We have been consulted and retained by many service members who are facing administrative separation proceedings. Frequently our clients ask what the difference is between an OTH and a BCD. A Bad Conduct Discharge is a punitive discharge that can only be imposed by a General or Special Court-Martial. An enlisted administrative separation board, or officer Show Cause Board of Inquiry (BOI) can impose an Other-Than-Honorable discharge upon a finding of misconduct. Although most people consider an OTH to be significantly less serious than a BCD, in reality the repercussions of both discharges are very similar in most respects. While an administrative discharge with an OTH goes only on a service member's military record, the court-martial conviction which accompanies the BCD goes on the service member's criminal record in the civilian community. Officers cannot receive a sentence to a BCD in a court-martial – the only punitive discharge that can be imposed on an officer is a Dismissal, which is effectively the equivalent of a Dishonorable Discharge
A person who has received an OTH characterization from an administrative separation or BOI can be denied virtually all Veterans Affairs Department benefits, which is the same as the person who has a been discharged through a court-martial with a BCD. Both discharges can and likely will have a very adverse impact upon future employment opportunities in the civilian community and will generally in the person being unable to secure employment with the federal government or a federal government contractor if a security clearance is required. In addition, an OTH characterization of discharge can result in the inability to secure certain government subsidized loans and may also adversely affect the ability to secure certain professional licenses.
When faced with notice of the initiation of administrative separation or BOI proceedings, many service members are inclined to simply waive the right to proceed before an administrative separation board or BOI, which means they will be saddled with the OTH discharge characterization for the rest of their lives. That usually is a serious mistake, since if the right to a board is waived, there is little if any likelihood of ever getting the discharge characterization upgraded by the Board for Corrections or Discharge Review Board in the future. If the service member proceeds to the board, the worst that can happen is the recommendation for an OTH characterization, which is exactly what happens if the board is waived. However, if the service member goes to the board, and presents evidence of otherwise good and honorable service, the board can recommend a General Under Honorable Conditions, or Honorable discharge characterization which frequently occurs. At the board, we would always highlight our client's entire military career, as well as other favorable aspects of the term of service in question, in an effort to avoid the OTH characterization.
When a service member is faced with a court-martial, one option available is to request administrative separation in lieu of court-martial, which would usually result in the OTH characterization of service. While that procedure would avoid a record of a federal criminal conviction, it results in the loss of benefits and the adverse repercussions discussed above. This can be a difficult decision, since the service member needs to consider the implications of a federal conviction, in comparison to loss of benefits. For example, if the service member is facing a potential court-martial conviction for violation of a regulation prohibiting fraternization, there is a strong likelihood of avoiding the BCD at the court-martial if the person has an otherwise good service record.
A conviction for fraternization will not be a significant problem as to getting future employment in the civilian community, so the conviction may be the better option, rather than accepting an OTH. On the other hand, a federal conviction for larceny related to a shoplifting incident would have a very adverse impact upon that person's ability to secure employment in the civilian community, so avoiding the conviction by accepting an OTH would generally be a good move. The service member must however be counseled as to the fact that if the court-martial results in a conviction, with no BCD, that the command can thereafter initiate administrative separation proceedings, with the possible risk of an OTH. Again, if our client were to be taken to an administrative separation board or BOI, we certainly would attempt to secure a recommendation of retention or a favorable characterization of service.
As I believe is apparent from this article, the decision to accept an OTH discharge without going to an administrative separation board or BOI can be a serious mistake that will have lifelong adverse implications on not only the service member, but also his/her family. Please review the Benefits at Separation list for comparison as to the loss of benefits resulting from an OTH and BCD. When consulted on a case of this nature, we will provide an honest assessment of the situation, fully explaining all options that are available. Upon retention, we will immediately commence our efforts to secure the best possible resolution for our client.
Greg D. McCormack is a former Army JAG (1979-1982). Greg McCormack's practice focuses primarily on representation of military service members in court-martial and enlisted administrative separation and BOI actions. The law firm of McCormack and McCormack has a highly experienced military paralegal support staff who stand ready to assist our clients. The information in this article should not be considered as legal advice, since each case must be considered based upon the applicable individual facts.