Let’s Talk About A Difficult Subject: Separation for Misconduct

800px-Flickr_-_The_U.S._Army_-_Hovering_HawksIf you have read the news recently, you know there’s an epidemic going on.  Led by over 2,500 dismissals from Fort Hood, since 2009 the U.S. Army has separated  for misconduct at least 22,000 soldiers who served in Iraq or Afghanistan and returned with mental-health disorders.

As reported by National Public Radio, our nation’s own Army therapists appear to be conspiring against service men and women to characterize service-induced mental health issues as misbehavior and misconduct.

Why would our own military organizations destroy men and women who have given everything for to protect us?  The answer may be simple:  a dollar used to treat a mental-health matter is a dollar the military can spend on something else.  There may be another reason.  In April 2009, the Department of Defense (DOD), through its Office of Intelligence and Analysis, issued a document characterizing Veterans returning from battle theaters in Iraq and Afghanistan as terrorist risks to the safety of the United States.  Defended by the then-Secretary of Homeland Security, DoD’s assessment of Veterans as terrorist threats could be the organizational “risk reduction” reason our military is eager to disassociate itself from responsibility for service members who manifest any type of mental-health disorder.  It’s an interesting coincidence that military separations for misconduct based on mental-health disorders seemed to pick up – starting in 2009.

Chapter 14 – Separation for Misconduct

Chapter 14 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) identifies two major categories of misconduct which may result in separation from service.  These two categories of misconduct are:

  1. Conviction by a Civil Court (Section II of Chapter 14); and
  2. Acts of Patterns of Misconduct (Section III of Chapter 14).

Within each broad category are distinctions, particularly when identifying acts or patterns of misconduct.  For example, a pattern of minor military disciplinary infractions can form the basis of a separation for misconduct.  Similarly, a pattern of military or civilian misconduct, prejudicial to good order and discipline in the Army, may also form the basis of a separation for misconduct.

Impact of Separation for Misconduct

We can be brief and to the point here.  Separation under dishonorable conditions generally precludes the Veteran from receiving any benefits – including disability benefits, health care provided by the Department of Veterans Affairs, hiring preferences, and State and local discounts for Veterans.  For a Veteran whose separation for misconduct was caused by service-induced mental-health issues, this result is a brutal additional insult to a devastating injury.

If You – Or Your Veteran – Were Separated for Misconduct

You, the Veteran, or – if the Veteran is deceased or incompetent, the surviving spouse, next of kin, or legal representative – are entitled to apply for a review of discharge.  If you were discharged less than 15 years ago, the standard form for this review is DD Form 293.  If you were discharged more than 15 years ago, the standard form is DD Form 149.

To give yourself every possible chance of success, it is crucial that you have evidence, excellent arguments, and facts to present to the Discharge Review Board (DRB).  We therefore highly recommend you contact us before submitting an application for review of discharge.

Did You Know?

The stakes in the review of discharge are tremendous, and odds are not in the Veteran’s favor.  The challenge is huge because the DRB can only upgrade – or change the discharge reason – under two circumstances.

  • Circumstance 1 = the discharge reason or rationale was “inequitable.”
  • Circumstance 2 = the discharge reason or rationale was “improper.”

Inequitable means the reason or rationale for was not consistent with the policies and traditions of the service from which you were discharged.  Improper means the reason or rationale was in error.  That means, the reason or rationale was false or violated a regulation or law.

The DRB can upgrade your discharge only if it has evidence proving the original rating was inequitable or improper.  The DRB does not care about:

  • Health information from civilian medical authorities, obtained post-separation. Information, no matter how compelling, which discusses your health status after separation from the military has nothing to do with the question of whether the discharge rating was inequitable or improper.
  • Your difficult current health and economic circumstances. All the DRB can judge is whether the discharge rating was inequitable or improper at the time you separated.
  • Challenges to obtaining evidence for the DRB to review. If witnesses have died or otherwise can no longer provide statements, if paperwork has disappeared, or the like – that’s not the DRB’s problem.

Why You Need Representation

Whether a soldier’s actions should have resulted in a separation for misconduct and whether the commander took proper action, including providing adequate counseling and opportunity for rehabilitation, are two different questions which must be asked – and are not, unless a Veteran appeals the separation rating.  As investigative reports are revealing, all too often military medical and administrative personnel are not offering adequate counseling, treatment, or opportunity for rehabilitation.  In fact, it appears that some of our active-duty military personnel who suffer from mental-health issues are being treated more like prisoners of war than honored guardians of our collective security.

We Know What to Ask

The DRB will not dig to investigate why your commander, or the military psychiatrist, or any other personnel in your chain of command took – or failed to take – appropriate actions.  All that is left to you, the applicant.  This is where our law office makes an important difference.  With an understanding of military requirements, legal requirements, and how things work in real life in the military, we are well-positioned to find that evidence you need to prevail in your request for review of discharge.

To make your case to the DRB, you need evidence.  The better your evidence, the greater your chances of convincing the DRB.  The DRB doesn’t reach out to witnesses.  You have to provide the DRB with everything you want them to consider.  And that’s one of the many reasons you need an attorney.  An attorney will help you gather the evidence, organize it, make sure it is in a form acceptable to the DRB, and – if you want to testify to the DRB – help you understand the DRB proceedings and the type of questions you will be asked.



You may now realize why it crucial to have a knowledgeable representative work with you on any appeal for review of discharge.  You get one shot at this review and it has to be your best shot.  If you need to appeal your discharge rating, DON’T WAIT.  Contact the Law Office of Robert B. Goss, P.C. today for your FREE consultation.

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