Every now and then I get a question about whether and when it is OK for an employer to ask a veteran about his/her military service and the type of discharge he/she received. This blog will focus on EMPLOYING a veteran (as opposed to re-employing a National Guard or Reserve member after a period of military leave; the standards are slightly different.)
In a nutshell:
- You CAN ask someone whether they have served in the US military
- You CAN ask for the dates of their employment in the military
- You CAN ask if they are willing to self-identify as one of several protected classes of veteran
- You CAN ask about the type of discharge received HOWEVER you had better have a good business reason for doing so, otherwise it is advisable NOT to ask for type of discharge.
State and Federal Equal Employment Opportunity (EEO) laws do not prohibit you from asking about the type of discharge. However, asking a veteran to reveal the nature (“characterization of service” in military parlance) of their discharge is considered private information, similar to asking someone “what kind of a disability do you have?”
So, in terms of hiring a veteran, in what instances would it be appropriate to ask about the characterization of service?
One example: if the position requires the employee to obtain a security clearance.
Another example: There are a number of companies making significant commitments to hire veterans. As this is essentially creating a “veteran preference” (similar to what government agencies offer), the employer can set the criteria for this preference within legal limitations. The employer has a justified business reason for offering this preference to a specific demographic (in this case, veterans) as this demographic has documented challenges with finding employment. So, the employer can set the criteria for this veteran preference as an honorable discharge or a favorable discharge.
What are the types of discharges? Here is a table to help you see the differences:
|Types of Military Discharges|
|Honorable||Favorable||The gold standard is the honorable discharge, which the majority of veterans will receive. It means they have met or exceeded the standards for professional and personal conduct in the military.|
|General Under Honorable Conditions||Favorable||This discharge means the veteran did not meet all of the administrative criteria for exemplary service. The military has different standards of conduct that do not apply in the civilian world. For example, in the military a person can be let go because he/she:
Any of the above situations (and others) would be/could have been considered not fully meeting the military’s standards of personal conduct, but would not prevent a civilian from obtaining employment.
|Other than honorable (also known as OTH)||Typically unfavorable, but depends on your employment criteria||The veteran may have been dismissed for infractions such as fighting/physical altercations, DUI, drug use or possession (not a comprehensive list, but some of the most common reasons)A person with an OTH discharge will not be able to obtain a security clearance.|
|Uncharacterized||N/A||This is an entry level separation generally given when the person has spent less than 180 days in the military. Disability may or may not be a factor.|
|Bad conduct (also known as BCD)||Unfavorable||For either of these, the discharge comes as a result of a court-martial and often after a period of confinement. The veteran would have been part of a case involving desertion, security violations, embezzlement, use of violence, murder, sexual assault, etc.A person with a BDC or dishonorable discharge will not be able to obtain a security clearance.|
My advice: if you are going to set criteria for a veteran preference, consider making it a “favorable” discharge (which encompasses both honorable and general under honorable conditions) rather than only honorable.
If you are thinking, “Well, I won’t ask the question directly, but I will, as part of background screening, verify the type of discharge”, know that you do have to obtain the veteran’s permission to verify the nature of the discharge. This is not something you would do indiscriminately, just as you would not conduct extensive financial background checks on someone who is not being considered for a job that has significant financial responsibilities. A veteran’s military service record is not considered public information, so you must have a valid reason to ask for it and you must have the veteran’s permission to obtain information from it.
If you are going to ask about the characterization of service, I would indicate on whatever form (electronic or paper) you are currently using to ask for permission to conduct background screening that one of the screening elements will be whether the applicant has an honorable discharge (or favorable discharge) from the US Military.
If your company uses a 3rd party vendor to conduct its employee background screening, confirm that they offer military service record verification. Many screening companies will confirm whether someone has served in the military, but verifying the characterization of service is a different process, which involves asking to see a veteran’s DD-214 (“Certificate of Release or Discharge from Active Duty”). Presuming your vendor does offer this type of verification, what you want them to confirm is “does this applicant have an ‘honorable/favorable’ discharge” (depending on the criteria you set)? This should be a YES or NO answer – the less you know about the specific type of discharge, the better.
If you conduct your background screening in house, your screeners need to know how to read a DD-214. I have written a paper that describes HOW to read a DD-214, what to look for, what to ignore and which copy of the DD-214 to ask for to obtain the info you seek. Click here to request a copy of “How to Read a DD-214”. Know that neither an employer nor a background screening company can obtain a copy of the veteran’s DD-214 without the veteran’s written permission.