Being processed for an involuntary or administrative discharge can be a serious and stressful situation for a service member. There are many reasons why the U.S. military may require you to go through this process: if you failed a drug test, have been accused of certain acts such as physical abuse, sexual assault, or sexual harassment, abused alcohol, or engaged in some other misconduct, for example.
It is important to note that this order does not necessarily mean that you are going to be forced out of the military against your will. You have powerful legal rights you can exercise to fight the charges. Separation processing is a complex process, and to be successful you will need skilled and competent legal representation.
If you are a member of the U.S. military and you are facing the prospect of mandatory separation processing, contact an experienced civilian military defense attorney at Invictus Law today. Our seasoned lawyers could represent you at your hearing, defend your rights, and use our knowledge of military separation law to fight back against a potential discharge.
What Is an Administrative Separation Board?
An Administrative Separation Board (ASB) is not just an entity — it is the process by which the military determines whether you are guilty of misconduct. The ASB panel will consist of three active duty service members who are higher in rank than you. Typically, two of the three board members are commissioned officers, while one is a senior enlisted member.
You must have at least six years of active duty service under your belt to be entitled to an ASB, with one exception: If your command informs you that you are being considered for an Other Than Honorable (OTH) discharge, you are also automatically entitled to an ASB regardless of how much time you have spent in active duty service, given the serious implications of an OTH discharge. Some of the long-term consequences of an OTH discharge include loss of veterans’ benefits and loss of educational benefits.
If you come from a minority background, or if you are female, you can request that the senior enlisted member presiding over your hearing be a minority or a female. If you do not have at least six years of active duty service and you are not being considered for an OTH discharge, you will submit a written rebuttal to the charges instead of attending a hearing.
While you are not entitled to confront the individual who made allegations against you at the hearing the way you would be if you were court-martialed, the government is still required to prove the charges by a preponderance of the evidence. This standard of proof is lower than the standard of proof generally required in a civilian criminal trial, which is proof beyond a reasonable doubt.
To prove allegations by “a preponderance of the evidence” means that the government must show that the charges have at least a 50 percent chance of being true. If the government can reach this threshold, it will have satisfied the burden of proof.
Is an ASB Prosecution the Same as a Criminal Trial?
No, ASB prosecutions are not the same as criminal prosecutions. ASB prosecutions have numerous differences from civilian court prosecutions. None of the service members on the ASB are lawyers. However, they will consult an objective legal advisor who has no stake in your case for advice on legal questions that may arise during your hearing.
What Are My Rights Before an ASB?
You have numerous rights when you go before an ASB, and properly exercising these rights under the guidance of an attorney could potentially help you secure a positive outcome. Some of your primary rights include:
- The right to appear before the ASB with legal counsel
- The right to call witnesses
- The right testify on your own behalf
- The right to assert your Constitutional privileges
- The right to submit evidence such as sworn or unsworn statements, certificates, affidavits, and other documentation
- The right to determine the impartiality of the board members by asking them questions prior to the presentation of evidence
- The right to have your attorney file a “Bill of Particulars” which essentially requires the government to explain the accusations against you in greater detail
- The right to have your lawyer cross-examine witnesses during the hearing
It’s also important to note that you do not have to prove anything yourself. In fact, you do not have to present any evidence in your defense at all, and the prosecution cannot hold that against you. The burden of proof is entirely on the prosecution.
Contact a Virginia Military Defense Lawyer
Contact the Virginia military separation hearings lawyers at Invictus Law today if you are preparing for an ASB. We will do everything we can to help you understand your rights and obtain the best possible results in your case. Reach out to us for a free consultation.