If you are facing an administrative separation from the military, you should speak to a civilian military defense lawyer before electing any rights or responding to the separation notification.
Responding to the notice of administrative separation is the first step in fighting an administrative separation, and the member should carefully consider how to execute the rights. The notice should not be returned to the command without it being reviewed by a military defense lawyer. What if you are entitled to an administrative separation board?
Members of the Navy, Marine Corps, Air Force, Army, and Coast Guard will be provided a military lawyer, free of charge, to represent him or her at an administrative separation board. If provided a lawyer by the military, should the member hire an experienced civilian military lawyer? Like many questions about the law, it depends.
The answer is normally yes - the member is better off hiring a civilian military defense lawyer. But there are two situations where the member should consider not hiring a civilian military defense lawyer.
The first situation is where the evidence of misconduct is so overwhelming that the lawyer is going to make little difference in the outcome. An example would be where the member is pleaded guilty to possession of child pornography in federal court but wanted to fight his adsep (true facts!). Absent unusual circumstances or a heroic service record, there is not much any attorney can do to defend that case at an administrative separation board because binding federal conviction and the nature of the offense.
The second situation where I turn away clients is when he or she has an experienced military lawyer with significant litigation experience representing him or her – generally this would be either a senior O-3 or O-4 with a few tours as a trial counsel or defense counsel under his or her belt. Absent unusual circumstances (like a huge volume of evidence that requires a two lawyers to share the workload), a civilian military lawyer would only add another brain to the room, which in most administrative separation boards will not make a significant difference in the outcome.
In all other cases, I recommend the service member (called the "respondent" in an administrative separation board) hire a civilian military defense lawyer to represent him or her at the board.
Most civilian lawyers who practice military law will provide a free consultation. During that consultation, the member should gauge the lawyer’s experience level in administrative separation boards (I think the lawyer should have handled at least 50+ boards if you are going to pay for the lawyer) and the lawyer’s availability to prepare your defense (not just show up at the board, but work with you, investigate your case, contact witnesses, and discuss the strategy). These are the two primary reasons a member should hire a civilian military lawyer – experience and commitment to the case.
Most members will find the civilian lawyer will have significantly more experience than the detailed military lawyer. Most military lawyers representing members at administrative separation boards are in his or her first tour or second tour. In short, they are new lawyers with little experience. If you had a serious medical condition, would you want your doctor to be an experienced specialist or someone just out of medical school? An administrative separation board is a career killer – both military and civilian-wise. By involuntary separation reasons listed on a DD-214 or a less than honorable discharge, the consequences are lasting.
Hiring a civilian military defense lawyer may cost money up front, but if you lose the adsep board, there is no real appeal process.
Patrick Korody is a former Navy JAG who was certified by the Judge Advocate General of the Navy as a Military Justice Specialist. He has litigated hundreds of administrative separation boards at more than 30 Navy, Marine Corps, Air Force, Army, and Coast Guard installations around the world. He offers a free case evaluation.