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When you face a drug charge, you may be confused over what makes it a federal crime and not a state crime. You may also wonder what the classifications of drugs mean and how that can affect the outcome of your case. There are many aspects you should understand when facing such charges so that you can go to court prepared.

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Discharge Review Boards

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:

  • Honorable Discharge. This is the highest level of discharge and entitles the service member to all benefits associated with military service.
  • General under Honorable Conditions. A General Discharge entitles a service member to most, but not all, benefits associated with service.  For example, a veteran with a General discharge is not entitled in the G.I. Bill.  Also, many employers hold a negative view of a General discharge, and it could affect employment, pay or advancement.  A General discharge can be upgraded by the service Board of Discharge Review.
  • Other-than-Honorable. An OTH is the worse type of administrative discharge that a veteran can receive and is awarded for misconduct.  An OTH constitutes a significant black mark on one’s record and carries a lifetime stigma.  Most employers view an OTH negatively, and it deprives the veteran of nearly all benefits associated with service.  An OTH can be upgraded by a Discharge Review Board.
  • Bad Conduct Discharge. A Bad Conduct Discharge (BCD) is a punitive discharge that can only be awarded by a general or special court-martial.  It is intended to be a form of punishment and carries with it the stigma of criminal misconduct.  Discharge Review Boards have jurisdiction over BCDs awarded by special courts-martial, but they cannot upgrade a BCD from a general court-martial.  However, the service’s Board of Corrections of Records (BCR) can change or upgrade a BCB from a general court-martial.
  • Dishonorable Discharge. A Dishonorable Discharge (DD) is the worse form of discharged reserved for the most serious cases and can only be awarded by a general discharge.  A DD cannot be upgraded by a Discharge Review Board. A service’s Board of Correction of Records can upgrade a DD.

Discharge Upgrade Process

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.

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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.

Chances of Success

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.

Why Retain a Civilian Attorney?

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.

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White Collar Criminal Defense

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Investment Arbitration

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Securities & Investment Crimes

With these white collar crimes you can face years or even decades of prison time, hefty fines and possibly other criminal charges.
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There are many criminal defense attorneys providing legal counsel throughout the Washington, DC area. However, very few of them have the professional experience and legal acumen to handle criminal defense on an international scale.
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Mail / Wire Fraud

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Fraud crimes are often prosecuted much more severely and often involve substantial amounts of money due to the violation of trust.
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Racketeering and Organized Crime

These offenses relate to interference with interstate commerce by threat or violence, interference with organized labor, money laundering, murder-for-hire and illegal gambling.
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Mail and wire fraud are two of the most frequently prosecuted crimes in the US. Both of these crimes are federal felony offenses
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Cyber crime is a relatively new and rapidly growing area of law. Too many people, and too many lawyers, think that cyber crimes are just like any other crimes.
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