Fighting a Military Discharge

A premature discharge from the military can have lasting professional and personal consequences. Service members have the right to fight a military discharge. Hiring experienced military lawyers is the best way to begin the process to fight a military discharge.

Premature discharge from the military can happen related to misconduct, or due to administrative issues, such as medical issues, personal issues, and much more. Today we’ll be focusing on discharges related to allegations of misconduct. 

Discharge related to misconduct can be separated into two categories, those that are Board eligible, and those that may only fight the discharge action through writing. 

Discharge Boards

Recent USMC Discharge Board Victory at Camp Pendleton, CA

Each branch of service has different standards, but military members that have served a certain length of time (usually between 4-6 years) or members that are being discharged with the most harsh characterization (Under Other Than Honorable Conditions – UOTHC) have the right to demand a Board decide their case. A Board is usually made up of 3 members, and is often comprised of a senior office, junior officer, and enlisted member senior in rank to the client. For officers, their Board is called a Board of Inquiry and is generally comprised of senior officers. 

A Board is a formal hearing, similar to a court-martial, in which there are Government attorneys (Recorder) that advocate on behalf of the command’s recommendation to separate, an attorney for the accused person, the accused person, three Board members selected by the separation authority with the senior member serving as President of the Board, and a legal advisor (sometimes available remotely) who advises the Board and makes certain evidentiary and logistic rulings in some branches of the military. 

The Board has the duty to receive evidence from both sides, deliberate, and return a verdict on several major questions: 1) Did the alleged misconduct occur; 2) if yes, Should the member be discharged; 3) if yes, What should the characterization of discharge be; and 4) where applicable, Is a probationary period appropriate before discharge? The Board is to reach decisions on each question by a simple majority. The burden of proof is on the Government and is to the proof by a preponderance of the  evidence standard, also known as 51% or a greater weight of the evidence. 

Unlike in courts-martial, there are very few rules to the admissibility of evidence in a military discharge board. Evidence such as hearsay, unattested reports, and unsworn witness statements are generally admissible. Constitutional and case law protections that may prohibit certain evidence at trial, may still be admissible at a Board, such as evidence gathered during an illegal search or involuntary statements of the accused. 

Discharge Boards can receive a wide degree of evidence to fight the four questions at hand. Service records and good character witnesses may be more admissible at a Board than at a court-martial. Military attorneys have to be very experienced in the relevant regulations to effectively navigate the Board process. We have endless stories of how our attorneys used the applicable rules to prevent damaging evidence from being entered, or stopping the hearing altogether due to violations of the processing of the matter. 

Both sides have a right to present witnesses. The member subject to discharge has the right to request the Government produce witnesses that are relevant to their defense and within the control of the military. There is generally no subpoena power to obligate a witness who isn’t under the control of the military to appear. Alleged victims of sexual violence may also have a right to refuse to participate even if the military otherwise has control of them. When a witness isn’t available to testify in person, they may be permitted remotely. If a witness can’t be produced or refuses, you may be left without their testimony or may have to rely on past statements, even if unsworn. 

Discharge Boards generally last 1-3 days, with most concluding in a day. The “verdict” is typically read aloud with the client and all counsel present. Discharge Boards are ordinarily considered Privacy Act protected and not open to anyone other than the participants unless authorized by the client. Alleged victims of sexual violence may have certain rights to be present, make statements, and be informed of the results. 

Written Discharge Response

In cases in which a member is not entitled to a discharge board, they still have a right to fight their discharge through a written submission. It is absolutely critical to fight a discharge for allegations of misconduct or wrongdoing. Even if it appears there is no basis to contest the discharge, or even if the member desires to be discharged, a written response is still in the member’s best interest. A misconduct discharge is notated on the member’s DD-214, their official record of service and discharge. A simple RE code notation suggesting the discharge was related to misconduct can disqualify a member from employment opportunities in the future, and certainly can be a bar to re-enlistment, even into the Guard. Importantly, failure to respond and contest a discharge action may make you ineligible or less qualified to later obtain a characterization upgrade. 

Fighting a discharge through writing can result in a full victory with retention in the service, or may result in a victory in the form of a better characterization or more favorable basis for discharge. 

We have represented hundreds, maybe even thousands, of clients going through the administrative discharge process without the right for a Board. In a great number of those cases, we were able to improve the plight of the client. Some of our earliest clients fought their discharges, and are still serving to this day in now-senior military leadership positions. 

Commanders process dozens, even hundreds, of misconduct discharges per year. They are used to receiving no resistance, or perhaps mild opposition from the free military attorneys if they have time to spare. Commanders are blown away when they receive a top-grade professional legal presentation arguing for retention. Our presentations consist of the highest quality legal writing, logic, and persuasiveness. 

Characterization of Military Discharge

There are three types of military discharge characterization. An Honorable Discharge is the highest form of discharge. It represents the idea that the member’s service was honorable and commiserate with the expectations of each service member.  An Honorable Discharge typically entitles a member to the full array of VA and other military benefits available to veterans. An Honorable Discharge related to misconduct can still have negative consequences in the future. 

An Honorable (Under General Conditions) discharge is less favorable than an Honorable Discharge. This type of discharge is generally referred to as a General Discharge. A General Discharge can deprive a service member of many important VA and veteran rights available to members with a true Honorable Discharge. A General discharge can also be disqualifying or a flag for certain jobs, professions, and licensure. We tell our clients to assume that Government jobs, large corporate jobs, jobs requiring high levels of trust, pilots, law enforcement and security, health care, any profession requiring state licensure, may face considerable barriers with a General Discharge. 

The least favorable type of administrative discharge characterization is Under Other than Honorable Conditions (UOTHC). This type of discharge deprives a member of virtually all VA and other veteran rights. It is widely compared to the court-martial punishment “Dishonorable Discharge.” A UOTHC will likely have all of the same collateral consequences as a General Discharge and more.

Basis for Discharge

Misconduct discharges can typically be broken up into several categories: 1) repeated minor misconduct; 2) commission of a serious offense; 3) sexual misconduct, and 4) drug abuse. Sexual misconduct and drug abuse typically require the command to process the member for discharge. 

We have represented clients in all branches of service through some of the military’s most significant discharge actions, and won. All cases are unique. Give us a call to discuss your case.