U.S. Code
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Title 10
» Subtitle Subtitle A— General Military Law › Part PART II— PERSONNEL › Chapter CHAPTER 59— SEPARATION
10 U.S.C. § 1168
Discharge or release from active duty: limitations
(a) A member of an armed force may not be discharged or released from active duty until his discharge certificate or certificate of release from active duty, respectively, and his final pay or a substantial part of that pay, are ready for delivery to him or his next of kin or legal representative.(b) This section does not prevent the immediate transfer of a member to a facility of the Department of Veterans Affairs for necessary hospital care.(Added Pub. L. 87–651, title I, § 106(b), Sept. 7, 1962, 76 Stat. 508; amended Pub. L. 101–189, div. A, title XVI, § 1621(a)(4), Nov. 29, 1989, 103 Stat. 1603.)Historical and Revision NotesThe new section 1168 of title 10 is transferred from section 1218(a) and (c) of title 10 as being more appropriate in the chapter on separation.
Editorial NotesAmendments1989—Subsec. (b). Pub. L. 101–189 substituted “facility of the Department of Veterans Affairs” for “Veterans’ Administration facility”.
Statutory Notes and Related SubsidiariesMachine Readability and Electronic Transferability of Certificate of Release or Discharge From Active Duty (DD Form 214)Pub. L. 116–92, div. A, title V, § 569, Dec. 20, 2019, 133 Stat. 1397, provided that:“(a)Modification Required.—The Secretary of Defense shall modify the Certificate of Release or Discharge from Active Duty (DD Form 214) to—“(1) be machine readable and electronically transferable; and“(2) include a specific block explicitly identified as the location in which a member of the Armed Forces may provide one or more email addresses by which the member may be contacted after discharge or release from active duty.“(b)Deadline for Modification.—The Secretary of Defense shall release a revised Certificate of Release or Discharge from Active Duty (DD Form 214), modified pursuant to subsection (a), not later than four years after the date of the enactment of this Act [Dec. 20, 2019].“(c)Report.—Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit a report to Congress regarding the following:“(1) What systems of the Department of Defense require an individual to manually enter information from DD Form 214.“(2) What activities of the Department of Defense require a veteran or former member of the Armed Forces to provide a physical copy of DD Form 214.“(3) The order of priority for modernizing items identified under paragraphs (1) and (2) as determined by the Secretary.“(4) The estimated cost, as determined by the Secretary, to automate items identified under paragraphs (1) and (2).”
Modification of Certificate of Release or Discharge From Active Duty (DD Form 214)Pub. L. 110–181, div. A, title V, § 596, Jan. 28, 2008, 122 Stat. 139, provided that: “The Secretary of Defense, in consultation with the Secretary of Veterans Affairs, shall modify the Certificate of Release or Discharge from Active Duty (DD Form 214) in order to permit a member of the Armed Forces, upon discharge or release from active duty in the Armed Forces, to elect that the DD–214 issued with regard to the member be forwarded to the following:“(1) The Central Office of the Department of Veterans Affairs in the District of Columbia.“(2) The appropriate office of the Department of Veterans Affairs for the State or other locality in which the member will first reside after such discharge or release.”
Notes of Decisions
Cited in
80
cases (
7 in the last 5 years), 1973–2026 · leading case:
United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008).
United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008).
· cites it 37× “Pursuant to 10 U.S.C. § 1168 (a) (2000), a servicemember may not be discharged from active duty until his discharge certificate “and his final pay or a substantial part of that pay, are ready for delivery to him.”
Spehr v. United States, 51 Fed. Cl. 69 (Fed. Cl. 2001).
· cites it 9× “Specifically, the certificate was not accompanied by Spehr’s “final pay” within the meaning of 10 U.S.C. § 1168 . That statute provides that “[a] member of an armed force may not be discharged or released from active duty until his discharge certificate____ and his final pay or…”
Soto v. Commonwealth, 139 S.W.3d 827 (Ky. 2004).
· cites it 4× “However, a DD Form 214 is an official record of a public agency, 10 U.S.C. § 1168 ; 32 C.F.R. § 45.1 , thus, its contents were admissible under the public records exception to the hearsay rule.”
United States v. Steven Green, 654 F.3d 637 (6th Cir. 2011).
· cites it 3× “Although UCMJ does not define the point in time when discharge occurs, courts look to 10 U.S.C. §§ 1168 (a) and 1169 to determine the requirements to effectuate a discharge.”
Matthews v. United States, 750 F.3d 1320 (Fed. Cir. 2014).
· cites it 3× “Matthews argues, as he did before the Court of Federal Claims, that he was never properly discharged from the Navy because the requirements of 10 U.S.C. § 1168 were not followed, and that the Department of Defense Form 214 that the Navy re-issued to him is fraudulent.”
United States v. Harmon, 63 M.J. 98 (C.A.A.F. 2006).
· cites it 4× “” 10 U.S.C. § 1168 (a) (2000). To effectuate an early discharge, there must be: (1) a delivery of a valid discharge certificate; (2) a final accounting of pay; and (3) the undergoing of a “clearing” process as required under appropriate service regulations to separate the member…”
Lowe v. United States, 79 Fed. Cl. 218 (Fed. Cl. 2007).
· cites it 4× “In determining the date that plaintiff was released from active duty, the Court is guided by 10 U.S.C. § 1168 (a) (2006), which states clearly and unambiguously that “[a] member of an armed force may not be .”
United States v. Nettles, 74 M.J. 289 (C.A.A.F. 2015).
· cites it 5× “This is based on a civil personnel statute, 10 U.S.C. § 1168 (a) (2012): A member of an armed force may not be discharged or released from active duty until his discharge certificate or certificate of release from active duty, respectively, and his final pay or a substantial…”
Labonte v. United States, 43 F.4th 1357 (Fed. Cir. 2022).
· cites it 4× “Pursu- ant to 10 U.S.C. § 1168 (a), “[a] member of an armed force may not be discharged or released from active duty until his discharge certificate or certificate of release from active duty, respectively, .”
United States v. King, 27 M.J. 327 (1989).
· cites it 3× “10 USC § 1168 (a). No regular enlisted member of an armed force may be discharged before his term of service expires, except— (1) as prescribed by the Secretary concerned; (2) by sentence of a general or special court martial; or (3) as otherwise provided by law.”
United States v. Cole, 24 M.J. 18 (1987).
· cites it 3× “Relying on 10 U.S.C. § 1168 , he then argues that receipt of the latter certificate, even if fraudulently induced, had no legal effect on the termination of his active-duty status.”
United States v. Howard, 20 M.J. 353 (1985).
· cites it 2× “Discharges are governed by 10 U.S.C. § 1168 (a), which states: (a) A member of an armed force may not be discharged or released from active duty until his discharge certificate or certificate of release from active duty, respectively, and his final pay or a substantial part of…”
— 10 U.S.C. § 1168(a) — 3 cases
United States v. Hart, 66 M.J. 273 (C.A.A.F. 2008).
“Pursuant to 10 U.S.C. § 1168 (a) (2000), a servicemember may not be discharged from active duty until his discharge certificate “and his final pay or a substantial part of that pay, are ready for delivery to him.”
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