Army Reserve Enlisted Separations

Army Reserve Enlisted Separations are governed AR 135-178, available at this link. This article is meant to address the Army Reserve Enlisted Separations process for the most common reasons.

The Army Reserve Enlisted Separation process can be initiated by any level of Commander. For example, a Company Commander, Battalion Commander, Brigade Commander, or Commanding General could initiate the process.  If one level of Command does not initiate separation, then a higher-level Command could.

Army Reserve Soldiers can face separation for many reasons; however, these are the most common:

• Unsatisfactory performance after counseling and rehabilitative efforts have failed;
• Alcohol or drug abuse failure;
• Pattern of misconduct;
• Commission of a serious offense (defined as "if the specific circumstances of the offense warrant discharge and a punitive discharge would be authorized for the same or a closely related offense under the UCMJ");
• Conviction by a Civilian Court;
• Unsatisfactory Participation in the Ready Reserve (defined by AR 135-91)

When a Commander initiates the Army Reserve Enlisted Separation process, he/she must list the reasons the proposed separation.  If the Soldier in question has less than 6 years of service, at the time of initiation, and an Other than Honorable Characterization of service is not recommended, then the Soldier in question can only respond in writing.  In this situation, the Soldier and his/her lawyer should review the complete packet (including all accompanying evidence), collect additional evidence (statements, text messages, emails, photos, videos, character letters, etc.), and write a response.  A good response addresses the allegations head on and talks about the Soldiers otherwise solid performance and potential.

If the Soldier in question has 6 or more years of service, at the time of initiation, OR if an Other than Honorable Characterization of service is recommended, then the Soldier in question is entitled to a hearing before a Separation Board.  A Soldier must elect appearance within the allotted time (no less than 30 days) or he/she may waive this right. A Soldier can also waive his or her board outright (not typically recommended) or submit a conditional waiver. Conditional waivers are explained more at this link.  Before submitting a request for a conditional waiver, an experienced Military Lawyer should be consulted.

If the Soldier in question elects appearance before a separation board, which is usually recommended, then a Board is convened.  The Board typically consists of a Major (Board President), a Captain/Warrant Officer, and a SFC or above. All board members must outrank the Soldier accused and one Reserve Officer must be on the Board. If an Other than Honorable characterization of service is recommended, the Board must consist of all Commissioned Officers. The Board functions as a jury, required to make a finding of whether or not the allegation(s) are proven by a preponderance of the evidence (more likely than not), if the Soldier should be separated, and if so, what the characterization of service should be (Honorable, General under honorable Conditions, or Other than Honorable). The Board is governed by the rules for formal boards under the provisions of AR 15-6.  Essentially, a prosecutor is assigned and presents the case against the Soldier in question. The Soldier has the right to call witnesses, present outside evidence, and testify. His/her lawyer can cross-examine witnesses and make argument.

The Board's findings and recommendations are somewhat binding on the separation authority.  The separation authority can always make a more favorable recommendation, but never worse. For example, if the Board recommends retention, then the Soldier in question is retained. If the board recommends separation, but with a General Discharge, the Soldier can be retained, receive an Honorable Discharge, or receive a General Discharge.

Army Reserve Enlisted Separations, with or without a Board, can be approved by Area Commanders (can be delegated), the CG of HRC for certain Soldiers, the CG of ROTC Cadet Command for certain Soldiers, and the CG of Recruiting Command for certain Soldiers.  If the Soldier has more than 18 years of service, the approval authority is the Secretary of the Army.

Soldiers who have completed over 20 years of service can apply to retire in lieu of the Army Reserve Enlisted Separation process; however, he/she is subject to being reduced in retirement grade when such requests are processed.

Any Reserve Soldier facing the separation process that is also facing IDES processing (medboard) will continue through the separation process and medboard process. When both actions are complete, but prior to final action, they will be forwarded to the General Court Martial Convening Authority (GCMCA). The GCMCA will determine whether the Soldier will be processed through the medboard or through the other action. This is a highly discretionary decision with very little published guidance.

Army Reserve Enlisted Separations are complicated and have serious consequences.  Any Soldier facing this process has the right to consult with and be represented by a lawyer. While Trial Defense Services (TDS) is available, they are often too busy with their civilian job to adequately represent a Soldier facing the separation process.  Additionally, these lawyers tend to be overworked and under experienced.  Soldiers facing separation can retain Civilian counsel. This allows the Officer in question to chose a counsel with positive reviews from prior clients and a proven track record of success. A Soldier facing separation should demand an aggressive counsel who will spend time to investigate the case, prepare a defense, and advocate for the accused either at the Separation Board or in writing (if not Board eligible).

This article was written by Attorney Matthew Barry, who has extensive experience with Army Reserve Enlisted Separations.

Contact him today for a free consultation.