When a service member leaves active duty, their discharge documentation, known as a DD214, indicates the nature of their discharge. While the majority of Veterans will be discharged with an Honorable discharge, some service members may receive a less than favorable characterization of their service: General (Under Honorable Conditions), Other Than Honorable (OTH), Bad Conduct, or Dishonorable discharge.
The classification of a discharge determines the types of benefits that a Veteran is eligible for following military duty, including educational benefits, as well as the types of jobs that a Veteran may be able to apply for once their military service is completed. Veterans have many options to appeal their classification of service. Here are a few of the most common options: the Discharge Review Board (DRB), the Board of Correction of Military Records (BCMR), and/or the Department of Defense Discharge Appeal Review Board (DARB).
In order to apply to the DRB, the Veteran has to have been discharged within the past 15 years. DRBs are more limited in the types of applications they can consider. For example, the DRB cannot adjudicate an application if the Veteran was discharged after General Courts-Martial. However, unlike the BCMR and DARB, the DRB may conduct in-person or telephonic hearings; therefore, Veterans have the right to two bites at the apple depending on the stage at which their discharge upgrade was denied.
First is the record review stage, where the DRB considers a Veteran’s application based on the written record. If a Veteran was denied at the records review stage, they can submit a request for reconsideration to the DRB, but they must provide new and material evidence. Also, the Veteran has a right to a hearing at the DRB if requested before the 15-year deadline expires. The DRB grants discharge upgrades based on equity and propriety.
Once a Veteran has exhausted their options at the DRB, they may submit an application to the BCMR of their branch. BCMRs have broad authority to hear different types of applications. Unlike the DRB, the BCMR can upgrade dishonorable discharges and applications where the Veteran was subjected to General Courts-Martial. Furthermore, BCMRs can adjudicate applications for medical retirement or medical separations, while DRBs cannot. BCMRs base their decisions on errors and injustices. Unlike the DRB, if the BCMR denies a Veteran’s application, the Veteran cannot request a hearing but does have the option to submit a request for reconsideration based on new and material evidence.
As of 2020, certain Veterans have an additional outlet to appeal a discharge upgrade denial through a final administrative appeal at the Department of Defense Discharge Appeal Review Board (DARB). To be eligible for appeal at the DARB, a Veteran must have been discharged on or after December 20, 2019, and must have already appealed to their service’s DRB and BCMR. Veterans also have the option to commence legal action in a federal court of appropriate jurisdiction.
There are many reasons why a Veteran might believe that their discharge status warrants a change or correction. One example that could lead to a less-than-honorable discharge could be driven in part by mental trauma (traumatic brain injury or PTSD), which might not have been diagnosed or known when a Veteran was initially discharged. For another example, policy changes in the military, such as appeal of the DADT Policy or handling of MST cases, have opened new doors for veterans with less than honorable discharges.
One important thing to note, however, is that the DRBs, BCMRs, or the DARB do not have the authority to direct certain findings or force the branches to make changes. They make recommendations based on the facts and evidence to the respective service’s secretary, who will then make a final decision to change a Veteran’s record. The secretaries nearly always agree with the boards’ recommendations but will overrule the board on rare occasion.
This makes it especially important that, at your initial appeal with a DRB, or Board of Military Corrections, you provide as much pertinent evidence as possible. Some types of evidence to submit at these stages include military records (combat awards, good conduct awards, length of service), post-service records (character references, volunteer work, college transcripts, and employment history), and medical records (mental health treatments, VA disability ratings, letters from doctors).
Veterans who would like their discharge characterization reconsidered, regardless of where they are in the appeals process, should consider what type of evidence and written statements they are providing to explain the mitigating circumstances that may have led to their discharge but might not have been considered by their branch of service.
Jonathan Gonzalez is an associate in Tully Rinckey’s Austin, TX, office, where he focuses on Veterans’ and Military law. Jonathan has successfully advocated on behalf of his clients before the Discharge Review Boards and Boards of Correction of Military Records. He has also successfully advocated for Service Members at Separation Board hearings and during military investigations. He can be reached at email@example.com or at (888) 529-4543.