Aiding the Transition from Combat to Community
A Brief Overview of the Discharge Upgrade Process
Upon being discharged from the military, each veteran is issued a DD214. This record serves as the individual's proof of military service, and notes the type of discharge, narrative reason for his or her separation from service, and reenlistment eligibility.1 There are five basic discharge statuses: honorable, general, other than honorable, bad conduct, and dishonorable. Any discharge that is characterized less–than–honorable may negatively impact a veteran's benefits from the VA and from state and federal governments. In some circumstances, the narrative reason for discharge on a DD214 may also statutorily bar the receipt of VA benefits.2 Such a discharge may further adversely affect a veteran's personal life, especially by limiting one's employment potential.
An alarming number of men and women have recently received improper discharges that are not fully honorable due to injuries that were not timely diagnosed or since their discharges were prior to major policy changes. For example, "between fiscal years 2001 and 2010 . . . more than 31,000 servicemembers were discharged for personality disorders. Thousands of these people suffer or suffered from a medical condition [such as PTSD and TBI] warranting medical retirement, but a personality disorder discharge deprives them of this benefit."3 Sadly, this is hardly a new occurrence. During the Vietnam War, the military discharged more than half a million servicemembers with less–than–honorable discharges.4
Furthermore, an estimated 114,000 servicemembers were less–than–honorably discharged based on their sexual orientation between World War II and the repeal of "don't ask, don't tell" in September 2011.5 Although the bill for the Restore Honor to Service Members Act was introduced earlier this year to upgrade the service records of gay, lesbian, and bisexual troops, it has yet to pass either the House or Senate. Consequently, these individuals face unwarranted discrimination based on their discharge classification unless otherwise upgraded.
As attorneys, "[h]elping a veteran upgrade or correct a military discharge can mean the difference between a life of struggle and one of successful transition from combat to community."6 Whether a veteran seeks to attain VA benefits, improve employment prospects, or upgrade for personal satisfaction, an attorney must help his client overcome the presumption that the discharge was conducted properly and regularly. To meet this high burden, one must demonstrate that the veteran's discharge was improper and/or inequitable. The former requires a showing that a regulation or procedure was not adhered to during the discharge process; the latter instead relates to how the discharge was unfair based on the factual circumstances at the time of discharge or has negatively impacted the veteran's life.7
Whichever reason supports your veteran's application and whatever forum is chosen, it is strongly recommended that additional evidence of positive post–service conduct also be submitted to mitigate any in–service misconduct. Evidence may include, but is not limited to: proof of "steady work or educational history, lack of a criminal record, community involvement, and a stable family life."8 Character reference letters from family members, fellow veterans, employers, professors, and religious or community leaders are also encouraged. Veterans may submit a statement to explain what led to the discharge, what mitigating circumstances occurred, and why the discharge should be upgraded or the record corrected.
Since this process is taken on a case–by–case basis, this depiction of the veteran since his date of discharge is critical. If your client lacks such a post–service history and there were no violations in the discharge procedures, then you should advise the veteran that it is better to postpone applying for the upgrade until he or she can demonstrate a clean slate. Ultimately, an excellent post–service history alone will be insufficient.
The primary evidence in all discharge upgrade claims are comprised of service personnel and medical records. Whether your client believes he fully possesses this documentation, an attorney should complete and submit Standard Form 180 to acquire a complete set of these records. Additionally, counsel may request documentation specifically pertaining to the veteran's unit, criminal investigations, and/or court martial proceedings, if applicable. Under the U.S. Code, commanding officers may non–judicially punish servicemembers for any act or omission that violates order and discipline.9 Therefore, thorough and diligent review of service records is crucial. Attorneys should take note of the frequency, severity, and date of all non–judicial reprimands the veteran received as well as any conduct that resulted in a court martial. This will provide greater insight into what needs to be mitigated or explained to the reviewing authority in the veteran's upgrade application.
Each branch of the military has its own Discharge Review Board (DRB) and Board for Correction of Military Records (BCMR).10 Factors to consider when deciding where to submit your client's application are discussed below; however, it is important to remember that neither forum conducts a formal court proceeding. Consequently, the application and supporting materials do not need to meet a specific evidentiary standard. The goal is to submit the forum's required form application with an informal brief that summarizes the veteran's request and supporting materials, and advocates that the veteran deserves an upgrade or correction of his DD214.
The biggest factors that determine where to file your client's application are based on the number of years that have passed since the date of discharge and the narrative reason for discharge. The statute of limitations for all DRBs is fifteen years from the date of discharge and this may not be waived under any circumstances.11 If more time has passed, the application must be sent to the BCMR. BCMRs have a three–year statute of limitations from discovery of "the error or injustice." With a bit more statutory leniency than the DRB, the BCMR statute of limitations may be waived "in the interest of justice."12
Moreover, DRBs may upgrade discharges provided that the discharge was not the result of a general court martial. These boards may also change the narrative reason to or from any reason, excluding medical disability and the statutory bars. DRBs are also precluded from altering reenlistment codes. If your client is seeking to change any information outside the purview of the DRB, his application must be submitted to the BCMR. Yet, "[i]f the relief sought may be granted by a DRB, a veteran must petition the DRB before applying to a BCMR."
The applications to both boards are relatively similar. Complete and submit DD Form 293 to apply to DRBs, and DD Form 149 to apply to BCMRs, respectively. Section 6 of both forms requires description of what was improper or inequitable about the veteran's discharge. It is important to specify a reason and not merely fill–in that the veteran is seeking benefits. These forms should be submitted with the aforementioned supplementary evidence. The boards will not conduct a de novo review; instead the burden of overcoming the presumption of proper discharge must be met by the applicant.
Another key distinction between the boards is the applicability of precedent. Although DRBs do not have to adhere to stare decisis, BCMRs have greater obligation to consider their own prior decisions. Federal courts may review the decisions made by BCMRs under the Administrative Procedure Act (APA). The applicable standard of review is whether the BCMR decision was "'arbitrary, capricious, or contrary to law' . . . which directs that 'an agency action is arbitrary and capricious if the agency failed to follow procedures as required by law, or has entirely failed to consider an important aspect of the case.'"13 Pursuant to the APA, deference is given the expertise of the BCMR and "an agency would be arbitrary and capricious if it treated identically situated cases radically differently . . . [However,] 'there is no 'require[ment] [that] an agency  grapple with every last one of its precedents, no matter how distinguishable.'"14 Given this standard, citing relevant precedent in your brief may benefit your client more so before the BCMR.
Turning to DRBs, there is an advantage in that you can potentially get two bites of the apple so to speak at this board. In your initial submission, one can request either a records review or a personal appearance review. The veteran has a right to both before this board. If you elect the former, the petition is evaluated on the veteran's official military personnel and medical records and any other materials submitted with the form application. The latter also consists of an informal hearing before the board in Washington, D.C. or in a major city to which the DRB has traveled (Army and Air Force DRB only). If the fifteen–year period has not expired when a decision is made based on a records review, then the veteran may still request a personal appearance review before the DRB. Finally, while one must consider the costly expenses associated with a personal appearance review, "statistics show that the success rate of personal appearances is 3 to 5 times higher than records review."
In the event that the DRB issues an unfavorable decision or the veteran is ineligible to submit his application thereto for reasons described above, then applications must be submitted to the branch BCMR. BCMRs have broader authority than DRBs, which allow these boards to upgrade any discharge characterization as well as change narratives of discharge and reenlistment codes. Applicants before BCMRs may again request documentary review or a personal appearance hearing. Personal hearings are all conducted in Washington, D.C. (none of the BCMRs travel to other major cities). The stark contrast at this level is that veterans do not have a right to a personal appearance before a BCMR. Requests for personal appearance hearings are rarely granted.
Even though the success rate is generally low, all is not lost if the veteran's DRB and BCMR both deny an upgrade or correction. BCMR decisions may be appealed to the federal district court. Alternatively, if your client is merely seeking VA benefits, then you may also utilize a process known as a character–of–service determination. This process may be sought at any time and does not require going through the entire discharge upgrade process. Though the discharge or narrative will not be amended, the VA will look at service records to determine whether the veteran's service itself was honorable despite the status of discharge. If the VA determines that your client's service was honorable, it will grant eligibility for certain benefits.
Ultimately, the discharge upgrade process can be long and tedious at times. Nonetheless, attorneys should not shy away from serving those who served and who continue face difficulties based on their discharge characterization.
Jennifer A. Sullivan is a newly admitted attorney in Illinois and is working as a Graduate Staff Advocate at The John Marshall Law School Veterans Legal Support Center and Clinic, where she worked throughout all of law school. Ms. Sullivan obtained her J.D. from The John Marshall Law School in January 2014 and her B.A. with High Distinction in History from the University of Illinois, Urbana–Champaign in May 2010.
DD214, Item 28 (providing what is known as the narrative reason for separation).
3 Teresa Panepinto, Good Paper: Challenging the Narrative Reason for a Discharge Requires Considerable Patience and Paperwork, 35 Los Angeles Lawyer 43, 43 (Nov. 2012) (hereinafter "Good Paper"), citing MELISSA ADER ET AL., CASTING TROOPS ASIDE: THE UNITED STATES MILITARY'S ILLEGAL PERSONALITY DISORDER DISCHARGE PROBLEM 3 (Mar. 2012), available at http://www.vva.org/PPD–Documents/WhitePaper.pdf.
4 Panepinto, Good Paper, supra note 3, at 44, citing LAWRENCE M. BASKIR & WILLIAM A. STRAUSS, CHANGE AND CIRCUMSTANCE:THE DARAFT, THE WAR, AND THE VIETNAM GENERATION 115 (1978).
6 Panepinto, Good Paper, supra note 3, at 47.
8 Panepinto, Good Paper, supra note 3, at 46.
9 Commanding Officer's Non–Judicial Punishment, 10 U.S.C. § 815.
10 Note that Marines must submit their respective applications to the Navy DRB and the Board for Corrections of Naval Records.
11 Review of Discharge or Dismissal, 10 U.S.C. § 1553(a).
12 Correction of Military Records: Claims Incident Thereto, 10 U.S.C. § 1552(b).
13 Martin v. Donley, 886 F. Supp. 2d 1, 11 (D.D.C. 2012).
14 Helferty v. United States, 113 Fed. Cl. 308, 317 (Fed. Cl. 2013).