Understanding Military Discharges and VA Benefits

For enlisted military personnel, there are 6 possible characterization of discharge upon separation from the military.  They are

  • Entry Level Separation (ELS)
  • Honorable (HON)
  • General (under honorable conditions) (GEN)
  • Other Than Honorable (OTH or uOTH)
  • Bad Conduct Discharge (BCD)
  • Dishonorable Discharge (DD)

Bad Conduct Discharges and Dishonorable Discharges may only be given as a result of an approved and executed court-martial sentence.  Specifically, a Bad Conduct Discharge can be awarded as part of a sentence at either a Special Court-Martial (SPCM) or General Court-Martial (GCM).  These are called “punitive discharges” because they are part of court-martial punishments.

Entry Level Separation (ELS) must take place within the first 180 days of service and is normally a mechanism used during initial training to send trainees home who simply did not adapt well to military life but did not commit significant misconduct.  An example of an ELS separation may be for someone who can’t pass boot camp tests.

The remaining three characterizations of service are administrative discharges.  There are two types of administrative separations: voluntary and involuntary.  The two most common voluntary administrative separations are end of active obligated service (EAOS) and early separation to pursue education.  Involuntary separations are normally the result of misconduct (drug use, serious criminal offenses) or failing to meet a military readiness requirement (physical fitness, lack of parenthood plan).

An Other Than Honorable discharge can only be given to a servicemember following an administrative discharge board (ADB or ADSEP board) and after approval of a flag officer.  An administrative discharge board involves a hearing before a panel of impartial members who will determine based on a preponderance of the evidence whether the basis for separation (such as drug use) is proven and, if proven, whether the member should be separated and a characterization of service.

Under 38 U.S.C. sec 101(2), a veteran is defined as;

The term “veteran” means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.

Thus, the definition of a “veteran” does not use the same language as the actual characterizations of service (explained above) used by the Department of Defense.  This makes it much more complex to determine whether a former member of the military qualifies for some or all of the available veterans’ benefits.

An “Honorable” discharge guarantees that a service a member will receive all benefits to which he or she is entitled so long as there is not a statutory bar to the receipt of benefits.  A statutory bar comes into play where the discharge is determined to be under dishonorable conditions.  Again, this language is not the same language as the characterizations of service.  Statutory bars to collection of benefits, regardless of prior periods of honorable service, include punitive discharges received at general court-martial and discharges as a result of desertion or AWOL of more than 180 days.

A General (Under Honorable Conditions) discharge will generally entitle the military member to all veterans’ benefits with the exception of the G.I. Bill.  However, a member who receives a General discharge may be entitled to this benefit if the member had a prior period of service (enlistment) with an Honorable characterization of service or the member seeks a COD (character of discharge) determination to establish edibility.  A COD determination may find the entitlement where, for example, the member honorably completed 5 years of a 6 year enlistment before engaging in the acts that led to involuntary separation with a General discharge.

 

An Other Than Honorable discharge will generally bar a member from receiving all veterans’ benefits with the exception of health care for any disabilities or injuries incurred in the line of duty during active service.  However, assuming no statutory bar, a member be entitled to most benefits, including the G.I. Bill, based on a prior period (enlistment) that was characterized as Honorable.  Again, the member can also request a COD determination and receive benefits.  However, it is unlikely that disability payments will be paid based on the enlistment that ended with the Other Than Honorable discharge.

At Korody Law, we recommend that veterans with OTH discharges pursue COD determinations and petition the service’s Discharge Review Board or Board of Corrections for discharge upgrades.

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