Military ADSEP Boards: Your Rights in the Process | ADSEP Part 3
Welcome back to Military Justice Matters. I’m Justin Bennett, a partner with Parlatore Law Group. This is Part 3 in this series of videos on the ADSEP process. Over the next two videos we’re going to talk about 5 important rights you have in the ADSEP process.
Right #1: Consult with Counsel to Correctly Fill Out ADSEP Paperwork
Now, the first right, and it’s a big one, is that when you are initially notified—given paperwork saying that the command is trying to kick you out—you can and absolutely should go consult with counsel to figure out the correct way to fill out that paperwork. It is critically important that, if you are eligible for a board, you correctly elect to have that board. If you don’t elect your board and you instead waive it, the command is going to just kick you out with the worst possible discharge they can, which very well might be that dreaded Other Than Honorable (OTH). Even if you’re not eligible for a board, you want to correctly elect your right to file a written statement contesting the separation. And there are free, uniformed defense counsel available to you in all Services who would be happy to walk through that paperwork with you. Or, of course, you can contact a civilian attorney.
Right #2: Be Represented by Counsel at the Board
Which brings us to your second important right. At the board itself, you have the right to be represented by a defense counsel. That can be one of those uniformed defense counsel who are assigned to you, free of charge. That will typically be whatever defense counsel is local and available at your duty station. If there is a specific JAG you know who is not local, you can file something called an Individual Military Counsel (or IMC) request to ask them to represent you instead. And it will be up to that JAG’s command to decide if they have the bandwidth to support the request. Lastly, you can choose to hire a civilian counsel at your own expense. If you do this, they will typically work alongside your detailed counsel, unless you choose to release the detailed counsel.
Right #3: Putting on Evidence and Calling Witnesses
Now, the third big right you have is to put on evidence and call witnesses on your own behalf. Now in theory, you don’t have to do this. The Government always bears the burden of proving that there is a basis to separate you and that you should indeed be separated. So you technically don’t have to put on any evidence whatsoever. But given that the Government’s burden at an ADSEP board is relatively low (compared to a court-martial), it would be a huge mistake to waste this opportunity to put on evidence before the board members.
Fact Witnesses and Evidence
Now, there are two types of evidence and witnesses you should plan to put on in these boards: fact-based and character-based. Fact witnesses or evidence deal with the charges the Government is trying to separate you for—in other words, the alleged misconduct. So for example, if you’re being separated on the basis of a claim of nonconsensual sexual contact—if there were other people present at the bar that night who saw the alleged victim flirting with you earlier in the evening; or if you have text messages from the alleged victim before or after the alleged contact which show that the interaction was consensual; those are the kinds of fact witnesses and evidence you would want to put before the Board.
Character Witnesses and Evidence
By contrast, character evidence and witnesses deal with who you are as a person and as a servicemember. And this can include essentially every good piece of paper you’ve ever received in your career. For example: FITREPs and Evals; awards; warfare devices; qualifications and trainings; and letters of appreciation; and even pictures of you in uniform at various milestones of your career, like graduating bootcamp or being promoted. Character witnesses can include anyone who has known you well during the relevant timeframe and can speak to your good character traits, such as your good military character or your good character for truthfulness, if that’s at issue. This can include your Department Head or Division Officer; your Leading Chief Petty Officer; other supervisors; or even peers in your shop. You can even consider letters from non-servicemembers who have known you for a long time, such as a former coach, employer, or pastor—which may be especially helpful if you haven’t been in the service for very long to develop those relationships with supervisors. And depending on the nature of the allegation, you may want to have witnesses who can speak to your character both in the workplace and while off-duty. Generally speaking, the more senior the person is who is writing a letter or testifying on your behalf, the more weight the board members will attach to their testimony. If a Commander is willing to stick out his neck for you at the board, that will have more of an impact than your E-5 buddy, for example.
Check back later for part 4 on this topic, where I’ll discuss two more important rights you have at the board. 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 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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