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A Rough Form Of Justice – Part 3: Adverse Administrative Actions

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In Part 1 of this blog series, I describe the historical purpose of military justice: the preservation of good order and discipline within the military. I also explained that under modern military law, military commanders are expected to balance the need for discipline with the requirement to do justice. In Part 2, I describe the development and sources of law for the modern military justice system. Below in Part 3 of “A Rough Form of Justice,” I review the adverse administrative actions commanders may impose on military members. How and when a particular military commander uses his authority to punish and discipline the members of his command is a matter of discretion.  The commander’s decision to impose discipline may have a profound and long lasting effect on the service member’s military career, education opportunities, and employment prospects.

TYPES OF ADVERSE ADMINISTRATIVE ACTIONS

Commanders have at their disposal a range of adverse administrative actions to rehabilitate, punish, and/or separate  service members from the military. Commanders may choose to take one or more of these actions against a service member.  Consequences for the service member and their dependent spouse and children may include loss of military retirement, medical coverage, and educational benefits. An adverse administrative separation will also lead to an unfavorable characterization of service at discharge which is entered into the service member’s Department of Defense Form 214 (DD 214). Commanders may choose to take one or more of these administrative actions against a member of their command:

  • Reprimand: A letter or memorandum issued by a flag officer (General or Admiral). A reprimand, if placed within a service member’s official military record will cause the service member to be non-select for promotion and may lead to separation prior to retirement eligibility.
  • Nonjudicial Punishment (NJP): Administered in accordance with Article 15, UCMJ, 10 U.S.C. section 815, Part V of the MCM, and service regulations. The different services refer to punishment under these provisions as an “Article 15” (Army and Air Force), “Captain’s Mast” (Navy and Coast Guard), and “Office Hours” (Marine Corps). Nonjudicial punishment is an administrative punishment with possible career ending consequences. Depending upon the rank of the service member and the level of command administering the NJP, punishment may include reprimand, extra duties, restriction, restricted diet, reduction in rank, and forfeiture of pay. If the record of NJP is placed within the service member’s official military record, it may cause the service member to be non-select for promotion and cause eventual separation prior to retirement eligibility. Imposition of nonjudicial punishment on senior enlisted or any officer will most likely result in initiation of an administrative separation from the military.
  • Administrative reduction in Rank: In addition to reduction under Article 15, U.C.M.J., commanders may reduce service members by reason of incompetency, inefficiency, or civil conviction. Navy MILPERSMAN 1450-010; Army Regulation 600-8-19. A reduction in rank could cause the service member to become ineligible for continued service depending upon the member’s rank and time in service.
  • Adverse Administrative Discharge: A service member may be separated from military service for alleged misconduct. Depending on the length of their service, military members are entitled to certain due process before the command may adversely separate them from the service. Enlisted members with six or more years of service are entitled to appear before an administrative separation board. Officers with six or more years of service are entitled to appear before a Board of Inquiry.

 

TYPES OF ADMINISTRATIVE DISCHARGE

Unless the service member is in an entry level status, there are three types of administrative discharges: 1)Honorable, 2) General (Under Honorable Conditions), and 3) Other Than Honorable. Most service members receive an “Honorable” characterization of service upon expiration of their term of service. A separation action may be classified as “adverse” when the command recommends the service member for a characterization of service of less than honorable. A characterization of “General (Under Honorable Conditions)” or “Other Than Honorable” will negatively impact the service member’s eligibility for VA benefits, the GI Bill, and ability to find employment.

In many cases, commanders have discretion whether or not to initiate an adverse administrative separation against a member of their command.  In some cases, initiation of an adverse separation action is mandatory.  Whenever a service member faces an adverse administrative separation, they may benefit from consulting with an experienced military lawyer.  When facing an administrative discharge board (Enlisted) or Board of Inquiry (Officers), the service member needs an experienced advocate to fight for their career before and during the board hearing.

To see sample case results in which Mr. Kageleiry successfully advocated for his clients before an administrative discharge board, click here.

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