Legal Guide

How to fight an unfair discharge from the military

Were you discharged from the military? Are you wondering what your next option is? If so, you've come to the right place. Here's a look at how one may be capable of correcting a bad discharge from the military.

How One Corrects A Bad Discharge

Over 200,000 members of the military had been discharged in the fiscal year of 2014-2015, yet nine percent of these individuals fell under conditions that were not standard for what is considered as an "honorable discharge".

Discharge Types & Character

Discharges from 2014-2015 (according to the Office of the Secretary of Defense) were broken down to:
  - Honorable at roughly 78.29 percent.
  - General - Under Honorable Conditions at roughly 6.36 percent.
  - Situations Under Other Than Honorable Conditions at roughly 2.09 percent.
  - Situations of Bad Conduct at roughly 0.49 percent.
  - Dishonorable at roughly 0.07 percent.

However, it was the 13.7 that had yet to be characterized or were marked as "unknown" in an entry error. A bad paper could also be the result of an administrative discharge, such as "other than honorable" or "general" that would be considered a low-level misdemeanor in court. On the opposite side of the spectrum with bad paper, some veterans carrying such discharges have V.A. benefits (like access to healthcare), yet no access to educational opportunity or G.I. Bill. Even on lower ends of bad paper, a veteran may not be eligible for housing benefits.

Bad conduct charges (punitive discharges) and other dishonorable discharges are oftentimes criminal. These are usually given for cowardice in front of an enemy, treason, arson, rape, murder, etcetera.

Punitive & Administrative Discharges

Processes for punitive discharges and administrative discharges are considerably different. For punitive discharges, they must be given by a courts martial (with conviction in a military court) and it can lead to a prison sentence. Being much like a criminal trial for civilians, the burden of proof must be beyond reasonable doubt and the accused will have access to their own lawyer. A majority of the misconduct in the military is handled by commanding officers (as opposed to a court).

A typical administrative infraction may range from testing positive for narcotics, getting in a fight, or insulting a highly ranked individual. As for the burden of proof for a "non-judicial" administrative proceeding, it relies on a "preponderance of evidence". This "preponderance" is regarding the event in which 51 percent of the evidence provided proves guilt, which is more than enough for such a case.

Although the burden of such proof is significantly lower than what is necessary for a criminal proceeding in court, the types and amounts of punishment that are given out can be less harsh. Such a punishment could be withholding of pay and/or a demotion.

In the event the offender happens to be an enlistee who is lower ranking and encounters administrative punishment in several instances in their first contract, the commanding officer could determine that the enlistee (in question) isn't up to par with military standards. Getting kicked out in this manner oftentimes results in an "other than honorable" or a "general" discharge.

In these cases, every military service keeps a review board of discharges and has the ability to modify, correct, or change dismissals or discharges that have not been issued by a general court-martial's sentence. However, the board cannot address discharges due to medical status.

Discharge & Understanding

There's several instances where veterans who have disabilities that were aggravated or incurred during active duty that could qualify for important health/medical benefits (and other related benefits) no matter what characterization or separation of service they may have encountered. Vets who have been separated administratively due to certain circumstances can request that the discharge (they carry) can be re-evaluated for re-characterization if filed within the fifteen year separation date.

Bad Discharges & Consideration

Every branch of the military will expect one to have a very strong case if they're looking for an upgrade to their discharge. If it is connected to any of these categories, there may be hope:
  - Post Traumatic Stress Disorder (PTSD) or other miscellaneous mental health issues.
  - Suffering from a TBI (Traumatic Brain Injury).
  - Sexual harassment or sexual assault experienced during their time in military service. Depending on the state, it may be categorized as MST or military sexual trauma.
  - Discrimination over one's sexual orientation (which applies to the Don't Ask, Don't Tell policy).

Even if your discharge is less than favorable, it is still possible that your reputation can be repaired.

Considering the information above, taking on a military discharge case isn't easy on your own. Thankfully, attorney Richard V. Stevens is here to help you in such a time of need. Contact us today for further information.

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