Hardship Discharge Law and Legal Definition
In the context of military service, a member may request a separation if their family or dependents are suffering severe financial, physical, or psychological problems. Some examples of hardship, among others, include death of or divorce from a spouse, leaving you the sole parent of a child; disability or death of a parent, leaving others dependent on the member for support; or, a long-term physical or mental illness of a spouse which requires the member's presence at home. To get this separation the member must show that the hardship or dependency is not temporary and has become worse since entering the military.
A complete discharge or separation from active duty and transfer to the inactive reserves may be granted. Alternatively, a "compassionate reassignment" or "temporary duty" closer to home may be granted if the commander decides a separation from duty isn't necessary to relieve the hardship. Different standards apply depending on the type of service, so specific regulations and guidance should be consulted.
The military has strict standards for hardship and dependency discharges, and the proper documentation of a claim will greatly increase the chances of a discharge being granted. For example, if a mental or physical condition is involved, statements from treating doctors or counselors should be included. The discharge request to support an ill family member, among other information, should detail:
- How long the problem has existed.
- When it began, or got worse, after the person entered the military.
- What specific services and support could be provided by the servicemember.
- Why there is no suitable other person to provide support.
- What other solutions have been attempted.
- What you expect will happen to the dependent if the discharge is denied.
The following is an excerpt from a Department of Defense directive defining hardships:
"Extreme Community Hardship. A situation that, because of a Reservist's mobilization, may have a substantially adverse effect on the health, safety, or welfare of the community. Any request for a determination of such hardship shall be made by the Reservist and must be supported by documentation, as required by the Secretary concerned.
Extreme Personal Hardship. An adverse impact on a Reservist's dependents resulting from his or her mobilization. Any request for a determination of such hardship shall be made by the Reservist and must be supported by documentation, as required by the Secretary concerned."
A hardship discharge in the context of bankruptcy refers to a debtor who receives a discharge despite not completing all payments under a Chapter 13 plan. It can only be granted when modification of the plan isn't possible, such as when a person is unemployable due to injury, and if the creditors have received at least as much as they would have received in a chapter 7 bankruptcy liquidation. It does not apply to any debts that are non-dischargeable in a chapter 7 bankruptcy case.
If a borrower files for bankruptcy requesting discharge of a loan on the ground of undue hardship under Chapter 7, 11, 12, or 13 of the Bankruptcy Code, or under 11 U.S.C. 1328(b), the school must determine if repayment would imposes an undue hardship on the debtor.
If the loan has been in repayment for 7 years or more (excluding deferment periods), the school may not oppose a discharge that has been requested on the ground of undue hardship.
If the loan has been in repayment less than 7 years, the school must determine, on the basis of reasonably available information, whether repayment under the current repayment schedule or under any adjusted schedule would impose undue hardship on the borrower and his or her dependents. If not, the school must then decide whether the expected costs of opposing the discharge would exceed one-third of the total amount owed on the loan (principal, interest, late charges, and collection costs). If the expected costs aren't more than one-third of the total amount owed on the loan, the school must oppose the discharge and, if the borrower is in default, seek a judgment for the amount owed. The school may compromise a portion of that amount, if necessary to obtain a judgment.