If a Courts-Martial is not an option then the Soldier will not be held past their ETS date.
AR 635-200, para 1-22a covers holding past ETS for Courts-Martial action. The criteria to hold a Soldier is that:
Soldier may be retained after his/her term of service has expired when one of the following applies:
(1) An investigation of his/her conduct has been started with a view to trial by court-martial.
(2) Charges have been preferred.
(3) The Soldier has been apprehended, arrested, confined, or otherwise restricted by the appropriate military authority.
I know the question indicates this is not the issue in this case, but a 14-12c is a Commission of a Serious Offense, so it could come into play. However, there has to be an honest intent to take the case to court-martial if charges have not been referred. If a command uses this to hold a Soldier over, then does not prefer charges and proceed to courts-martial, then the Soldier’s ETS is adjusted and the Soldier does a normal ETS exit from the service with an Honorable characterization of service. Also, the command cannot hold a Soldier more than 30 days past their ETS if charges have not been preferred without GCMCA approval.
The paragraph they are looking for which states the command cannot hold a Soldier past their ETS for chapter is:
AR 635-200, para 1–26. Retention for miscellaneous reasons
Retention beyond a Soldier’s ETS to process administrative separation proceedings pursuant to this regulation is not authorized. (emphasis added) If it is desirable to retain a Soldier beyond the ETS for any reason other than those covered by paragraphs 1–21 through 1–24, request for approval of such action must be submitted to
a. Headquarters, Department of the Army (AHRC–EPR–F), 200 Stovall Street, Alexandria, VA 22332–0478, for RA personnel.
b. The appropriate State Adjutant General for ARNGUS (AGR) personnel.
c. Commander, USA HRC (DARP-ARE), 1 Reserve Way St. Louis, MO 63132–5200, for USAR (AGR) personnel.
The unit also has to ensure that the packet is complete (including required medical evaluations for a 14-12c), the Soldier is allowed to speak with TDS, the separation authority approves it, AND transitions has time to cut the orders allowing the Soldier to clear before their ETS date (normally 5 business days).
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