Litigators Guide to Understanding Military Discharges

Fourth in a series of articles addressing Reserve & National Guard issues in Family Court

By Barry J. Bernstein

     Some issues in Family Court may focus on the military discharge of the Servicemember.  The discharge formally reflects the character of service and entitlement to future benefits.  If a former servicemember does not know their type of discharge, it is for one of two likely reasons: 1) entry level discharge and not further characterized or 2) concealing the type of discharge. Most veterans know their discharge, so denying knowledge of it is often a tell.

     “DD 214” is the magic term for discharge, coming from the name of the standard form.  In a very simple format, you will find character of service, dates, military training, specialties, and decorations.  If a witness or litigant relies on credibility from military service, the DD 214 is vital for cross-examination and is universally recognized as the authority for identifying service. 

DISCHARGES IN ORDER OF QUALITY:

HONORABLE DISCHARGE:.  In the reality of today’s world, if the servicemember completes the full period of service without adverse action, an honorable discharge is likely.  If a litigant does not have an honorable or administrative discharge, there may be something to explore.  
Other “clean” discharges:  

• Entry-Level discharges are just as they sound, with a discharge in the first 6 months for administrative, medical, or other routine reasons.  It is neither considered good or bad technically.    
• Medical discharges are just as they say, founded on medical evaluation. 

GENERAL DISCHARGE:  This is more complicated than other types of discharges.  VA benefits may be precluded, but there will be additional paperwork to explain the character of the discharge. It is often associated with non-judicial punishment or unacceptable behavior.  

OTHER THAN HONORABLE (“OTH”) DISCHARGE:  OTH is the worst you can receive without a court martial.  Common sources are violence, civilian convictions, or a bartered deal to avoid court martial, yet still allowing the government to preclude giving future VA benefits.  

BAD CONDUCT DISCHARGE (“BCD”):  BCD must be from a court martial, likely a special court martial and military incarceration.  Veteran benefits are likely forfeited.  
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DISHONORABLE DISCHARGE:  Reprehensible conduct.  Severe violence convictions from a General Court Martial (highest level) are a foundation.  Not only do they forfeit all military and veteran benefits, federal law precludes the recipient from owning a firearm.

     While this article is intended to inform you of unique issues of the military and veterans, it does not replace the need for proper legal advice by a licensed attorney in your jurisdiction.
* The author retired as a colonel after 34 years of service.  He now practices law at Bernstein Law Firm, LLC in Irmo, SC, advising clients and attorneys on military issues.