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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 27143
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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How do you get out of the army legally with no dishonerable

Customer Question

How do you get out of the army legally with no dishonerable discharge?
Submitted: 6 years ago.
Category: Military Law
Expert:  P. Simmons replied 6 years ago.
Thanks for the chance to help

You ask the age old question...the answer is that its not very easy...if it were our all volunteer army would have problems keeping its ranks

When you say "no dishonorable discharge" I assume you mean with an honorable discharge or at least a discharge under honorable conditions.


There are 2 types of Administrative Separations...Voluntary and Involuntary. You want, if at all possible, voluntary. If you can fit your circumstances into a voluntary separation you will typically rate an honorable separation.

Some examples of reasons for voluntary separation include:
Conscientious objector
Hardship
Pregnancy
Early release to further education


Typically, the best shot is a hardship


Criteria

Families of servicemembers frequently experience some financial hardship or psychological strain resulting from the disruptions of family life associated with military duty. To be granted discharge, however, a member must be experiencing more extraordinary conditions. Grounds for hardship or dependency discharge do "not necessarily exist solely because of altered present or expected income, family separation, or other inconveniences normally incident to Military Service."

The basic standards for both hardship and dependency discharges are the same:

"The hardship or dependency is not temporary [usually interpreted as lasting more than a year];

"Conditions have arisen or have been aggravated to an excessive degree since entry into the Service, and the member has made every reasonable effort to remedy the situation;

"The administrative separation will eliminate or materially alleviate the condition; and W "There are no other means of alleviation reasonably available."

A discharge application cannot be denied merely because the person is in debt to the military or government or because the person's services are needed by the military

If the hardship or dependency is of short duration, the member can apply for "humanitarian reassignment" (or "compassionate reassignment" in the Army) to a duty station closer to home: Criteria:

The problem is temporary and is expected to be resolved within one year; The problem cannot be resolved through the use of leave, correspondence, power of attorney, or the help of family members or other parties; The problem neither existed nor was foreseen at the time of latest entry on active duty;

If the problem involves the health and welfare of a family member, in the Army and Navy the family member must meet their definition of "immediate family." (However, parents-in-law may also be considered.); A vacancy must exist at the requested duty station.

The Actual Army Regulation on Harship Discharge says:

6-2. Dependency or hardship

Upon the request of a Soldier and approval of the separation authority, separation may be directed when it is considered that continued membership and service on AD, full-time National Guard duty (FTNGD), or ADT, would result in genuine dependency or undue hardship.

a. Criteria for separation. Separation may be approved when all of the following circumstances exist:

(1) The hardship or dependency is not temporary;

(2) Conditions have arisen or have been aggravated to an excessive degree since entry in the Army, and the Soldier has made every reasonable effort to remedy the situation;

(3) The administrative separation will eliminate or materially alleviate the condition; and

(4) There are no other means of alleviation reasonably available.

b. Limitation of criteria for separation. The following circumstances do not justify separation because of dependency or hardship. However, the existence of these circumstances does not preclude separation because of dependency or hardship provided the application meets the criteria in aabove.

(1) Normal pregnancy of a Soldier's wife is not a condition for which his separation is justified.

(2) Undue hardship does not necessarily exist solely because of altered income, separation from family, or the inconvenience normally incident to military service.

c. Conditions of dependency or hardship.

(1) Dependency. Dependency exists when, because of death or disability of a member of a Soldier's family, other members of his or her family become principally dependent on him or her for care or support to the extent that continued membership and service on AD, FTNGD, or ADT, would result in undue hardship.

You can read all of the regulations here:

http://www.usapa.army.mil/pdffiles/r135_178.pdf

Consider getting help in putting your ducks in order, and pulling together the documents and written statements you will need. The Army Regs say:

Application for separation. A Soldier must submit a written application to be separated because of dependency or hardship. A request for separation will be submitted as follows:

(1) An ARNGUS Soldier, or USAR Soldier assigned to a TPU or IMA duty position, must submit a written application to the unit commander who will immediately forward it with recommendations and Soldier's records through channels to the separation authority (para 1-10) for final action.

(2) A Soldier assigned to the IRR, Standby Reserve, or Retired Reserve, must submit a written application to the Commander, HRC-St. Louis, ATTN: AHRC-PAR,XXXXX St. Louis, MONNN-NN-NNNN The Chief, Regional Personnel Actions Division, will immediately forward it with recommendations and Soldier's records through the Director, Personnel Actions and Services Directorate, and Director, Enlisted Personnel Management Directorate, to the Commander, HRC-St. Louis (para 1-10b(1)) for final action.

e. Evidence required. The evidence required for dependency or hardship separation will normally be in affidavit form. The evidence must substantiate dependency or hardship conditions on which the application for separation is based.

(1) The evidence will include affidavits or statements submitted by or in behalf of the Soldier's dependents and by at least two disinterested persons or agencies having firsthand knowledge of the circumstances. If dependency or hardship is the result of disability of a member of the individual's family, a physician's certificate should be furnished showing specifically when such disability occurred, the nature thereof, and prognosis for recovery. There also will be furnished the names, ages, occupations, home addresses, and monthly incomes of other members of the applicant's family. The affidavits of disinterested individuals and agencies should include reasons within their knowledge that these members of the family can or cannot aid in the financial or physical care of the dependents concerned for the period the Soldier is to continue membership or is ordered to AD, FTNGD, or ADT. When the basis for the application is the death of a member of the Soldier's family, a death certificate or other proof of death should be furnished.

(2) If the basis for the application is parenthood of either a sole parent or a married oldier, the supporting evidence will be in affidavit form and will substantiate the applicant's claim that unexpected circumstances or circumstances beyond his or her control have occurred. These circumstances prevent fulfillment of military obligations without resultant neglect of the child. Affidavits from the Soldier's immediate commander and officer who is the job supervisor will be considered sufficient. Evidence in (1) above is not required for these applications; however, sole parenthood resulting from divorce or legal separation will be substantiated by a judicial decree or court order awarding child custody to the Soldier.

f. Procedures. On receipt of a written application with required supporting evidence, the separation authority will-

(1) Consider carefully the facts on which the request is based.

(2) Obtain any other information that may be necessary to determine the validity of the request.

(3) Take final action to approve or disapprove the application.



Please let me know if you have further questions; if so I will do my best to answer them. If not please hit the green accept button, its the only way I get paid.










Customer: replied 6 years ago.

I'm not totally understanding the hardship part.... But I do understand the Conscientous Objector part. Ever since I enlisted I was "Motivated" and "Dedicated" through basic training, but when I started to see what the real army is after going through 2 A.I.T.'s and arriving at my duty station. I do not support the Army to the full extent that everyone thinks I should. It's not anything having to do with pay or where I'm living, but merely by what everyone thinks of the U.S. when you're outside the country, and looking at all the videos posted by soldiers in Iraq and what they do... It's a crime.

 

The war is a crime and I do not support it mainly because it's Illegal.

 

6 of the U.S. Constitution says that any treaties signed by the United States becomes part of the supreme law of the land. In other words, ever since the United States signed the United Nations Charter back in 1945, our nation has been legally bound under international and domestic law to obey all articles of the Charter of the UN. This is why it's so important to study the Charter - many people don't realize that a violation of the Charter is also a violation of the U.S. Constitution.

So what does the UN Charter say about war? Well, first of all the Charter condemns the use of force, by any nation. Participating in armed conflict is illegal in all but two situations.

The first exception is that a country can defend itself if it's attacked by another country. The logic of this 'self-defense' exception is, I think, pretty self-explanatory.

The second exception is that a country may legally use force if the UN Security Council authorizes it. The Security Council system was created in order to discourage a rogue nation from using violence as a means of achieving its own interests, without regard for the rest of the international community. Makes sense?

So let's examine the first one - was the U.S.-led invasion of Iraq a legitimate act of self-defense?

After the September 11, 2001 attacks on the World Trade Center and Pentagon, President George W. Bush and senior members of his administration repeatedly told the American public that attacking Iraq was the right thing to do for various reasons, the two most important ones being:

Number One: Iraqi leader Saddam Hussein had close ties with Osama bin Laden and was actively funding and sheltering Al-qaeda terrorists. True? No. A careful review and analysis by the bipartisan 9/11 Commission concluded that this allegation was in fact false.

Number Two: The Bush Administration claimed that Saddam Hussein had 'weapons of mass destruction' at his disposal - chemical, biological, and possibly even nuclear weapons - and that he was ready to use them. Was this true or false? Well, this also turned out to be false - it is now widely accepted that this claim was completely untrue.

Okay, but what about before the invasion started? Isn't it possible that President Bush and his most trusted advisers really did believe that Iraq posed an imminent threat to the U.S. at the time?

Well, it's possible... but... 'probably not'. Documents such as the infamous Downing Street Memo, for example, provide a glimpse unto how and why the Bush administration was quite willing to systematically distort or misrepresent intelligence information in order to have them conform to their desires. Of course the primary goal was to increase public support for the invasion they wanted. Other documents show that the U.S. government had planned to overthrow Saddam Hussein's government even before the attacks on 9/11, in order to gain access and control to Iraq's vast oil fields - the second or third largest in the world, greater than all the oil in the U.S., the North Sea, China, the Caspian Sea, and West Africa all combined. Military and political analysts also note that overthrowing Iraq's government was something the Bush Administration wanted so that they could extend the range of permanent U.S. military bases in the Middle East - something the State Department has coveted for at least 50 years. So to summarize, it appears highly unlikely that decision-makers at the highest levels of the White House seriously thought of Iraq a real threat to national security.

Any way you look at it, the U.S.-led war in Iraq cannot be justified as a matter of self-defense. There is nothing in the Charter of the UN that says a nation may attack another 'preemtively'. In other words, you can't legally start a war in order to prevent one you think might happen.

The Nuremberg Trials, held at the conclusion of World War II in order to prosecute the Nazi leadership for war crimes, established guidelines for defining 'crimes against peace', which include the initiation or waging of a war of aggression - "the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole." (International Military Tribunal at Nuremberg) Under the established principles, the war in Iraq, initiated by the U.S. in 2003, is a war of aggression, whether or not we choose to call it "Operation Iraqi Freedom". The political and military leaders who initiate and wage wars of aggression, are, by definition, war criminals. If we have time we'll talk briefly about the implications of the United States being run by a group of war criminals at the end of this episode.

Back to our original question - the second condition - Did the UN Security Council ever authorize the use of force against Iraq?

This question is much easier to answer - the answer is 'no' . The Bush Administration did attempt to convince the UN Security Council that it should authorize the use of force against Iraq. They did this because only the Security Council has the authority to enforce the resolutions of the charter. If the Security Council had authorized the use of force, the invasion would have been considered legitimate - i.e., legal - under international law. But when the UN wasn't swayed by the so-called evidence, the U.S. went ahead with the invasion anyway. This was an obvious violation of the Charter of the UN, prompting UN Secretary-General Kofi Annan to famously state: "I have indicated it [the invasion] was not in conformity with the UN charter... From the charter point of view, it was illegal."


I'm going to try to keep this term paper as compact and to-the-point as possible - so in this section I'm just going to run down this list of some of the other known, documented violations of international law committed by the United States in the specific case of Iraq. We're leaving out all the illegal activities done by our government under the umbrella term "War on Terror" - in Afghanistan, at Guantanamo Bay, ghost detainees and black sites, and stuff like that. This is just in Iraq, okay?

  • Torture and inhuman treatment of detainees in U.S. custody, not only at Abu Ghraib but at locations throughout Iraq. These are war crimes under the Geneva Conventions and U.S. War Crimes Statute.


  • Executions without trial - at Haditha and elsewhere: these are also war crimes.

  • Unlawful and indefinite detention without charges or trial is a war crime.

  • The transfer of Iraqi captured out of the country, as well as hiding them from oversight agencies such as the International Red Cross are war crimes.

  • The indiscriminate bombing and killing of civilian populations, both during the invasion and continuing to the present occupation, is a crime against humanity.

  • The systematic use of terror and threats by the U.S. military upon the civilian population, in order to achieve any objective - strategic or otherwise - is a crime against humanity.

  • Inhumane acts committed against civilian populations by an occupying force, such as the willful denial of water, food, electricity, and medicines such as in Tall Afar, Samarra, Fallujah, Najaf, and other areas, are violations of the Forth Geneva Convention. Policies such as these constitute a crime against humanity.

  • The deliberate destruction of hospitals by the U.S. military as a form of collective punishment is a crime against humanity. Likewise, keeping critically injured civilians from seeing doctors and shooting at ambulances are also crimes against humanity.

  • Ever heard of Babylon? Assyria? Mesopotamia, the Cradle of Civilization? The Garden of Eden? Well, all these places are also present day Iraq. The reckless destruction of world heritage sites and the failure to adequately protect Iraqi national treasures from antiquity is tantamount to cultural genocide. The Hague Convention for the Protection of Cultural Property defines such acts as violations of international law.

  • The massive exodus of over a million Iraqi refugees from their mother country, in addition to the millions of Iraqis still inside Iraq displaced by violence and destruction brought upon by the American occupation of their country, are clear affronts to international humanitarian law.

  • Immediately after seizing control of the country in 2003, the U.S. has moved swiftly to radically transform the Iraqi economy, including the mass 'privatization' of Iraqi state-owned assets - electric companies, communications companies, the pharmaceutical industry, transportation sectors - everything. U.S. corporations may now enjoy up to 100% ownership of Iraqi companies and are free to send all profits back to their investors here in the United States and elsewhere. And of course there is also the small matter of who gets to profit from controlling Iraq's immense oil fields - a prize potentially worth trillions over the next thirty years. This economic colonization of Iraq is a grave violation of international law - specifically the Hague Conventions of 1907.


This is only a partial list, but I think even an incomplete list like this one hints at the extreme lawlessness and suffering that now dominates everyday life in Iraq under U.S. occupation.

I suspect that most Americans are actually largely unaware of most of these violations of international law. Or it could be that maybe we try not to think about it because as Americans, deep down we know we are all complicit in what happens in Iraq.

We are connected to what's happening in Iraq not only through the actions of the politicians we choose to elect. Our connection is affirmed every time we buy a gallon of gasoline, drive a car, or turn on a light bulb.

The final verdict? Illegal. Based on the analyses of experts, together with the various facts we collected during the course of research, all of us should agree that the U.S. invasion of Iraq was illegal. The occupation, still ongoing, also violates many articles of international law.


Okay, so... now what? The U.S. invasion and occupation of Iraq may be illegal under international law, but what does that really mean? What are the implications of such a thing? Well, this leads us to a few questions. Answering them all is beyond the scope of this particular episode, but these are some of the things we're thinking about at the moment.

Number One. Since the U.S. invasion of Iraq is considered a War of Aggression - the "supreme international crime" - doesn't that make some or all the government people who started the war, war criminals?

Number Two. What about U.S. troops serving in Iraq? Both the Nuremberg Principles and the U.S. Army Field Manual specify that "I was just following orders" is not a legitimate defense for the commitment of war crimes, even when the activity was directly ordered by a superior. Does that make some or all these soldiers war criminals?

Number Three. What are the long term consequences of the United States' ongoing violation of international laws and the undermining of basic principles of justice? Who will take our calls for human rights or economic justice seriously when we ourselves are guilty of such grave transgressions? Should we just expect to see more 9/11s? And can we really be shocked when the world responds with indifference because, after all, we "had it coming"?

Some of you now might be thinking something like: "If this stuff is so obviously illegal, how is it possible for it to continue? Or... What does international law mean if there's no enforcement of it?"

Well, at this particular moment in history, America is clearly the most powerful country in the world. And to be realistic, it's very difficult for other countries to force the U.S. to comply with international law. It could very well be that the only people who can force the U.S. government to conform to internationally agreed-upon standards of justice is the U.S. people themselves.


It's my opinion that because the U.S. is so powerful, we actually have a greater obligation to use whatever influence we have to always work towards justice and peace. Using power and influence to fulfill the imperial desires of a small ruling elite will only be seen by the rest of the world for what it is - an abuse of power.

[ quote: "America will never be destroyed from the outside. If we falter, and lose our freedoms, it will be because we destroyed ourselves." -Abraham Lincoln ]


"As of today - August 22, 2008 - the Iraq Body Count project reports between 64,000 and 70,000 Iraqi civilian deaths. This figure only includes violent deaths to civilians reported on by various media sources. As perhaps the majority of civilian deaths are never reported by the media, these figures are widely assumed to be "underestimates".

A far more comprehensive study by the British medical journal The Lancet published in October 2006 estimated the total number of Iraqi deaths caused by the war at approximately 655,000 people.

The U.S. government does not keep records of Iraqis killed as a result of the war."

 

So here's a question I hope to find easy to you..."How do I just get out legally?"

 

I appreciate the answer given above.... But a clarification of a Consciencous Objector or any other than dependency would be appreciated, and I will pay you if given a better clarification

Expert:  P. Simmons replied 6 years ago.
OK

Again, the best way is hardship, as the path to CO is a difficult one.

That said

In the United States, there are two main criteria for classification as a conscientious objector. First, the objector must be opposed to war in any form, Gillette v. United States, 401 U.S. 437. Second, the objection must be sincere, Witmer v. United States, 348 U.S. 375. That he must show that this opposition is based upon religious training and belief was no longer a criterion after cases broadened it to include non-religious moral belief, United States v. Seeger, 380 U.S. 163 and Welsh v. United States, 398 U.S. 333. COs willing to perform non-combatant military functions are classed 1-A-O by the U.S.; those unwilling to serve at all are 1-O.

The process start with filling out DD Form 4187.
Your admin shop can provide one or there is one here
http://www.apd.army.mil/pub/eforms/pdf/a4187.pdf

You can find the regulation here:

http://www.usapa.army.mil/pdffiles/r600_43.pdf

Read the entire regulation. TO be granted, the application must be based on deeply held belief...and you will have to explain how, in spite of this belief you enlisted in the first place.



I also recommend you look here:

http://www.geocities.com/CapitolHill/6181/applic.htm


The points you make above a valid. If you are willing to fight for this one and to "go thru the process" I suspect that you will in the end meet success


Please let me know if you have further questions; if so I will do my best to answer them. If not please hit the green accept button, its the only way I get paid.





P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 27143
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
P. Simmons and other Military Law Specialists are ready to help you
Customer: replied 6 years ago.

What's the average process of a hardship discharge?

Expert:  P. Simmons replied 6 years ago.
Well, you need to have the basis. That is a hardship that will qualify. If you can meet this, its a couple of months typically.

But, you need to establish the hardship

The CO route will be longer...many months I suspect

I guess the last bit of advice I have is to attempt to get an honorable discharge. My practice I help people in the military with their problems...I estimate over 1/2 the calls I get are people that want to upgrade a discharge they received years back...it limits them from many opportunities if they do not get an honorable discharge...just like it opens many doors if you do

Best of luck and thanks for the accept

Customer: replied 6 years ago.
One more quick answer, sorry it's taking to long, but I'm a single 19 year old with no dependents. What kind of harship option is open for me then?
Expert:  P. Simmons replied 6 years ago.
Look here

http://www.usapa.army.mil/pdffiles/r135_178.pdf

And read chapter 6, hopefully you can find a criteria to apply for



Customer: replied 6 years ago.
K. Thank you for your time and service.
Expert:  P. Simmons replied 6 years ago.
Welcome

Best of luck

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