The firm handles separation boards, boards of inquiry, and retirement grade cases on a regular basis. We have handled cases at the highest military levels - including general grade officers and admirals.
The main purpose of administrative separations is to determine the service member's suitability for continued service in the military. Commanders can initiate boards for any number of reasons. Administrative separations can result in one of three types of discharges: honorable, general under honorable conditions, and other than honorable conditions. The type of discharge received will dictate the benefits, such as veterans benefits, service members will qualify for once released from active duty. Because career and benefits are at stake, civilian counsel can be valuable.
Each of the branches has their own regulations governing administrative separations, but all of the services have generally similar regulations that follow guidelines promulgated by the Secretary of Defense.
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When separation is contemplated the service member is afforded certain rights. At the outset of the process, service members are notified of these rights in writing. This notification includes the factual basis of the proposed separation, the least favorable discharge being considered, the right to obtain copies of the documents being forwarded in support of the proposed separation, the right to submit statements, the right to counsel and, if he or she qualifies for one, the right to an Administrative Board, a hearing to contest the separation or the type of discharge sought. If a service member is not entitled to an administrative separation board, the member may still submit letters and evidence on his or her behalf to prove suitability for continued service.
Retirement benefits and veterans benefits can be substantial. There are a number of ways in which injustices can occur during the separation or retirement process. There are also a number of ways in which counsel can help protect you before the injustice occurs.
In separation and retirement cases, it is extremely valuable to have counsel who have handled federal litigation involving separations and retirements. This is particularly true in cases involving involuntary actions.
Issues of whether retirements or separations are voluntary or involuntary have been the subject of extensive litigation in the federal courts.
In presumptively voluntary separation cases there are ways to rebut the presumption of voluntariness that attaches upon discharge. Common methods of rebuttal include coercion, government misrepresentation of facts, attempts to withdraw the retirement, time pressures, and mental competency. It is often a question of whether the decision-making process was reasonable and a free choice. Kim v. U.S. 47 Fed. Cl. 493, 501 (2000). A lack of information can be a factor that courts consider.
The bottom line is that the stakes are high in separation and retirement cases. It is worth your time to engage us in a consultation to determine whether the assistance of counsel is advisable.
Administrative Separation of Airmen AFI 36-3208
Marine Corps Separations and Retirement Manual
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