Service members with fewer than six years of active military service occupy a different procedural position when facing administrative separation than those who have served longer. The right to appear before a separation board before being involuntarily separated does not apply automatically below the six-year threshold under most circumstances, and commands sometimes use this fact to expedite separations that might face more scrutiny if a full board proceeding were required.
The six-year rule is not absolute, and exceptions exist depending on the basis for the proposed separation and the specific regulations applicable to the service member’s branch. When a soldier is separated without a board and believes the separation was improper, the remedies available after the fact are more limited and more difficult to pursue than the remedies that would have been available during the process. Understanding whether a board is legally required, and asserting that right if it exists, is critical.
How Years of Service Affect the Right to a Board
Board entitlement is not a universal feature of administrative separation. For enlisted service members with fewer than six years of total active and reserve military service, the regulations governing most separation categories do not require the command to convene a board before separating them. This means that a junior soldier facing administrative separation on most grounds can be processed out of the military through a relatively expedited administrative procedure without the opportunity to present evidence, call witnesses, or have the basis for the separation tested in an adversarial forum.
The six-year threshold is calculated based on total military service, not time in grade or time in the current unit. Service members approaching that threshold who are facing potential separation should be aware that reaching six years of service changes their procedural rights in a meaningful way. Commands aware of this dynamic sometimes accelerate separation action for soldiers approaching the threshold precisely to avoid the additional process that a board would require.
The Six-Year Rule and Its Exceptions
The general rule that enlisted service members with fewer than six years of service are not entitled to a separation board before being involuntarily separated has exceptions that can change the analysis in specific cases. When the proposed separation characterization would be under other than honorable conditions, a board is required regardless of time in service. When the separation is based on conduct that is the subject of a pending criminal investigation or charge, regulatory guidance may require additional procedural steps. And when the separation basis falls within a category that the applicable regulations require a board for at any service level, the six-year rule does not override the regulatory requirement.
Defense counsel evaluating whether a soldier below six years is entitled to a board must review the specific basis for the separation, the specific regulations applicable to that basis in the soldier’s branch of service, and whether the proposed characterization would trigger the OTH exception. A command that processes a junior soldier through an expedited separation without a board when a board was actually required has created a procedural defect that can be challenged through administrative remedies after the fact.
What Happens When a Soldier Below Six Years Is Separated Without a Board
A soldier below the six-year threshold who is separated without a board through the proper administrative process has no right to contest the underlying basis for separation at a hearing before it occurs. The separation is processed through the command, reviewed by the appropriate separation authority, and executed if approved. The soldier’s opportunity to contest the separation before it occurs is limited to providing a written statement or rebuttal through the administrative process and, in some cases, requesting a legal review.
After the separation has been executed, the former soldier can challenge it through the Board for Correction of Military Records if they believe the separation was erroneous or unjust. This after-the-fact remedy is more difficult to succeed with than a pre-separation board challenge because the burden falls on the petitioner to establish error or injustice rather than on the government to establish grounds for separation. The window for effective challenge is much narrower once the separation has been finalized.
Challenging a Separation That Skipped the Board Requirement
When a soldier who was entitled to a board is separated without one, the separation is procedurally defective and can be challenged through administrative remedies. The first step is typically a request for reconsideration through the chain of command, identifying the specific regulatory requirement that was bypassed and explaining why the separation cannot stand without the required process. If that effort is unsuccessful, the soldier can petition the Army Discharge Review Board or the Board for Correction of Military Records with evidence of the procedural error.
A successful challenge to a procedurally defective separation can result in reinstatement, correction of the discharge characterization, or other appropriate relief. The challenge must be filed within applicable time limits and must be supported by specific evidence of the procedural failure. Defense counsel who identify a board requirement that was bypassed must act quickly to preserve the soldier’s options for challenging the separation.
The Limited Rights Available Below the Six-Year Threshold
Service members below the six-year threshold who face administrative separation are not without rights, even though the board entitlement does not apply in most circumstances. They have the right to consult with military counsel, to be notified of the proposed separation and its basis, to submit written statements or matters in response, and to have the separation processed in accordance with applicable regulations. These are more limited protections than a full board hearing, but they are real procedural rights that must be followed.
Defense counsel who represent junior soldiers facing administrative separation must ensure that all applicable procedural requirements were followed, that the basis for the separation is properly documented and legally sufficient, that the proposed characterization is within the range permitted for the stated basis, and that any written statement submitted on the soldier’s behalf is effectively drafted. In cases where the characterization proposed is less than honorable, the OTH exception triggers a board requirement, and counsel must identify and assert that right before the separation is processed.
This content is provided for educational purposes only and does not constitute legal advice. Military law is complex and fact-specific. If you are facing a UCMJ investigation, court-martial, administrative separation, or any other military legal matter, consult a qualified military defense attorney before taking any action.