Thousands of service members across all branches have been involuntarily separated following misconduct that has resulted in an administrative separation or court-martial. Many are denied benefits as a result. Some benefits require an Honorable discharge, such as the GI Bill. Others, such as VA service-connected compensation, require only an Under Honorable Conditions (General) discharge.

The military branches publish statistics that make the odds of an upgrade appear low. But know that a properly prepared application can significantly improve your odds at the boards. A prior service member, regardless of the classification of service, should never give up hope. It’s never too late to obtain a discharge upgrade or establish a medical disability retirement. Correcting the record may be possible, opening up access to life-changing benefits.

For National Guard

National Guard members may first need to request relief through their state’s National Guard before appealing at the federal level. This is the administrative exhaustion requirement, which involves requesting relief through administrative channels before proceeding through the options detailed below. You are not required to get a final decision, only to provide documentation of your request for relief. Failing to administratively exhaust can stall an otherwise promising case. Federal review boards and federal courts cannot review your appeal unless you have pursued relief at the state level first.

Record Corrections

You have as many as four “bites” at the apple before having to decide whether to file suit in federal court. Service members (including those in the Guard who have exhausted their duty to file with the state) should consider these three options:

First Bite: Discharge Review Board (DRB)

The first bite at the apple is often the one with the highest chance of success. A separated service member may apply to the DRB for their specific branch to have their case reviewed. This must be done within 15 years of separation. Applicants should file the appropriate document (DD Form 293) with a well-written legal brief and supporting evidence outlining their legal arguments and any procedural or regulatory errors that occurred during their separation proceedings. This review of the written record is your first “bite” at the apple. The standard for this board is that a service member proves an inequity or impropriety.

Second Bite: Discharge Review Board (DRB) Hearing

After their case is adjudicated on the written record, service members then have an opportunity to personally appear at a hearing virtually or in-person. The hearing is your second bite. Again, this request must be made within the strict 15-year window. This deadline will not be waived or extended.

NOTE: Record corrections not involving a discharge upgrade or changes to certain administrative data should be filed directly with the BCMR in most cases (see below). The DRB might not have the authority to grant this type of relief, and filing with the DRB will unnecessarily delay relief.

Third Bite: Boards for Correction of Military Records (BCMR)

After the DRB, the third bite at the apple is usually the Board for Correction of Military Records (BCMR) for that specific military branch. Service members generally have three years to submit the appropriate form (DD Form 149) and a well-written legal brief with supporting documentation to support the argument for a record correction and discharge upgrade, but the board will usually consider the application in the interests of justice if there is new and material evidence that has not yet been considered by the board.

The standard for this board is that the service member proves that an error or injustice occurred. A request for reconsideration of a prior BCMR decision can now be filed at the BCMR at any time if the service member can provide new and material evidence to support the request – evidence that is relevant to the error or injustice being alleged and that has not yet been reviewed by the board.

Fourth Bite: Discharge Upgrades at the Department of Veterans Affairs (VA)

A far-too-often overlooked step in the battle for benefits is the request to have the VA upgrade the classification to something other than dishonorable for VA purposes only. This might be your fourth bite at the apple. There are two main benefits veterans take advantage of. The VA requires an Honorable discharge for education benefits (i.e., GI Bill), but only requires an Under Honorable Conditions (General) discharge for increased medical benefits and monthly compensation. The VA considers anything below a General discharge to be dishonorable, which bars the former service member from obtaining most benefits.

A service member may file an application with the VA requesting a review of their service to determine whether the VA will consider their service to be something other than dishonorable for VA purposes only. Often, service members have a period of honorable service that can qualify them for benefits, or the VA will upgrade their classification based on their service prior to the conduct that resulted in separation. A service member can submit a written request for this correction and can request a follow-up hearing if necessary.

Persistence Matters

A service member need only obtain a victory at one of the four (five for the National Guard) bites at the apple outlined above to obtain service-connected compensation and possibly education benefits if upgraded to Honorable. The service member should consider filing at the DRB or BCMR and at the VA in parallel filings to benefit from whichever agency returns the quickest favorable decision.

The key is to be persistent and aggressive with well-prepared filings until you have accomplished your goals or exhausted all avenues. It is not strictly necessary to retain an attorney to represent you during these appeals. But a military attorney can give you a realistic assessment of your chances, help determine the most effective course of action, and make sure your appeal package is as strong as possible.

As a Managing Partner at Tully Rinckey PLLC, a First Sergeant in the United States Army Reserve, and a combat veteran, Anthony Kuhn focuses much of his time on the representation of military personnel and members of the intelligence community. He has extensive experience assisting clients in navigating matters involving security clearance suspensions and revocations, appeals to the Discharge Review Boards and Boards for Correction of Military Records, UCMJ violations and non-judicial punishment, appeals for service-connection before the Department of Veterans Affairs, rebuttals to GOMORs and QMP selection notifications and requests for Special Selection Boards. He also serves as the Chair of the National Security Lawyers Association.

The military law attorneys at Tully Rinckey PLLC served long before they became lawyers. They know the military, they know the law, and they are ready to fight hard on your behalf. If you have additional questions about discharge upgrades or correcting bad paper in your military records, our team of dedicated military law attorneys is available to assist you today. Please call 8885294543 to schedule a consultation, or schedule a consultation online.