Kevin Courtney is an experienced ADSEP Board attorney having represented and advised hundreds of Marines, Sailors, and Soldiers in preparation for administrative separation hearings at Camp Pendleton, California while he served on Active Duty as a Marine Corps Judge Advocate.
He knows honorable service members are notified of an ADSEP Board not because they did anything wrong, but instead, the command investigated a false allegation and didn’t have enough evidence to go to court-martial. While stationed at Camp Pendleton, California, too many Marines and Sailors were unfairly notified of an ADSEP Board just because the burden of proof was lower than one at a court-martial.
Before my board Mr. Courtney exhausted all administrative means to prevent the ADSEP board from even happening. He provided me reassurance and confidence to continue to fight. Upon conducting my ADSEP board Mr. Courtney was well prepared, organized and sheer perfection fighting for me. We won the board and I feel a lot had to do with how he presented the evidence and cross examined exposing the holes in this allegation…I would not still be in the Marine Corps and continuing my 14 years of service without Kevin Courtney!Staff Sergeant, US Marine Corps, Camp Pendleton
ADSEP Board Attorney in Southern California
Kevin Courtney is an experienced attorney who successfully defends service members facing career ending allegations. Kevin Courtney Law is ready to investigate, defend, and safeguard the service member’s career against all odds. This commitment extends to situations where the government attempts to stack the deck by handpicking the board members, opting for a lower burden forum instead of a court-martial, and frequently delaying the provision of a detailed military defense attorney to the service member while preparing its case.
Below are some common questions service members have and answers regarding military administrative separation boards.
Military Administrative Separation (ADSEP) Board FAQs
- What is an Administrative Separation (ADSEP) Board?
- What is a no-board ADSEP?
- Who can initiate an Administrative Separation?
- Why will the military service separate a service member?
- Where do ADSEP Boards take place?
- What Rights do Service Members have at an Administrative Separation Board?
- What Rights do Service Members have during a no-board ADSEP case?
- What is the cost of an ADSEP Board?
- What types of issues are handled at Administrative Separation Hearings?
- What types of cases are “mandatory processing” ADSEP Boards?
- Can Witnesses be Called at an ADSEP Board?
- What Evidence can be presented at an ADSEP Board?
- Do the Rules of Evidence Apply at an Administrative Separation Board?
- What is the Burden of Proof at an ADSEP Board?
- What are the possible outcomes at an ADSEP Board?
- What benefits can service members lose at ADSEP Boards?
- Is an ADSEP Board punitive?
- Is there an appeals process for Administrative Separation hearings?
- Can civilian attorneys represent service members at Administrative Separation hearings?
- Can an administrative discharge be upgraded?
What is an Administrative Separation (ADSEP) Board?
An administrative separation board is an employment hearing designed to answer up to three questions. First, is there a basis to separate the service member? If the board finds basis, the members will answer the second question which is: should the service member be retained or separated from military service? Finally, if board members choose to separate the service member, the third question is: what characterization of service has this person earned for the current enlistment?
The Department of Defense published Department of Defense Instruction 1332.14, which sets the Department’s policy for enlisted administrative hearings. As the Department of Defense sets the policy for subordinate branches of service, this guidance sets forth a model in which the Marine Corps, Navy, Army, Air Force, and Space Force have issued its own policies and procedures.
An ADSEP Board can have career-ending ramifications, lasting effects on future civilian employment, and detrimental consequences for VA benefits. Speaking with an experienced ADSEP Board attorney to prepare and present a winning defense is likely in your best interest. Schedule a call with Kevin Courtney Law today!
What is a no-board ADSEP?
The service may separate service members who have not yet completed at least six years through a general separation. This looks like a paper notification where the command gives the service member a paper package notifying him or her that their employment with the service is ending due to an allegation. The allegation could be a pattern of misconduct, the commission of a serious offense, or a few other reasons for ending the enlistment contract early.
When this happens, service members typically have around five days to draft a response, gather compelling evidence to support their rebuttal, and to submit their response. This can be challenging for several reasons. First, the timeline to gather the necessary documents to support the rebuttal is tight. Second, some service members don’t feel confident writing their own rebuttal or just don’t know where to start. What do you say when the command is trying to kick you out? Finally, this period of service is often stressful because service members don’t know if they will have job in two or three months.
A no-board case can take away a the GI Bill education benefit if the military separates the service member with a general (under honorable characterization of service). There are few exceptions and speaking with a qualified military attorney to discuss is important. Schedule a call with Kevin Courtney Law to inquire.
Who can initiate an Administrative Separation?
No every commanding officer has the authority to start the separation proceedings. Typically, officers who are in command at the O-5 or higher level, or officers who have delegated authority, can initiate an administrative separation. For example, a battalion commander may notify the service member of the separation board, but this is not the same person who will make th ultimate decision for retention or separation. That decision remains with the separating authority, which is often the first general in the enlisted service member’s chain of command. Officers can find information regarding separating officers under our Board of Inquiry page.
Why will the military separate a service member?
The military often attempts to separate service members who no longer hold the same values the service is seeking to uphold. For example, a service member who knowingly uses marijuana is deliberately acting against the values the service has established. When this happens, the service tries to maintain good order and discipline by removing those serve members from the ranks.
But there are often misunderstandings. A service member should be able to defend themselves at an ADSEP Board when someone wrongly accused them. This is the time to show board members the service member shares the same values and the board should retain the service member.
Where do ADSEP Boards take place?
The military can conduct ADSEP Boards anywhere. However, the military command should ensure they protect the service member’s procedural and substantive due process rights. More often than not, this will occur in a courtroom, modified courtroom, or conference room set up for both sides to present its case. There should be means to call witnesses either in person. telephonically, or via a video call.
What Rights do Service Members have at an Administrative Separation Board?
Service members have more than a dozen rights at an Administrative Separation Board. These rights are listed in the notification of proceeding and include the right to be notified of the following:
- To be notified of the basis of the proposed separation, including the circumstances upon which the action is based and reference to the applicable provisions of the Military Department’s implementing regulation.
- Whether the proposed separation could result in discharge, release from active duty to a Reserve Component, transfer from the Selected Reserve to the IRR, release from the custody or control of the Military Services, or other form of separation.
- The least favorable characterization of service or description of separation authorized for the proposed separation.
- The respondent’s right to consult with counsel.
- The right to obtain copies of documents that will be forwarded to the separation authority supporting the basis of the proposed separation. Classified documents may be summarized.
- The respondent’s right to request a hearing before an administrative board.
- The respondent’s right to present written statements instead of board proceedings.
- The respondent’s right to representation at the administrative board either by military counsel appointed by the convening authority or by military counsel of the respondent’s own choice, if counsel of choice is determined to be reasonably available under regulations of the Secretary concerned, but not both.
- The right to representation at the administrative board by civilian counsel at the respondent’s own expense.
- The right to remain silent under Article 31(b), UCMJ.
- The right to a fair process under the Fifth Amendment of the US Constitution.
- The right to waive these rights.
- Notification that failure to respond after being afforded a reasonable opportunity to consult with counsel constitutes a waiver of the rights.
- Failure to appear without good cause at a hearing constitutes waiver of the right to be present at the hearing.
Before exercising or waving these rights, it is important a service member know what these rights mean for their career and life. Schedule a call today!
What Rights do Service Members have during a no-board ADSEP case?
Service members have the following rights during a no-board adsep case:
- The right to remain silent under Article 31(b), UCMJ. This would look like choosing to not submit a statement and letting the case be decided on the merits of the command’s evidence alone.
- The right to submit written matters in rebuttal.
- The right to a fair timeline, which is often condensed between two and five days.
- The right to consult with counsel about exercising these rights.
- The right to waive the listed rights and forego a written rebuttal.
It is crucial to work with an experienced attorney who can help the service member prepare a thoughtful, organized, and powerful rebuttal. Schedule a call today to learn how to do this.
However, some service members want to try putting their package together on their own. Kevin Courtney Law prepared some resources which may help.
What is the cost of an ADSEP Board?
The cost of an ADSEP Board when the outcome is unfavorable could be the loss of a consistent paycheck, the GI Bill, VA Home Loan, Payment of Accured Leave, burial rights in national cemeteries, VA Health benefits, commissary/exchange benefits, and the civil service retirement credit.
We’ll use the GI Bill as an example of the cost of an ADSEP Board. Suppose a service member wanted to go to a public school. Let’s use an average public tuition/fees rate of $410 per credit with a course load of 12 credits per semester. For a veteran student at the 100% Post 9/11 GI Bill tier level, the VA would pay all of the tuition/fees of $4,920 per semester – $9,840 per two-semester academic year. Combined with the average monthly $1,900 housing stipend for nine months and a $1,000 yearly book stipend, the Post 9/11 GI Bill is paying $27,940 in educational benefits per year. Over the course of a four-year degree, it pays out almost $112,000.
A service member has more than $112,000 on the line when we consider the added value of the VA Home Loan program and VA Health Benefits, and the prejudicial impact of an other-than-honorable characterization of service when looking for a job. If anything, these numbers should highlight the importance of preparing for an ADSEP Board. How much does a military defense attorney cost? A $10,000 investment into attorneys, experts, polygraphs, and fresh uniforms could mean the difference between continuing a career or facing a challenging transition back to civilian life.
What types of issues are handled at Administrative Separation Hearings?
Administrative separation hearings handle several types of issues. But the broad categories include the following:
- Minor Disciplinary Infractions
- Patterns of Misconduct
- Commission of a Serious Offense
- Civilian Conviction
- Sexual Misconduct
- Drug Abuse
What types of cases are “mandatory processing” ADSEP Boards?
The military considers allegations of domestic violence, sexual misconduct, and drug abuse “mandatory processing” events. For example, when someone tests positive for drug use, that is a mandatory processing event. The command will be required to administratively process the service member. But that does not mean the service member is required to be separated.
Can Witnesses be Called at an ADSEP Board?
The government and Respondent are allowed to call witnesses at an ADSEP Board. Witnesses are often great components to an effective defense. There are two types of witnesses: fact witnesses and character witnesses.
Fact witnesses are those people who were present for the allegation. This could be an eyewitness to a crime. It could be someone who was with the service member at the same time as the allegation, demonstrating that they were not committing the offense they are accused of.
Character witnesses are people who can testify about the service member’s character, but were not necessarily present for the allegation. People who hold positions of power within the organization, are well-respected, and can provide meaningful comments about their relationship to the service member are effective character witnesses.
What Evidence can be presented at an ADSEP Board?
The Respondent can present nearly any relevant evidence at an ADSEP Board. Evidence is relevant if it has any tendency to prove a fact of consequence. Because this standard is a low bar, most evidence relating to the service member or the case will be admissible. If there are disagreements as to what is admissible, the legal advisor to the board will rule on the evidence’s admissibility.
Attorneys can admit evidence in the form of documents, awards, photos, testimony, videos, and audio recordings at an ADSEP Board.
Do the Rules of Evidence Apply at an Administrative Separation Board?
No, the rules of evidence do not apply at and Administrative Separation Board. Legal privileges still apply.
What is the Burden of Proof at an ADSEP Board?
The burden of proof at an ADSEP Board is “preponderance of the evidence.” This is just over 50%. This standard is significantly lower than the “proof beyond a reasonable doubt” standard employed in courts-martial.
What are the Possible Outcomes at an ADSEP Board?
The possible outcomes at an ADSEP Board can be divided into three categories. First, the best outcome is a finding of “no-basis.” This means the members did not believe the government met its burden. Put differently, the members did not believe the allegation was true. This means there is an automatic retention for the period of enlistment.
Second, a board could vote to retain a service member despite finding basis for the allegation.
Finally, another outcome could involve separating the service member from the service with a recommendation of either an honorable discharge, a general discharge (under honorable characterization of service), or an other-than-honorable characterization of service.
What benefits can service members lose at ADSEP Boards?
The Department of Veterans Affairs frequently examines a service member’s discharge paperwork (the DD-214) to make an initial determination of the veterans benefits entitled to the service member. If an enlisted service member has successfully and honorably completed a prior period of enlistment, we typically can say those benefits have “vested.” There may be some occasions where this may not be the case. However, benefits, such as the GI Bill, will have vested even if the service member receives a general (under honorable) or an other than honorable in a second period of enlistment.
But when service members have not yet finished a full enlistment contract, all of the veteran benefits are on the line. Some examples include:
- GI Bill — Educational Benefits
- VA Home Loan
- Honorable Veteran Status
- VA Healthcare
- Naturalization services for military members
- Ability to Keep Uniforms
- Burial in National Cemetery
- Commissary and Exchange Access
Is an ADSEP Board punitive?
Legally, no. But this process will feel extremely personal, emotional, and absolutely punitive. The legal difference is a punitive discharge such as a bad-conduct discharge (BCD) or a dishonorable discharge (DD) is not on the table at the ADSEP Board. Only administrative discharges are available: honorable, general, or OTH.
WHen the government Recorder give his or her opening statement and starts attacking your character with allegations, this process will feel unfair, punitive, and incredibly frustrating. It is best to have an experienced military attorney next to you for this process. Schedule your free call today.
Is there an appeals process for Administrative Separation hearings?
Yes and no. It depends on what you are trying to appeal. For example, if you believe your board violated your constitutional rights to a fair process (denied witnesses, denied evidence, clear bias from the board members against you), then you may have an opportunity to request a new board. You can do that by submitting a petition at the Board of Corrections for Military Records of your service branch.
For legal work occurring after the ADSEP Board takes place, we call this “Post-Board” actions. Before applying to the BCMR of your service, your can submit a letter of deficiency (LOD). This letter of deficiency is a letter to your separating authority highlighting the violations that occurred at your board. You can often ask for a remedy such as upgrade an OTH discharge recommendation to a general discharge, or you can ask for a new board entirely.
Knowing how to successfully handle Post-Board actions and BCMR Appeals is a critical skillset. Talk with an experienced lawyer by scheduling your free 30-minute consultation call today.
Can civilian attorneys represent service members at Administrative Separation hearings?
Yes. As a military defense counsel at Camp Pendleton, Kevin Courtney acted as co-counsel with and personally learned from some of the best civilian attorneys. Now as a civilian attorney, Kevin Courtney is unencumbered from the burdens of a military chain of command.
Many military counsel are serving in the military on their first tour and have only practiced military law for less than three years. The officers actively manage military responsibilities like standing duty, participating in shooting ranges, attending SAPR and PAC Order training, and pursuing professional military education at night. While it’s not their fault, they face significant demands, as the military requires them to fulfill various duties, including safeguarding your constitutional rights. One thing military counsel cannot do overnight is gain years of experience.
Civilian attorneys can bring more than three years experience to the courtroom and will help build the team. As the lead attorney, a civilian lawyer will help service members make informed decisions about their case. They will also work with the military counsel to defend the allegations at the ADSEP Board.
Can an administrative discharge be upgraded?
Yes, a veteran can upgrade their administrative discharge if they meet certain conditions. To find out if you qualify for a military discharge upgrade, check out our Military Discharge Upgrade page.
ADSEP Board Attorney Kevin Courtney
Kevin Courtney is a proud Marine Corps Veteran having served at Marine Corps Base Camp Pendleton California as a military defense attorney. His other billets included assistant prosecutor and judicial appellate law clerk. He represented Marines and Sailor at ADSEP Boards on a nearly weekly basis, sometimes two or three a week. Today, he is the owner of Kevin Courtney Law, a military defense law firm. His aim remains to protect the reputations, careers, and freedoms of service members.
Call Kevin Courtney Law today at 760-385-3889.