Back in Feb 2021, we explained how the Army is relooking at a select group of bad discharges and are in the process of upgrading them if warranted. But there are probably thousands of other “bad discharges” that won’t be considered because they do not fall within the parameters of the relook. So, what can you do if you have a bad discharge outside of the ones the Army is reviewing?
There are four avenues available to request a discharge upgrade:
- Discharge Review Board (DRB)
- Boards for Correction of Military Records (BCMR)
- Discharge Appeal Review Board (DARB)
- Discharge Upgrades at the VA (VA)
Discharge Review Board (DRB)
The DRB upgrade option is for veterans that have been out less than 15 years and is usually the first step when requesting a discharge upgrade. Part of a discharge upgrade is submitting DD Form 293 – Application for Review of Discharge or Dismissal from the Armed Forces of the United States – to the veteran’s military branch. In addition, a well-written legal brief that includes supporting evidence as to why the discharge should be upgraded is required. The proof of inequity or impropriety of the current discharge is on the veteran.
Once the upgrade has been submitted, the veteran has two choices. One, s/he can request a record review; two s/he can request a hearing where the veteran with or without counsel, or the counsel alone, can personally appear before the board to plead the case.
If the veteran had requested a record review and was unsuccessful, s/he may request a personal appearance before the board. However, if the veteran first chose a personal appearance, they may not request a record review after the fact. During the pandemic, the in-person requirement was waived in lieu of a video teleconference appearance.
Boards for Correction of Military Records (BCMR)
The next step for veterans that have been out less than fifteen years and were not successful with their DRB request is the BCMR. Veterans requesting a correction to their military record, but not a discharge upgrade request, should also use the BCMR. To request a BCMR, use DD Form 149 – Application For Correction Military Record – along with a well-written legal brief that includes supporting documentation for the upgrade or record correction request. The BCMR has the authority to upgrade discharges based on injustice in addition to correcting errors to a military record.
If the BCMR request was submitted a result of a failed DRB ruling, the request must be made within three years of the that ruling. And for veterans outside the 15-year discharge requirement, they too can apply directly to the BCMR within three years of discovering an error or injustice.
If a BCMR request is unsuccessful, a reconsideration may be requested. For Army veterans, the reconsideration request must be made within one year from the original BCMR ruling; for all other branches, there is not a timeframe for refiling a reconsideration. Generally, for the Board to process a reconsideration, new evidence must be submitted that was not included in the original request.
In the past, if a reconsideration was not successful, a veteran could appeal the decision within six years in federal court under the Administrative Procedure Act. But that changed in April 2021 with the forming of the Discharge Appeal Review Board or DARB.
Discharge Appeal Review Board (DARB)
Now if a BCMR reconsideration is not successful, a veteran has one other avenue s/he can pursue before going the federal court appeal route. The DARB is an administrative document review, no personal appearances are allowed. The DARB is different in that it only reviews documents that had been previously submitted to the BCMR. If new evidence is discovered by the veterans, the reconsideration must be first submitted to the BCMR and not the DARB.
The DARB differs from the other boards in that all requests are adjudicated by the Air Force … regardless of the veteran’s branch of service. Being it is new, the DARB has not rendered any decisions yet as of this writing, so the track record of this board is unknown.
Depending on a veteran’s situation, one or more of these boards may be a good choice for a discharge upgrade – especially for veterans that were discharged and suffering from Post-Traumatic Stress Order (PTSD), Traumatic Brain Injury (TBI), sexual assault, sexual harassment or other conditions that may warrant special consideration before the DRB and BCMR and have not previously submitted an upgrade request.
Discharge Upgrades at the VA (VA)
Sometimes a veteran just wants to have access to VA benefits that a bad discharge may prevent him/her from accessing. In these cases, a request for a VA upgrade may be all that is needed.
If the end result is access to GI Bill benefits, the current discharge must be upgraded to Honorable. However, if other benefits, such as medical or monthly compensation is the goal, then an upgrade can be Under Honorable Conditions. Any discharge of General or below is considered by the VA as dishonorable and will prevent accessing VA benefits. Often a veteran may have a period of qualifying service that was honorable and that period can be used to access benefits even though the overall discharge for service did not qualify for VA benefits.
Due to the complexity of a VA Character of Discharge, it is recommended to hire someone experienced in the process to represent the veteran and the creation of the required documents and supporting documentation. It can take up to one year to receive a ruling on a request after submitting the documentation.
Pursue the Upgrade if You Can with Help
The bottom line is that many veterans have received bad discharges that they should not have, and the Boards referenced in this article are avenues that can be used to request an upgrade of what could be an unwarranted discharge. And similar to VA Discharge Upgrades, most veterans have better results if they hire a lawyer or advocate skilled in handling these types of cases instead of going it alone.
