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Administrative Separations (ADSEPs)

A service member’s obligation to his armed service normally continues until terminated. Generally, this time period is determined by the terms of the enlistment contract. However, earlier termination may result due to administrative separation or disciplinary discharge based upon misconduct on the part of the service member.

There are two types of separations given by the armed forces of the United States to enlisted service members: punitive discharges and administrative separations. Punitive discharges can only be awarded as punishment by courts-martial. However, there are many reasons a service member may be administratively separated prior to the expiration of the enlistment contract. For example, a service member may be administratively separated based on the commission of a serious offense, drug use or possession, or convenience of the government.

If a command wants to administratively separate (ADSEP) a service member, the member will be given an Administrative Separation Processing Notice (ASPN) describing why the command is processing the member and the least favorable type of discharge authorized. This form also serves as the member’s opportunity to elect or waive certain rights including the right to consult with a military lawyer. It is always advisable to elect your rights and consult with counsel before waiving any of your rights or the board itself.

A service member may have the right to request an administrative separation board, which is a hearing to fight the separation or characterization. Whether a member has this right depends on how long a service member has served in the military and whether he is are being processed for an OTH discharge. Generally, an enlisted member with six or more years of service is entitled to a board, and some offenses always entitle the member to a board. If a service member is not entitled to an administrative separation board, he stil has still have the right to request review of the decision to process him for separation.

If the member is entitled to an administrative separation board and chooses to proceed with the board, the board (composed of three members) will have to answer three questions. They are:

• Whether or not the member committed misconduct as alleged by the command;
• If so, whether the member should be retained in the military or administratively separated; and,
• If the member is to be separated, what characterization of discharge should be granted.

There are four ways an administrative separation may be characterized: Honorable, General (Under honorable conditions), Other than Honorable (OTH), and entry level separation. An OTH is the worst level of discharge authorized by most ADSEP boards. The characterization of a separation may affect veteran’s benefits (including GI Bill eligibility), future re-enlistment in the military or subsequent civilian employment. Each armed force has different regulations governing the rules for separation. The Navy is regulated by the MILPERSMAN section 1910 for enlisted personnel.

Different rules and regulations apply to officer separations. Therefore, officers notified that they must show cause why they should be retained in the Navy should contact a defense attorney about their rights.

Attorney-Client Relationship between Clients and their assigned counsel

According to the Manual for Courts-Martial, Rule 502, a client has the privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:

• Between the client or the client’s representative and the lawyer or the lawyer’s representative;
• Between the lawyer and the lawyer’s representative;
• By the client or the client’s lawyer to a lawyer representing another in a matter of common interest;
• Between representatives of the client or between the client and a representative of the client; or
• Between lawyers representing the client.

What does the rule mean?

Basically, the above rule means that any communications between the client and his lawyer in the course of the representation are considered confidential communications and cannot be disclosed without the client’s consent. The purpose of this rule is to allow clients to be open with their lawyers without the fear that the lawyer will be forced to disclose the client’s information to someone else.

Attorney-Client Relationship with Walk-in Clients

Generally, the attorney-client relationship with a walk-in client terminates at the end of the consultation. Normally, an attorney is assigned to represent you only after court-martial charges are preferred against you or you have been formally notified of administrative separation proceedings against you. When a service member speaks to an attorney as a walk-in, those conversations are in confidence, even though that individual attorney has not been assigned to represent you. This enables the defense attorney to give the best possible advice to the service member.

Pre-Trial Confinement in the Military

Pretrial confinement in the military is similar to the civilian system in some respects and different in others. In the civilian community, police officers arrest serious offenders and take them to jail. In military cases, service members who are “apprehended” (“arrest” has a different technical meaning in the military) are typically turned over to a member of their command. The command then decides whether to confine the member in a military jail (called a “brig” or “confinement”). The command may also impose pretrial “restrictions” instead of confinement. For instance, the service member may be restricted to his base, pending trial. Before any service member is confined or restrained, there must be “probable cause” (a reasonable belief) that the service member committed an offense triable-by courts-martial, and that confinement or restriction is necessary under the circumstances.

In addition, any military officer can order an enlisted service member to be confined. The decision to confine a military member is the subject of several reviews. The military justice system requires that a review of the decision to confine the accused be conducted within 48 hours. Within 72 hours, the military member is entitled to have his commanding officer review whether his continued confinement is appropriate. However, if someone other than the commanding officer confined the member and the commanding officer’s review was actually conducted within 48 hours, then this commanding officer’s review can serve to satisfy both review requirements. Thereafter, a neutral and detached reviewing officer who is independent of the command must conduct another review within seven days.

For the seven-day review before the IRO officer, a service member is provided a military lawyer, at no expense, to assist him. These reviews must confirm, in writing, that

• There is probable cause to believe that the service member committed an offense triable by court-martial;
• Confinement is necessary to prevent the service member from fleeing or engaging in serious criminal misconduct; and
• Lesser forms of restraint would be inadequate.

When charges are “referred” or presented to a court-martial, the confined service member may ask the military judge presiding over the trial to review the legality of his pretrial confinement. If rules were violated, the military judge can release the service member from pretrial confinement, and he can reduce any subsequent sentence, giving additional credit for inappropriate confinement.

Service members do not have to post bail, continue to receive their regular military pay, and do not lose their jobs while awaiting trial.

Complaints of Wrongs

There are two types of formal complaint mechanisms for military personnel who feel they have been wronged by either a commanding officer or another military superior. Article 138 of the UCMJ and Article 1150 of the U.S. Navy Regulations of 1990 specify when and how a military service member may file a complaint against a superior. Each is discussed in more detail below.

It is always a good idea to speak with an attorney before rushing to file these types of complaints. Resolution of conflicts should be done at the lowest level, and often an attorney can assist in resolving a conflict without resorting to a more severe course of action.

Article 138 Complaints, UCMJ

Article 138 of the UCMJ provides that “any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine the complaint and take proper measures for redressing the wrong complained of; and shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings thereon.”

Generally, an Article 138 complaint should be filed within 90 days of the alleged wrong, and all complaints must be in proper form.

See a DSO attorney for advice and assistance in preparing this type of complaint and forwarding it to the proper persons.

Article 1150, U.S. Navy Regulations of 1990

Article 1150, U.S. Navy Regulations, 1990 provides that “if any person in the naval service considers him wronged by an act, omission, decision or order of a person shall not fail in maintaining a respectful bearing toward such superior, but may report the wrong to the proper authority for redress in the manner provided by this Article.”

The complaint should clearly identify the respondent (the superior against whom it is made), the wrong complained of and the redress desired. A person making this type of complaint may be held accountable by the officer responsible for the resolution of the complaint if the complaint is found to be frivolous or false.

See a DSO attorney for advice and assistance in preparing this type of complaint and forwarding it to the proper persons.

Nonjudicial Punishment

Nonjudicial Punishment (NJP) in the U.S. Armed Forces is authorized by Article 15 of the UCMJ. NJP is a disciplinary measure more serious than the administrative corrective measures, but less serious than trial by court-martial. NJP provides commanders with an essential and prompt means of maintaining good order and discipline and also promotes positive behavior changes in service members without the stigma of a court-martial conviction.

Commander’s Responsibility

Commanders are responsible for good order and discipline in their commands. NJP is ordinarily appropriate when administrative corrective measures are inadequate due to the nature of the minor offense or the record of the service member, unless it is clear that only trial by court-martial will meet the needs of justice and discipline. Commanders considering nonjudicial punishment should consider the nature of the offense, the record of the service member, the needs for good order and discipline, and the effect of nonjudicial punishment on the service member and the service member’s record.

A commander who is considering a case for disposition under Article 15 will exercise personal discretion in evaluating each case, both as to whether nonjudicial punishment is appropriate and, if so, as to the nature and amount of punishment appropriate. No superior may direct that a subordinate authority impose nonjudicial punishment in a particular case, issue regulations, orders or “guides” which suggest to subordinate authorities that certain categories of minor offenses be disposed of by nonjudicial punishment instead of by court-martial or administrative corrective measures or that predetermined kinds or amounts of punishments be imposed for certain classifications of offenses that the subordinate considers appropriate for disposition by nonjudicial punishment.

Limitations on NJP

• Double punishment prohibited. When nonjudicial punishment has been imposed for an offense, punishment may not again be imposed for the same offense under Article 15.
• Increase in punishment prohibited. Once nonjudicial punishment has been imposed, it may not be increased, upon appeal or otherwise.
• Multiple punishments prohibited. When a commander determines that nonjudicial punishment is appropriate for a particular service member, all known offenses determined to be appropriate for disposition by nonjudicial punishment and ready to be considered at that time, including all such offenses arising from a single incident or course of conduct, shall ordinarily be considered together, and not made the basis for multiple punishments.
• Statute of limitations. Generally, NJP may not be imposed for offenses that were committed more than 2 years before the date of imposition.
• Civilian courts. NJP may not be imposed for an offense tried by a court that derives its authority from the United States. NJP may not be imposed for an offense tried by a state or foreign court unless authorized by the regulations of the secretary concerned.

Do I have the right to demand a trial instead of NJP?

Except in the case of a person attached to or embarked on a vessel, punishment may not be imposed under Article 15 upon any member of the armed forces who has, before the imposition of NJP, demanded a trial by court-martial in lieu of NJP. This means that if your command is onboard, attached to, or embarked on a ship, you cannot refuse mast. A person is “attached to” or “embarked on” a vessel if, at the time NJP is imposed, that person is assigned or attached to the vessel, is on board for passage, or is assigned or attached to an embarked staff, unit, detachment, squadron, team, air group or other regularly organized body.

Post-trial Matters

Appeals

If an accused is convicted at a court-martial, the result of trial is reviewed in different ways, depending on the severity of the sentence imposed. At a minimum, the record is reviewed by a Staff Judge Advocate (SJA) for the command and the verdict and sentence are approved (or reduced in severity) by the CA.

In cases in which a punitive discharge or a sentence to confinement of two years or more is approved, the case is automatically appealed to the Navy and Marine Corps Court of Criminal Appeals (for all Navy and USMC accused). There, the accused again is represented by military counsel free of charge. While all appellate courts have the power to review matters of law, the Courts of Criminal Appeals have fact-finding power and, if the court is not convinced beyond a reasonable doubt of the guilt of the accused, it has the power to overturn the finding of guilty and any sentence imposed.

If the accused desires, he may appeal decisions of the service’s Court of Criminal Appeals to the Court of Appeals for the Armed Forces. This court is composed of five civilian judges appointed by the President and confirmed by the Senate for 15-year terms. An accused can challenge decisions of the Court of Appeals for the Armed Forces by asking the U.S. Supreme Court for a grant of certiorari.

Clemency

Clemency is an action by either the court-martial CA or a Clemency and Parole Board which may result in the mitigation, remission or suspension of the whole or any part of an individual’s court-martial sentence. To receive clemency from the CA, the accused may submit a request for clemency after the sentence is announced but before the CA takes final action. The accused detailed defense counsel is responsible for assisting the accused in the submission of matters in clemency.

Pursuant to the UCMJ, Service Secretaries may also grant clemency on unexecuted portions of a court-martial sentence. Primarily the service’s Clemency and Parole Boards exercise these clemency powers. Each board consists of five senior officers and provides recommendations and advice to the respective Service Secretary. Automatic clemency review is available to an accused depending on the length of confinement awarded and the branch of service. Clemency review can be waived.

Parole

Parole is the conditional release of an accused from confinement. The service member’s service regulations should be reviewed to determine eligibility criteria. The eligible applicant must submit a parole plan to the appropriate service’s Clemency and Parole Board. The parole plan must provide, at a minimum, a residence requirement, a requirement that the prisoner has guaranteed employment, and an offer of effective assistance to obtain employment or acceptance in a bona fide educational or vocational program. Military prisoners transferred to the Federal Bureau of Prisons to serve their sentence are paroled at the discretion of the Federal Bureau of Prisons. The U.S. Probation Office supervises all parolees.

In general, the Clemency and Parole Board looks at the following factors: the nature and circumstances of the crime; the military and civilian background of the offender; a substantial post-conviction educational or rehabilitative effort; post-trial progress reports; recommendations of the military judge and legal officer; psychiatric evaluations; any statement by the victim; and, any restitution made to the victim.

Pardon

An individual may also petition for the highest form of clemency, a Presidential Pardon. Under Article II, Clause 1 of the U.S. Constitution, the President has the power to grant pardons for federal offenders. The pardon signifies forgiveness of an offense. However, a pardon will not change the nature of a discharge or expunge a record of conviction. Requests for pardons are handled through the Office of the Pardon Attorney, U.S. Department of Justice (DoJ).

Board of Correction of Naval Records (BCNR)

Once an accused has exhausted all other possible remedies, another method for an accused to either modify or reduce a sentence may be by petitioning the BCNR. Each service has established a BCNR in order to correct military records, where such action is necessary or appropriate to correct an error or an injustice. These boards cannot set aside a court-martial conviction but may reduce or modify a sentence as a matter of clemency, even if the sentence has already been executed. Download a sample BCNR.

Right to Counsel of the Accused

For courts-martial and administrative separation boards, an independent military defense counsel is provided to the accused free of charge, regardless of the accused’s ability to pay. The accused may also employ civilian counsel at his own expense or request a particular military counsel who will assist the accused if he is reasonably available. The accused has the right to be represented by counsel at the pretrial confinement hearing (see IRO hearings), at an Article 32 investigation, and during all court-martial sessions. After trial, the accused has a right to free military counsel to assist with his appeal through the military appellate courts, and potentially to the U.S. Supreme Court.

Right to Counsel for Nonjudicial Punishment (NJP)

An accused does not have the right to an attorney for Nonjudicial Punishment (NJP).

However, a service member who is not attached to or embarked on a vessel must be told of his right to confer with counsel regarding his decision to accept or refuse the NJP, if the record of that NJP is to be admissible in evidence against him should the accused ever be subsequently tried by court-martial. To be admissible at later courts-martial, records of NJP must be prepared in accordance with applicable service regulations and reflect that:

1. The accused was advised of his right to confer with counsel;
2. The accused either exercised his right to confer with counsel or made a knowing, intelligent and voluntary waiver thereof; and
3. The accused knowingly, intelligently and voluntarily waived his right to refuse NJP. All such waivers must be in writing.

Right to Counsel for Courts-Martial

The accused always has the right to be represented at court-martial by a detailed military defense counsel, who is provided at no expense to the accused.

The accused also has the right to request, by name, a different military lawyer. If that attorney is determined to be reasonably available, he will be appointed to represent the accused free of charge.

In addition, the accused has the right to be represented by a civilian lawyer at no expense to the government. If a civilian lawyer represents the accused, the accused can also keep his military attorney on the case to assist the civilian lawyer. Alternatively, the accused could excuse his military lawyer and be represented only by a civilian lawyer. Although rarely exercised, the accused also has the right to represent himself.