Military Administrative Separations: Your Rights & Next Steps | ADSEP Part 4
Welcome back to Military Justice Matters. I’m Justin Bennett, a partner with Parlatore Law Group. This is Part 4 and the last video in this series on the ADSEP process.
In the previous video, I told you about three important rights you have in this process:
1. To consult with counsel to fill out the notification paperwork correctly;
2. To be represented by counsel at the board; and
3. To put on evidence and call witnesses on your own behalf.
Today, we’re going to talk now about two more critical rights you have.
Right #4: Whether (and How) to Testify
The fourth big right you have is whether, and how, you want to testify. This is a critical decision, and you should be discussing this carefully with your defense counsel. You have an absolute right to remain silent and not testify at all at the board. The board members will be instructed they legally cannot hold it against you if you choose to remain silent. But, knowing human nature, we can’t guarantee that they really follow that instruction when they go to deliberate.
Sworn vs. Unsworn Testimony
If you decide to testify, you can do so in one of two ways: by giving either sworn or unsworn testimony. If you go sworn, you’ll raise your right hand and swear to tell “the truth, the whole truth and nothing but the truth,” just like you see in the movies. If you go unsworn, you don’t have to swear that oath.
The big difference between sworn and unsworn testimony is that if you choose to go sworn, after your Defense Counsel finishes asking you questions, the Government is going to have the opportunity to cross-examine you. And then the board members are going to have an opportunity to ask you questions as well. I cannot stress enough how tricky and dangerous this can be, depending on where that questioning goes. If you’re considering going sworn, your defense counsel absolutely should subject you to a mock cross-examination beforehand to see how it goes.
If you go unsworn, then you’ll provide your prepared statement either by yourself, or in a question-and-answer format with your attorney, and no one is allowed to ask you any follow-up questions after that. An unsworn statement is really an opportunity to humanize you in front of the board members, to flesh out who you are as a whole person and as a servicemember. Unsworn statements often include things like: your background; what motivated you to join the Service; what your goals are in the Service if you’re allowed to continue serving.
In some cases, an unsworn statement may include some kind of an apology statement or acceptance of responsibility. On the other hand, in some circumstances, you may not want to make any sort of apology or acceptance of responsibility. For example, you may be in an ADSEP board for allegations related to domestic violence. If so, and you’re also simultaneously in a divorce proceeding in state court, you may not want to make any statement that could be used against you by your spouse in that custody dispute. So pleasetalk carefully with your defense counsel about the contents of your unsworn statement and whether you should be admitting guilt and accepting responsibility or not.
In most cases, for enlisted in particular, unsworn statements are what are expected and are often the correct decision. There are just too many ways that things can potentially go off the rails if you go sworn and you are subject to cross-examination, especially because, as we’ve said, the Military Rules of Evidence don’t apply to limit permissible questioning. On the other hand, if you are an officer—especially a senior officer—there is an unwritten expectation that you are going to provide sworn testimony and allow yourself to be cross-examined and questioned by the board. So again, you need to work with your defense counsel carefully to prepare for that and anticipate what kind of questions they may be asking you, and how you can answer them in a way that satisfies the Board, but does not expose you to any additional risks.
Right #5: File an Appeal
Finally, the fifth right you have in this process is essentially to file an appeal if you’re dissatisfied with the outcome of the board. This is called a “Letter of Deficiency.” Your defense counsel will draft that, and they should be including any legal errors or flaws in the way the board was conducted. That will go up and be reviewed by higher-ups in the chain of command, to what we call the Separation Authority, who ultimately decides whether or not to execute the Board’s recommendations for separation and characterization of service. Depending on the type of case it is and the rank of the member being separated, that could go as high as the Secretary of the Service branch.
So there you have it—five critical rights you have in the ADSEP process. As always, if you found this content helpful, please remember to like and subscribe for more videos on the military justice process. And if you’ve received an ADSEP or show cause notification and need to consult with an attorney, my firm’s contact information is on the screen now. Thank you.
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