Bottom Line Up Front (BLUFF): The command CANNOT extend a Soldier past their ETS date for an administrative separation. The command can only extend a Soldier past their ETS if they intend to take the Soldier to Court-Martial. I have NEVER seen this happen for one positive UA.
Unit commanders frequently try to do this and get upset when they are told they can’t. This will probably be one of the cases where the command wants to separate the Soldier under a Chapter 14-12c, Serious Misconduct, with a General Discharge, but they just don’t have enough time to complete the action before the Soldier’s ETS. The Soldier will ETS with a Honorable discharge with all benefits. The only thing the command can really do is max the Soldier out on a Field Grade Article 15.
The only way a Soldier can be retained beyond their ETS date is if the command is investigating the Soldier with intent to take the charges to court-martial. (See para 1-22, AR 635-200) Just the fact they are investigating does not authorize the command to extend a Soldier past their ETS date.
1–22. When investigation is initiated with view to trial by court-martial or Soldier is awaiting trial or result of trial
a. A 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) \have been preferred.
(3) The Soldier has been apprehended, arrested, confined, or otherwise restricted by the appropriate military authority.
b. If charges have not been preferred, the Soldier will not be retained more than 30 days beyond the ETS unless the general court-martial convening authority approves retention. (See para 1–31.)
c. A Soldier who is awaiting trial or result of trial by court-martial when he/she would otherwise be eligible for discharge or release from AD will not be discharged or released until final disposition of the court-martial charges. (For effective date of discharge, see sec V of this chapter.) Unless the command is going to take the charges to court-martial, para 1-26, AR 635-200 specifically prohibits retaining a Soldier for administrative (separation) action beyond their ETS without approval from HQDA.
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
If the Soldier is entitled to a separation board, then the Soldier has over 6 years of federal service and/or the Soldier has been notified he is being recommended for separation with an Other Than Honorable Discharge. Either of these conditions authorizes the Soldier to present his case before a board. Now, as far as this Soldier is concerned; separation boards very rarely happen in under 60 days. If the Soldier is entitled to a board, I would just wait until the ETS date. The command will have to appoint a board, notify the Soldier of the board, hold the board, complete the board proceedings, get the board proceedings approved and then process the paperwork to the transition point. This will not happen in 30 days. The Soldier must be provided the opportunity to speak with TDS. The Soldier should consult with TDS and that attorney should inform him to sit tight and wait for his ETS date. He will ETS with an honorable discharge with all benefits.
This does not prevent the command from administering an Article 15 for the positive UA and reducing the Soldier in rank and giving restriction and/or extra duty. (The Soldier cannot be held past his ETS to complete extra duty either.)
Hope this helps.
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Comments
Jess
I have 38 days left in the army. I pissed hot on my piss test and my command is telling me that most likely I will not be able to get out on my ets date, but will be pushed back 30 days. Is this legal?
Jessica King
I was just told by my company commander of the 203rd MI BN that my battalion commander has decided to make/change mY nondeployable status to deployable. My AKO clearly states nondeployable. To add I am 3 months away from my ETS date. Is this legal/ possible?
Mark Gerecht
See your retention counselor. They are the ones that change your ETS if at all. Also BN cdr probably wants the soldier listed as deployable for USR purposes. Deployability is being highly scrutinized and bde cdr probably wants name by name and reason. Just because you are ETSing does not make you nondeplyable. It pertains to medical.
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David
Can I be held past ets for civilian court case ?