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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 15967
Experience:  Lawyer and current JAG officer.
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My husband and are both active duty army. He is an NCO and

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My husband and are both active duty army. He is an NCO and I a officer. I was commissioned through ROTC in May and I am currently in BOLC. I ADSO'd for my branch, but I did not receive any federal scholarship money. When it comes time for us to have children is there any way that I can be separated in order to take care of our children?
Submitted: 1 year ago.
Category: Military Law
Expert:  Allen M., Esq. replied 1 year ago.

Thank you for your question today, I look forward to assisting you. I have nearly 20 years of legal experience in various disciplines, including JAG.

 

You would be able to use a Chapter 8 for discharge due to pregnancy. You'll need to request that discharge prior to giving birth, so let your command know as soon as you know that you are pregnant.

 

You can always opt out of separating up to 30 days prior to your exit date, once that is establishing.

 

It is a right that you have and will be counseled on by your command, officer or enlisted.

Customer: replied 1 year ago.

I have looked up information about chapter 8. I thought that it only applied to enlisted. Does it apply officers too? Also have you experienced many officers separating due to pregnancy?

Expert:  Allen M., Esq. replied 1 year ago.
It also exists in the officer separation regulation and yes, I have seen officers separate for pregnancy.
Customer: replied 1 year ago.

In your experience, are commanders understanding of the situation when the officer is dual military and expecting? Also, do they reject them for a certain reason very often? I am just trying to get information now so I will be prepared for when that day comes because we will want children.

Expert:  Allen M., Esq. replied 1 year ago.

See AR 600-8-24, page 19 for the table concerning voluntary separation of active duty officer due to pregnancy.

 

For the most part, they are granted. Very rarely does a commander invoke a "key person" exemption and disapprove the request.

Customer: replied 1 year ago.

What is a "key person" exactly? I don't know when we plan on having children, but do I need to serve a certain amount of time before I can separate due to pregnancy or can it be any time? I didn't know if they would do it soon after I got to my duty station if the situation arises.

Expert:  Allen M., Esq. replied 1 year ago.

It's a person that would be difficult to replace based on their job, training, position, etc.

 

I have only seen that used once on the deputy of a school, so it's not common.

 

No, you don't need to have served a certain amount of time, though if you received any bonuses you have to repay them.

Customer: replied 1 year ago.

I'm in MI. I don't know if that makes a difference. What is a deputy of school? I'm not familiar with some of these terms so I am sorry. I didn't receive a bonus. Does having an ADSO make a difference?

Expert:  Allen M., Esq. replied 1 year ago.

No, it makes no difference what state you are in.

 

The deputy of a school is the second in charge after the commandant. The point is that it was obviously a very key person.

 

Having an ADSO will play into the command decision, but nothing in the separate-on regulation says that it can't be granted.

 

All that said, we're talking here in very general terms. You can not possibly predict, in advance, what your command will or will not do. I've seen most of these go through without the slightest hitch. The few that I've seen blocked made sense, either because the command didn't like the officer based on her performance and didn't want to give her the out or the officer was obviously a highly placed (high ranked) individual that was necessary to the mission and not easily replaceable.

Customer: replied 1 year ago.

When I said I was MI I meant that my branch was Military Intelligence. I didn't know if that had something to do with it. I'm also going to Fort Campbell, KY. Maybe you've had experience with the post.

Expert:  Allen M., Esq. replied 1 year ago.

The regulation is just not the specific. They don't have absolute rules about which jobs do and do not get to use the regulation.

 

They leave it up to command discretion, just like nearly every other decision in the military. So, there is no prohibition anywhere stating that military intelligence jobs can't use it.

 

Again, that fact may be something that your commander takes into consideration.

 

I have not had any experience with Fort Campbell, but even if I had, it wouldn't be relevant now. There are not post directives on this issue. That would be "undue command influence" which is illegal. Each commander has the authority to make their own independent determination and recommendation on separation or retention.

Customer: replied 1 year ago.

I'll be in headquarters when I get to Fort Campbell so I am assuming my BN CDR would have the final say.


 


BotXXXXX XXXXXne is that it depends on my commander since it's up to his discretion, correct?


 


What portion of these requests would you say are granted out of all that are submitted?

Expert:  Allen M., Esq. replied 1 year ago.

Yes, it is ultimately decided by the command.

 

There isn't any posted figures on this particular discharge for officers or enlisted. That being said, based on my experience with these discharges, they are granted over 90% of the time.

Customer: replied 1 year ago.

If for some reason it is denied is there a way in which I can appeal it? I know that dual family military families have to have a family care plan.


 


Can not having a family care plan be grounds for separation?


 


Also, what types of discharges are pregnancy separation and lack of family care plan separation? I've looked up both of these and have found mixed results on what type of discharge each result in.

Expert:  Allen M., Esq. replied 1 year ago.

If it is denied, there is no appeal. The command is the final authority.

 

Family care plan can be an issue, but if you fail to put one in place it can end with an involuntary separation, at which point you're looking at a General rather than honorable discharge. You don't want that. Don't take this route unless you have no other option.

 

Pregnancy are typically honorable....in fact, they are almost always honorable. The only time I've seen one not honorable, the person already had at Article 15 in their history for another matter....so they were likely going to be separated anyway and it was just easier to process the pregnancy discharge.

 

 

Customer: replied 1 year ago.

Since my husband is active duty also and we would not have anyone else to take care of the child would we qualify for a hardship discharge? I know they are hard to come by.


 


Also, would you suppose the commander would take into account that we are both dual military when I requested to be separated due to pregnancy?

Expert:  Allen M., Esq. replied 1 year ago.

Yes, that is a discharge that can be granted, if your command wants to.

 

But if the command isn't willing to release you with the pregnancy discharge, they aren't going to let you go with the hardship discharge. Hardship discharges are at command discretion too.

 

The fact that you are dual military is something that the command can take into consideration, but it isn't mentioned in the regulation as a factor to consider.

 

I need to be leaving soon. Do you have many more questions concerning this issue, because I believe we've explored it fairly completely?

Customer: replied 1 year ago.

I do have one last question and I am sure this up to commander's discretion also.


 


If we were to have children after 6 months of being at my duty station do you think pregnancy separation would be granted?


 


Thank you for your help on this matter. I have searched the internet in much detail and found a lot of information concerning enlisted, but not so much concerning officers. I wasn't sure it happened less often.

Expert:  Allen M., Esq. replied 1 year ago.

The less time that you've spent in duty, the more likely they will be to not grant it.

 

Yes, everything is at command discretion and they'll take everything into consideration.

 

So, you have an ADSO, you're in MI, you have a husband in the military, you'll only have served with them six months. Trying that early would essentially be giving the commander the most reason to not grant it. I'm not saying they won't or can't. I'm just saying that, if I were to be looking for the fact pattern that might make a commander choose not to let you out, trying it 6 months after your first duty station is not ideal.

 

Having an enlisted husband doesn't help at a lot, unless he is a short manned career field. A commander could refuse your separation request, make you fail to have a family care plan and then see that he is kicked out instead of you. Once one person is not military, you don't need a family care plan, so that would take that off the table.

 

Simply put, if the commander wants to let you out, he/she can. If the commander wants you retained, that will happen too.

 

 

Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 15967
Experience: Lawyer and current JAG officer.
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Allen M., Esq.
Allen M., Esq.
Military Lawyer
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Lawyer and current JAG officer.