244Commanders should base their decision on the specific circumstances of the individual case and sound legal advice provided by the Staff Judge Advocate. The decision to administratively separate or to refer a Soldier under the UCMJ should not to be made lightly. Commanders must review the considerations described above when electing to pursue the IDES or the administrative punitive action.
When faced with this decision, obtaining legal advice is essential. The servicing judge advocate will take into consideration Congressional
and regulatory intent, as
well as any additional factors, to include the potential scrutiny and criticism that may result. They will also ensure that the command has all relevant facts and policies that impact the command’s decision ensuring the ultimate determination is supportable and is in the best position to withstand higher level review.
D. Practical Examples1. Is the Soldier eligible for the IDES?a. An enlisted Soldier is pending separation under AR 635-200, Chap-ter 13 (Unsatisfactory Duty Performance).YES.
Once enrolled in the MEB, the Chapter 13 separation action is suspended pending the results of the IDES.
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