Military Discharge Laws & Rights

UPGRADING MILITARY DISCHARGE

STEPHEN BRODSKY, FORMER U.S. NAVY JAG ATTORNEY

20% DISCOUNT FOR ACTIVE DUTY AND VETERANS!!!

DD-214, Certificate of Release or Discharge from Active Duty

If you have served an enlistment contract or under an officer’s commission in any branch of the armed forces, you will receive a discharge certificate from the United States Department of Defense summarizing your service record at the end of your obligated active service.  The DD-214 is the official document certifying your service on active duty for one of the branches of the U.S. Armed Forces.

It represents the complete verified record of a service member’s time in the military (active and reserved), awards and medals, highest rank and pay on active duty, total military combat service and/or overseas service, military occupational specialty and record of training and schools completed.

The DD Form 214 is commonly used by the Department of Veterans Affairs to secure Veterans benefits and could be requested by prospective employers to confirm military service.

The DD Form 214 states the type of discharge or separation received by the service member and, in the case of enlisted personnel, the reenlistment eligibility code. The official website that offers definitive information on the DD Form 214 can be found here,

Types of Military Discharges

• Administrative Discharge

You can be discharged administratively in three different ways:

• Honorable Discharge

A service member receives an honorable discharge when he or she meets acceptable standards of military service.

• General Discharge Under Honorable Conditions

A service member will receive a general discharge under honorable conditions where his or her service was satisfactory but is marked by problems with meeting certain standards of behavior or appearance such as minor instances of misconduct which resulted in non-judicial punishment, failure to maintain acceptable weight or hygiene, appearance, and dress, and failure to progress in course of training appropriate to rate or rank.

A general discharge, even under honorable conditions, is “damning with faint praise” and signifies a failure to achieve an honorable separation from military service.  Service members who receive this type of military discharge may receive veterans benefits, but may not be entitled to enjoy the GI Bill or serve in veterans organizations.  Any service member receiving a general discharge should attempt to upgrade the discharge to an honorable discharge by petitioning the appropriate military discharge review board or board for the correction of military records, as described below.

• Other than Honorable Discharge

The worst type of administrative discharge is an Other than Honorable Discharge or simply called an “OTH”.  An OTH is a bad piece of paper that reflects a service member’s failure to conform to acceptable standards of military behavior. It is often awarded in situations in which the service member’s command has decided to separate a service member for either a serious act of misconduct or a pattern of misconduct.

Service members who are court-martialed but who do not receive bad conduct or dishonorable discharges as punishment may, nevertheless, be processed for administrative separation under other than honorable conditions.  A service member may also be separated with an OTH even if not convicted at a court-martial. The commanding officer may decide to forego a court-martial as an exercise of command discretion or because it is believed that there is insufficient evidence to prove guilt beyond a reasonable doubt, in which case the standard for an OTH is met merely by proving misconduct by a preponderance of the evidence.

• Punitive Discharges

Service members who undergo special or general courts-martial may receive bad conduct or dishonorable discharges.

• Bad Conduct Discharge (BCD)

A BCD is documented, usually after a period of confinement and the appeals process has been exhausted or waived. A BCD results in the loss of virtually all veterans benefits and the GI Bill. It can preclude employment in government and cause problems in getting employment in the private sector.  It will definitely interfere with your ability to advance yourself as you try to transition into civilian life. Several new laws have been enacted to help service members upgrade their BCD to an Honorable Discharge if they can demonstrate evidence of Post Traumatic Stress Disorder (PTSD) or other disabling mental health condition. A BCD may also be upgraded to an honorable discharge with proof of exemplary conduct and achievement in post-service life, such as evidence of law-abiding behavior, gainful employment, and community service.

• Dishonorable Discharge (DD)

A DD may be awarded following the conviction of an enlisted service member at a general court-martial. A commissioned officer may not receive a DD but may receive a Dismissal Notice which is essentially the same as a DD for an officer. With a DD or Dismissal, all veterans’ benefits are forfeited regardless of any past honorable service. Employment in local, state or federal government is usually not available and employment as a law enforcement officer is not possible because the receipt of a DD precludes use, ownership or possession of a firearm. Moreover, grants, loans or scholarship are unavailable for those with a DD.

UPGRADING YOUR MILITARY DISCHARGE

Discharge Review Boards (DRB)

Every branch of military service has a Discharge Review Board (DRB) which will review a negative discharge based upon principles of fundamental fairness.  Discharge review boards (DRB) have been created to provide former service members with an opportunity to upgrade a less than honorable discharge to an honorable discharge and to change the reason for the discharge.

• Navy and Marines: Navy Discharge Review Board (NDRB)
• Army: Army Discharge Review Board (ADRB)
• Air Force Discharge Review Board (AFDRB)
• Coast Guard: The Coast Guard has its own procedures for upgrading a discharge or correcting military records. Our office can help you apply for an upgrade for relief with the Coast Guard. Please refer to: https://media.defense.gov/2017/Mar/06/2001707437/-1/-1/0/CI_1070_1.PDF

Board for the Correction of Military Records (BCMR)

Every branch of service has a BCMR.

• Navy and Marines: Board for the Correction of Naval Records (BCNR)
• Air Force: Board for the Correction of Air Force Records (AFBCMR)
• Army: Board for the Correction of Army Records (ABCMR)
• Coast Guard: There is a different procedure for requesting an upgrade of a Coast Guard discharge. Our office will help you in this process. Please refer to https://media.defense.gov/2017/Mar/06/2001707437/-1/-1/0/CI_1070_1.PDF

This is a higher level of review that permits not only the upgrading of a military discharge but also the correction of anything in the service member’s military record. For example, only a BCMR may order the reinstatement of a service member into an active duty status by changing a reenlistment code or eligibility for service as a commissioned officer.

• Before a service member can apply for upgrading a military discharge with a BCMR, the service member must apply to the DRB. This is called the “Exhaustion of Administrative Remedies.”

Time Limits

• DRB: The service member must apply for the upgrading of discharge with the DRB within 15 years from the date of the discharge.
• The 15-year time period will not begin to run until the date upon which a service member discovers or reasonably should have discovered that he or she is suffering from PTSD or other mental health problem that directly affected his military service.
• Waiver of the 15-year time limit.  There is only one exception to the 15-year time limit to bring an application for upgrading military discharge.  If you were the victim of Sexual Harassment or Assault or PTSD and other mental health problems, the time limit may be waived.
• BCMR: The service member has an additional 3-year period within which to apply for relief with the BCMR.

How to upgrade your discharge with the DRB and/or the BCMR

The DRB or BCMR will upgrade the military discharge of a service member if the service member can show:

• An error of fact, law, procedure or discretion in the issuance of the discharge; and
• The veteran was prejudiced by the error.
• There was a change in the policy of a military branch of service that would have resulted in a more favorable discharge if the policy was in effect at the time of the service member’s discharge.

An example of a change of policy which may have resulted in more favorable discharge determinations are the Hagel and Carson memos

• The negative discharge occurred when the service member was in an inactive reserve status, and the negative discharge resulted from civilian conduct which did not directly affect the performance of military duties or have an adverse impact on military morale and efficiency.

The following factors are considered by the DRB and the BCMR:

• Service history, including date of enlistment, the period of enlistment, highest rank achieved, conduct or efficiency ratings.
• Awards or Decorations
• Letters of Commendation or Reprimand
• Combat service.
• Wounds received in action.
• Records of promotion and demotions.
• Level of responsibility at which the applicant served;
• Other acts of merit that may not have resulted in formal recognition
• Prior military service and type of discharge.
• Court Martial convictions
• Records of Non-Judicial Punishment
• Convictions by civilian authorities
• Records of unauthorized absence
• Administrative separation proceedings.
• Whether the service member has problems adapting to military life such as documented aptitude scores, medical problems, family problems, mental health history, and any abuse of authority.

Here’s what you will need to provide to present the strongest possible application for a military discharge upgrade:

• Prepare a comprehensive statement explaining your reasons for seeking upgrading of your military discharge.
• Copies of your military records, including medical and mental health treatment records.
• Statements from family, friends and service buddies confirming the reasons why your discharge upgrading application should be granted.
• What you’ve been doing with your life since your discharge from the military, including evidence of education, volunteer work, community service, dedication to family and friends and your work or professional accomplishments.
• Recommendations from respected members of the community.
• Any civilian service awards or recognition.
• Updated medical and psychological evaluations substantiating any claims of PTSD, brain injury, psychological trauma, and other mental health conditions.

Whether to request a records review or personal appearance hearing?

• Generally, we advise that our clients submit their application based on a review of records and written submissions because a personal appearance can always be requested if the discharge review is denied.
• However, in certain cases, where we believe that a personal appearance would be a better strategy, we will prepare an application for a personal appearance, and arrange the logistics of where and when this hearing will take place, witnesses that may be necessary to support your application, as well as medical or psychological experts.

If you need a military defense lawyer defending your rights 

Please Contact Stephen Brodsky, Former US Navy JAG Attorney, To Arrange A Free Consultation Today.

CALL +1 (619) 231-2151, TODAY AND ASK ABOUT 20% DISCOUNT FOR ACTIVE DUTY AND VETERAN SERVICE MEMBERS.