AFI. Number: Changes Note: AFI_AFGM Link to Policy : Find the most up-to-date version of AFI at Engineering SUBJECT: Air Force Guidance Memorandum (AFGM) to AFI , .. NOTE: Reference AFI , Administrative Separation of Airmen.
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Know the regulations, know the facts and you will get a better result for your client. It will be a rare occasion in which they defy that mandate. This right may be limited for servicemembers deployed at sea or otherwise out of communication with available JAG offices.
32 CFR 884.9 – Requests for custody of members stationed outside the United States.
Consider this scenario as a common example:. It is worth noting that, while the regulations require a good deal of specificity in notifications, the 36-32088 forms in the regulations often encourage generalization. Copies of the reserve section can be obtained from the Military Law Task Force.
It is important that letter-writers not gloss 3-3208 or dispute real problems, or deny symptoms of more serious medical problems that may be at issue. Some servicemembers hope that nonjudicial punishment or court-martial can be avoided by admin discharge, or vice versa.
The types of misconduct include:.
The sexual assault regulations should ensure that women affi provided opportunity to make complaints, that reports of assault are handled respectfully, and that medical attention and evidence gathering are thorough, so that evidence of assaults may be clear.
Some services have made special note of misconduct related to sexual harassment and to extremist activity. Ask your client or Military Defense Counsel MDC to give you the proper ranks and forms of address for everyone in the room.
Discharge Procedures The procedures for involuntary discharge follow basic concepts of administrative law and are founded, at least in theory, on constitutional requirements of due process. Occasionally, this will cause commands to rethink their objective of obtaining a bad discharge. Army regulations allow members to negotiate a conditional waiver without counsel.
3-63208 Servicemembers may be told that the command is offering the admin discharge as a deal, and will take the case to court-martial unless the members waive their rights. At the same time, administrative discharge board members and reviewing authorities knowor can be told of these effects and will sometimes consider them reasons for lenient treatment. At the outset, of course, it is important for counsel, counselor and client to develop a strategy for the case.
Its central right, a board hearing, is also available to members with six or more years of service and, in the Air Force, to noncommissioned officers.
The separation authority must findthat the allegations on which the proposed discharge is based are supported by a preponderance of the evidence. Attorneys or counselors can help the clients gather copies of records and documents which may be useful in discharge review.
In addition or in the alternative, civilian counsel or counselors can assist in preparing statements. See 38 CFR 3.
It is not uncommon to find significant legal errors in the discharge proceedings, in referrals for the underlying psychological evaluations, 10 in the preparation of performance evaluations, in counseling entries on performance or conduct deficiencies, and the like.
Servicemembers have the right to consult civilian counsel as well. In many cases, members who might have been diagnosed with personality disorders prior to the new provisions are now diagnosed with adjustment disorders, which also warrant zfi under the category of ODPMC, so that there has been a very significant rise in 36-208 for this reason.
Note that information asserted in an unsworn statement is subject to rebuttal evidence, and therefore needs to be accurate and limited in scope. Many, but not all of these are discussed in the remainder of the regulations on 36-208 procedures.
Familiarity with these regulations gives civilian advocates a distinct advantage over many of the command personnel who prepare and carry out involuntary discharges, though JAGs tend to become quite knowledgeable once they are assigned to represent commands or servicemembers in this area. In misconduct cases, it is important to look for underlying issues that led to the misconduct or motivated the command.
Though there are risks, the unsworn statement is a potentially powerful tool and can humanize your client to the board members, who may have spent a day or more listening to a lot of unflattering evidence.
With the ADB procedure, soldiers are notified of a broader set of rights, including: And many do so without reading the notice or statement of rights, so that they are completely unaware of what they are waiving and what the results may be.
Representing Servicemembers in Involuntary Discharge Proceedings | The Military Law Task Force
But he is forbidden from going to sick bay for help. When there is an OTH at issue, or when retirement benefits are at issue, it may be worth the money to get that professionally prepared transcript.
Notification of Discharge and Acknowledgment of Rights In most services, the first formal step in the discharge process 36-328 notification of servicemembers, though notification follows command recommendation in the Air Force.
In some cases, however, they can help clients sort out the facts and consider the prosand cons of a suggestion from the JAG, or point out issues to the attorney with which he or she may not have experience.
This led to another change in DoD This section is silent about afu procedure to be 3-63208 if 36-308 is not warranted. If psychiatric problems are at issue, and no civilian evaluation was obtained for the discharge proceedings, servicemembers should 36-328 a civilian evaluation as soon after discharge as possible. Since some forms of overt affi are understood to be unacceptable under social norms and military regulations, racism and similar biases may take more subtle and insidious forms.
The Navy follows the same policy. This is often done with minor infractions. Rather, a superior, usually a staff sergeant or chief, meets with members to yell at them about having a problem, threatens discharge or punishment if the problem happens again, and offers a typed record entry for the members to sign, acknowledging that the counseling occurred and that they can seek further help from 36-3028 sources chaplains and the command structure are often mentioned.
There have been occasional exceptions to the twenty-year rule, particularly during the military drawdown in the s. By now many readers probably recognize a number of their clients, including some who did not get this far, but were faced with involuntary discharge earlier affi their service.
In general, commands and separation authorities consider the Notification Procedure of little consequence, and rights receive cavalier treatment, with the exception of the right to consult counsel. Judge advocates range from superior attorneys to those who do little or are resentful of your involvement.
Because disability evaluation and discharge or retirement are deferred pending resolution of disciplinary proceedings or discharge proceedings which could involve OTH characterization, and generally denied for those who are so discharged, 3 soldiers or sailors wishing to protect medical benefits often need retention to allow disability retirement processing, or characterization of Honorable or General to remain eligible for VA benefits.
While the overall success rates for discharge upgrades and other discharge 36-208 cases are not high, applications with well-documented responses at the discharge level often have 363-208 chances of success.
They may be assured that they will retain their VA benefits with the recommended discharge, whether or not that is true, and that this is the best deal they could possibly get.
And, needless to say, it is extremely difficult to obtain funding or military personnel for investigations, witness interviews and expert evaluation of evidence, so that clients and representatives must often do the bulk of the work themselves and hire civilian experts.