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How Do I Request a Military Discharge Upgrade?

Military Law Attorney Paul Tennison

Attorney Paul Tennison accepting command of Battery B in Poland on August 15, 2019

A military discharge upgrade can be an important step in the life of a veteran who believes that he or she received a lower discharge than what was deserved. Various federal and state benefits are available only to veterans who were discharged at an acceptable level. The best discharge is an Honorable discharge, which should enable the veteran to access all benefits. General Discharge Under Honorable Conditions is the second highest level. Other Than Honorable Conditions Discharge is the third level, while a Bad Conduct Discharge is the fourth. Dishonorable is the lowest level of discharge and is reserved for those convicted of serious crimes while in the military. Veterans who receive a Dishonorable Discharge forfeit all benefits, cannot lawfully possess a firearm, and forfeit their right to vote. For more information about types of military discharges, you should refer to this article.1

Fortunately, U.S. federal law allows veterans to request a higher-level discharge through one of two record-correction boards. Within 15 years of discharge, veterans may apply to a Discharge Review Board (DRB) using form DD-293. Importantly, DRBs may not make a discharge worse nor can they overturn a court-martial decision. If a discharge occurred more than 15 years ago, a veteran can apply to the Board for Correction of Military Records (BCMR). Veterans should apply to the BCMR within 3 years of discovering the error or injustice they are asking the board to fix using form DD-149. BCMRs also cannot make a discharge worse or override a court-martial conviction.

What Evidence Must I Include In a Discharge Upgrade Request?

If you are a veteran who wants to upgrade your military discharge, you must first determine which board to apply to. Then you need to request your military records. One way to request this information is through filling out form SF180.2  You may also use DD Form 2870 to request medical and dental records. VA form 10-5345 and 10-5345a allow disclosure of medical or dental records kept by the VA.

If you believe that your discharge may be related to PTSD or TBI, you should include additional information with your discharge upgrade application to make it stronger. The Hagel Memorandum” in 2014 created supplemental guidance about discharge upgrade requests related to PTSD.3 You should include a medical diagnosis or evaluation from a medical professional. You should also gather additional evidence that documents your mental health issues, such as other medical records, police records, or letters from friends or family about how they have observed firsthand your struggles with symptoms of TBI or PTSD.

In your application you will need a narrative to support your request. To make this narrative persuasive, you should draft it in the language used by the record-correction boards. The DRBs review whether or not a discharge was proper and equitable. The board assumes the discharge was proper unless the military made an error of fact, law, procedure, or discretion in deciding your discharge, which might create substantial doubt that you would have been awarded the same level of discharge if that error had not been made. A discharge is also seen as improper if there has subsequently been a change in policy (i.e. the repeal of don’t ask, don’t tell) that requires a different discharge. The BCMRs can act to correct an error or remove an injustice. Thus, you should explain any errors made during your discharge process and why the outcome would have been more favorable had the errors not occurred. Injustice may include a major change in relevant legal policy.

You should include several (five or more is a good rule of thumb) character reference letters from family, friends, co-workers, those you served with in the military, teachers, classmates, spiritual leaders, or anyone else who can support your story of good conduct while in the military and/or in your civilian community after your discharge. These character reference letters should be personalized by each letter writer. I suggest that you generate a draft letter for each person you ask to write a letter of recommendation. Include a note that you would like them to personalize the letter, and that you are just providing a draft letter as a framework to help them get started. It is important that these letters show evidence of your good conduct, such as good performance reviews, participation in community and charity work, awards, achievements, and your educational advancements. The letters should also include any firsthand knowledge of applicable errors or injustices in your record. The strongest letters are those that portray you in a positive light, include information regarding a long personal relationship with you the applicant, and are persuasively written to convince the board that your discharge should be upgraded.

Once you have gathered all the pertinent evidence to support your application, you should mail it to the appropriate DRB or BCMR for your branch of service. You can find the current website for each branch here.4 These pages will include the correct mailing address where the application may be sent.

How Can A Military Law Attorney Help With My Discharge Upgrade?

Navigating the discharge review process is complicated and is often best done with the help of legal assistance.  A military law attorney can help you understand what rules apply, brainstorm your best arguments, help you compile all relevant supporting documents, work with you to draft a compelling narrative statement, help draft character reference letters, and be your supportive ally.

If you are a veteran who would like to apply for a discharge upgrade, call us today at (615) 490-6020 and speak with Nashville Military Law Attorney Paul Tennison about your case.

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1 https://va.org/forms-of-military-discharge

2 See https://www.usa.gov/military-records for options on how to request your military records.

3 https://dod.defense.gov/News/Article/Article/603172/hagel-issues-guidance-for-veterans-discharge-upgrade-requests; https://archive.defense.gov/news/osd009883-14.pdf

4 Army: https://arba.army.pentagon.mil/adrb-faq.html; Navy (includes Marine Corps): https://www.secnav.navy.mil/mra/CORB/Pages/NDRB/default.aspx ; Air Force https://www.afpc.af.mil/Separation/Discharge-Review-Board; Coast Guard: https://www.uscg.mil/Resources/legal/DRB

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