Involuntary Separation near ETS

March 23, 2020

Servicemembers often wonder what happens if their command pursues involuntary separation near their ETS (end of term of service).

Enlisted Servicemembers sign up for defined periods of service, usually for several years. At the end of each period of service they can either sign up for another term or leave. Sometimes Commands are not happy that a Servicemember is about to leave at the end of their term with an Honorable discharge. In these situations, Commands often try to administratively separate Servicemembers for a variety of reasons. The administrative separation process can be lengthy and, in these situations, Commands will often attempt to extend a Servicemember’s term of service so the administrative separation process can be completed.

This is not allowed in the Navy, Air Force, Marines, or Coast Guard. Each Service has provisions in their separation regulation that prohibit extending a Servicemember’s term of service for the purposes of administrative separation. Most Commanders think they can do this and will tell Servicemembers that they can. Any Servicemember in this situation should just stay quiet and let the Command think this so they don’t rush the separation process.

In the Army, however, Soldiers can be extended if they are facing Separation under AR 635-200, paragraph 14-12c (commission of a serious offense), if their enlistment contract permits it. A Soldier's Brigade Commander can extend the Soldier 60 days; the General can extend the Soldier an additional 120 days; the CG of HRC can extend the Soldier an additional 120 days; finally, the Secretary of the Army can extend the Soldier as long as he/she desires. The bottom line is that, in the Army, if a Soldier's Command wants to separate someone for the commission of a serious offense, as defined by the regulation, they can do so without worrying about an upcoming ETS, if their enlistment contract permits it. Any Soldier in this situation should contact an experienced Military Lawyer immediately.

Even if a Soldier's enlistment contract does not permit it, there are provisions that allow an involuntary extension of a Soldier's ETS. For more information, reference AR 635-200, paragraph 1-27a and contact an experienced Military Lawyer immediately.

All Servicemembers CAN be extended if the Command is pursuing a Court-Martial. The standard is low and Commands can use this as a stalling tactic while they figure out what to do. If a Servicemember is extended beyond their normal term of service and are told it is because the Command is pursuing a Court-Martial, they should contact a military lawyer immediately.

The Command will sometimes realize that they cannot extend a Servicemember just to separate them. In these situations, I have seen them leverage a Servicemember's pending medical discharge to buy more time. If a Servicemember is undergoing the medical separation process and is coming up on the end of their term of service, they can voluntarily extend to allow medical processing to complete. Servicemembers in this situation should be very careful before agreeing to any voluntary extension. Consultation with a military attorney is advised in these situations.

Servicemembers whose commanders pursue involuntary separation near their ETS should seek legal counsel immediately to ensure they take the right actions.

This article was written by Attorney Matthew Barry

The Law Office of Matthew Barry represents clients worldwide. He has offices on the East Coast, West Coast, and in the Central U.S.