AFI 36-3208 PDF

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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Download PDF of this content for offline reading. This memo is designed for attorneys and counselors assisting enlisted servicemembers in challenging involuntary administrative discharges.

Some object or resist, while others try to cope and do poorly. Those who cannot be returned repeatedly to combat tend to be shuffled aside, their problems ignored and their mistakes or misconduct treated harshly. Consider this scenario as a common example:. A young man enlists in the Marines during high school on promises of valuable training as a mechanic.

He is rushed through basic and advanced training, learning more about rifles than mechanics. During training the recruit incurs a painful back injury and begins to feel anxiety and depression. But he is forbidden from going to sick bay for help.

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Immediately following the hasty training is deployment to Afghanistan, where he gets his first taste of combat. Along with the pressure and dehumanization that attends warfare, he feels the sting of the consequences of even minor disobedience. Back from his tour, he learns that he will deploy again in a few months. It becomes harder and harder to obey petty rules and treat boorish senior enlisted personnel with anything resembling respect.

If he is given any post-deployment psychological screening at all, it is cursory, and the results simply vanish. After some harassment for asking to go to sick call, he finally sees a military psychologist and is diagnosed with post-traumatic stress disorder Ari.

His frustration, poor attitude and a few small disciplinary problems, combined with his admission of ADD as a child, also result in a diagnosis of a personality disorder or adjustment disorder. He is given some Prozac and referred to anger management classes but receives no real help.

The Marine goes out, gets drunk and goes UA for a week. Then he goes back to the psychologist when he feels he is losing it.

Now he faces involuntary discharge proceedings for misconduct. By now many readers probably recognize a number of their clients, including afu who ai not get this far, but were faced with involuntary discharge earlier in their service. Their problems are misdiagnosed or under-diagnosed, 3-3208 the symptoms of these problems result in punishment for disciplinary problems and involuntary discharge.

With assistance afo representation, many of these personnel can afo better discharges and af their benefits including important medical benefitsor force the military to recognize that medical discharge or retirement is the appropriate response.

Counselors and attorneys are seeing increasing numbers of discharges for misconduct or for other designated physical and mental conditions ODPMC. Involuntary administrative discharges are used to get rid of problem soldiers with a minimum of effort, avoiding costly benefits and masking the true numbers of those injured and made ill by the current wars.

For a great many servicemembers, this means stigmatizing discharges.

Representing Servicemembers in Involuntary Discharge Proceedings | The Military Law Task Force

Anything less than fully Honorable discharge mean loss of GI bill benefits in most cases. Discharge documents showing OTH characterization, or stating that the reason for discharge was a personality disorder or misconduct, create significant employment problems.

Neither the military nor the VA classify personality disorders as disabilities deserving treatment or pensions. While the military will provide military attorneys JAGs to those facing involuntary discharge, many servicemembers are persuaded to waive this right, and many JAGs lack the training and experience to oppose these discharges successfully. Information and assistance from civilian counselors or attorneys allow soldiers to make the best use of the rights available in the discharge process, and both attorneys and non-attorneys may represent clients in these administrative proceedings.

The criteria and procedures for enlisted administrative separations are set out in DoD Instruction These must conform to the DoD standards but may differ in the specific criteria for various discharges and in the details of administrative procedures.

All of these regulations may be found on official military websites, at nlgmltf. JAG offices and command staff judge advocates often supplement the regs with very helpful but not always quite accurate gauges and guidelines for involuntary discharge procedures.

Soldiers and sailors know little about the regulations, and are not encouraged to afl or use them. Involuntary discharges are one of the areas where military wisdom holds 336-3208 there simply are no rights.

Commands know only a little more, with personnel officers or legal officers handling many of the procedural details and improperly making many decisions in discharge cases.

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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.

Misconduct discharge is a very common result of the service history described above. The misconduct must have occurred in the current period of service, and can be used as a basis for discharge whether or not it resulted in an Article 15, UCMJ, non-judicial punishment procedure, in court-martial or in civilian conviction. ODPMC discharges are intended for servicemembers with physical or mental conditions that are too minor or transitory to warrant medical discharge or retirement that is, they are not medically unfittingbut are significant enough to interfere with performance of duties.

This can be a difficult distinction, and many critics believe the discharge has been used as an easy alternative to lengthy and ultimately costly medical retirement proceedings. Until a few years ago, personality disorders were a very common reason for ODPMC discharge, often for those with more serious disorders and sometimes for those simply viewed as afii. Under current regulations, a significant level of review is required for many personality disorder discharges.

36-2308

The Army now allows personality disorder discharges only for those in the first two years of service thereafter a personality disorder diagnosis warrants adi for ODPMC. And soldiers facing discharge for a personality disorder who have served in an imminent danger pay area within the previous 24 months cannot be discharged without a second opinion and a service Surgeon 36–3208 review of the diagnosis.

The Air Force requires a second opinion and Surgeon General review for all airmen who are serving or have served in a hazardous duty pay area, without the month limitation. The Navy follows the same policy.

It is not always easy to distinguish the symptoms of personality disorders from those of PTSD or other serious disorders in initial evaluations, particularly when these are cursory or when the PTSD, depression, or other disorder qfi acute.

It is not uncommon for individuals to suffer from both a personality disorder and another, more af disorder. Soldiers and sailors seeking discharge sometimes use this discharge category, and for many it provides an honorable and relatively quick way out. However, personality disorder discharge does result in stigmatizing language on the DD discharge document. Employers sometimes refuse to hire veterans with this discharge, assuming that they will be troublesome or unreliable workers because of the condition.

Because it cannot be OTH, this administrative discharge would be superseded by disability discharge or retirement processing, but is appropriate if no other medical condition is severe enough to warrant medical discharge. Thus a member diagnosed with mild PTSD or depression and a sufficiently severe personality disorder may receive an administrative discharge for personality disorder rather than medical discharge or retirement for PTSD. As noted above, the requirements of a second opinion and review in personality disorder discharges decreased the number of such discharges significantly.

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 discharge under the category of ODPMC, so that there has been a very significant rise in discharges for this reason. This led to another change in DoD While it is too soon to tell how well this will be implemented, some observers are concerned that the military will decrease the number of admin discharges based on mental disorders and, instead, rely more heavily on discharges for minor misconduct.

Adjustment disorders are considered relatively minor psychological reactions to new and difficult situations, such as a change in duty assignments, divorce, or adjusting to military life. Previously considered too small and treatable a problem to warrant administrative discharge, adjustment disorder now seems to be the diagnosis affi choice for people who would have been diagnosed with personality disorders in the past.

As the result of a recent change to DoD Other involuntary discharges, though less common, may raise problems for servicemembers. The military has gradually added other categories to the basic types of misconduct discharge, again varying from service to service. Unsatisfactory performance, parenthood, weight control failure, drug or alcohol rehabilitation failure and erroneous enlistment are among the less common Honorable or General discharges. Some administrative discharges cannot be imposed unless the member has been offered counseling and rehabilitation, and thus an opportunity to improve performance or conduct.

Severance Pay requirments? PT Failure admin discharge – Page 2

For some discharges, particularly misconduct based upon a serious offense or drug abuse, no rehabilitation is required prior to discharge processing, and the only counseling will be a notation, shown to agi member for acknowledgment, that discharge is being recommended.

Counselors and attorneys should understand that this 36-3280 process bears no resemblance to the counseling or rehabilitation we would anticipate in any civilian setting. Counseling does not mean therapy or assistance in understanding problems. 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 36-2308 for the members to sign, acknowledging that the counseling occurred and that they can seek further help from appropriate sources chaplains and the command afk are often ati.

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When counseling, or counseling and rehabilitation, must take place before discharge recommendation, failure to offer or record it may be a basis for at least a temporary challenge to the proposed discharge. In theory, counseled members should not be processed for discharge unless new or continuing problems are apparent after the counseling.

When it is offered, rehabilitation usually means a change in duty assignments or a transfer to another unit within the same command; only occasionally does it result in transfer to another command. The rehabilitation period may provide an opportunity to build a record of better performance and conduct or, for those with underlying medical problems, an opportunity to obtain treatment.

For members who have been denied access to medical care or have been wrongly diagnosed, rehabilitation will at least give them additional time to obtain an independent civilian medical evaluation and then aif further evaluation from military doctors.

The procedures for involuntary discharge follow basic concepts of administrative law and are founded, at least in theory, on constitutional requirements of due process. Attorneys or counselors who have worked in other administrative law areas will see familiar forms of notice, right to counsel, and right to respond. The regulations are relatively precise, mistakes are common, and command failure to follow the more important provisions of the regs may offer a basis to prevent or overturn involuntary discharges.

The rules of sfi do not apply in these proceedings, which means that commands —and respondents — can introduce almost any form of evidence. The military uses two discharge procedures, one allowing written response to the proposed discharge and the other allowing a hearing before an administrative board. The former, called simply the Notification Procedure is used in discharges where the least favorable character of discharge may be General. Administrative discharge boards are also available to aif who have served more than six years of active and reserve service, even if the Notification Procedure is used.

The Air Force includes time 336-3208 the Delayed Entry Program towards the six years and also allows hearings for all noncommissioned officers, regardless of time zfi service.

In most services, the first formal step in the discharge process is notification of servicemembers, though notification follows command recommendation in the Air Force. In some cases, members may undergo a separation physical, as well as transitional classes on employment, VA benefits and the like before the discharge is technically 36–3208. The notice then sets out all of the rights available in the discharge proceedings, including the right to waive other rights. It is worth noting that, while the regulations require a good deal of specificity in notifications, the sample forms in the regulations often encourage generalization.

As a result, servicemembers may not know the actual circumstances on which their discharge is based. Longer 36-33208 time, usually 30 avi, is given for members who are in the reserves or 36-32008 situations like civilian confinement. The minimum time to respond is treated as the maximum time to respond. It is at this point that soldiers and sailors are given a remarkably uniform lecture: They are told that their only viable option is to sign the papers, waive their rights, and accept the proposed discharge.

They may be assured that they will retain their VA benefits with the recommended discharge, 36-328 or not that is true, and that this is the best deal they could possibly get. They may be told that challenging the discharge will force the command to refer the case to court-martial, with Leavenworth looming in the background, or that it will result in a worse character of discharge 36-3028 the one recommended. They may hear that demanding their rights will extend the time of discharge affi by many months.

They will probably hear that a demand for rights is useless, that statements or hearings never work, and that any response is just a waste of time. This talk often ends with the ultimate military myth, that less than honorable discharges will automatically upgrade six months after separation. Not surprisingly, many servicemembers waive alltheir rights.