Administrative separation procedures

Each U.S. military Service has a process to administratively separate (referred to as 'AdSep') someone from the military. This type of discharge is typical for misconduct or unsatisfactory performance. The person's service can be characterized as Honorable (HD), General Under Honorable Conditions (GD), or Under Other Than Honorable Conditions (OTH). The AdSep process is designed to be an effective means of discharging someone from the military without the need for a court-martial, which can be a lengthy and resource-intensive process. However, there have been concerns that commanders are using administrative discharges in cases where a court martial would be more appropriate. This issue was highlighted by Gen. James Mattis, then Secretary of Defense, who advocated for more courts-martial. A similar sentiment was expressed, sub silentio, by Dwight Sullivan in his writings.

A person who undergoes an administrative separation (AdSep) is not just "fired" but permanently stigmatized, even if they are given a General Under Honorable Circumstances (GD) discharge. This stigma often extends beyond the military, with civilian employers or others equating the punitive discharge from a general court-martial with an administratively assigned OTH. This long-lasting impact on an individual's reputation and future prospects is a matter of significant concern.

There are criticisms of AdSeps that focus on them being biased, perfunctory, "paper drills" with barely sufficient due process. A person separated with a GD has no right to a hearing or counsel, a significant gap in the process. A person recommended for an OTH has the right to a three-person board hearing, counsel, to produce or to cross-examine witnesses, and to give testimony or make an unsworn statement. However, except for relevance, there are no rules of evidence, which raises concerns about the fairness and transparency of the process.

Thus, we have come a long way around to Sierra Ross, Adequate but Not Ideal: The U.S. Navy's Need to Refine Its Administrative Separation Board Procedures. 11 Tex. A&M L. Rev. 715 (2024). The author suggests 

[T]hree possibilities to improve this system. First, the DOD or Navy may design training programs to ensure Senior Members (“SM”), who are the individuals who manage Adsep Boards,\ understand when evidence is relevant, authentic, and competent and are able to explain and apply the factors they consider when characterizing a discharge. Second, the DOD or Navy could create two rules that would only be applicable in cases where a service member could receive an OTH discharge. One rule would be to limit witnesses to testifying about matters about which they have personal knowledge. Another rule would be to limit the type of opinions that lay witnesses can present to the Board. Third, the DOD or Navy could remove OTH discharges from the purview of Adsep Boards and leave this discharge to courts-martial.

The author, Class of 2024, is to be commended for taking on a difficult subject. Several points should be considered. 

1. OTH boards have a (non-voting) 'legal advisor' assigned to them. The LA is available pre-board and could take on the education task. Also, while not present at the proceedings, the LA is available for consultation if there is an issue that needs more experienced advice. It is common in larger commands that the board members have sat on multiple boards and so have greater experience with board rules and making judgments.

2. On page 726, the author alludes to the appeal process: "First, the service member must challenge their separation before a higher-level commander. If that fails, the sailor can appeal, in this order, to the Court of Federal Claims, the U.S. Court of Appeals for the Federal Circuit, and the U.S. Supreme Court."

a. In principle, what the Approval Authority says is not "appealable" to a higher authority for enlisted persons. The review process is different for officers because the AA lies with a Deputy Secretary of the Navy.

b. In general, there are administrative remedies that the Sailor has to exhaust before going to court: Petitioning the Board for Correction of Naval Records and the Naval Discharge Review Board. A person must seek relief from the BCNR within three years of a known "error," unless they can show good cause and can seek relief, in the form of an upgrade of their OTH, from the NDRB any time from six months after discharge to 15 years after. Whether these boards are an effective remedy is fodder for a different law review article. Recently, another layer of appeal has been introduced with the DoD Discharge Appeal Review Board.