10 June 2015

Recommending a type of discharge for your Soldiers

When it comes the time, and it will come, for you to recommend a type of discharge when a Soldier either becomes a non-participant or tests positive on a urinalysis, what type of discharge should you recommend?  Before you decide, it is important to understand the process. I am writing this to inform everyone about the different types of discharges, when they can be used and when they are utilized in the Army Reserves.

There are four types of discharges in the military: 1. Honorable, 2. General, under honorable conditions, 3. Other than honorable, and 4. Bad conduct.  The first three may be given administratively, the fourth can only be given by court martial.  So what are the differences between these, when will you use these, and what do each of these mean for the person being discharged?

Honorable discharges, as the name suggests, are what everyone who serves their time honorably without any major issues receives when they finish their obligatory time in the service or if they are medically retired/discharged.

General, under honorable conditions, is the characterization for those who may have had some issues and were released from service.  This is given to those who did not ship to basic training.  It can also be requested by those who encountered legal issues such as testing positive on a urinalysis on a conditional waiver.  Ultimately it is up to the Commanding General to determine whether or not to grant a conditional waiver and give the Soldier a general, under honorable conditions discharge.  This discharge may have some impact on what benefits the discharged Soldier could retain and apply for through the VA.

Other than honorable, as the name suggests, is the type of discharge given to many Soldiers who have had legal issues such as a positive urinalysis or non-participant status.  This is an administrative discharge and categorization that greatly impacts the benefits that the discharged Soldier may retain and apply for through the VA.  It is likely that it will impact them if they apply for both state and federal jobs.  Though not always true, this type of discharge is generally the default characterization for those who are being processed out of service for testing positive for drugs.

The fourth and final type of discharge is a bad conduct discharge.  This can only be granted through a court martial.  Due to the nature of the Army Reserves being part-time, this is not a common occurrence, but it is possible.  This type of discharge greatly impacts the benefits that the discharged Soldier may retain and apply for through the VA.  This can also greatly impact them when they apply for any job.

On the Veteran’s Affairs website it states that: “A discharge characterized by the military as under honorable conditions is binding on VA and allows for VA to provide benefits if other eligibility requirements are met. If a discharge was not characterized as under honorable conditions, benefits are not payable unless VA determines the discharge was ‘under conditions other than dishonorable.’ By law, certain situations resulting in a discharge under less than honorable conditions constitute a legal bar to the payment of benefits.”

For more on VA benefits and the types of discharges see this link http://www.benefits.va.gov/BENEFITS/docs/COD_Factsheet.pdf

For those who test positive on urinalysis there are two types of “hots” that they can come up on.  The first is for illegal drugs and the other is for some type of prescription drug.  Illegal drugs are forwarded as a drug demand reduction (DDR) and the paperwork begins to discharge through Chapter 12.  For prescription drugs, some commands process it as a Chapter 12 and request any supporting documentation to determine if it is a valid prescription or not.  This will allow the packet to go up through the chain of command and it either exonerates the Soldier or starts the separating process as it was not authorized use of prescription drugs.  Other commands go through a medical review officer (MRO) where the Soldier is given an opportunity to provide documentation to show that they have a prescription for the drug that they tested for.  Based on the documentation, or lack of documentation, there are three types of determination that the MRO can make: 1. Legitimate, 2. Illegitimate, 3. Illegal.  Legitimate is those who have a current prescription for the drug that they tested positive for.  Illegitimate is if the Soldier has a prescription for the drug, but it is expired.  Illegal is if the Soldier did not have a prescription for the drug that they tested positive for.

Once the command is notified of the “hot”, they will sit the Soldier down and read them their Article 32 rights and inform them that they have tested positive and notify them of their options to obtain a lawyer (military at no cost to the Soldier, civilian at no cost to the government), to obtain documentation, administrative hearing (if they have over 6 years in service), and if they want to seek a conditional waiver.  They can either invoke these options or waive them.  They have 30 days to respond (45 if they have a lawyer).  The Company Commander will make a determination of which type of discharge to recommend (they must recommend one) out of the three administrative (honorable, general under honorable conditions, or other than honorable).  They will also recommend either retaining or discharging the Soldier and must provide the rationale.  The Battalion and Brigade Commanders will either concur or non-concur in their memorandums.  Ultimately, the Commanding General will determine to retain or discharge the Soldier and what characterization.  If retained, the Soldier can be given a suspended sentence where he/she is given a year of probation so if he/she stays clean and performs honorably, he/she will be retained.  If the Soldier tests positive or has any misconduct, the command can send up a vacate packet to discharge the Soldier.  If discharged, orders will be cut and the Soldier can appeal the discharge or type of discharge if they so choose.

For non-participants, the notification will be sent out and they are given 30 days to respond (45 if they retain a lawyer) before the Company Commander makes their recommendations and submits the Chapter 13 packet.  The rest of the process is similar to the DDR process.

Be familiar with your command, some have default recommendations of reduction to E-1 and other than honorable discharge.  Talk to your Battalion Commander and your JAG for advice.  You know your Soldiers, so if they are worth fighting for, fight for them, but you have to put that supporting information into your memorandum.  At times, this may bite you if you recommended retaining the Solider and they test positive again…so be careful.

Comment below or start the conversation here and connect within the military community.

No comments:

Post a Comment