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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26820
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I am active duty Navy with 19 years 5 months service, currently

Resolved Question:

I am active duty Navy with 19 years 5 months service, currently on LIMDU. My 1st period of LIMDU ends in December and I have a FLTRES date (message of intent received) of 30 June 2014. Just before going on LIMDU, I got 3rd BCA failure in 4 years. Is it possible that I could be separated without benefits prior to my FLTRES date? Thank you for the help!
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.
Hi, My name is Philip. I am an attorney with over 16 years experience. Hopefully I can help you with your legal question.


I am very sorry to have to bear bad news.

IF you failed BCA measurements 3 or more times in 4 years? The Navy can separate you. Even with almost 20 years of service.

The reference is MILPERSMAN ARTICLE 1910-170.

If you look at this, you can see the policy is clear

Administrative separation (ADSEP) processing is
mandatory for members when they do not achieve prescribed
physical readiness standards by failing to pass three physical
fitness assessment (PFA) cycles in the most recent 4-year
period.

There is no waiver for folks who are close to retirement.

Now...the policy is not that you must be separated. But you must be "processed"

So they will (or at least should, according to the rules) process you .

This means they will convene an administrative separations board.

Since you have over 6 years of active duty, they can NOT separate you without first giving you a hearing. And an attorney (from the NLSO) to assist you at the hearing.

And what you describe? With just a few months to retirement? It may be you can convince the board that you have made reasonable efforts to "make weight". IF you can convince the board to keep you (or at least not recommend you be separated)? Then you will be allowed to retire.

I would consider hiring a lawyer to help you with this.

NLSO will give you one for free...typically they have little experience. WIth so much on the line (your military retirement) I would sure try and bring the best possible attorney to this hearing


Please let me know if you have more questions...happy to assist if I can
Customer: replied 1 year ago.

I have not had an ADSEP board, so this means I haven't been "processed" yet, is this correct? Is there a requirement for how soon this must occur?

Expert:  P. Simmons replied 1 year ago.
The "processing' would be sending you to a board.

So if you have not been provided written notice of a board? You have not yet been processed.


If you look at OPNAV INSTRUCTION 6110.1J (you can see it Here
) this regulation provides the rules regarding separation.

You see it states (in 5C)

Members failing to meet PFA standards three times in
the most recent 4-year period shall be processed for
administrative separation (ADSEP) from the Navy.


There is NO requirement for timeline. So, for example, they commander COULD wait until just prior to your retirement date to run it...if you can reach that 20 year mark before your separation is effected? You would be allowed to retire with benefits. SO it may be you can work with your chain of command to try and slow this down. But if they are going to run the ADSEP well before the 20 year mark (like now or in the next month or two)? I would get a good lawyer to help you fight the board and keep your benefits

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26820
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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