Types of Military Discharge
There are two types of discharge from the military: administrative discharge or punitive discharge.
Military members facing administrative separation are entitled to due process. In certain situations, they may be entitled to an administrative discharge board. First, when a member has achieved a high enough grade/rank or long enough time in service, they are entitled to a board for any early discharge. Second, when the commander is pursuing an Under Other Than Honorable Conditions Discharge, the member is entitled to a board.
Types of Discharges
With an administrative separation, there are three possible ways to characterize the member’s service:
Honorable: An honorable discharge ensures a veteran is eligible for all the benefits they have earned during their time in service. It tells civilians you served your country with the highest level of dignity and personal conduct. You will normally receive an Honorable discharge at the expiration of your obligated service. You can also be separated early with an Honorable discharge through processes like a discharge for childbirth or a medical discharge for a condition not a disability.
General: A general discharge is given to those who’s service was satisfactory, though fell short of expectations in some areas. It usually follows disciplinary issues documented through letters of counseling, 6105’s, or nonjudicial punishment. It can limit the veteran’s access to certain benefits, most notably, the GI Bill.
Under Other Than Honorable Conditions (“OTH” or “UO”): This is the lowest characterization under which a servicemember can be “fired” administratively. It indicates there has been serious misconduct during the member’s service. This type of discharge can severely limit access to any veterans’ benefits and limit civilian employment.
Punitive Military Discharge
A punitive discharge can only be adjudged as a sentence in a court-martial. You cannot receive any of these types of discharges through the administrative discharge process. There are three types of punitive discharge:
- Bad Conduct Discharge: A Bad Conduct Discharge applies only to enlisted persons and can only be adjudged by a general court-martial or a special court-martial. It cannot be imposed in a court-martial that has been referred to trial by Military Judge Alone. It is less severe than a Dishonorable Discharge but still carries a significant stigma that will affect a person for the rest of their life.
- Dishonorable Discharge: A Dishonorable Discharge applies only to enlisted persons convicted of offenses in a General Court-Martial for which a dishonorable discharge is the maximum punishment is authorized under the Manual for Courts-Martial. It is a severe punishment reserved for those who should be separated under conditions of dishonor.
- Dismissal: A dismissal is the equivalent of a Dishonorable Discharge, but it is imposed on commissioned officers, commissioned warrant officers, cadets, and midshipmen who have been convicted in a General Court-Martial for offenses for which the punishment is authorized under the Manual for Courts-Martial.
The Process for Enlisted Administrative Separation
Each service has slightly different regulations for the administrative separation process. However, there are always only two methods a command can use to separate an enlisted servicemember: Notification Administrative Separation or Administrative Separation Board.
Notification Administrative Separation
You are not entitled to an administrative separation board when
- You are enlisted,
- You have less than 6 years of time in service, and
- The command is seeking no lower than a General discharge characterization.
If that is the case, the command will notify you of the discharge on the service’s applicable notification form. The notification will state the basis for the administrative separation and the lowest characterization possible in your case.
You will then elect your rights. You have the right to see the evidence the command is relying on. You have the right to respond in writing. You have the right to review by the General Court-Martial Convening Authority.
In the Air Force, you have the right to representation by an Area Defense Counsel. However, in the Navy, Marine Corps, Army, and Coast Guard, you only have the right to consult with counsel. They can provide only a limited scope of representation.
At KMD, we provide the full scope of representation, including talking extensively with our clients with no time limit, preparing robust packages of evidence rebutting the allegations, and providing in-depth legal analysis for the Commanding Officer’s consideration. Notification administrative separation cases can be hard to fight, which is why it is important to have a strong defense. It is even more difficult to fight the discharge after the fact through the discharge upgrade process . That is why you should consult with a military defense lawyer who ensures you have the best chance at a favorable result.
Administrative Discharge Board/Administrative Separation Board (ADSEP Board)
If you are enlisted and have more than 6 years in service, you are entitled to an administrative separation board. In the Air Force only, you are entitled to an administrative discharge board if you are a noncommissioned officer on the date of notification, regardless of your years in service. Enlisted members of all ranks and time in service are entitled to an administrative separation board if the command is seeking an Under Other Than Honorable Conditions discharge characterization.
You will first be notified of the administrative separation. You will elect your rights. The initial election of rights involves your choice of counsel – military and/or civilian defense counsel. In all services, you are entitled to a military defense counsel to represent you at the administrative discharge board.
There is a lot of preparation that goes into presenting your case at an administrative separation board. You have significantly fewer due process rights at a board than you would at a court-martial, so it is imperative that you have someone creative advocating for you. The rules of evidence don’t apply, so even if evidence was seized illegally, or a statement was taken from you in violation of your rights, those can be shown to an administrative separation board.
You have the right to present your own statement to the board, orally, in writing, or both. The manner of presentation is essential to making sure your case resolves as favorably as possible. Again, it is extremely important that you are represented by someone you believe has your best interests at the forefront of their mind. KMD takes all the time necessary to patiently and fully prepare our clients for their statement to the administrative discharge board.
Officer Notification Administrative Separation
Officers can also be separated through notification procedures or via a Board of Inquiry. If the officer is a probationary officer on the date of notification, and the characterization of service the command is seeking is no less than a General discharge, are only entitled to a notification administrative separation that looks exactly like the enlisted process, except the discharge is reviewed and decided on by the service Secretary.
Board of Inquiry (BOI)
Officers who are no longer probationary officers, or those whose command are seeking an Under Other Than Honorable Conditions characterization of service are entitled to a Board of Inquiry. A Board of Inquiry is substantially the same as an enlisted administrative discharge board, with the exception that the board members must be comprised solely of officers that outrank the officer facing the Board.
What happens on the day of the board/BOI?
The exact process varies between each service, but they generally follow a similar format.
First, the potential board members are questioned to ensure they are not biased. They are picked by the Convening Authority, which is the same person who orders the board. That makes it even more important that your counsel exercise the skill required to fully question the board members to make sure they’re the right people to hear your case.
Next, the government presents its documentary evidence in the form of a binder. The Defense has the ability to object to any evidence presented based on the limited grounds contained in the relevant instructions. The Defense presents its documentary evidence, and the government has the right to object as well. The government and Defense both have the opportunity to present witnesses. Once all the evidence has been presented, the board members deliberate.
The board members must decide the following questions in order:
- Is there a basis to believe the charged conduct has been committed?
- If the answer to the question is no, the case ends there. You stay in the military.
- If yes, should the member be separated?
- If the answer to that question is no, the exact possible outcomes vary by service. In the Navy, for example, retention is simply a recommendation, and you can still be separated.
- If yes, what should the characterization of service be?
- The convening authority cannot impose any worse characterization of service than what the board recommends.
The board can also recommend your separation be suspended, generally for a period of 6 months. Suspension is also only a recommendation that can be ignored at the discretion of the convening authority.
Why is your choice of military defense attorney so important?
At KMD, we pride ourselves on our team approach to every client’s case. When the stakes involve the loss of your career, potential retirement, and long-term impacts on your ability to obtain civilian employment, you need to make the right choice about who the leader of that team should be.
You need someone who will listen to you, think creatively, and advocate tirelessly for the best possible outcome in your case.