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Ask the Lawyer: Other-than-honorable, bad-conduct discharges carry similar consequences

Jan. 20, 2011 - 02:11PM   |   Last Updated: Jan. 20, 2011 - 02:11PM  |  
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Q: I'm facing an other-than-honorable discharge. Can you explain the difference between that and a bad-conduct discharge?

There are major differences in the process of how each discharge is reached, but in terms of the end result, an other-than-honorable discharge and a bad-conduct discharge are virtually the same. Both have similar and severe repercussions.

The difference is that an OTH discharge is administrative, and a bad-conduct discharge is punitive. Those facing OTH discharges will have their case heard by an administrative separation board, while anyone receiving a bad-conduct discharge will be discharged after conviction by a special or general court-martial.

An OTH discharge goes on a service member's permanent military service record, while a bad-conduct discharge out of a court-martial amounts, roughly, to a low-level criminal conviction in the civilian world.

Nearly everything else is the same — which may come as a surprise to many service members. After all, any list of discharge rankings has an honorable discharge on top, and the rankings are considered progressively worse as you go down. The natural assumption is that an OTH discharge is "better" than a bad-conduct discharge because OTH is higher on the list.

Anyone with this misconception will be in for a rude awakening when it's time to see which benefits will likely be lost. Nearly all Veterans Affairs Department benefits can be lost with an OTH discharge, and future employment opportunities can be limited, especially for anyone who seeks federal employment. The fallout is nearly identical after a bad-conduct discharge.

There are a few traps a service member can fall into when it comes to being discharged under any adverse circumstances. The first potential mistake is waiving an administrative hearing and simply accepting an OTH discharge under the assumption that it's not that serious.

The second is immediately accepting an OTH discharge based on the threat of a court-martial. While avoiding a court-martial could be wise for service members with mounds of evidence stacked against them, proceeding with a court-martial may be a better route for others.

Any involuntary discharge is a serious matter. Just because a service member faces administrative separation instead of court-martial doesn't mean he will avoid a severe punishment with lifelong ramifications. Anyone facing an involuntary discharge of any kind would be wise to consult an attorney experienced in military law.

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Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC (www.fedattorney.com). E-mail questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

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