|Military Justice 101 - Part 3|
|Enlisted Administrative Separations|
A service-member's obligation to his armed service continues until terminated. Generally, this time period is determined by the terms of the enlistment contract, but earlier termination may result due to administrative or disciplinary separation based upon specifically identified conduct on the part of the service-member.
There are two types of separations given by the armed forces of the United States to enlisted service-members: punitive discharges and administrative separations.
Punitive Discharges. Punitive discharges are authorized punishments of courts-martial and can only be awarded as an approved court-martial sentence pursuant to a conviction for a violation of the UCMJ. There are two types of punitive discharges: Dishonorable Discharge (DD) -- which can only be adjudged by a general court-martial and is a separation under dishonorable conditions; and Bad-Conduct Discharge (BCD) -- which can be adjudged by either a general court-martial or a special court-martial and is a separation under conditions other than honorable.
Administrative Separations. Administrative separations cannot be awarded by a court-martial and are not punitive in nature. Enlisted personnel may be administratively separated with a characterization of service (characterized separation) or description of separation (uncharacterized separation) as warranted by the facts of the particular case.
"Basis" is the reason for which the person is being administratively separated (e.g., pattern of misconduct, convenience of the government for parenthood, weight control failure, etc.). "Characterization of service" refers to the quality of the individual's military service (e.g., honorable, general, or Other Than Honorable).
Individuals who are separated with less than 180 days of continuous active military service may be separated as an "Entry Level Separation." In these cases, there is no characterization of service at all.
Another type of administrative separation is "Order of Release from the Custody and Control of the Military Services" by reason of void enlistment or induction. This type of separation also has no characterization of service.
Characterization of Service. Characterization at separation is based upon the quality of the member's service, including the reason for separation and guidance below. The military determines the "quality of service" in accordance with standards of acceptable personal conduct and performance of duty for military personnel found in the Uniform Code of Military Justice (UCMJ), directives and regulations issued by the Department of Defense and the Military Departments, and the time-honored customs and traditions of military service.
The quality of service of a member on active duty or active duty for training is affected adversely by conduct that is of a nature to bring discredit on the Military Services or is prejudicial to good order and discipline, regardless of whether the conduct is subject to UCMJ jurisdiction. Characterization may be based on conduct in the civilian community, and the burden is on the respondent to demonstrate that such conduct did not adversely affect the respondent's service.
The Military considers the reasons for separation, including the specific circumstances that form the basis for the separation, on the issue of characterization. As a general matter, regulations require the military to determine characterization upon a pattern of behavior rather than an isolated incident. There are circumstances, however, in which the conduct or performance of duty reflected by a single incident provides the basis for characterization.
Honorable. The Honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for military personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. (For example, a Medal of Honor recipient would almost always receive an Honorable Discharge, unless he/she was involved in the most serious of misconduct). In the case of an Honorable Discharge, an Honorable Discharge Certificate (DD Form 256) is awarded and a notation is made on the appropriate copies of The DD Form 214/5.
General (Under Honorable Conditions). If a member's service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. Characterization of service as General (under honorable conditions) is warranted when significant negative aspects of the member's conduct or performance of duty outweigh positive aspects of the member's military conduct or performance of duty outweigh positive aspects of the record. A General (under honorable conditions) characterization of discharge may jeopardize a member's ability to benefit from the Montgomery G.I. Bill if they, in fact, had contributed. Moreover, the member will not normally be allowed to reenlist or enter a different military service.
Under Other Than Honorable Conditions. OTH Discharges are warranted when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of members of the Military Services, or when the reason for separation is based upon one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Military Services. Examples of factors that may be considered include the use of force or violence to produce serious bodily injury or death, abuse of a special position of trust, disregard by a superior of customary superior-subordinate relationships, acts or omissions that endanger the security of the United States or the health and welfare of other members of the Military Services, and deliberate acts or omissions that seriously endanger the health and safety of other persons.
Persons awarded an OTH characterization of service: are not entitled to retain their uniforms or wear them home (although they may be furnished civilian clothing at a cost of not more than $50); must accept transportation in kind to their homes; are subject to recoupment of any reenlistment bonus they may have received; are not eligible for notice of discharge to employers (which may affect unemployment benefits); and, do not receive mileage fees from the place of discharge to their home of record.
It is generally believed that an OTH Discharge will render an individual ineligible for all VA Benefits. This is not necessarily so. The Department of Veterans Affairs will make its own determination with respect as to whether the OTH was based on conditions which would forfeit any or all VA benefits. Most veterans' benefits will be forfeited if that determination is adverse to the former service-member, such as when based on the following circumstances: (1) Desertion; (2) escape prior to trial by general court-martial; (3) conscientious objector who refuses to perform military duties, wear the uniform, or comply with lawful orders of competent military authorities; (4) willful or persistent misconduct; (5) offense(s) involving moral turpitude; (6) mutiny or spying; or (7) homosexual acts involving aggravating circumstances.