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At Ganz and Bridges Law Office, we often get inquiries from clients asking whether the military can separate them for misconduct while they are also pending a separation for medical reasons. The simple answer is “yes,” the military can involuntarily separate a servicemember for misconduct even though the Soldier, Sailor, Airman, or Marine has also been found unfit for service due to medical diagnoses.
Whether a servicemember will be separated for misconduct, while also pending a medical separation, is a more nuanced question. Our attorneys at Ganz and Bridges Law Office will use their decades of military legal experience to guide you through this process and achieve the best possible result.
Below, we take a closer look at the involuntary separation process for misconduct where a servicemember is also undergoing a separation for medical reasons.
Table of Contents
• Involuntary Separations for Misconduct
• Separations for Failure to Meet Medical Retention Standards
• What Happens if a Separation for Misconduct is initiated While I am Pending a Medical Separation?
• Hire an Experience Military Attorney to Help
Involuntary Separations for Misconduct
First, let’s discuss when the command can initiate an involuntary separation for misconduct and why they would do so.
If an investigation or other adverse action by a command determines that a servicemember committed misconduct, usually meaning a violation of the Uniform Code of Military Justice (UCMJ), the command may decide to initiate an involuntary separation action prior to the servicemember’s expiration of service. It is the military’s way of “firing” Soldiers, Sailors, Airmen, and Marines. Some misconduct, such as sexual assault or multiple alcohol incidents, require a mandatory initiation of a separation action.
The command must complete the involuntary separation action prior to the servicemember’s expiration of term of service (ETS or EAS). No military member can be held past their contracted service period for purposes of an involuntary separation action for misconduct.
As a general rule, a servicemember with over 6 years of service is entitled to a separation board. A separation board gives the servicemember the opportunity to present his or her case before an impartial board of officers and/or senior enlisted members. More junior servicemembers are entitled to a board only if the command is recommending the worst type of administrative discharge, an Other Than Honorable discharge.
An involuntary separation for misconduct carries a significant negative stigma and usually results in a less than honorable discharge, such as a “General (Under Honorable Conditions)” or “Other Than Honorable” discharge. This type of separation can have a detrimental effect on post-military employment and benefits controlled by the Veteran’s Administration.
Separations for Failure to Meet Medical Retention Standards
Unlike a separation for misconduct, a separation due to a failure to meet medical retention standards is not viewed in a negative light. Many servicemembers are injured as a result of their service and are entitled to separation, with benefits, because they can no longer perform their duties. Medically separated servicemembers receive Honorable discharges.
The DoD’s Integrated Disability Evaluation System (IDES), through the process of Medical Evaluation Boards (MEB) and Physical Evaluation Boards (PEB), determines whether a servicemember is able to continue performing his or her duties due to medical limitation or whether the servicemember should instead be medically separated or retired. Medical limitations can include both physical limitations (such as chronic back problems) and mental limitations (such as PTSD or bipolar disorder).
If the IDES process determines the servicemember is unfit for further service, the result will be either medical separation or medical retirement, depending on the severity of the disability. Medical separation can include a one-time severance payment, calculated on base pay and years of service. A medical retirement, generally for those with 30 percent or greater disability, can include lifetime disability payments from the VA, along with military ID cards, base access, and most other privileges enjoyed by military retirees, including continued ability to use Tricare.
What Happens if a Separation for Misconduct is initiated While I am Pending a Medical Separation?
If an involuntary separation for misconduct is initiated while a servicemember is undergoing a medical separation action, the separation for misconduct usually takes precedence. The command can separate the servicemember for misconduct even if there are serious medical disabilities. But just because the command can separate for misconduct, it does not mean they will. Commanders, at some level in each service, have the option of allowing the medical separation to proceed despite the misconduct.
By way of example, we will use the Army process when it comes to separations of enlisted personnel for misconduct. Each service’s exact procedures will vary, including the rules applicable to officers and enlisted members. In the Army, once an involuntary separation for misconduct is initiated, the IDES medical separation process will not proceed beyond the findings of the MEB. If the MEB finds the Soldier is unfit for further service and should be medically separated, the MEB results will be given to the General Court-Martial Convening Authority (the GCMCA, ordinarily the Soldier’s Commanding General). The GCMCA will then decide whether to allow the IDES process to continue or whether to proceed with the separation for misconduct.
Any servicemember pending both an involuntary separation for misconduct and a medical separation should be represented by an attorney. There is simply too much at stake to allow the command to determine the fate of a servicemember without the advocacy of an experienced military attorney. Servicemember can fight the misconduct separation, whether entitled to a board or not, by defending against the allegations and providing service history and other evidence to convince the board or command not to separate. Even if the misconduct is founded and a separation is recommended, a seasoned attorney can convince the command that allowing the medical separation to proceed is the right course of action.
The results of this process can be life-altering for the person involved. Misconduct separation can result in a less than honorable characterizations of service, which can jeopardize receipt of VA benefits, including disability pay. On the other hand, a medical separation or retirement can provide life-long disability payments and access to health care and other significant VA benefits.
Hire an Experienced Military Attorney to Help
Whether you are facing just an involuntary separation for misconduct, or a misconduct separation combined with a medical separation, you need an attorney with the experience and proven track record to get the result you need. At Ganz and Bridges Law Office, our attorneys have dedicated themselves to representing only servicemembers facing such adverse actions. We have decades of experience, both on active duty and in private practice, which we will use to represent your best interests. You do not have to go it alone. We are here to help.