There are three different methods of disciplining people in the military: By Court-Martial, Non-Judicial Punishment and/or Administrative Separation. Administrative Separations will be the topic of this discussion.

An Administrative Separation is not judicial in nature. There is no judge or rules of evidence which apply in courts-martial. Instead all evidence, both documentary and testimonial is admitted for consideration. Three individuals, usually two officers and one senior enlisted person become the Administrative Separation Board. It is they who hear the evidence and decide two things: (1) whether the person should be retained in the military or discharged; (2) if they decide that the person should be discharged then they must decide what type of discharge the person should get. The options for discharge at an Administrative Separation are: Honorable; General Under Honorable Conditions and Other then Honorable. Notably, any discharge categorization which is less then Honorable will cause the person to lose all benefits to include the GI Montgomery Bill. So General Under Honorable Conditions or Other Then Honorable Discharge causes a loss of all benefits. However, the individual may still be able to apply for benefits for health issues resulting from military service through the VA, regardless of the type of discharge they received.

Most commonly Administrative Separations come about when the individual has received two or more negative counseling entries or Non-judicial punishments (NJP) (Article 15). In these cases the grounds for discharge fall under the category of a “Pattern of Misconduct.” An Administrative Separation may also occur after a conviction at a court-martial where the jury (members) declined to discharge the person or after a conviction on a criminal matter in civilian court. The grounds for this discharge would fall under the category of “Commission of a Serious Offense.” In the case of a positive urinalysis on a random drug test processing for an Administrative Separation is mandatory. That is, any person who comes up positive on a urinalysis test MUST be sent to an Administrative Board Hearing if not sent to a court-martial.

In a recent Administrative Board Hearing Attorney Will Bruzzo represented an individual who had only been in the military a few months when he came up positive on a urinalysis for a controlled substance. The individual accepted NJP (not recommended!) although he denied intentional use at the NJP (Article 15) hearing. Mr. Bruzzo had the military member testify under oath and cross examined the Drug Lab employee/expert who testified on behalf of the Government. Two officers and a senior enlisted person heard all the evidence which included information that the Drug Lab had been found responsible for contaminating samples and reporting a false positive about a year previous. Mr. Bruzzo also brought to the attention of the board that to discharge the individual the use of the drug had to be intentional, it could not be by mistake or accident.

The members of the board then deliberated and returned with a finding that NO MISCONDUCT HAD OCCURRED. As a result the individual was retained in the military despite coming up positive on a urinalysis and being subject to NJP. This was a significant victory with difficult facts. Notably Mr. Bruzzo has been practicing military law for over 20 years. View testimonials on Military Law cases here and other matters. 

Military service members who have signed a contract and are currently on active duty in the United States Military can request a voluntary separation from their branch of service. Each service permits such a voluntary request for separation. In the Navy the individual can be separated under Section 1910-120 of the Military Personnel Manual and in the Army the separation can occur under AR 635-40 of the Army Military Personnel Manual.

The member can ask to be separated for virtually any reason. The manuals list potential reasons for separation to include sleep walking, bed wetting, pain associated from having to shave daily and anxiety. However, the servicemember is not limited to the conditions on the list; any reason may be given to request this type of discharge. Notably, if you are separated under this section you will not be medically discharged. Generally the reasons for separation under these sections may make it difficult for you to serve but do not amount to a problem that the military is responsible for causing.

The way the process works is that the service member fills out a form (or has an attorney do it for him/her) listing the reason(s) for separation and then submits it to his/her command. Discretion to discharge the individual lies with the Command. The individual should have the help of a lawyer so as to better express why the person’s condition requires a separation.

Assuming that the reason for the separation request is legitimate then the individual should be separated with an honorable discharge although that is also up to the Command. The likelihood of success for the individual depends on the needs of the Command at the time the request is made. If the Military is trying to downsize (which is the current situation) or that particular military job is already well represented in the unit then it should be easier to have a discharge request granted. On the other hand, if the unit or the military in general is struggling to retain personnel then it will be much harder to get discharged. Consult with Mr. Will Bruzzo for more information about your particular case.

Mr. Bruzzo discovered this information as he was litigating two separate cases where Marines at Camp Pendleton had come up positive in random urinalyses but denied having ingested a controlled substance. Mr. Bruzzo took the opportunity to question an expert at a pre-trial hearing provided by the NDSL, Christopher George. Mr. George testified under oath that a ‘false positive’ had occurred at the NDSL on April 2, 2012. The false positive came about when a blind sample was sent to the NDSL from another government laboratory, the Armed Forces Medical Examiner System (AMES) to test the procedures at the NDSL. This blind sample contained a controlled substance, MDMA also known as ecstasy. However, when the NDSL reported a positive result for this sample they reported it positive for Methamphetamine and for MDMA. AMES notified NDSL that a false positive had occurred since there was no methamphetamine in the AMES blind sample prior to it arriving at NDSL. Despite the relief from duty of the Director and the Deputy Director of the NDSL about 30 days after the false positive the Navy Press release and Mr. George state that the relief occurred for reasons of “low morale” at the NDSL not because of the false positive.

Mr. George testified that an internal investigation as well as investigations from outside groups hired to determine the cause of the false positive found that a NDSL technician had used a contaminated pipette tip from a urine sample containing methamphetamine and contaminated the AMES blind sample. Mr. George initially echoed an internal report called a Non-conforming Event Report, which said that this false positive occurred only when an unauthorized testing procedure was used as a way of avoiding ‘crystal accumulation’ in amphetamine/methamphetamine urine testing. However, upon further questioning he conceded that the problem of the contaminated pipette could have affected testing common to all controlled substances. The latter would indicate that the problem was not limited to urine samples positive for amphetamine / methamphetamine.

Both of the cases Mr. Bruzzo was litigating were dismissed by each Command prior to trial even though both Marines may be subject to Administrative Separation later. Neither Marine was found positive for methamphetamine.