Military Service Members – Protect Your Discharge!

Posted on Jul 04, 2016 By Ron Sykstus

Attorney Ron SykstusI recently received a kind and thoughtful email from the father of a service member that I represented years ago.  The email read as follows:

While cleaning out my desk I ran across your business card. You defended my son years ago when he got involved with the wrong people and stole some ammunition.  I attended his trial and remember meeting you. You got him off with what I thought was a light sentence  My son then went through the Gulf War, attended college and has a great job and has never been in any trouble since. Having been in the service myself I always said you got him a second chance in life.   Again I want to thank you and wish you a healthy and successful life.

Protect Your Discharge

I remember the father and son from years ago and it reminds me of what I tell all military members, even my own son, Tom, who is a 68W combat medic in the U.S. Army Reserves – “Protect your discharge!”  I say that so often that my son is sick of hearing it from me!

This adage still holds true from what I told this young man years ago.  The discharge entry on a DD 214 will follow a veteran for the rest of his or her life in all facets.  Anything less than an “honorable” discharge will potentially pose a problem.  A veteran will probably be OK with a “general under honorable conditions” discharge, but anything other than that will pose problems from applying for VA benefits to private employment jobs to government security clearance applications.  A problem discharge will surface any time there is a detailed inquiry into a veteran’s background.  In addition, if the discharge is anything but honorable, there could be negative coding which could preclude VA benefits even if there is a general under honorable conditions discharge awarded.

Types of Militarty Discharge

To review the discharge scenario, here are the possibilities for the entry on the DD 214 discharge certificate:

Honorable – This is the one you want!

General Under Honorable Conditions – If you cannot get an honorable discharge, then you want this one but be careful of any negative coding on this type of discharge as it may affect you.

Other than Honorable Conditions (OTH) – This is a bad discharge and can hurt a veteran in many ways in the future.  This type of discharge is administrative only and comes from an administrative (“chapter”) separation.  There is no military prison time with this type of discharge.

Bad Conduct Discharge (BCD) – As the name implies, this is a bad discharge and will hurt a veteran in many ways in the future.  This type of discharge comes from a BCD Courts-Martial trial and can impose a military prison sentence of up to 6 months.

Dishonorable discharge (DD) – This is arguably the worst type of discharge a service member can get.   This type of discharge comes from a General Courts-Martial and can impose an unlimited military prison sentence as the Uniform Code of Military Justice (UCMJ) dictates for the particular crime for which a service member is convicted.  Needless to say no, veteran wants this type of discharge.

Dismissal –   This is an administrative separation discharge for officers and is the equivalent of an OTH discharge for enlisted personnel.  No officer wants a dismissal discharge on his or her record.  It will have the same impact as an OTH discharge.

Ensure an Honorable Discharge

So what can a military service member do to ensure an honorable discharge?   It is simplistic but the best advice is to stay out of trouble!   Alcohol and drug offenses by military members are, unfortunately, common place occurrences that will virtually guarantee a discharge less than honorable.   Also, good and solid job performance is important, to include doing well on the physical fitness tests and staying within the required weight limits, which will ensure that a service member does not show up negatively on the command structures radar.   This is important because, as a general rule, the rating structure for military service member changes every 2 to 3 years so there is always the constant opportunity to run into someone who just doesn’t like you.

For the most part, the negative discharges below honorable usually come up from some type of criminal type offense.   Sometimes, if it is a difficult offense to prove, the command structure may just try to separate an individual administratively instead of going through the courts-martial process.   If it is a really tough case to prove, and the commander believes that an offense has been committed, he or she may elect to issue a Letter of Reprimand (LOR) to the offending service members’ official file (OMPF).   I gave that advice many times to commanders which then allowed the commander to promptly move to try to administratively chapter the service member out of the service.

Fight Your Negative Discharge

Since I’m much more comfortable being on the side of the service member now,  the best advice I can give to someone who is potentially facing a discharge that is less than honorable is to fight it with everything you have to get the best possible discharge you can get.  This goes for turning down Article 15s and requesting a trial by courts-martial as well.   Every situation is different but that was pretty much my standard advice for a soldier facing an Article 15. If a soldier accepts an Article 15, which is non-judicial punishment (NJP), then an administrative chapter out of the service is most probably the next thing to happen.

For anyone who has watched “Band of Brothers,” this is probably best exemplified by the scene where CPT Sobel issued an Article 15 to 1LT Winters who turned it down and demanded a trial by courts-martial.   This same advice holds true for any administrative attempt by the command to separate a military service member.    It is my advice that any service member facing this predicament should, at a minimum, hold out for an honorable discharge with no strings attached.   If there is a proposal to issue a soldier a lesser discharge, if it is a general under honorable conditions discharge, make sure there is no negative coding that accompanies it.   If there is an administrative separation that is pushing for an OTH discharge, dismissal for an officer, a BCD or General Courts-Martial charge, then my advice is to fight with everything you have.   In my experience, military juries (called panel members) and separation boards who sit in judgment on administrative chapter cases, are extremely intelligent and fair-minded.

Contact an Experienced Attorney for Help

Please keep in mind that this blog post is for general informational purposes only and should not be substituted for your own thoughts and views and the advice and counsel of a qualified lawyer of your choosing.  Every situation is different and should be explored thoroughly from every possible angle and outcome before making any decisions on how to proceed.  If you are presented with one of these situations or sense that trouble may be coming your way along these lines, please immediately seek out military counsel from your branch of service and/or qualified civilian counsel as you see fit. If you need assistance, I can be reached here or by phone at 256-713-0221.  Thank you for your service.