ADSEP Boards vs. Courts-Martial: Key Differences | ADSEP Part 2
Welcome back to Military Justice Matters. I’m Justin Bennett, a partner with Parlatore Law Group. This is Part 2 of this series on the Administrative Separation process.
Differences Between ADSEP Boards and Courts-Martial
I told you in the last video that an ADSEP board is essentially an informal trial. But there are a few critical distinctions between an administrative separation board and a court-martial, which we’ll discuss today.
First and most importantly, the burden of proof at an ADSEP board is by a “preponderance of the evidence.” That means 51%, or more likely than not, that you are guilty of whatever the alleged basis is—the reason they have listed for why they’re trying to kick you out. The burden of proof at a court-martial is much higher—proof beyond a reasonable doubt, which is the highest burden of proof in our system. What this means is that it’s much easier for the Government to try to kick you out with this lower burden of proof at an ADSEP board than it would be to take you to a trial and try to get a punitive discharge.
The second major distinction is that at an ADSEP board, the Military Rules of Evidence don’t apply. So a lot of the rules that might keep harmful Government evidence out at trial--for example, if the Government seized evidence or obtained a statement from you in violation of your rights under the 4th and 5th Amendment—that kind of thing will be allowed in at an ADSEP board.
The only thing that you really have to show at an ADSEP board is that whatever piece of evidence you’re trying to offer is relevant, which is a very low threshold. For this reason, JAGs talk about ADSEP boards as being kind of like the Wild West of advocacy—you can generally do what you want and get in whatever evidence you want in front of the members.
Questions the Board Has to Answer
Now, there are three main questions that an ADSEP Board has to consider.
1. The first question is whether there is a basis to separate you. In other words, if your command has notified you to be separated due to some form of misconduct, has the Government proven that misconduct by a preponderance of the evidence? If the Board says “no” and decides that the Government has not met their burden, congratulations, it’s over—you are going to be able to continue on with your service.
2. If the board members find that there is a basis for separation, then they move on to the second question, which is: should you be separated or retained? If the board members find that you should be retained, then again, congratulations, you are likely going be permitted to continue on with your career. And this is especially true if you’re an officer, where a finding of retention is going to be binding on future authorities that review this case.
3. If they vote to separate you, though, the Board will go to the third question, which is: how should they characterize your service? For enlisted personnel, they are specifically characterizing only the current period of enlistment. By contrast, officers don’t have individual enlistment periods. They just have one period of continuous commissioned service. So they’re going to be characterizing the entirety of your career in this board. The three characterizations they can give you are: an Honorable discharge; a General (Under Honorable Conditions) discharge; and an Other Than Honorable (or OTH) discharge. And I’ll have a separate video out later walking through those discharges and the impact they’ll have on your benefits.
4. Finally, if, at the time you go to the board, you are already retirement-eligible (meaning you’ve served more than 20 years), there is a fourth question that the board will consider if they recommend separation—which is a Retirement Grade Determination. Essentially, they’re recommending whether you should be allowed to retire in your current rank, or if you should be reduced to a lower rank for retirement pay. The rationale here is that you should be retired in the last rank in which you served honorably—so if you committed the misconduct in your current rank, you may be lowered in pay grade for retirement.
Check back later for parts 3 and 4 on this important topic.
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And if you received an ADSEP notification and need to consult with an attorney, my firm’s contact information is on the screen now. Thank you.
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