Thousands of service members across all branches have been involuntarily separated from their military branch following misconduct that has resulted in an administrative separation or court-martial. Many of them are denied benefits as a result of the alleged misconduct and their separation. 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. The record may be corrected to allow the service member to obtain life-changing benefits. 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 a properly prepared application can significantly improve your odds at the boards.
You have as many as four “bites” at the apple before having to decide whether to file suit in federal court. National Guard members may need to first request relief through their state’s National Guard to ensure that they have exhausted all administrative remedies. You are not required to get a decision, only to show proof that you requested the relief. If this proof is ignored by the board, a federal lawsuit will quickly result in a judge compelling the military branch to process your application. Service members who have no duty or have exhausted their duty to file with the state should consider these three options:
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 that specific branch 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 is your first “bite” at the apple. The standard for this board is that a service member proves an inequity or impropriety. Service members will have an opportunity to have their case adjudicated on the written record first and then an opportunity to personally appear at a hearing in Crystal City, VA if they make the request within the strict 15-year window. The hearing is your second bite. This 15-year limit will not be waived or extended.
Boards for Correction of Military Records (BCMR)
The third bite at the apple if you started with the DRB is usually the Board for Correction of Military Records for that specific military branch. Record corrections not involving a discharge upgrade or changes to certain administrative data should be filed directly with the BCMR in most cases. The DRB might not have the authority to grant this type of relief and filing with the DRB will unnecessarily delay relief. 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.
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-on hearing if necessary.
A service member need only obtain a victory at one of the four (five if you count the National Guard) bites at the apple outlined above to obtain service-connected compensation and possibly education benefits if the upgrade is 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.
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, federal employees, and federal agents. He can be reached at firstname.lastname@example.org or at 8885294543.