If a veteran files an honorable discharge certificate with the county clerk, can anyone (employers, businesses, genealogists) get a copy of it?

Plain-English summary

Wayne County's Attorney was concerned about identity theft. Veterans had been filing their honorable discharge certificates with the county clerk under Military Law § 250 to keep an official, fee-free copy on hand. But those certificates contain Social Security numbers, dates of birth, and other personal data. Could commercial entities get the records? Could the clerk distribute copies to listed family members even when the veteran wanted privacy?

Attorney General Eliot Spitzer's office walked through two statutes. Military Law § 250 lets a veteran record an honorable discharge certificate with the county clerk free of charge and requires the clerk to provide free certified copies to the veteran, a parent, spouse, dependent, or child. Civil Rights Law § 79-g, enacted in 1968 in response to commercial requests for those records, lets the veteran direct the clerk to seal the record. Once sealed, only the veteran, an authorized agent or representative, or the representative of the veteran's estate can obtain a copy, even the family members listed in Military Law § 250 cannot get a copy unless they qualify as an agent or representative of the veteran or the estate.

The AG also recommended that clerks proactively inform veterans of their right to seal the record at the time of filing, since many veterans filed before § 79-g was enacted and may not realize they have the option to seal.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Identity-theft concerns and federal privacy law (including the Veterans' Identity and Credit Security Act of 2007) have continued to drive changes in how military records are handled by state and federal agencies. A current veteran considering filing or accessing a discharge record should review the current statutory text and consult with the county clerk's office about its sealing procedures.

Common questions

Q: What is Military Law § 250?
A: It lets a veteran record an honorable discharge certificate with any one county clerk in New York at no fee, and requires the clerk to provide free certified copies to the veteran or to a parent, spouse, dependent, or child of the veteran.

Q: What is Civil Rights Law § 79-g?
A: A 1968 statute that lets a veteran filing a discharge certificate with the county clerk direct the clerk to seal the record. Once sealed, the certificate is "available to the veteran, a duly authorized agent or representative of such veteran or the representative of the estate of a deceased veteran but shall not be available for public inspection."

Q: Can the veteran's spouse or adult child get a free copy of a sealed record?
A: Not by virtue of family relationship alone. The AG concluded that once sealed, only persons who qualify as an authorized agent or representative of the veteran or estate can obtain a copy. A family member who can show that authorization may receive a copy; one who cannot, may not.

Q: What proof should the county clerk request?
A: The opinion advises that the clerk should request proof that the requesting individual is an authorized agent or representative of the veteran or the estate. The proof might be a power of attorney, letters testamentary or of administration, or a similar designation.

Q: What if the certificate was filed years ago and the veteran did not know about the sealing option?
A: The AG noted that previously filed certificates remain technically open to public inspection unless and until the veteran requests sealing. The opinion encouraged clerks to proactively inform veterans of their rights when they come in to obtain a copy.

Q: Are filed certificates subject to FOIL?
A: The Committee on Open Government (FOIL-AO-8954) reached the conclusion that unsealed certificates may be subject to FOIL disclosure. The seal removes that exposure.

Background and statutory framework

The interaction of Military Law § 250 (1917) and Civil Rights Law § 79-g (1968) illustrates the classic problem of layering privacy protections onto an older recording statute. Military Law § 250 was designed to give veterans a permanent, fee-free repository for their discharge documents so they could obtain certified copies for benefits applications. It assumed the certificate would not be commercially exploitable; that assumption broke down as commercial information brokers began requesting copies in bulk.

The 1968 Legislature responded by giving veterans an opt-in privacy mechanism: the veteran could direct the clerk to seal the record, making it accessible only to the veteran and a small set of authorized persons. The 1987 amendment to Military Law § 250 (L. 1987, ch. 648), which added "parent, spouse, dependent or child" to the list of persons entitled to free copies, did not address sealed records; the AG construed that amendment as supplementing § 250's fee-waiver regime, not overriding § 79-g's confidentiality regime.

The result is a two-layer regime: § 250 governs who pays (free copies for the veteran and immediate family); § 79-g governs who may see (the veteran and authorized representatives only, when sealed).

Citations and references

Statutes:

• Civil Rights Law § 79-g (sealing)
• Military Law § 250 (recording and free copies)
• L. 1968, ch. 751 (enactment of § 79-g)
• L. 1987, ch. 648 (1987 amendment expanding free copies to family members)

Prior AG opinions:

• 1966 Op. Att'y Gen. (Inf.) 173 (commercial access pre-§ 79-g)

Other:

• Op. Comm. on Open Gov't FOIL-AO-8954

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2004-11_pw.pdf

Original opinion text

CIVIL RIGHTS LAW § 79-g; MILITARY LAW § 250; L. 1987, CH. 648; L. 1968, CH. 751.

Pursuant to Civil Rights Law § 79-g, veterans may protect the confidentiality of their honorable discharge certificates filed with a county clerk by directing that the record be sealed. Once sealed, the certificate is exempt from public inspection, except by the veteran, or a duly authorized agent or representative of the veteran or the veteran's estate.

October 25, 2004

Daniel M. Wyner, Esq.
County Attorney
County of Wayne
Wayne County Courthouse
26 Church Street
Lyons, New York 14489

Informal Opinion
No. 2004-11

Dear Mr. Wyner:

You have requested an opinion as to whether a certificate of honorable discharge filed by a veteran with the county clerk pursuant to Military Law § 250 is a sealed record. If the filed certificate is considered a sealed record, you further inquire whether the clerk may provide copies to the family members listed in that statute and what proof should be required of persons seeking such copies. Your inquiry stems from concerns about identity theft, since these certificates contain personal identifying information about the veteran. We conclude that a filed certificate of honorable discharge becomes sealed at the request of the veteran pursuant to Civil Rights Law § 79-g, and once sealed may be made available only to the veteran or, as provided for in that statute, an agent or representative of the veteran, or the representative of a deceased veteran's estate.

Statutory Background

The recording of honorable discharge certificates, and public access thereto, are governed by two statutes: Military Law § 250 and Civil Rights Law § 79-g.

Unlike most documents filed with the county clerk, the recording of an honorable discharge certificate serves a personal purpose. Veterans may need honorable discharge certificates to obtain government benefits or for other similar reasons. The Legislature enacted Military Law § 250 to provide the veteran with a method for protecting the valuable document against loss or destruction and ensuring that an official copy of the certificate will be available when needed. See 1966 Op. Att'y Gen. (Inf.) 173; Bill Jacket to ch. 751, at 4, 8 (1968).

Military Law § 250 accordingly permits a veteran to record a certificate of honorable discharge with the county clerk, without payment of a filing fee, and to obtain certified copies of the filed certificate without charge. The statute directs that a certified copy of the certificate may be used in lieu of an original for any purpose in the State. Military Law § 250. The county clerk is also required to provide certified copies without charge to specified family members of the veteran: a parent, spouse, dependent or child. Id.

Following the enactment of Military Law § 250, commercial entities sought access to the personal information in the recorded certificates. Because of the personal nature of the filing, the issue arose whether a recorded certificate should be treated as a public record. In 1966, this office opined that a county clerk may refuse to disclose the contents of the certificate to those who have a purely commercial interest in them, since such disclosure would not be for the veteran's benefit. 1966 Op. Att'y Gen. (Inf.) 173. Uncertainty as to the status of recorded certificates and inconsistency among county clerks in allowing public access to them continued, however, prompting a legislative solution.

In 1968, the Legislature enacted Civil Rights Law § 79-g "to provide a veteran who has filed a certificate of honorable discharge in the office of the county clerk . . . with the right to direct the county clerk to keep such paper sealed and confidential." Memorandum of Assembly Sponsor, reprinted in 1968 N.Y.S. Legislative Annual 36. Civil Rights Law § 79-g provides:

(a) Notwithstanding the provisions of any general, specific or local law to the contrary, any person filing a certificate of honorable discharge in the office of a county clerk shall have the right to direct the county clerk to keep such record sealed.

(b) Thereafter, such certificate shall be made available to the veteran, a duly authorized agent or representative of such veteran or the representative of the estate of a deceased veteran but shall not be available for public inspection.

Under this statute, when the veteran requests that the recorded certificate be sealed, the County Clerk may not permit public inspection of its contents, but may permit appropriate persons (the veteran, his agent or representative, or the representative of his estate) to examine or obtain a copy of the certificate. Section 79-g thus lets the veteran protect the information in the recorded certificate from use for improper or commercial purposes, while continuing to provide access to the certificate by the veteran and an appropriately designated agent or representative acting on the veteran's behalf.

Analysis

The question whether an honorable discharge certificate recorded with the county clerk should be considered a sealed record is thus answered by Civil Rights Law § 79-g, which speaks directly to the sealing of these records and is the later legislative enactment. As that statute provides, the record must be sealed in accordance with the veteran's request. Conversely, because the Legislature has chosen to provide veterans with a specific means to ensure the privacy of a recorded honorable discharge certificate and its contents, we believe that when the veteran has not requested that the certificate be sealed, public access to a certificate recorded pursuant to Military Law § 250 is permitted, consistent with any other laws governing access to records filed with the county clerk. The Committee on Open Government has reached a similar conclusion in determining that such records, if not sealed, may be subject to disclosure under the New York State Freedom of Information Law. See Op. Comm. on Open Gov't FOIL-AO-8954.

We note that the conclusion that Military Law § 250 does not limit public access to a recorded certificate that has not been sealed may leave previously filed certificates vulnerable to improper use unless veterans are made aware of their rights and take action to have the record sealed. Further legislative action may thus be necessary to ensure that the Legislature's initial intention of protecting the privacy rights of veterans is fulfilled. We also note that county clerks may assist in protecting the confidentiality of newly filed certificates by advising veterans who seek to file their certificates of their statutory right to have the record sealed.

You have also asked whether the persons listed in Military Law § 250 are entitled to copies of the honorable discharge certificate when the record has been sealed, and what proof the clerk should require of such persons. Although both Military Law § 250 and Civil Rights Law § 79-g enumerate persons, in addition to the veteran, who are entitled to copies of or access to the information contained in the recorded certificates, the rights flowing from these statutes differ. Civil Rights Law § 79-g governs who is entitled to access the recorded certificate when it has been sealed, while Military Law § 250 gives certain persons a right to obtain copies free of charge. Reading the two statutes together, we believe the family members specified in Military Law § 250 are entitled to a copy of the filed certificate only if the certificate has not been sealed or, when it has been sealed, only if they qualify as an authorized agent or representative of the veteran or the veteran's estate. Thus, in determining whether a person other than the veteran may have access to a sealed honorable discharge certificate, the county clerk should request proof that the individual is an authorized agent or representative of the veteran or the veteran's estate.

We recognize that the purpose of extending to immediate family members the right to obtain free copies of the certificate was to make it easier for such persons to obtain benefits. See Memorandum of Senate Sponsor (July 16, 1987), reprinted in Bill Jacket for ch. 648 (1987), at 5. However, nothing in the language of this amendment or its legislative history indicates that it was intended to affect the confidentiality standards applicable to sealed certificates under Civil Rights Law § 79-g. That statute by its terms evidences a clear legislative intent to protect the veteran's right to privacy by allowing the veteran to seal the filed certificate and to designate those who may then have access to it. For this reason, we conclude that only the veteran, or a duly authorized agent or representative of the veteran or the veteran's estate, may obtain a copy of an honorable discharge certificate that has been sealed under Civil Rights Law § 79-g.

Conclusion

When veterans, pursuant to Civil Rights Law § 79-g, direct that their certificates of honorable discharge be sealed, the certificates are exempt from public inspection, except by those persons specifically enumerated in section 79-g(b). Persons listed in Military Law § 250 who are eligible to receive certified copies of the certificates of honorable discharge free of charge are nonetheless prohibited access to a sealed certificate, unless they are entitled to access under Civil Rights Law § 79-g as the veteran's representative or agent, or representative of the veteran's estate.

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,
LAURA ETLINGER
Assistant Solicitor General
In Charge of Opinions