Posted on Nov 18, 2023
As an employer and Veteran, am I within my rights to question an applicant's discharge if they list BCD as reason for leaving?
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I am not familiar with BCD other than I believe it is an administrative discharge and not criminal like a dishonorable (feel free to correct and inform me). Kid seemed well spoken, early to mid 30's and has some IT experience that I could use. Some of my clients require background checks for badge access.
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Discharge
Posted 1 y ago
Responses: 8
No, a Bad Conduct Discharge (BCD) is not an administrative discharge - it is a punitive one.
If a former service member* has a BCD, then they means they were usually convicted of a serious offense at a Special or General court martial. I say "usually" as it could be multiple lower-level offenses or even a felony-level if there were mitigating circumstances.
Most often a BCD will have been preceded by time in a military prison. A BCD is a federal conviction and will show up on a background check. The only 'light' spot about a BCD is that it isn't a Dishonorable Discharge (DD). However, you can think of a BCD as "A Dishonorable Discharge's younger brother" as both are characterized as "discharged under dishonorable conditions".
Keep in mind that just like the civilian justice system, a conviction by a court martial* doesn't tell the entire story. An established pattern of not following orders could lead to a BCD as well as everything from indecent language to a minor, Malingering, or missing a movement to assault and DUI.
Although none come to mind, you'll want to make sure that you are compliant with your state EEO* laws especially if your state prohibits/limits hiring decisions based on criminal convictions. While almost all state laws are geared towards the non-punitive discharges (Honorable, General, and Other Than Honorable) I didn’t find any off-hand that protect punitive ones.
** edit **
One thing to add regarding "misdemeanor" or "felony" status of a BCD - neither is accurate.
Since a BCD can only be the result of a Special Court Martial (SCM) or General Court Martial (GCM), having a BCD goes hand in hand with having a federal conviction. However, how that conviction is classified (since UCMJ doesn't classify convictions as such) will vary ('conviction', not 'discharge').
A rule of thumb most states will consider that a conviction at a Special Court Martial as a "misdemeanor" while one at a General Court Martial is a "felony". The reason is that most states will consider a felony conviction as one where the maximum punishment that could be imposed is greater than one year in confinement/prison (regardless of what the actual sentence was) and the maximum sentence in confinement a Special Court Martial can hand out is one year.
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* If someone discharged from the military does not have an "other than dishonorable period of service", then they are not considered a veteran by federal law. However, the individual may be in a 'gray area' with a BCD as its' possible they did have an honorable period of service if they got the BCD after their initial enlistment (VA would have to do a discharge characterization to move them out of the gray area).
* Manual for Courts-Martial of the United States (2019 edition) - https://jsc.defense.gov/Portals/99/Documents/2019%20MCM%20(Final)%20(20190108).pdf?ver=2019-01-11-115724-610
* EEO laws - Of note is that federal laws like USEERA do not apply to individuals who are discharged from the military under dishonorable conditions
If a former service member* has a BCD, then they means they were usually convicted of a serious offense at a Special or General court martial. I say "usually" as it could be multiple lower-level offenses or even a felony-level if there were mitigating circumstances.
Most often a BCD will have been preceded by time in a military prison. A BCD is a federal conviction and will show up on a background check. The only 'light' spot about a BCD is that it isn't a Dishonorable Discharge (DD). However, you can think of a BCD as "A Dishonorable Discharge's younger brother" as both are characterized as "discharged under dishonorable conditions".
Keep in mind that just like the civilian justice system, a conviction by a court martial* doesn't tell the entire story. An established pattern of not following orders could lead to a BCD as well as everything from indecent language to a minor, Malingering, or missing a movement to assault and DUI.
Although none come to mind, you'll want to make sure that you are compliant with your state EEO* laws especially if your state prohibits/limits hiring decisions based on criminal convictions. While almost all state laws are geared towards the non-punitive discharges (Honorable, General, and Other Than Honorable) I didn’t find any off-hand that protect punitive ones.
** edit **
One thing to add regarding "misdemeanor" or "felony" status of a BCD - neither is accurate.
Since a BCD can only be the result of a Special Court Martial (SCM) or General Court Martial (GCM), having a BCD goes hand in hand with having a federal conviction. However, how that conviction is classified (since UCMJ doesn't classify convictions as such) will vary ('conviction', not 'discharge').
A rule of thumb most states will consider that a conviction at a Special Court Martial as a "misdemeanor" while one at a General Court Martial is a "felony". The reason is that most states will consider a felony conviction as one where the maximum punishment that could be imposed is greater than one year in confinement/prison (regardless of what the actual sentence was) and the maximum sentence in confinement a Special Court Martial can hand out is one year.
------------------------------
* If someone discharged from the military does not have an "other than dishonorable period of service", then they are not considered a veteran by federal law. However, the individual may be in a 'gray area' with a BCD as its' possible they did have an honorable period of service if they got the BCD after their initial enlistment (VA would have to do a discharge characterization to move them out of the gray area).
* Manual for Courts-Martial of the United States (2019 edition) - https://jsc.defense.gov/Portals/99/Documents/2019%20MCM%20(Final)%20(20190108).pdf?ver=2019-01-11-115724-610
* EEO laws - Of note is that federal laws like USEERA do not apply to individuals who are discharged from the military under dishonorable conditions
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PFC Garry Tarvin
That's funny..Russian prisoner Marine Paul Whelan had a bcd and he did fine...didn't cloud his work history. It's a discharge given when you've done somethings stupid and passed the wrong CO or law dept off
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COL Randall C.
PFC Garry Tarvin - A BCD is not given for doing "something stupid". A BCD is only received if given as a punitive discharge from the conviction of a service member at a Special or General Court Martial. That also means the individual has a federal conviction as well and it will show up in any background check.
While I'm sure there are many examples of individuals that have received a dishonorable discharge from the military and have prospered in life, it won't change the fact it is a scarlet letter hung around your neck.
Yes, Paul Whelan received a BCD after being convicted at a court martial of multiple criminal violations (attempted larceny greater than $10,000, bouncing checks, using false federal identification, etc.) and still was able to "do fine", but for every 'Paul Whelan' you'll find dozens more that the federal conviction on their record adversely affected them.
While I'm sure there are many examples of individuals that have received a dishonorable discharge from the military and have prospered in life, it won't change the fact it is a scarlet letter hung around your neck.
Yes, Paul Whelan received a BCD after being convicted at a court martial of multiple criminal violations (attempted larceny greater than $10,000, bouncing checks, using false federal identification, etc.) and still was able to "do fine", but for every 'Paul Whelan' you'll find dozens more that the federal conviction on their record adversely affected them.
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CW3 Michael Clifford
COL Randall C. As a retired CID agent, I commend you on the definition of a BCD discharge. An employer should also be aware that a BCD discharge needs further inquiry. If the former soldier reflects they received a BCD discharge, inquiry needs to be asked if it was for a felony conviction. Convicted felons may not possess firearms. So, if you are interviewing for armed guards, the applicant as a convicted felon cannot work as an armed guard. Further, inquiry on whether the conviction requires the applicant to register as a sex offender. If you are the owner of a preschool, the last thing you need is a convicted pedophile as an employee. Plus, many company’s liability insurance carrier will not indemnify these employees.
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A BCD is much more than an admin seperation. BCD’s are generally because of criminal behavior that also resulted in time in the brig in additon to a derogatory discharge status, loss of rank and pay.
All of the BCD guys I know was because they were stealing and selling the goods or some other related shenannigans.
It’s well within your rights to question it because a BCD isn’t just a little bad paperwork.
https://www.military.com/benefits/military-legal/types-of-military-discharge.html/amp
All of the BCD guys I know was because they were stealing and selling the goods or some other related shenannigans.
It’s well within your rights to question it because a BCD isn’t just a little bad paperwork.
https://www.military.com/benefits/military-legal/types-of-military-discharge.html/amp
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PFC Garry Tarvin
Paul Whelan had a bcd..so what he did fine ..it's not as bad as you say.. dishonorable is the no no discharge
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One of the soldiers in my unit in Germany was convicted of stealing his roommate's wallet, stole his blank checks, and found the soldier's ATM PIN and stole $2,000 from him. He received a Bad Conduct Discharge, 3 years confinement, and the other usual stuff. I may be wrong, but if an employer ever asked him if he had ever been convicted of a felony, he would need to answer yes.
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MSG Thomas Currie
CPT Lawrence Cable - Since you aren't capable of a simple online search, here is a link to the full text of the MCM (2024 edition) on the Defense Department website. It is available as a PDF file, you can just do a text search for either word and find ALL the times the MCM mentions felony and misdemeanor.
https://jsc.defense.gov/Portals/99/2024%20MCM%20files/MCM%20(2024%20ed)%20-%20TOC%20no%20index.pdf?ver=b7JVpxV5rbIHg0ENlCRVKQ%3d%3d
RP shows the preview as "not found" but the link works anyway.
Federal law also defines any crime with a maximum sentence of more than one year as a "felony" (no, I'm not going to bother looking that one up for you)
https://jsc.defense.gov/Portals/99/2024%20MCM%20files/MCM%20(2024%20ed)%20-%20TOC%20no%20index.pdf?ver=b7JVpxV5rbIHg0ENlCRVKQ%3d%3d
RP shows the preview as "not found" but the link works anyway.
Federal law also defines any crime with a maximum sentence of more than one year as a "felony" (no, I'm not going to bother looking that one up for you)
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CPT Lawrence Cable
MSG Thomas Currie I have the. PDF of the MCM, all 300 plus pages. You made the claim that it referenced Felony in several places, I asked to provide me with a single reference. You haven't. I'm more than willing to accept your statement, but only if you can back it up.
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MSG Thomas Currie
CPT Lawrence Cable - Still too lazy to back up your own nonsense and too arrogant to admit you are wrong:
Rather than list over a dozen uses of felony, felonies, misdemeanor, or misdemeanors, I will give you the citation most applicable to this discussion...
Page II-155, paragraph (8)(B): Dishonorable discharge. A dishonorable discharge applies only to enlisted persons and warrant officers who are not commissioned and may be adjudged only by a general court-martial. Regardless of the maximum punishment specified for an offense in Part IV of this Manual, a dishonorable discharge may be adjudged for any offense of which a warrant officer who is not commissioned has been found guilty. A dishonorable discharge should be reserved for those who should be separated under conditions of dishonor, after having been convicted of offenses usually recognized in civilian jurisdictions as felonies, or of offenses of a military nature requiring severe punishment; and court-martial which has met the requirements of R.C.M. 201(f)(2)(B). A bad-conduct discharge is less severe than a dishonorable discharge and is designed as a punishment for bad-conduct rather than as a punishment for serious offenses of either a civilian or military nature. It is also appropriate for an accused who has been convicted repeatedly of minor offenses and whose punitive separation appears to be necessary;
Rather than list over a dozen uses of felony, felonies, misdemeanor, or misdemeanors, I will give you the citation most applicable to this discussion...
Page II-155, paragraph (8)(B): Dishonorable discharge. A dishonorable discharge applies only to enlisted persons and warrant officers who are not commissioned and may be adjudged only by a general court-martial. Regardless of the maximum punishment specified for an offense in Part IV of this Manual, a dishonorable discharge may be adjudged for any offense of which a warrant officer who is not commissioned has been found guilty. A dishonorable discharge should be reserved for those who should be separated under conditions of dishonor, after having been convicted of offenses usually recognized in civilian jurisdictions as felonies, or of offenses of a military nature requiring severe punishment; and court-martial which has met the requirements of R.C.M. 201(f)(2)(B). A bad-conduct discharge is less severe than a dishonorable discharge and is designed as a punishment for bad-conduct rather than as a punishment for serious offenses of either a civilian or military nature. It is also appropriate for an accused who has been convicted repeatedly of minor offenses and whose punitive separation appears to be necessary;
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CPT Lawrence Cable
MSG Thomas Currie - There are 803 pages to the MCM. But the phrase referenced states this "recognized in civilian jurisdictions as felonies". My statement was this "What we don't do is call them felony and misdemeanor." That is still factually correct. States and Local Jurisdictions may consider the charge a felony, but the Military Justice System doesn't refer to them that way. Again, the is no such thing as a Felony under UCMJ.
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