Phone: (202) 430-1900
Fax: (202) 430-1900
Office Location: 1101 17th Street NW Suite 1100
Washington, DC 20036
Hours: Monday - Friday | 8am - 5pm
For most citizens who serve, there are substantial benefits to being Honorably discharged, including Veteran’s Administration benefits and the enhancement to one’s reputation from honorable service. Unfortunately, not everyone who serves receives an honorable discharge. Sometimes, an adverse discharge was the result of an undiagnosed psychological disorder like Post Traumatic Stress Disorder (PTSD), Depression or some other stress induced disorder related to combat or other intense military activity. Sometimes the discharge was the result of an incorrect application of the law or military regulation.
While serving as an active duty Navy Judge Advocate, I became aware of several instances where non-lawyer legal officers where telling enlisted sailors charged being processed from misconduct that they should waive an administrative discharge board, accept an Other-than-Honorable Discharge (OTH) and then go to the Navy Discharge Review Board and have it upgraded in six months. This was incorrect advice, but it explains how, procedurally, an inappropriate characterization may have been assigned. There are, of course, many other ways in which an incorrect characterization can be entered.
Discharges from the military services are characterized as follows:
The process for applying for an upgrade of a military discharge is can be complex, and although the same general principles apply to all cases, each service has a slightly different process to be followed. A veteran who wants to upgrade a discharge must file an Application for the Review of Discharge from the Armed Forces of the United States (DD From 293) within fifteen years of the date of discharge. The personnel or medical records needed to complete the form are available from the archives of each service. Information on how to access these services is available from the Department of Veterans Affairs. The DD Form 293 must be completed accurately and completely. The failure to include relevant information or the failure to complete the form properly can result in a denial of the upgrade request.
All documents supporting the request for upgrade must be submitted with the upgrade request. There is no right to submit documents late, and documents that do not accompany the original request are not likely to be considered. The types of documents that can be submitted include: military records, military medical records, statements from military personnel, civilian records, character references and just about any other evidence that supports demonstrates the good character of the veteran so long as it is relevant.
DD Form 293 allows a veteran to request a hearing, and a hearing should always be requested. Most often, the Discharge Review Board will not hold a hearing, but if it does, it provides the veteran with an excellent opportunity argue his or her case. Hearings are held in Washington, DC, not far from our office.
Most discharge upgrade requests are denied. There are a number of reasons for this. First, most applications are submitted without the assistance of an attorney by veterans who are unfamiliar with the process. Many applications are denied because they are incomplete or fail to set forth in concise, legally accurate arguments or fail to include relevant, persuasive evidence. Also, there is a presumption of correctness in the service’s initial characterization of a discharge, and the veteran has the burden of overcoming this presumption.
It is possible for anyone to fill out the DD Form 293 and submit it to the correct service Discharge Review Board. Why, then, should a veteran retain a civilian attorney? The fact is that the right civilian defense attorney substantially increases the odds of having a discharge upgraded. An attorney will know what the Board is looking for (and what it is not). He or she should be familiar with the service regulations and other laws that can be brought into play to support an application. If a hearing is granted, lawyers understand the presentation of evidence and are able to argue more persuasively that most other people.
An attorney experienced in military law will know how to build a “record” in the event an appeal to the U.S. District Court under the Administrative Procedures Act, should that become necessary.
The question the veteran should ask himself or herself is: how important is the discharge upgrade? If the removal of the stigma of the discharge is important, then the cost of legal representation should not be the major factor. If you have questions about a discharge upgrade, please contact us.