Military Discharge Upgrade
Tens Of Thousands Of Vets May Have Been Awarded Less-than-honorable Discharges
If you or a loved one received less than an Honorable Discharge from the military, you may be losing out on significant benefits. Perhaps even more importantly, you may struggle from the shame of having your service described officially as “less than.” At KML, we understand that you want the discharge you deserve, and we know how to help.
Why Should I Seek A Military Discharge Upgrade
First, because you earned it! If you served sufficiently on active duty in our nation’s military, then Congress has mandated that the nation honor the sacrifice you (and your family) endured. The Veteran’s Administration (VA) is charged with providing VA benefits such as VA disability benefits, healthcare, educational assistance, housing, and many, many other valuable benefits. Even if you receive these benefits now, we recognize that the stigma and anxiety that comes with receiving less than an Honorable discharge is hard.
Second, because many less than honorable discharges were awarded unfairly or even unlawfully. For example, A recent news article discussed that tens of thousands of Vets will be receiving Department of the Army reviews of their military discharges since many may have received a discharge characterization that was less than they deserved. If you’re reading this section, you or a loved one may be in that same circumstance.
If you’re in one of these categories, and you want to do something to change it, you’re in the right place.
Am I Eligible For A Military Discharge Upgrade?
It depends. The different avenues of receiving a discharge upgrade have time limitations and restrictions, a full discussion of which is not possible here. Just know that you should NEVER assume that you are not eligible. Look into it. Get help. MAKE SURE before you give up.
How Can I Apply For A Military Discharge Upgrade
There are two different types of military boards that can review your discharge papers. One is the Discharge Review Board (DRB) and the other is the Board of Correction for Military Records (BCMR). Each board has different authority, timelines, restrictions, and limitations. This section will discuss the DRB. For a discussion about the BCMR, click here.
First, you’ll want to have your court martial lawyer request a copy of your military records, including your military medical records, as well as copies of any trial records if you endured a court martial. DO THIS IMMEDIATELY, as retrieving these records can take months. You then apply to the DRB online or via mail at the addresses provided below. To be successful, packages must show that your military discharge was “improper” or “inequitable.” Improper means factually incorrect or inconsistent with the law.
Inequitable means inconsistent with the traditions and policies of the service. The “standards” or tests which the reviewers apply to your application are based upon federal law and must be considered carefully. A “well-built” application will thoroughly discuss and provide evidence as to ALL the reasons you believe you are entitled to an upgrade. Any reasons you leave out, you may lose, even if you or your civilian military lawyer raise them later on. This is one of many reasons you should seriously consider getting the help of a law firm experienced in helping clients with DRB applications.
What Can A Discharge Review Board Do?
Generally, DRBs can upgrade the character of a discharge or change the reason for a discharge. However, DRBs cannot modify a discharge awarded at a General Court Martial, nor can a DRB change a discharge to or from medical retirement or medical discharge. For those types of actions, the Vet would need to apply to the BCMR.
May I Appeal The Decision Of A DRB?
Absolutely! Read on. You may also ask for reconsideration of the DRB’s decision.
Do I Need A Military Lawyer To Help Me?
Probably not a bad idea. There are studies that show applicants with a military lawyer or military attorney are far more likely to receive upgrades than those without. This is likely due to the complex requirements and standards involved. An experienced military lawyer will know how to address those standards, what kind of evidence supports it, and how to argue “improper” or “inequitable.” In addition, having a lawyer may help you get reconsideration of a denied DRB request. That said, the internet is FULL of helpful sites and “how to” guides that will assist you if you decide to “go it alone”. Should you decide to do so, we provide the addresses for the DRB’s below.
But you shouldn’t need to spend a fortune to get a lawyer’s help. There are many Veteran’s Service Organizations (VSOs) and other Vet-focused groups that offer pro bono or low-cost assistance with DRB packages. There are thousands of Vets seeking these services and resources are limited so you may be required to establish financial need. Also, depending on the complexity of your case, many experienced military lawyers will reduce their “standard” cost to assist you. At KML, we try to make our fees affordable to all who need us. In fact, if you feel like you need help but can’t afford it, please visit our Pro Bono Page.
Can I Appeal The Discharge Review Board Decision?
Absolutely! First, you can ask for a “reconsideration” if you have “new” evidence that the Board didn’t consider the first time around. Second, you can appeal to the BCMR (BCNR for Navy or Marine Corps) and, once you’ve taken those steps, some veterans may appeal to the newly created Discharge Appeal Review Board (DARB). Click here for information on the BCMR/BCNR.
What Is The DARB?
The Discharge Appeal Review Board is a document review board that essentially gives you another bite at the apple when it comes to upgrading your discharge. It can also be used by a surviving spouse or even family members to upgrade the discharge of the deceased or incapacitated veteran so that the spouse or family member might receive the benefits incident to military service.
Only military records from the BCM/NR case file will be reviewed (in other words, no personal hearings are permitted … it’s a document review only). Also, petitioners must first have tried to have the discharge upgraded through all other available means first. This means you must have submitted a request to the DRB, then a reconsideration request to DRB, and then a petition to and receive a decision from the BCMR before you may apply to the DARB. If the DARB recommends that the petitioner’s service characterization be upgraded, this recommendation will be transmitted to the Secretary of the Military Department concerned for final action.
Who Is Eligible To Apply To The DARB?
Unfortunately, only service members separated on or after December 20, 2019 are eligible to the DARB.
What Can The DARB Do For Me?
If you (or a deceased or incapacitated spouse or parent) were discharged or dismissed on or after 20 December 2019 for one of the reasons below, the DARB has the authority to upgrade your discharge:
For Enlisted Personnel
- Expiration of service obligation
- Change in service obligations
- Weight control failure
- Convenience of the Government
- Defective enlistments and induction
- Unsatisfactory reserve participation
- Secretarial plenary authority
- Entry-level conduct/performance
- Unsatisfactory performance
- Separate in lieu of court-martial
- Drug abuse rehabilitation failure
- Alcohol abuse rehabilitation failure
For Commissioned Officers
- Substandard performance of duty
- Misconduct or moral or professional dereliction
- Retention not clearly consistent with national security interests
- Sentence by court-martial
- Dropping from the rolls
But Don’t Go It Alone!
As we discussed here, you don’t “need” a lawyer to submit these packages, but success rate data indicates it sure helps. Some of these Boards give you only one shot, so making the most of that chance is very important. This means you must submit a thorough and persuasive package the very first time. If you want to go it alone, click here to get started. BUT BE CAREFUL! An experienced discharge review board lawyer can help you prepare your case, gather evidence, and present your arguments in a clear and compelling way. A discharge upgrade attorney can also advise you on how to avoid common mistakes and pitfalls that could jeopardize your chances of success. Therefore, consider contacting an experienced military attorney for assistance before you submit your package. At King Military Law, our lawyers have extensive experience handling discharge appeals and we’re ready to help!
YOU DO HAVE A CHANCE TO GET YOUR DISCHARGE UPGRADED! But you must be careful, thorough, and thoughtful in how you go about it. Give us a call for a free consultation to help get you started.
We hope this information was helpful. Please feel free to reach out to us at KML if you think we can help.
Discharge Review Board Contact Information
Army Review Boards Agency
251 18th Street South
Arlington, VA 22202-3531
Secretary of the Navy
Council of Review Boards
ATTN: Naval Discharge Review Board
720 Kennon Ave S.E., Suite 309
Washington Navy Yard, DC 20374-5023
Air Force Review Boards Agency
550-C Street West, Suite 40
Randolph AFB, TX 78150-4742
Attn: Office of Military Personnel
US Coast Guard
2100 2nd Street S.W., Stop 7801
Washington, DC 20593-7801
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