What Type of Discharges Can You Receive in the Military?

What Type of Discharges Can You Receive in the Military?

by | Apr 9, 2021 | General Court Martial, Military Justice, Military Separation Hearings, OTH Administrative Discharge, Special Court Martials

Military Criminal Justice Textbook

Enlistment in the U.S. military typically requires a substantial commitment. When a member of the armed forces is released from their obligation to serve it’s considered a military discharge. There are several types of military discharges that can occur before that satisfying that commitment, in particular the “Other Than Honorable (OTH) Discharge” which can be devastating to the service member’s benefits and future civilian prospects.

At a Court Martial you can receive a Bad Conduct Discharge if you are an enlisted service member. It is a punitive discharge for serious offenses. The service member will forfeit all VA and post-military veterans benefits, and civilian employers may look unfavorably at a potential employee with this on their record. A BCD may prevent a service member from owning a firearm as a civilian. Also an option at a Court Martial is a General Under Honorable Conditions Discharge. If the service record is satisfactory but not “meritorious” this is a potential outcome. Even service members with a superior service record may be assigned this discharge because of non-judicial punishment. They will typically have access to VA medical care and VA home loans but may be denied certain government jobs and they do not have access to the Post 9/11 G.I. Bill benefits. The very worst outcome is a Dishonorable Discharge or DD. In many cases a DD is accompanied by a prison sentence. Generally, the service member receiving a DD is prohibited from receiving any type of governmental assistance, cannot own a firearm and may lose the right to vote. Even obtaining a bank loan may prove challenging. These are all considered legal convictions and punitive discharges.

These are very different than administrative discharges. There are different types of administrative discharges. The most favorable is an Honorable Discharge that maintains all the service member’s benefits including the full range of medical, educational, financial and housing benefits, including VA medical benefits for a lifetime. They also retain security clearance status, burial honors and other post-service benefits.

The worst outcome in an Administrative Discharge is an Other Than Honorable Discharge (OTH). It will result in extreme loss of military service benefits and can cause difficulties in civilian life. VA Benefits are not guaranteed, and civilian employment opportunities can be impacted.

We’re often asked at Shewmaker & Shewmaker, what’s worse on a service member’s record? A Punitive Discharge from a Court Martial or an Administrative Discharge you get at a Separation Board? Without question a Punitive Discharge is the worst because you lose everything. You lose all  benefits.  It will be stamped on your DD Form 214 “Bad Conduct Discharge” which will come up in any background check in your private life. However, all unfavorable discharges negatively impact your post service benefits.

If you are facing a military discharge and have any questions about what discharges are available in your case contact us at Shewmaker & Shewmaker.

I’m a Military Service Member. Local Authorities Have Dropped My Legal Case. Am I in the Clear?

I’m a Military Service Member. Local Authorities Have Dropped My Legal Case. Am I in the Clear?

by | Mar 30, 2021 | Double Jeopardy, General Court Martial, Jurisdiction, Military Justice, Special Court Martials

If you’re a military service member that got into legal trouble but had local authorities decide not to prosecute you are in the clear, right? Wrong. Individuals can be prosecuted by State District Attorneys, Federal Law Enforcement and the Military. Federal and State cases are geographically based while Military cases are status based for active duty personnel. Steve Shewmaker and Alexa Lewis discuss the matter in this video.

What Type of Discharges Can You Receive in the Military?

I’ve Been Convicted of a Crime in Civilian Court. Can the Military Prosecute me for the Same Crime?

by | Jun 19, 2020 | Double Jeopardy, General Court Martial, Jurisdiction, Military Justice, Special Court Martials

Members of the military often believe they cannot be prosecuted in both the military courts and civilian courts. Most have heard of the concept of double jeopardy. However, civilian criminal law and the UCMJ are similar but different. In this article we discuss double jeopardy, civilian courts and the UCMJ.

Over the years we’ve had several clients call us and say they’ve been convicted of a crime in civilian court and that the military wants to prosecute then for the exact same thing. isn’t that double jeopardy? That’s a great question. You see this often in domestic violence cases and yes, the military can prosecute. The reason for this is called dual sovereignty and the Supreme Court had a case about this recently. It ruled that if federal law enforcement misses on a case the states can then pick it up. The same is true with the military and the UCMJ. If the case falls in a different area geographically and jurisdictionally then the military can pick it up.

That doesn’t sound fair, and some of the military branches including the Air Force have policies in place that prevent a military prosecutor from coming after you for the same thing you’re facing state charges for unless they get permission from the T-Jag of that particular branch.

However, policies are not law. Whether cases are accepted are not often depend on the seriousness of the offense and whether or not the military prosecutor believes the conviction was too light, whether or not they believe they could “do better,” whether or not they just want to “stack” it, and occasionally it comes down to the just not liking the military member.

The bottom line? Often military prosecutors can prosecute a crime that was tried in civilian courts. As a matter of policy they must get permission from the civilian court and if they ask they will usually get it. If you are in fact being prosecuted by the military for the same exact charges you’re being prosecuted for in the state call us at Shewmaker and Shewmaker. We can provide you with valuable information that you may not be aware of.

Should a Military Member Facing Court Martial go with Outside Counsel?

Should a Military Member Facing Court Martial go with Outside Counsel?

by | Apr 1, 2020 | General Court Martial, Military Justice, Special Court Martials

A court martial is the most serious trial-level military court. The decision the accused military member must make is whether to accept the military criminal defense attorney assigned to them or to hire a civilian military lawyer. The JAG attorney is similar to a civilian public defender in how they serve the accused service member, and may be less experienced than a civilian military lawyer. Steve Shewmaker and Robert Capovilla of the military defense law firm Shewmaker & Shewmaker discuss that important decision and the factors that go into it.

What Type of Discharges Can You Receive in the Military?

Does My Good Military Character Count if I’m Charged With Sexual Assault?

by | Nov 22, 2019 | False Accusations, General Court Martial, Military Justice, Sexual Assault, Special Court Martials

These are questions we get at Shewmaker & Shewmaker every time we speak to a Soldier who is accused of sexual assault. Well…the answer is not as simple as it used to be!

Your general good military character used to be admissible in sexual assault cases if the defense could show to the military judge that there was a nexus however strained or slight, between the charged misconduct and your military service. The result was that the defense used to be able to present a “good soldier defense” in nearly every sex assault case. See United States v. Wilson, 28 M.J. 48 (C.M.A. 1989).

The “good soldier defense” was especially helpful in “he said, she said” sexual assault cases. The defense could call your commander or a soldier you deployed with to tell the court that in their opinion you’re a good soldier. The panel or military jury would hear this and hopefully conclude that you’re not the type of soldier who would sexually assault another person.

However, on 17 June 2015, the 2015 NDAA’s directive to revise M.R.E. 404 was implemented by Executive Order. These new provisions excluded the use of evidence of your general good military character to show probability of innocence for sexual assault offenses. Bad news for you, right?

Not exactly! A skilled military defense attorney knows that this change does not preclude a defense based on your good character. You may still offer evidence of your good character under M.R.E. 404(a) if those traits are relevant (pertinent) to your defense. In nearly every sexual assault via bodily harm case, for example, you will be allowed to introduce relevant character evidence such as your peacefulness towards women or your honesty (if you testify or, under certain circumstances, if the Government offers a statement you made). So, my friends, not all is lost.

Understand, however, that once your attorney offers evidence of your good character to the panel the prosecution may rebut that evidence with evidence to show that you’re not a peaceful or honest person. So, if your attorney calls a witness to testify that in his opinion your peaceful towards women than the Government could rebut that evidence by calling your ex-girlfriend who will testify that you’re not peaceful towards women. In other words, you open the door and you must face the consequences!

This article just scratches the surface of what is known as “character evidence.” However, you need to understand these rules and you need to hire an attorney who understand these rules. Character evidence can make or break a sexual assault defense. So, proceed with caution my friends and keep up the fire!

If you have any questions contact us or call us at (770) 939–1939.

Pretextual Phone Calls in Military Sexual Assault Cases

Pretextual Phone Calls in Military Sexual Assault Cases

by | Jan 24, 2019 | False Accusations, Military Justice, Sexual Assault, Special Court Martials

Pretextual or pretext phone calls are used by investigators in sexual assault cases. Investigators will set up and record a phone call between the alleged victim and the suspect with the goal of soliciting an incriminating response. Steve Shewmaker and Robert Capovilla of the law firm Shewmaker & Shewmaker discuss these calls, how to recognize them and how dangerous they can be.