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Entry-level separation offers a way out for troubled recruits

Nov. 11, 2008 - 01:25PM   |   Last Updated: Nov. 11, 2008 - 01:25PM  |  
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Those who have served in uniform for any length of time know that the military is a way of life — not only in terms of its many unique traditions and customs, but also in its separate standards of conduct.

It's not uncommon for new recruits to take some time to really comprehend the different pressures and expectations they face as a service member. For some, the training is too much to handle. Others have trouble conforming to the abundance of rules and regulations. And in some cases, their difficulty is as simple as no longer having access to some of the freedom they enjoyed as civilians.

When recruits don't adapt to the military world and show that they are not succeeding within it, they have an option for discharge. A service member still in entry-level status is eligible for an involuntary performance and conduct discharge called an entry-level separation.

ELS is a discharge option available to commanders. It can be given only to service members in entry-level status — within their first 180 days of continuous active military service.

An ELS does not qualify as an honorable or general discharge — the characterization of service is, in effect, uncharacterized. It basically means the commander did not have enough time to make a fair decision as to the overall service characterization.

To grant an entry-level separation, the command must view the service member's problems with military duty as unintentional. A member will not be processed for an ELS if the command believes a member's problems are manufactured or that the behavior is a conscious effort to avoid military service.

While ELS criteria vary slightly in each service, general examples of grounds include failure to adapt to the military environment, failure to progress in a required training program, and psychological or stress-related symptoms.

While failure to adapt is a broad categorization that could cover a variety of actions, others are more specific. A discharge sought on the basis of "failure to make satisfactory progress in a required training program" must be evidenced by a direct physical factor, such as exceeding body fat standards.

In the ELS process, problems should be identified as specifically as possible — but they should not be fabricated. Deliberate unsatisfactory performance, such as failing a test on purpose, could lead to more serious problems, such as nonjudicial punishment or court-martial. This type of behavior also could lead to an unfavorable characterization of service — which wouldn't allow for an ELS.

There are two routes to an ELS. First, a service member may submit a written request for discharge with any documentation that supports the request. For example, if the reason cited is an inability to adapt socially or emotionally to military life, a letter from a mental health professional, health care provider or other counselor would provide strong documented support for discharge.

The second route does not involve a request for discharge but instead allows the service member to approach the commander and present any problems. I generally find that a direct request for discharge is most effective when the recruit is still in basic or advanced training.

Pregnancy is one reason

One situation that allows for different circumstances in obtaining an ELS is pregnancy. If a member is pregnant, discharge under the specific regulations for pregnancy separation should be requested. Not only is this separation easier to obtain, but the reason that appears on the discharge papers will be "pregnancy" rather than "entry-level performance and conduct."

Unlike an "other than honorable" discharge, an ELS is unlikely to have a negative impact on future employment. However, members seeking an ELS should be aware that some employers might shy away from hiring someone who could not adapt to life in the military.

Also, be aware that once an ELS is given, the member is not eligible for veterans benefits or other medical benefits provided through military service.

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The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

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Mathew B. Tully is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates (http://www.fedattorney.com">http://www.fedattorney.com), a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.

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