Recommending a type of discharge for your Soldiers

2015-06-10T12:44:57-04:00

When it comes the time, and it will come, for you to recommend a type of discharge when a Soldier either becomes a non-participant or tests positive on a urinalysis, what type of discharge should you recommend? Before you decide, it is important to understand the process. I am writing this to inform everyone about the different types of discharges, when they can be used and when they are utilized in the Army Reserves.

There are four types of discharges in the military: 1. Honorable, 2. General, under honorable conditions, 3. Other than honorable, and 4. Bad conduct. The first three may be given administratively, the fourth can only be given by court martial. So what are the differences between these, when will you use these, and what do each of these mean for the person being discharged?

Honorable discharges, as the name suggests, are what everyone who serves their time honorably without any major issues receives when they finish their obligatory time in the service or if they are medically retired/discharged.

General, under honorable conditions, is the characterization for those who may have had some issues and were released from service. This is given to those who did not ship to basic training. It can also be requested by those who encountered legal issues such as testing positive on a urinalysis on a conditional waiver. Ultimately it is up to the Commanding General to determine whether or not to grant a conditional waiver and give the Soldier a general, under honorable conditions discharge. This discharge may have some impact on what benefits the discharged Soldier could retain and apply for through the VA.

Other than honorable, as the name suggests, is the type of discharge given to many Soldiers who have had legal issues such as a positive urinalysis or non-participant status. This is an administrative discharge and categorization that greatly impacts the benefits that the discharged Soldier may retain and apply for through the VA. It is likely that it will impact them if they apply for both state and federal jobs. Though not always true, this type of discharge is generally the default characterization for those who are being processed out of service for testing positive for drugs.

The fourth and final type of discharge is a bad conduct discharge. This can only be granted through a court martial. Due to the nature of the Army Reserves being part-time, this is not a common occurrence, but it is possible. This type of discharge greatly impacts the benefits that the discharged Soldier may retain and apply for through the VA. This can also greatly impact them when they apply for any job.

On the Veteran’s Affairs website it states that: “A discharge characterized by the military as under honorable conditions is binding on VA and allows for VA to provide benefits if other eligibility requirements are met. If a discharge was not characterized as under honorable conditions, benefits are not payable unless VA determines the discharge was ‘under conditions other than dishonorable.’ By law, certain situations resulting in a discharge under less than honorable conditions constitute a legal bar to the payment of benefits.”

For more on VA benefits and the types of discharges see this link http://www.benefits.va.gov/BENEFITS/docs/COD_Factsheet.pdf

For those who test positive on urinalysis there are two types of “hots” that they can come up on. The first is for illegal drugs and the other is for some type of prescription drug. Illegal drugs are forwarded as a drug demand reduction (DDR) and the paperwork begins to discharge through Chapter 12. For prescription drugs, some commands process it as a Chapter 12 and request any supporting documentation to determine if it is a valid prescription or not. This will allow the packet to go up through the chain of command and it either exonerates the Soldier or starts the separating process as it was not authorized use of prescription drugs. Other commands go through a medical review officer (MRO) where the Soldier is given an opportunity to provide documentation to show that they have a prescription for the drug that they tested for. Based on the documentation, or lack of documentation, there are three types of determination that the MRO can make: 1. Legitimate, 2. Illegitimate, 3. Illegal. Legitimate is those who have a current prescription for the drug that they tested positive for. Illegitimate is if the Soldier has a prescription for the drug, but it is expired. Illegal is if the Soldier did not have a prescription for the drug that they tested positive for.

Once the command is notified of the “hot”, they will sit the Soldier down and read them their Article 32 rights and inform them that they have tested positive and notify them of their options to obtain a lawyer (military at no cost to the Soldier, civilian at no cost to the government), to obtain documentation, administrative hearing (if they have over 6 years in service), and if they want to seek a conditional waiver. They can either invoke these options or waive them. They have 30 days to respond (45 if they have a lawyer). The Company Commander will make a determination of which type of discharge to recommend (they must recommend one) out of the three administrative (honorable, general under honorable conditions, or other than honorable). They will also recommend either retaining or discharging the Soldier and must provide the rationale. The Battalion and Brigade Commanders will either concur or non-concur in their memorandums. Ultimately, the Commanding General will determine to retain or discharge the Soldier and what characterization. If retained, the Soldier can be given a suspended sentence where he/she is given a year of probation so if he/she stays clean and performs honorably, he/she will be retained. If the Soldier tests positive or has any misconduct, the command can send up a vacate packet to discharge the Soldier. If discharged, orders will be cut and the Soldier can appeal the discharge or type of discharge if they so choose.

For non-participants, the notification will be sent out and they are given 30 days to respond (45 if they retain a lawyer) before the Company Commander makes their recommendations and submits the Chapter 13 packet. The rest of the process is similar to the DDR process.

Be familiar with your command, some have default recommendations of reduction to E-1 and other than honorable discharge. Talk to your Battalion Commander and your JAG for advice. You know your Soldiers, so if they are worth fighting for, fight for them, but you have to put that supporting information into your memorandum. At times, this may bite you if you recommended retaining the Solider and they test positive again…so be careful.

Response by SCPO David Lockwood made Jun 10 at 2015 12:47 PM

2015-06-10T12:47:18-04:00

Honorable! No brainer! As we all know more benefits come with an Honorable Discharge.

Response by SGT William Howell made Jun 10 at 2015 1:05 PM

2015-06-10T13:05:53-04:00

Good stuff.

Response by CMSgt Mark Schubert made Jun 10 at 2015 1:13 PM

2015-06-10T13:13:23-04:00

I think too often these cases are determined on a single act and the discharge recommendation is also based on that single act and not the entire career - which I believe should stand for something! Before making the discharge recommendation, those responsible for that decision are obliged to look at the big picture.

Response by CMSgt Private RallyPoint Member made Jun 10 at 2015 1:26 PM

2015-06-10T13:26:21-04:00

I feel that if a service member did not meet the facets of their contract and their Oath, it should be anything but Honorable or General.

If they are non-participant (aka, their give-a-f*ck broke and they couldn't bother their a$$ to attend UTA/AT, etc.) or pop hot on a drug test, they broke their promise. Why should they slink away with an Honorable/General?

If it precludes them from wangling their way into the Government work system to unwitting employers, it is vocational Darwinism. Just my $0.02.

Response by CPT Private RallyPoint Member made Jun 10 at 2015 3:21 PM

2015-06-10T15:21:42-04:00

Great write-up here, Sir.

One great resource I have found, for all things legal, is a website called "Just Answer".

More specifically, they have a military legal category where military members can post their questions, and those questions are answered by various military lawyers.

While there is a price to actually post a question, there is a huge archive of past questions/answers that you can read at any time.

Google something like: "JustAnswer military law recent questions".

Response by LTC Stephen C. made Jun 10 at 2015 3:44 PM

2015-06-10T15:44:12-04:00

Nice explanation, LTC Private RallyPoint Member!

Response by COL Jason Smallfield, PMP, CFM, CM made Jun 10 at 2015 3:49 PM

2015-06-10T15:49:44-04:00

Characterization of service recommendation/decision. Some thoughts:
- A characterization of service recommendation or decision is supposed to be a reflection of the service member's total service and not just the event/action that may have started a dismissal action.
- Things to consider in determining the characterization of a service member's total service include but are not limited to: total length of service, total quality of service, increasing levels of responsibility throughout, and other. This lays out the "science" of the recommendation or decision.
- The "art" of the recommendation or decision boils down to experience and judgment since there are no hard/fast rules for each characterization but just general definitions and guidance. Should a 15 year SFC with 3 combat tours receive an OTH for a DUI? Should a 3 year SPC receive an honorable after a hot urinalysis? If these were easy decisions then anybody could do our job. Not everyone can.

Response by SGT Nathan Huff made Jun 10 at 2015 7:00 PM

2015-06-10T19:00:02-04:00

For those being discharged with failure to and form, means there is most likely a pattern of behavior defined through counseling statements. Pissing hot for illegal drugs, by by birdy. for prescription drugs.... I would ask to see if they have been given it in the past by the docs. what Ive seen is patterns of over medicating by military doctors that get soldiers addicted to the stuff. The Soldier needs a detox not discharge. The other two I would suggest #2 general for the first and #3 OTH minimum for the second.

Response by SSG (ret) William Martin made Jun 10 at 2015 7:48 PM

2015-06-10T19:48:36-04:00

A BCD should be reserved for the worse of the worse. Unless the SM is going to prison, we need to give them the best shot at a new life when they leave the military especially if its not of their own choice. This is way they might not be a burden on society and thus creating a tax payer funded situation. Why dump that on to the civilian sector?

Response by PO1 John Miller made Jun 10 at 2015 11:57 PM

2015-06-10T23:57:42-04:00

Actually there are TWO types of punitive discharges, The Big Chicken Dinner and the dreaded Dishonorable Discharge.

"A dishonorable discharge (DD), like a BCD, is a punitive discharge rather than an administrative discharge. It can only be handed down to an enlisted member by a general
court-martial. Dishonorable discharges are handed down for what the military considers
the most reprehensible conduct. This type of discharge may be rendered only by
conviction at a general court-martial for serious offenses (e.g., desertion, sexual assault,
murder, etc.) that call for dishonorable discharge as part of the sentence.
With this characterization of service, all veterans' benefits are lost, regardless of any past
honorable service. This type of discharge is universally regarded as shameful, and the
social stigma attached to it makes it very difficult to obtain gainful post-service employment. Additionally, US federal law prohibits ownership of firearms by those who have been dishonorably discharged.
[2]
In most cases, a person who receives a dishonorable discharge loses the right to vote and the right to receive governmental assistance of any kind. They cannot obtain a bank loan and they are unable to find work at the state or government level. Finding gainful civilian employment is also an arduous task for someone with a DD as most states now require employers to conduct background checks and the results of military records and discharges are often disclosed. Going to college is another pitfall because government loans and grants are unavailable for anyone with a DD. This is a permanent record that will follow the individual for the duration of their lives anywhere in the world. In some US states, the United Kingdom and other countries this may be for the duration of his/her sentence, elsewhere this may be permanent."

http://www.oregon.gov/odva/docs/pdfs/criminal_justice_portal/military_discharge.pdf

Response by 1SG Private RallyPoint Member made Nov 19 at 2015 11:54 PM

2015-11-19T23:54:13-05:00

Great write up Sir. Passing it on to some young LTs and a new CPT. 1LT Private RallyPoint Member 1LT Private RallyPoint Member CPT Private RallyPoint Member

Response by CSM Private RallyPoint Member made Feb 12 at 2016 7:21 AM

2016-02-12T07:21:54-05:00

Usually when a person tests positive for a prescription drug the Soldiers medical records are checked before the chain of command gets the results so I'm not sure the chain of command has to request any supporting medical documents; that has been done already. It may be different in the reserve component where the Soldier primarily sees a civilian provider, but on the active duty side this isn't something we have to do.

When recommending a characterization of service to my BN CDR I always recommend an Other Than Honorable Discharge for any drug use simply because doing drugs was a choice the Soldier made. He or she made a choice to violate our values, out other Soldiers at risk etc.

Other separations (AR 600-9, APFT failure) usually warrant a General Under Honorable Conditions.

A conviction via UCMJ or a Courts Martial of Article 112a of the UCMJ will follow that Soldier for 42 years anytime somebody does a background or criminal records check.

Although a bit more difficult for the chain of command we should be doing more summary courts martial for drug use.