How to Fight a Military Separation
Steps to consider when facing an adverse administrative discharge from the military. This guide will refer to the Army specifically but some of the generic steps would be applicable to all of the services. Consult a qualified military lawyer before taking any action on your case.
Step 1 - Get Organized - Consider Your OptionsYou just received notice that your commander is recommending you for separation. What can and should you be doing to improve your chances of retention or a better discharge? Any fight to stay in the military will need all the facts about your case. The paperwork the command chooses to submit will only tell part of the story. Your first step is to help your lawyer collect all of the relevant facts. Keep a copy of any paperwork given to you about your case. Start collecting detailed contact information for witnesses that may have first hand knowledge about your case. This should include unit of assignment, address, phone number, and email. Make sure this it is current. Do NOT interview the witnesses yourself or talk to them (or anyone except your attorney) about the facts of your case. If the person is an alleged victim, do not contact them at all.
Think about what type of documentary evidence may help with your defense. Your counsel can request to review these documents as part of your response. Make sure to consider any electronic information such as email, social media posts and messages and unit policies and procedures that may apply.
Keep performing your job to the best of your abilities under the circumstances. A separation involving a board could take months to complete. Evidence that you continued to do a good job will reflect well on your rehabilitative potential and military character. You will be under the microscope so be sure to avoid even the hint of trouble.
Carefully review your military and medical records for any errors or amendments. Should a board consider your case they will review all your military records. If your service records include obvious errors it may reflect poorly on your attention to detail. If the Army repeatedly fails to make corrections as requested, keep good records of your attempts to get them fixed.
Step 2 - Interview for CounselYou will likely get to consult with a free military attorney either in person or by telephone if there is no supporting TDS office at your location. Here are some questions you can ask to find out if that person is the best one to help you with your case:
Have you ever been a trial counsel or a government prosecutor prior to being in TDS?
How long have you been an attorney? (Some Captains in the military may have been in practice for less than two years.)
How many separation boards have you conducted? What were the results of those boards?
When do you expect to PCS/ETS?
How many other cases are you handling? Do you have time to fight for me?
Step 3 - Read the Applicable Regulations and ProceduresThe person that prepared your separation action is probably a paralegal specialist supervised by a paralegal NCO. It is not uncommon for these personnel to select the wrong notification procedure, to omit critical information, to include inappropriate information in the notification, or to simply amend an outdated word document from the legal share drive. There is only one way to know for sure and that is to get out your regulations and start reading.
Start by reviewing every citation in the notification. For active duty enlisted personnel, carefully review Army Regulation 635-200 and Army Regulation 15-6. Guard and Reserve personnel should review AR 135-178 and AR 15-6. These regulations are very specific and include detailed samples of proper notifications. Make a photocopy of your notification and highlight all of the discrepancies.
Look for any local supplements or local guidance on the command's website that may apply. Certain jurisdictions like US Army Europe have their own rules and regulations that may apply. If you read the applicable rules you might be the only person involved in the process that did. Take notes of your questions and comments and share your thoughts with your attorney.
Step 4 - Work on Your Rebuttal MattersSoldiers not eligible for a separation board DO get to submit written matters in rebuttal to the command's recommendation. Take this opportunity seriously and plan to spend substantial time completing this step. Your response should be in memo format (see AR 25-50 for a refresher) but your attorney should be able to help you with the formatting if you get stuck.
Your response can cover any number of areas but most of them include a discussion of any legal errors in the separation process, additional evidence in the form of sworn or unsworn witness statements, comments on the quality or lack of evidence, comments about the quality or completeness of the command investigation and other information in defense, mitigation, or extenuation. Consider submitting some photographs or other information to personalize your submission. Most Commanders take their review obligation seriously and will consider the time and effort put into your submission as a positive factor.
Collect statements of support from supervisors, friends, colleagues and fellow Soldiers. Your attorney may be able to provide you samples upon your request. The support of your first line supervisor and NCO chain of command often holds the most sway with the command. Work on obtaining their support first. How many is too many? There is no limit on what you can submit but having 8-12 good letters might be ideal.
Step 5 - Proof Read Your Work and Get it to Your AttorneyWhen you are pleased with your draft, have a trusted family member, colleague or friend review it for typos and general readability. Since your commander is probably not a lawyer that trusted advisor can be a good barometer for whether your rebuttal is persuasive.
Submit the draft to your attorney well before the deadline for submission to the command, especially if you are using the free military lawyer. Your attorney should help you edit your submission and consider whether it makes sense to also include a legal submission as an attachment. This step can be especially helpful if your case involves substantial legal questions that might require the attorney to evaluate relevant case law or legal precedents.
Step 5 - Create the Record and Never Give UpAlthough getting retained by the local command or DA is always the goal, be sure to keep detailed records of all of the above stated steps. These will come in handy should you find yourself separated with an unfavorable discharge despite your best efforts. Not all commands treat Soldiers fairly or follow the applicable regulations.
Fortunately, the Army provides several review boards that are staffed by military and civilian personnel that are not members of your command. These review boards have the power to overturn administrative actions and restore lost benefits when warranted. The wait times on these submissions is reportedly over two years in some cases. Fighting for your rights is almost never the easy route so keep that in mind during the process and don't give up.