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.