In this 2004 Military Law Review article, then-Major Jeffrey Lippert argued that the meaning of a punitive discharge is increasingly not understood by civilian employers.  It turns out that at least some Supreme Court justices don’t appreciate the distinction between a punitive and administrative discharge.

Today the Supreme Court held that a criminal defense attorney has a Sixth Amendment duty to advise noncitizen clients of the potential effect of a criminal conviction on their immigration status.  Padilla v. Kentucky, No. 08-651.  Justice Alito, joined by Chief Justice Roberts, concurred in the judgment–though their difference with the majority seems to be on a relatively minor point regarding the precise advice that is required.  Justice Alito observed that “criminal convictions can carry a wide variety of consequences other than conviction and sentencing.”  Among these he listed “civil commitment, civil forfeiture, the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of business or professional licenses.”  Of course, a dishonorable discharge can only be imposed as a sentence and never as a collateral consequence.  It appears that Justice Alito confused a “dishonorable discharge” with an administrative discharge with an unfavorable characterization, such as an OTH.

In objecting to the particular advice requirement that the majority imposes, Justice Alito observes that “[a]s the Court concedes, ‘[i]mmigration law can be complex’; ‘it is a legal specialty of its own’; and ‘[s]ome members of the bar who represent clients facing criminal charges, in either state or federal court or both, may not be well versed in it.'”  Justice Alito’s apparent misunderstanding of the distinction between an OTH and a DD may subtly support his point about the difficulty of providing advice concerning a specialized area of the law in which the advising counsel doesn’t practice.

8 Responses to “DD, OTH — what’s the difference?”

  1. John O'Connor says:

    I knew this post was coming the second I read Padilla.

  2. comic book guy says:

    so Denedo’s counsel (if allegations are true) was definitely deficient under today’s law. that law though is not retroactive to his case (right?) but could still inform the ruling.

  3. Anonymous says:

    220, 221, whatever it takes.

  4. Anonymous says:

    “the meaning of a punitive discharge is increasingly not understood by civilian employers.”

    I would argue its meaning is not well understood by the vast majority of service members either.

    Of course there is little difference in an OTH and a BCD, a DD has little difference as well, other than a loss of rights, even from previous honorable service, and prohibition on ownership of firearms.

  5. Article16 says:

    I agree with the post, but I believe “dishonorable discharge” (as opposed to “Dishonorable Discharge”) is also colloquially understood as all the discharges that are less than honorable.

  6. Phil Cave says:

    I agree that many civilians, and an amazing number of clients and potential clients, don’t understand or know the difference. I frequently am asked about upgrades or information about a DD, only to find out that the discharge was an OTH. I guess there’s a perception in the public – perhaps fostered by TV/movies – that a DD is the same and interchangeable with OTH and BCD.
    That misperception seems to carry over into employers making little distinction between an applicant with a DD and one with an OTH, both applicants aren’t hired. Military recruiters are having a good time recruiting because of the bad economy, so are civilian employers.

  7. Ama Goste says:

    Perhaps the Justices should seek advice from MG Suter when dealing with military justice references.

  8. Michael Lowrey says:

    I just read Lippert’s article. It’s certainly well written but his point that BCDs don’t have adverse employment consequences is based heavily upon a 1978 (!) survey of how employers would respond to job applicants with BCDs. Whether that’s still true today is questionable. And I think close to equally questionable when the economy recovers. Society simply viewed both criminal convictions and military service differently in the 1970s than it does today.

    As a practical matter, I would agree that the average employer (or person on the street) would not know the difference between an OTH, a BCD, and a DD and is also not likely to care: They all say the applicant screwed up and was kicked out of the military.