. This added provision is puzzling and implies that the Navy Personnel Command/Secretary of the Navy may be able to separate the Sailor regardless of a board’s recommendations. If a Sailor is facing mandatory separation action they should consult with a military lawyer immediately.
Navy Separation Boards: Concurrent Medical Evaluation Board Processing
Medical Separations do not take precedence over separations for misconduct, disciplinary proceedings or any separation that could result in an OTH. For all other types of separation, Medical Separations are not superseded and need to conclude prior to the finalization of the other type of separation.
Navy Separation Boards: Post Traumatic Stress Disorder (PTSD)/Traumatic Brian Injury Diagnosis
The Navy has some added protection for Sailors facing separation who have been diagnosed with PTSD/TBI. In these cases, the separation authority is always the Chief of Naval Personnel. 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 Sailors behavior and judgment.
Navy Separation Boards: Retirement Eligible Sailors
Sailors are afforded the opportunity to request retirement in lieu of elimination if eligible; however, this is nothing more than a request and it can be denied. Retirement eligible Sailors have a lot to lose and should be even more concerned about quality legal representation at a separation board.
Navy Separation Boards: Legal Representation
The Navy, unlike several of the other services, has the ability to separate a Sailor without providing a qualified lawyer to them. The regulations allow a non-lawyer counsel to be appointed to assist a Sailor in certain situations. If this happens to a Sailor, he/she should strongly consider hiring a civilian counsel to represent them. Many military lawyers don't even understand the above process; a non-lawyer counsel will have no idea what they are doing.
This article was written by Attorney Matthew Barry