Military Justice 101 - Discharges

Military Discharges

Military to Civilian
Discharge methods. gettys

Once you sign your contract to serve your country in the military, you are obligated to fulfill that contract as the military is obligated to provide a job, health and dental care, opportunity for promotion, and leave (vacation).  However, service-member's obligation to his armed service continues until terminated. Generally, this time period is determined by the terms of the enlistment contract, but earlier termination may result due to administrative or disciplinary separation based upon specifically identified conduct on the part of the service-member.

There are two types of early separations given by the armed forces of the United States to enlisted service-members: punitive discharges and administrative separations.

Punitive Discharges. Punitive discharges are authorized punishments of courts-martial and can only be awarded as an approved court-martial sentence pursuant to a conviction for a violation of the UCMJ. There are two types of punitive discharges: Dishonorable Discharge (DD) -- which can only be adjudged by a general court-martial and is a separation under dishonorable conditions; and Bad-Conduct Discharge (BCD) -- which can be adjudged by either a general court-martial or a special court-martial and is a separation under conditions other than honorable.

Administrative Separations. Administrative separations cannot be awarded by a court-martial and are not punitive in nature. Enlisted personnel may be administratively separated with a characterization of service (characterized separation) or description of separation as warranted by the facts of the particular case.

"Basis" is the reason for which the person is being administratively separated (e.g., pattern of misconduct, convenience of the government for parenthood, weight control failure, etc.). "Characterization of service" refers to the quality of the individual's military service (e.g., honorable, general, or Other Than Honorable).

Individuals who are separated with less than 180 days of continuous active military service may be separated as an "Entry Level Separation." In these cases, there is no characterization of service at all.

Another type of administrative separation is "Order of Release from the Custody and Control of the Military Services" by reason of void enlistment or induction. This type of separation also has no characterization of service.

Characterization of Service. Characterization at separation is based upon the quality of the member's service, including the reason for separation and guidance below. The military determines the "quality of service" in accordance with standards of acceptable personal conduct and performance of duty for military personnel found in the Uniform Code of Military Justice (UCMJ) directive and regulations issued by the Department of Defense and the Military Departments, and the time-honored customs and traditions of military service.

The quality of service of a member on active duty or active duty for training is affected adversely by conduct that is of a nature to bring discredit on the Military Services or is prejudicial to good order and discipline, regardless of whether the conduct is subject to UCMJ jurisdiction.

Characterization may be based on conduct in the civilian community, and the burden is on the respondent to demonstrate that such conduct did not adversely affect the respondent's service.

The Military considers the reasons for separation, including the specific circumstances that form the basis for the separation, on the issue of characterization. As a general matter, regulations require the military to determine characterization upon a pattern of behavior rather than an isolated incident. There are circumstances, however, in which the conduct or performance of duty reflected by a single incident provides the basis for characterization.

Honorable. The Honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. (For example, a Medal of Honor recipient would almost always receive an Honorable Discharge, unless he/she was involved in the most serious of misconduct). In the case of an Honorable Discharge, an Honorable Discharge Certificate (DD Form 256) is awarded and a notation is made on the appropriate copies of The DD Form 214/5.

General (Under Honorable Conditions). If a member's service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as General (under honorable conditions) is warranted when significant negative aspects of the member's conduct or performance of duty outweigh positive aspects of the member's military conduct or performance of duty outweigh positive aspects of the record. A General (under honorable conditions) characterization of discharge may jeopardize a member's ability to benefit from the Montgomery G.I. Bill if they, in fact, had contributed. Moreover, the member will not normally be allowed to reenlist or enter a different military service.

Under Other Than Honorable Conditions. OTH Discharges are warranted when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of members of the Military Services, or when the reason for separation is based upon one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Military Services. Examples of factors that may be considered include the use of force or violence to produce serious bodily injury or death, abuse of a special position of trust, disregard by a superior of customary superior-subordinate relationships, acts or omissions that endanger the security of the United States or the health and welfare of other members of the Military Services, and deliberate acts or omissions that seriously endanger the health and safety of other persons.

Persons awarded an OTH characterization of service: are not entitled to retain their uniforms or wear them home (although they may be furnished civilian clothing at a cost of not more than $50); must accept transportation in kind to their homes; are subject to recoupment of any reenlistment bonus they may have received; are not eligible for notice of discharge to employers (which may affect unemployment benefits); and, do not receive mileage fees from the place of discharge to their home of record.

It is generally believed that an OTH Discharge will render an individual ineligible for all VA Benefits. This is not necessarily so. The Department of Veterans Affairs will make its own determination with respect as to whether the OTH was based on conditions which would forfeit any or all VA benefits. Most veterans' benefits will be forfeited if that determination is adverse to the former service-member, such as when based on the following circumstances: (1) Desertion; (2) escape prior to trial by general court-martial; (3) conscientious objector who refuses to perform military duties, wear the uniform, or comply with lawful orders of competent military authorities; (4) willful or persistent misconduct; (5) offense(s) involving moral turpitude; (6) mutiny or spying.

The Discharge Process. Administrative Separations break down into two basic areas: voluntary separations and involuntary separations. A discharge at the end of one's term of service is an example of a voluntary separation. Many people believe that separating at the end of the normal term of service guarantees an Honorable Discharge. This is not so. All administrative discharges take into account the individual's conduct and performance.

Too many disciplinary infractions or low performance report ratings may result in a General (under honorable conditions) discharge. Other authorized reasons for voluntary separations are: early release to further education, early release to accept public office, dependency or hardship, pregnancy or childbirth, conscientious objection, immediate reenlistment, separation to accept a commission, and sole surviving family member. However, as this is a series on "Military Justice," we'll concentrate on involuntary discharges.

The involuntary discharge process is fairly straightforward. The commander makes an election to pursue involuntary discharge proceedings and notifies the respondent in writing. The written notice includes the basis for the discharge (listed below), the worst characterization that can be applied for this basis, and the characterization that the commander is recommending. The respondent is allowed to consult with a military attorney (free of charge) or a civilian attorney at his/her own expense.

The respondent may then attach evidence and statements to become part of the package. If the respondent has more than six years of total active military service, or if the basis of the discharge is for homosexuality, or the characterization recommended is "Other Than Honorable," he/she is entitled to have the case heard by an administrative discharge board.

Once the commander receives the attachments from the respondent, he/she determines whether or not to proceed with the discharge proceedings. If the commander elects to proceed an administrative discharge board is convened (if required). If the board is not required, the commander forwards the package to the approval authority (usually the installation commander) for final approval or disapproval.

There is a substantial investment in the training of persons enlisted or inducted into the Military Services. As a general matter, the various service regulations require reasonable efforts at rehabilitation prior to initiation of separation proceedings. Unless separation is mandatory (such as in the cases of serious misconduct or homosexuality, the potential for rehabilitation and further useful military service must be considered by the Separation Authority and, where applicable, the Administrative Board. If separation is warranted despite the potential for rehabilitation, the Separation Authority can Approve a "suspension" of the separation, in most cases.

An alleged or established inadequacy in previous rehabilitative efforts does not provide a legal bar to separation

The Separation Authority may consider the following factors on the issue of retention or separation, depending on the circumstances of the case:

  • The seriousness of the circumstances forming the basis for initiation of separation proceedings, and the effect of the members continued retention on military discipline, good order, and morale.
  • The likelihood of continuation or recurrence of the circumstances forming the basis for initiation of separation proceedings.
  • The likelihood that the member will be a disruptive or undesirable influence in present or future duty assignments.
  • The ability of the member to perform duties effectively in the present and in the future, including potential for advancement or leadership.
  • The member's rehabilitative potential.
  • The member's entire military record. This may include: past contributions to the Service, assignments, awards and decorations, evaluation ratings, and letters of commendation; letters of reprimand or admonition, counseling records, records of non-judicial punishment, records of conviction by court-martial and records of involvement with civilian authorities; and any other matter deemed relevant by the Board, if any, or the Separation Authority, based upon the specialized training, duties, and experience of persons entrusted with the separation decision.

Adverse matter from a prior enlistment or period of military service, such as records of non-judicial punishment and convictions by courts-martial, may be considered only when such records would have a direct and strong probative value in determining whether separation is appropriate. The use of such records ordinarily are limited to those cases involving patterns of conduct manifested over an extended period of time.

Isolated incidents and events that are remote in time normally have little value in determining whether administrative separation should be effected.

The Administrative Discharge Board. The Separation Authority appoints to the Administrative Board at least three experienced commissioned, warrant, or non-commissioned officers. Enlisted personnel appointed to the Board must be in grade E-7 or above, and must be senior to the respondent. At least one member of the Board must be serving in the grade of O-4 or higher, and a majority of the board must be commissioned or warrant officers.

The senior member is the president of the board. The Separation Authority also may appoint to the Board a nonvoting recorder. A nonvoting legal adviser may be appointed to assist the Board.

If the respondent is an enlisted member of a Reserve component or holds an appointment as a Reserve commissioned or warrant officer, the Board must include at least one Reserve officer as a voting member. Additionally, all Board members must be commissioned officers if an under Other Than Honorable Characterization (OTH) from the Reserve component is authorized to be issued. Voting members must be senior to the respondent's reserve grade.

The respondent may challenge a voting member of the Board or the legal advisor, if any, for cause only. The president presides and rules finally on all matters of procedure and evidence, but the rulings of the president may be overruled by a majority of the Board. If appointed, the legal advisor rules finally on all matters of evidence and challenges except challenges to him or herself.

The respondent may request the attendance of witnesses. In some cases, the respondent may submit a written request for temporary duty (TDY) or invitational travel orders for witnesses. The rules of evidence for courts-martial and other judicial proceedings are not applicable before an Administrative Board.

The board is required, however to impose reasonable restrictions, concerning relevancy and competency of evidence.

Rights of the Respondent: The respondent may testify in his or her own behalf, subject to the provisions of Article 31(a), UCMJ (Self Incrimination). At any time during the proceedings, the respondent or counsel may submit written or recorded matter for consideration by the Board. The respondent or counsel may call witnesses in his or her behalf. The respondent or counsel may question any witness who appears before the Board. The respondent or counsel may present argument prior to when the Board closes the case for deliberation on findings and recommendations.

The Board is required to determine its findings and recommendations in closed sessions. Only voting members of the board may be present. The Board determines the following:

  • Whether each allegation in the notice of proposed separation is supported by a preponderance of the evidence.
  • Whether the findings warrant separation with respect to the reason for separation set forth in the Notice. If more than one reason was contained in the Notice, there must be a separate determination for each reason.
  • The Board makes a recommendation of or separation (Not guilty or innocence).
  • If the Board recommends separation, it may recommend that the separation be suspended.
  • If separation or suspended separation is recommended, the Board recommends a characterization of service or description of separation.

In every case in which characterization of Service Under Other Than Honorable Conditions is recommended, the record of the Board's proceedings will be reviewed by a judge advocate or civilian attorney employed by the Military Department prior to action by the Separation Authority. Such review is not required when another characterization is recommended unless the respondent identifies specific legal issues for consideration by the Separation Authority.

If the Board recommends retention, the Separation Authority may take one of the following actions: approve the recommendation; or forward the matter to the Secretary concerned with a recommendation for separation based upon the circumstances of the case. In such a case, the Secretary may direct retention or separation. If the Secretary approves separation, the characterization of service or description of separation will be Honorable, General (under honorable conditions) or an Entry Level Separation.

If the Board recommends separation, the Separation Authority may: (1) Approve the Board's recommendation; (2) Approve the Board's recommendations, but modify the recommendations by suspending or providing a characterization more favorable than recommended; or (3) disapprove the Board's recommendation and retain the respondent.

Basis for Involuntary Separations. There are several reasons an individual can processed for involuntary separation. Below are the most common:

Parenthood. A member may be separated by reason of parenthood if as a result thereof it is determined that the member is unable satisfactorily to perform his or her duties or is unavailable for worldwide assignment or deployment. Separation processing may not be initiated until the member has been counseled formally concerning deficiencies and has been afforded an opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records.

Physical or Mental Condition. Individuals may be involuntarily separated on the basis of designated physical or mental conditions, not amounting to Disability, that potentially interfere with assignment to or performance of duty. Such conditions may include but are not limited to chronic seasickness or airsickness, enuresis, and personality disorder. Separation processing may not be initiated until the member has been counseled formally concerning deficiencies and has been afforded an opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. Separation on the basis of personality disorder is authorized only if a diagnosis by a psychiatrist or psychologist, completed in accordance with procedures established by the Military Department concerned, concludes that the disorder is so severe that the member's ability to function effectively in the military environment is significantly impaired.

Personality disorders are described in the Diagnostic and Statistical Manual (DSM-III) of Mental Disorders (reference (m)). Separation for personality disorder is not appropriate when separation is warranted for other reasons. For example, if separation is warranted on the basis of unsatisfactory performance or misconduct, the member usually will not be separated under this section regardless of the existence of a personality disorder.

Disability. A member may be separated for disability under the provisions of 10 U.S.C., Chapter 6l (reference (n)). Disability separations usually result in an Honorable, or Entry Level Separation.

Minority Enlistment. If a member is under the age of 17, the enlistment of the member is void, and the member shall be separated. A member shall be separated under 10 U.S.C. 51170 (reference (o)) in the following circumstances except when the member is retained for the purpose of trial by court-martial:

  • There is evidence satisfactory to the Secretary concerned that the member is under 18 years of age;
  • The member enlisted without the written consent of the member's parent or guardian; and
  • An application for the member's separation is submitted to the Secretary concerned by the parent or guardian within 90 days of the member's enlistment.

Minority Enlistment Discharges are normally characterized as Entry Level Separations.

Erroneous Enlistment. A member may be separated on the basis of an erroneous enlistment, induction, or extension of enlistment.

An enlistment, induction, or extension of enlistment is erroneous in the following circumstances, if: (1) It would not have occurred had the relevant facts been known by the government or had appropriate directives been followed; (2) It was not the result of fraudulent conduct on the part of the member; and (3) The defect is unchanged in material respects.

Erroneous Enlistment. normally receive an Honorable Discharge, unless eligible for an Entry Level Separation (Less than 180 days of military service).

Fraudulent Entry Into the Military Service. A member may be separated on the basis of procurement of a fraudulent enlistment, induction, or period of military service through any deliberate material misrepresentation, omission, or concealment that, if known at the time of enlistment, induction, or entry onto a period of military service might have resulted in rejection. Characterization of service or description of separation is based upon the service record and severity of the fraudulent entry. If the fraud involves concealment of a prior separation in which service was not characterized as Honorable, characterization normally shall be Under Other Than Honorable Conditions.

Unsatisfactory Performance. A member may be separated when it is determined that the member is unqualified for further military service by reason of unsatisfactory performance. Separation processing may not be initiated until the member has been counseled formally concerning deficiencies and has been afforded an opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. Counseling and rehabilitation requirements are of particular importance with respect to this reason for separation. Because military service is a calling different from any civilian occupation, a member should not be separated when unsatisfactory performance is the sole reason unless there have been efforts at rehabilitation under standards prescribed by the Secretary concerned. The service shall be characterized as Honorable or General (under honorable conditions).

Alcohol Abuse Rehabilitation Failure. A member who has been referred to a program of rehabilitation for drug and alcohol abuse may be separated for failure through inability or refusal to participate in, cooperate in, or successfully complete such a program in the following circumstances: (1) There is a lack of potential for continued military service; or (2) Long term rehabilitation is determined necessary and the member is transferred to a civilian medical facility for rehabilitation.

Misconduct. A member may be separated for misconduct when it is determined that the member is unqualified for further military service by reason of one or more of the following circumstances:

  • Minor Disciplinary Infractions. A pattern of misconduct consisting solely of minor disciplinary infractions. If separation of a member in entry-level status is warranted solely by reason of minor disciplinary infractions, the action should be processed under Entry-Level Performance and Conduct.
  • A pattern of Misconduct. A pattern of misconduct consisting of (a) discreditable involvement with civil or military authorities or (b) conduct prejudicial to good order and discipline.
  • Commission of a Serious Offense. Commission of a serious military or civilian offense if in the following circumstances: (1) The specific circumstances of the offense warrant separation; and (2) A punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-martial.
  • Civilian Conviction . Conviction by civilian authorities or action taken that is tantamount to a finding of guilty, including similar adjudications in juvenile proceedings, when the specific circumstances of the offense warrant separation, and the following conditions are present: (1) A punitive discharge would be authorized for the same or a closely related offense under the Manual for Courts-martial or (2) The sentence by civilian authorities includes confinement for 6 months or more without regard to suspension or probation.

    Separation processing may be initiated whether or not a member has filed an appeal of a civilian conviction or has stated an intention to do so. Execution of an approved separation is usually withheld pending outcome of the appeal or until the time for appeal has passed, but the member may be separated before final action on the appeal upon request of the member or upon direction of the Secretary concerned.

    Characterization of service for misconduct will normally be Under Other Than Honorable Conditions, but characterization as General (under honorable conditions) may be warranted for those with outstanding military records. Characterization of service as Honorable for Misconduct Discharges is not authorized unless the respondent's record is otherwise so meritorious that any other characterization clearly would be inappropriate. (Such as Medal of Honor recipients).

    Security. When retention is clearly inconsistent with the interest of national security, a member may be separated by reason of security and under conditions and procedures established by the Secretary of Defense in DoD 5200.2-RCharacterization is based on the service record and performance of the respondent.

    Unsatisfactory Participation in the Ready Reserve. A member may be separated for unsatisfactory participation in the Ready Reserve under criteria established by the Secretary concerned under DoD Directive 1215.13. Characterization of service or description of a separation is based on the service record and the requirements of DoD Directive 1215.13 (reference (p)).

    Weight Control Failure. A member may be separated for failure to meet the weight control standards established under DoD Directive 1308.1, when it is determined that the member is unqualified for further military service, and the member is not medically diagnosed with a medical condition that precludes or interferes with weight control. Members with a medically diagnosed condition that precludes or interferes with weight control may be separated either through medical channels, if appropriate. Separation processing may not be initiated until the member has been counseled formally concerning deficiencies and has been afforded an opportunity to overcome those deficiencies as reflected in appropriate counseling or personnel records. Characterization of the discharge will normally be Honorable, unless characterization of service as General (under honorable conditions) is warranted by the military records.

    These are the most common reasons for involuntary separations from military service. The Department of Defense also authorizes each of the military services to establish additional reasons for administrative discharges, based on the unique qualifications of the particular service.

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