We do not know whether DoD’s implementation of a potential new ban will
involve investigations or interrogations. But it’s possible. Here’s what you should know
to prepare for that possibility. Article 31, U.C.M.J., protects against compulsory self-incrimination. This provision contains several rights and protections:

• You cannot be compelled to incriminate yourself (you have the right to remain silent)
• You cannot be compelled to answer questions that may tend to incriminate you
• If you are being accused of an offense, you must be advised of the nature of the accusation against you, that you do not have to make a statement, and that any statement you make can be used against you

Although it is not expressly set out in Article 31, U.C.M.J., if you are being
accused of an offense or being processed for involuntary administrative separation, you
also have the right to military defense counsel to represent you and be present during
any questioning.

Keep these rights (and others, discussed below) in mind in case you navigate
this new reality.

If you are an active-duty service member and the Department of Defense seeks to discharge you for your gender identity, the military must follow detailed procedures throughout the AdSep process, and it must respect certain important rights of each service member.^[1] While you may not be able to prevent discharge entirely, knowing and enforcing your rights can compel the military to follow all required procedural steps and preserve your appellate rights before a record correction board or a federal court, should you decide to pursue these options. 

While governed under separate DoD directives, the procedures and rights of enlisted service members and commissioned officers are similar.^[2] If you are an enlisted service member or a probationary officer with less than six years of service, you are initially entitled only to “notification procedures” when discharge is characterized as Honorable or General. If you are an enlisted service member or a non-probationary officer with six or more years of service, or considered for discharge with an Other Than Honorable characterization, you are entitled to a hearing before an administrative separation board (enlisted) or Board of Inquiry (officer)^[3]

^[1] DoD establishes policy, assigns responsibilities, and provides procedures governing administrative separation across all branches. Specific regulations, however, may vary slightly depending on the service branch. See DAFI 36-3211, https://static.e-publishing.af.mil/production/1/af_a1/publication/dafi36-3211/dafi36-3211.pdf (Air Force); COMDTINST M1000.4, https://www.dcms.uscg.mil/Portals/10/CG-1/PPC/PPPM/TTP/3PM%20TTP%20-%20Chapter%203.pdf (Coast Guard); MCO 1900.16, https://www.marines.mil/portals/1/Publications/MCO%201900.16%20CH%202.pdf?ver=2019-02-26-080015-447 (Marine Corps); NAVPERS 15560D, https://www.mynavyhr.navy.mil/References/MILPERSMAN/ (Navy, Enlisted); SECNAVINST 1920.6D, https://www.secnav.navy.mil/doni/Directives/01000%20Military%20Personnel%20Support/01-900%20Military%20Separation%20Services/1920.6D.pdf (Navy, Officers); AR 635-200, https://www.armywriter.com/AR635-200.pdf(Army, Enlisted); AR 600-8-24, https://armypubs.army.mil/epubs/DR_pubs/DR_a/pdf/web/ARN3140_AR600-8-24_FINAL.pdf (Army, Officers). 

^[2] See Department of Defense Instructions (DoDI) 1332.14, Enlisted Administrative Separations (Aug. 1, 2024), https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/133214p.pdf; DoDI 1332.30, Commissioned Officer Administrative Separations (May 11, 2018), https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/133230p.pdf.

^[3] The requirement of six years of “active commissioned service” is particularly critical for officers who were prior enlisted. The officer’s prior enlisted service does not count toward active commissioned service time.

You have a right to be notified, in writing, that separation has been recommended.

You have a right to be counseled and to be given an opportunity to “correct deficiencies” before AdSep begins.

You have a right to consult with an attorney.

You can consult with a military lawyer, free of cost. You also have the right to consult with or hire civilian counsel.

You have the right to submit statements on your own behalf.

These statements can include: evidence that supports your case, a personal statement, statements of good duty performance, awards, certifications of appreciation, and letters from family and friends. 

You have the right to obtain copies of documents used in support of the separation recommendation.

You may withdraw an unconditional waiver of your rights until the separation authority orders, directs, or approves your separation. 

RE-4 indicates the member is not eligible to re-enlist.

(3) Apply for an extension to remain in government quarters for up to 180 days.

You have the right to an administrative discharge board if you are considered for discharge with an Other Than Honorable Conditions (OTH) characterization of service (see below). 

^[1] Department of the Army, Administrative Separation (Chapter) Information,https://home.army.mil/novosel/download_file/view/412/725

The Separation Authority makes the final decision but cannot do anything less favorable to you than the Board recommended.

You have the right to appear in person.

You have the right to be represented by a military lawyer or another military lawyer you might request (if that lawyer is reasonably available), both at no cost to you.

You could also hire a civilian lawyer, at no cost to the Government.

You have the right to obtain copies of all documents that will be forwarded to the Separation Authority.

You have the right to make arguments to the Board or choose to remain silent.

You have the right to request the attendance of witnesses and to question any witness who appears before the board.

You have the right to challenge any voting member of the board for cause.

If the Separation Authority turns down your proposal, you still have the right to a Board.

You have the right to consult with an attorney on whether to pursue a Conditional Waiver.

^[1] The term “minority group” means “a segment of the population possessing common traits by descent or common characteristics and a cultural heritage significantly different from that of the general population.” See MILSEP Article 1.B.1.f.(14), https://www.dcms.uscg.mil/Portals/10/CG-1/psc/psd/docs/EPAB%20(Change%201%20Jul%202018).pdf?ver=2018-08-10-081347-997.

There are three possible characterizations of discharge under AdSep: (1) Honorable (HON), (2) General (GEN), or (3) Other Than Honorable (OTH).^[1]

Honorable (HON):

• The majority of service members exit their service with an honorable discharge.
• Honorable discharge applies to those service members that did their assigned job in a diligent and competent manner, followed the rules, and obeyed the law.
  • A letter of reprimand or other minor infraction usually does not prevent the service member from receiving an honorable discharge.
• Service members facing involuntary separation can still qualify for an honorable discharge. 
• Honorable status entitles the veteran to all veteran benefits for which one has met the other benefit qualifications (such as a service-connected disability).
  • Benefits may include: hiring preference for federal jobs, GI Bill for education, home loan assistance, VA medical benefits, disability compensation, retirement pay, burial benefits, and state or local benefits such as property tax credits or special license plate.
• Veterans with an honorable discharge may seek to reenlist if they want to continue a military career.
  • If you are involuntarily discharged, however, you may be subject to a waiting period before you are eligible to reenlist.
  • The Separation Authority may direct that you serve the rest of your obligated time in a Reserve status.

General (GEN):

• A general discharge characterization is appropriate in circumstances where there was something that prevented the service member from performing their job adequately or from meeting expected standards of conduct.
• A general discharge still affords the veteran access to most veteran’s programs, provided they meet specific program eligibility criteria.
  • Veterans with a general discharge still have veteran’s hiring preference for federal jobs and, in some instances, may be eligible for VA medical coverage, disability compensation benefits, and state or local veterans benefits.
  • However, they cannot reenlist and do not have eligibility for the GI Bill for education.
• How much a general discharge affects the individual’s future may depend on the reason listed on the Form DD-214.
  • When a job applicant claims to be a veteran, the employer can ask to see their DD-214 and see the reasons for the discharge. 
• You may apply to your respective Discharge Review Board or Board for Correction of Military Records to upgrade your discharge.

Other Than Honorable (OTH):

• Other Than Honorable discharge is generally used when the service member’s conduct results in punishment for violation of the Uniform Code of Military Justice (UCMJ).
  • Security violations, arrest and conviction by civilian authorities, assault, abuse of authority, and drug violations are all examples of the type of conduct warranting an Other Than Honorable discharge.
• Before you can be given an OTH, individuals have the right to have their case heard by an administrative separation board.
• Having an OTH discharge on their DD-214 means the service member will not generally be entitled to veteran’s benefits and will not be eligible to reenlist.
  • VA may, but need not, conclude that one’s service was “honorable for VA purposes” even when one receives an OTH, rendering one eligible for disability compensation, health care, or other benefits.
  • Some states, such as NY and CT, provide state veterans benefits to some persons who receive an OTH discharge.
• Although an OTH is considered an administrative rather than a punitive discharge, it may have consequences in civilian life.
• You may apply to your respective Discharge Review Board or Board for Correction of Military Records to upgrade your discharge.

^[1] Types of Military Discharge and What they Mean for Veterans, Law For Veterans, https://www.lawforveterans.org/work/84-discharge-and-retirement/497-military-discharge#:~:text=Honorable%20Discharge&text=This%20means%20they%20did%20their,leaving%20with%20an%20honorable%20discharge.

Service members have the right to appeal a discharge decision.^[1] Below are possible appeal routes. 

Discharge Review Board:

• You have the right to appeal your discharge decision to your respective Discharge Review Board (DRB).
  • Request for review must be made within 15 years of the discharge or dismissal.
• There are two grounds for upgrading a discharge:
  • (1) Propriety – requesting change in discharge due to an error in the application of a regulation, statue, constitutional provisions or other source of law.
  • (2) Equity – requesting change in discharge in order to “ensure fundamental fairness,” such as (1) the policies and procedures under which you were discharged differing in material respects from those currently applicable on a service-wide basis, (2) the discharge being inconsistent with the standards of discipline in the military service of which you were a member at the time of issuance; (3) your exemplary service record and other evidence presented to the Review Board; or (4) your capability to serve (i.e., age, educational level and aptitude score, family and personal problems, capricious actions, or discrimination).
• The burden of proof to show either impropriety or inequity rests with the applicant. 
  • You have to provide sufficient evidence of probable material impropriety or inequity.
  • Absent evidence to the contrary, the DRB will presume that the military record was appropriate and in compliance with service regulations.
• If you want to challenge your reason for discharge rather than the discharge characterization, you should specifically note that on the application and provide documents to support the assertion.
  • If you fail to do this, the DRB may assume you are applying for an upgrade of the characterization of your discharge only.
• There are two types of reviews:
  • (1) Panel Hearing – a review involving an appearance before a 5-member DRB, with an opportunity to present witnesses and legal argument and to answer questions. A veteran may choose one of three formats for a Panel Hearing: 
    • By statute, all DRBs must also afford an opportunity for an in-person panel hearing, held in the Washington D.C. metro area. You must pay your own travel expenses, and those of your counsel (if any).
    • The DRBs of some service branches offer panel hearings by audio- or videoconference, avoiding the need to travel to Washington, DC.
    • Finally, one may opt for a traveling panel hearing – a review involving an appearance before the DRB at the regional location you request by you and/or your counselor representative. The traveling panel holds reviews at each regional location approximately 1 time each year. You must pay your own and your counsel’s travel expenses.
  • (2) Record Review – a review of the application, available service record, and documents submitted by you or on your behalf.
    • There is no personal appearance by your and/or your counsel or representative.
  • Importantly, those denied relief on a Record Review may subsequently request a Panel Hearing. The reverse is not true, however, as those denied relief at a Panel Hearing may not thereafter request a Record Review.
• You are entitled to reapply to the DRB for reconsideration.
  • One common reason to request reconsideration is due to newly discovered evidence. When applying for this reason, you must show new, substantial and relevant evidence that was unavailable at the time of a previous review.
  • Other reasons for reconsideration may include, but are not limited to, representation by a counselor representative on your behalf when your previous application did not involve such representation and retroactive changes in discharge policies that are announced after your earlier review.

Board for Corrections of Military Records:

• If previously denied by a DRB, or if you were separated more than 15 years ago, a former service member may also appeal your discharge decision to your respective Board for Corrections of Military Records (BCMR).
  • The BCMR has broad statutory authority to change any military record to correct an error or remove an injustice, including the ability to order reinstatement, duty, or retirement status.
• You must request a review by the BCMR within three years after the discovery of the error or injustice.
  • The Board may excuse failure to file within three years in the interest of justice. In recent years, the Boards have routinely approved consideration of applications filed after more than three years, in the interest of justice.
• You should exhaust all other available administrative remedies before applying to the BCMR.
  • The BCMR will generally consider your application only after you have tried other available avenues of appeal, including application to the relevant DRB.
  • The Board will return the application if you have not first sought relief through the appropriate administrative process.
• Similar to DRBs, the burden of proof to show either an error or injustice rests with the applicant.
• You have the right to request a personal appearance before the Board, but unlike with the DRBs, you are not entitled to a hearing. In recent years, BCMRs have almost never granted requests for an in-person hearing.
• You may apply for reconsideration to the Board if you submit relevant evidence that was not considered with the previous application.

Discharge Appeal Review Board:^[2]

• You have the right to appeal an unfavorable decision from a BCMR to the Discharge Appeal Review Board (DARB), the highest administrative level of review for a discharge upgrade request.
  • You must have been denied relief from your DRB and BCMR before applying to the DARB.
• The DARB is a document review board with no provision for personal appearances.
  • Only records from the existing case file will be reviewed.
• If you wish to present new evidence, you must first submit a reconsideration request to, and receive a decision from, your respective BCMR before that new evidence can be considered.
• If the DARB recommends that your service characterization be upgraded, the recommendation will be transmitted to the Secretary of the Military Department for final action.
• The Military Department Secretary will approve the recommendation for upgrade unless they find that the recommendation is not supported by the preponderance of the evidence.

Federal Court:

• You have the right to appeal an unfavorable decision from a DRB, BCMR, or the DARB to federal court.
• The Court of Federal Claims possesses authority to reinstate service members through the Tucker Act.
  • You must ground your claim in a monetary entitlement, such as backpay and allowances during the period of erroneous separation.
• Military discharge decisions are also subject to judicial review in federal district courts pursuant to the Administrative Procedure Act (APA).
• A successful petition for reinstatement will erase the erroneous separation from a service member’s records.

^[1] DoD Directive 1332.41, Boards for Correction of Military Records (BCMRs) and Discharge Review Boards (DRBs) (Mar. 8, 2004), https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/133241p.pdf

^[2] DoD DTM 23-006, DoD Discharge Appeal Review Board (May 5, 2023), https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dtm/DTM%2023-006.PDF?ver=7aEr62ZCkv7ahiwZ8CnoQw%3D%3D;32 C.F.R. Part 73 (Nov. 29, 2024), https://www.federalregister.gov/documents/2024/11/29/2024-27268/dod-discharge-appeal-review-board.

The choice is yours. Risks will depend on the wording of anticipated changes to policy. If there is a partial ban, the risks to coming out will be different from a total ban. Take into consideration all the risks of both coming out and of not coming out, then make an informed decision. Further clarity will come if and when additional executive or legislative action is taken.

First and foremost, your rights to medical care and access surgeries remain. We continue to make it a priority to ensure we have access to medical care and will always fight to simplify the process. If you are waiting for packets and paperwork to get approved for access to HRT or surgery, continue to push. If you are told that they are holding out until after the inauguration, make the appropriate complaint as necessary through patient advocacy, then ICE or IG as deemed appropriate.

Be aware, if an Executive Order is unable to ban all transgender service members, there may still be efforts to block access to bathrooms, facilities, or medical care. Expect pushbacks from commands, leaders, and states. Many providers will still hold on to their Hippocratic oath to get you the care you need.

As of now, there is no ban on accessions for the U.S. Military for transgender people. See this guide for answers to commonly asked questions, and consider connecting with SPARTA Trans Future Warriors for support.