How to Fight an Other Than Honorable (OTH) Discharge at a Separation Board

Can you fight an other than honorable discharge? Yes, at two points. Before it’s issued, at the separation board where the characterization is decided, and after through the discharge review board and the board for correction of military records. The first fight is far easier to win than the second. I’m Michael Waddington, civilian military defense lawyer and co-founder of Gonzalez & Waddington. An OTH is the worst discharge you can receive without a court-martial.

And most people who get one never fought it. Here’s how. First, what an OTH is and what it costs. Under AR 635-200 and the other services regulations, an under other than honorable conditions discharge is an administrative characterization for conduct that constitutes a significant departure from expected standards. It’s not a punitive discharge. There’s no conviction. But it costs you nearly everything a discharge can.

The GI Bill, most VA benefits unless the VA makes a favorable character of service determination, federal employment preferences, and in the civilian job market, a lifetime of explaining. It follows you on the DD214. Second, how an OTH happens. Only two ways. One, an administrative separation board or a board you waived recommends it and the separation authority approves. Two, you request discharge in lieu of court-martial, a Chapter 10 in the Army, which almost always comes with an OTH.

The command can’t simply issue an OTH. You’re entitled to a board whenever an OTH is proposed, regardless of your years of service. Third, fighting it before it’s issued. This is the board. The board decides three things: whether the misconduct occurred, whether you should be separated, and the characterization. Even a board that votes to separate can vote for honorable or general, and that vote is made on your record and your evidence.

The characterization case is built separately from the retention case. Your evaluations and awards, your deployments, the nature of the conduct against the length and quality of your service, evidence that the conduct was isolated, and the specific harm an OTH would cause. Boards are often willing to separate a soldier with a general discharge when they wouldn’t retain them. And if you waive the board because you want out, negotiate the characterization as a condition of the waiver.

A conditional waiver in exchange for a general discharge is common and often available. Fourth, fighting it after. The Discharge Review Board for your service, under 10 USC Section 1553, can upgrade a discharge within 15 years on grounds of propriety, meaning the discharge was legally wrong, or equity, meaning it was unfair given the circumstances. The Board for Correction of Military Records, under 10 USC Section 1552, can do the same without the 15-year limit and with broader power.

Both boards are required, under the Hagel, Carson, Kurta, and Wilkie memoranda, to give liberal consideration to claims that mental health conditions, PTSD, TBI, or military sexual trauma contributed to the misconduct. That has changed the odds for a lot of veterans. An upgrade application is a written case. The record, the circumstances, the medical evidence, post-service conduct, and a legal argument. It takes a year or more.

Fifth, what not to do. Don’t waive the board without negotiating. Don’t accept a Chapter 10 without a lawyer evaluating the court-martial case first because sometimes the court-martial is winnable and the OTH is permanent. And don’t assume an OTH is forever. Upgrades happen, but they take evidence and time. At Gonzalez & Waddington, we fight characterization at boards as its own case and we handle upgrade applications for veterans whose OTH should never have been issued.

So, can you fight an OTH? Yes, at the board where it’s easiest and afterward through the DRB and the BCMR. Never let one be issued without a fight. I’m Michael Waddington with Gonzalez & Waddington. We defend service members worldwide. You can learn more at ucmjdefense.com or call 1-800-921-8607 for a free confidential consultation.