By: Anthony Kuhn, Esq.
Serving in the United States armed forces can be one of the greatest highlights of a person’s life, and a military career can have long-lasting benefits, both personally and professionally. But things don’t always go smoothly, and the military sometimes finds it necessary to take punitive actions against its service members. This includes more significant legal actions such as a court-martial, but often takes the form of administrative separation.
An administrative separation is a process applied to a service member who is seen to have violated the standards, practices, or codes of military law or conduct in some substantive way but whose case doesn’t warrant the full spectacle of a court-martial. In essence, an administrative discharge is the military’s way of firing you.
Is an administrative discharge a dishonorable discharge?
There are three possible classifications of service assigned during an administrative discharge, and depending on the severity of your offense, you may or may not continue to be eligible for veteran benefits such as housing, health care, or education under the GI Bill. The process does not always result in a dishonorable discharge, and you might even receive an honorable discharge as a service member facing administrative separation.
It’s important to note that an administrative discharge may be granted in the case of voluntary separation from the military. Voluntary separation is sometimes granted in the case of extenuating circumstances, such as a service member’s need to care for a sick family member or other critical personal issues. However, the majority of administrative separation cases are involuntary and filed after a pattern of misconduct, insubordination, or a serious offense.
Some of the reasons that your command may seek to involuntarily discharge you may include:
● Consistent misconduct;
● Drug or alcohol abuse;
● A pattern of insubordination;
● Weight control or other health issues;
● Poor performance in your duties;
● Failure to perform duties;
● Inability to rehabilitate, and
● Failure to adapt to military life or service conditions.
The three characterizations of service that may be assigned include: honorable, under honorable conditions (general discharge), or other than honorable (OTH).
If the service member being recommended for administrative separation has met the standards of acceptable conduct and performance in their duties as military personnel, then they may still receive an honorable characterization of their service, even in the event of involuntary separation. This is the best-case scenario and will still allow you to claim VA benefits. A highly decorated service member or one leaving service for reasons outside their control would likely still receive an honorable discharge.
Under honorable conditions (general) discharge
The lesser characterization of service is under honorable conditions, or what is known as a “general discharge.” Don’t be fooled by the language; even though this classification includes the word “honorable,” a general discharge under honorable conditions is applied against a service member whose conduct or performance is substantially negative, in contrast to any positive aspects of their service. Depending on the exact conditions of your discharge, your veteran benefits, including education under the Montgomery G.I. Bill, may be affected. What’s more, you will most likely not be allowed to reenlist or enter a different military branch.
Other than honorable (OTH) discharge
Discharge for other than honorable (OTH) service is the lowest classification for administrative separation. You are spared the stigma of a summary dishonorable discharge but are still deprived of most, if not all, of your VA benefits. In addition, you may face prejudice from others in civilian life, such as friends, family, or employers, as an OTH discharge represents a significant black mark on your military record.
Can you fight an administrative separation?
If you have received written notice from your command that you are facing administrative separation, don’t waive any rights. You may still have the right under military law to appear before an administrative separation board to argue your case. The board will consist of three members, generally two officers and an enlisted member if the accused individual is enlisted. The board is tasked with determining: (1) whether you have committed the offense you were accused of; (2) whether you should be retained or separated; and (3) what classification of service to assign.
Depending on your time served in the military, you may or may not be eligible for a board to dispute an involuntary separation. If you have served less than six years in the Army, Navy, Air Force, or Marines, or less than eight years in the U.S. Coast Guard, you may not have the right to a board hearing. If your command pursues an other than honorable discharge, you are eligible for a board regardless of your time in service. You should never waive this right. You also have the right to be represented by an attorney of your choosing. If you are not eligible for a board, you will still be entitled to submit written evidence to your command to dispute the separation.
Although you have the right to free defense counsel from the Judge Advocate General’s (JAG) office, a civilian military law attorney may be more experienced and might advocate more aggressively since they are no longer in the military and have no concerns about upsetting the board members of their chain of command. No matter what you choose, your right to attorney-client privilege will always apply.
How long does an administrative separation take?
If a board process is not available, or the service member chooses to waive it (this should only be done in very rare situations), then the entire separation process should be completed within 15 working days of notification. If the member’s command and the separation authority that processes the action are not located in the same geographical region, then it should be completed within 30 working days.
Do you still get benefits after an administrative discharge?
Your eligibility for benefits following an administrative separation will depend on your service classification. An honorable discharge should entitle you to all benefits. A general discharge may bar you from the GI Bill and/or many VA benefits and services, depending on whether you previously received an honorable discharge for a different period of service. Receiving an OTH discharge unfortunately means that you will be deprived of almost all VA benefits.
Can you reenlist after an administrative discharge?
Much like VA benefits, your ability to reenlist in the same branch or a different branch of the armed forces will be affected by administrative separation. An honorable discharge means that you will keep most or all of the rights and benefits you have accrued, including the right to reenlist. A discharge under honorable conditions, or general discharge, will likely prevent you from reenlisting, and an OTH discharge, like a felony conviction or other civilian penalties, will bar you completely from reenlisting in the military. The deciding factors include the classification of service and the RE code that is assigned.
If you are a service member facing administrative separation, our experienced team of military attorneys at Tully Rinckey can help. Whether preparing written evidence to be submitted under a notification process or representing you at a board process, we have the knowledge and qualifications to help you obtain the best possible outcome. Get in touch to schedule a consultation today!
As a Managing Partner at Tully Rinckey PLLC, a former First Sergeant in the United States Army Reserve, and a combat veteran, Anthony Kuhn focuses much of his time on the representation of military personnel, federal employees, and federal agents. He can be reached at email@example.com or at (888) 529-4543.