Common Mistakes Military Commanders Make When Discharging Service Members for Misconduct
When a service member is facing a discharge for misconduct, their entire future can hang in the balance. Unfortunately, military commanders sometimes make serious procedural or legal errors during the discharge process. These mistakes can unfairly jeopardize a service member’s benefits, reputation, and livelihood.
We’ve seen it happen. A Navy veteran contacted us to upgrade his discharge from General (Under Honorable Conditions). When we looked at his records, we saw nothing related to misconduct. In fact, his enlistment was flawless. Our client said “My commander said this was Honorable.” We managed to find the commander and asked about this veteran’s discharge, and the commander responded “I thought a characterization of ‘Under Honorable Conditions’ was the same as ‘Honorable.'” By the time we secured an upgrade for the veteran, he had already been without the GI Bill for 2 of his college years. That’s an absolute shame.
If you’re facing a misconduct discharge, hiring an experienced military discharge lawyer can be critical to protecting your rights. Here’s a breakdown of common mistakes made by commanders during the discharge process—and how legal counsel can help correct them.
1. Failing to Follow Procedural Requirements
Each branch of the military has strict procedures that must be followed when initiating an administrative discharge. When commanders skip steps or fail to adhere to due process, the discharge may be legally vulnerable.
For example:
- The Army Regulation 635-200 outlines mandatory steps for involuntary separations.
- Similar procedural safeguards exist in SECNAVINST 1920.6D for the Navy and Marine Corps.
- The Air Force Instruction 36-3208 governs enlisted separations in the Air Force.
If a command fails to follow these steps, the discharge decision may be overturned or revised through appeal or review.
2. Misclassifying the Type of Misconduct
Commanders sometimes rush to judgment and misclassify behavior as misconduct that doesn’t rise to that level. Common errors include:
- Labeling minor infractions or administrative failures as “serious misconduct”
- Treating mental health symptoms as disciplinary issues
- Failing to distinguish between “minor disciplinary infractions” and “pattern of misconduct”
In many cases, especially where substance abuse or PTSD is involved, the service member may be eligible for medical evaluation or treatment rather than punishment. A qualified military discharge lawyer can raise these distinctions during the review process.
3. Ignoring Evidence of Mitigating Circumstances
Commanders must consider the full context surrounding alleged misconduct. However, they sometimes ignore key mitigating factors, including:
- Diagnosed mental health conditions (e.g., PTSD, TBI)
- Evidence of military sexual trauma (MST)
- Service-connected injuries or combat stress
- Prior honorable service and commendations
The Department of Defense issued a Clarifying Guidance in 2018 that urges Discharge Review Boards and Boards for Correction of Military Records to give “liberal consideration” to such factors—especially for veterans of Iraq and Afghanistan.
4. Denying the Service Member the Right to Counsel
Under most conditions, service members facing an administrative discharge for misconduct are entitled to legal counsel. However, this right is sometimes neglected or discouraged. If a command prevents or discourages access to counsel, that could violate due process rights.
Your right to legal counsel is protected under Article 31(b) of the Uniform Code of Military Justice (UCMJ), and depending on the circumstances, denial of this right could make the entire discharge action invalid.
5. Using the Discharge to Avoid Medical Evaluation
One of the most dangerous trends in recent years is the use of misconduct discharges to sidestep medical board evaluations. Commands may try to discharge a service member before they can be referred to the Integrated Disability Evaluation System (IDES).
This violates DoD Instruction 1332.18, which mandates that any member whose misconduct may be due to a service-connected condition must be evaluated before separation.
In cases like these, a discharge upgrade lawyer can advocate for a proper medical board referral and may even reverse an improper discharge classification.
6. Issuing Inappropriate Characterizations of Service
Commanders can recommend characterizations of service ranging from Honorable to Other Than Honorable (OTH). However, an OTH discharge carries serious consequences, including:
- Loss of VA healthcare
- Loss of GI Bill benefits
- Damage to future employment
Improper or excessively harsh characterizations—especially for first-time infractions—may be overturned by a Discharge Review Board or a Board for Correction of Military Records. See:
How a Military Discharge Lawyer Can Help
The mistakes listed above can destroy a military career and deny a veteran the benefits they’ve earned. If you’re facing a discharge for misconduct, don’t go through it alone.
An experienced military discharge lawyer can:
- Review the discharge packet for errors or due process violations
- Prepare rebuttals and evidence to submit to the command
- Represent you before a Discharge Review Board or BCMR
- Petition for a discharge upgrade or correction of records
At MilitaryAdvocacy.com, we focus on protecting the rights of service members and veterans. We have experience with every branch of service, and we understand how to challenge unfair discharges and restore your honor.
Final Thoughts
Military commanders carry enormous responsibility when they initiate a discharge for misconduct. But when they make mistakes—intentionally or not—those errors can ruin lives. Don’t leave your future to chance.
If you’re being discharged or have already received a less-than-honorable discharge, contact a military discharge lawyer immediately.
You’ve served your country. Now let us serve you.
Related Reading:
- Difficulties Faced by Veterans Seeking a Discharge Upgrade
- Who Should Write Letters of Recommendation for a Discharge Upgrade?
- Why Hiring a Discharge Upgrade Lawyer is Critical