A majority of people serving in the military leave active duty service with an Honorable characterization of service discharge. For those that do not receive an Honorable discharge, Title 10 U.S.C Section 1553 authorizes the Secretary of the service concerned to "establish a board of review, consisting of five members, to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member or, if he is dead, his surviving spouse, next of kin, or legal representative." The Discharge Review Board can upgrade general discharges, other than honorable (undesirable) discharges, and special court-martial bad conduct discharges, as well as change the reason for discharge or reenlistment code (in some circumstances).
What it Takes to Get an Upgrade
Not all discharge requests result in an upgrade. In fact, the vast majority of discharge upgrade requests are denied. In order to support a claim for a discharge upgrade, an applicant must show that the discharge was improper or inequitable. "Improper" means that the reason for separation or the characterization of the discharge is in error (i.e., is false, or violates a regulation or a law). "Inequitable" means the reason for separation or characterization of the discharge is not consistent with the policies and traditions of the service. The Discharge Review Board operates under the presumption that the service acted both properly and equitably in determining the basis for separation and characterization of service; the burden is on the applicant to prove otherwise.
How to Apply for an Upgrade
Each branch of the service has both a Discharge Review Board and a Board for Correction of Military Records (links below). Requests for discharge upgrades filed within 15 years of the discharge date should be submitted to the appropriate Discharge Review Board utilizing DD Form 293. For those discharges occurring more than 15 years ago, or for those cases where the service's Discharge Review Board already denied an upgrade request, applications for an upgrade should be filed with the service's Board for Correction of Military Records utilizing DD Form 149.
What Types of Evidence Should the Request Contain
It is vitally important that the applicant provide a robust package complete with supporting documents, witness statements, affidavits, etc. to maximize the chances at a successful petition. This typically means including far more information than can fit on DD Forms 293 and 149. My practice is to work with a client to develop an all-inclusive upgrade request package complete with supporting enclosures and then reference the package within the small amount of space provided on the applicable DD Form. Examples of supporting documentation to bolster a request for an upgrade include:
- Relevant orders and regulations
- Witness statements
- Character statements
- Service records
- Post-service employment records
- Medical records (especially important in PTSD/TBI cases)
- Personal statement written by applicant
What Type of Review Should an Applicant Request
Block 9 of DD Form 293 provides the applicant the option to request the type of review for the package. The first option is a documentary "record review" where the Discharge Review Board looks only at the applicant's military personnel files and the information provided by the applicant with the DD Form 293 submission. The second option is a "personal appearance" before the Board in the Washington, DC area. At this appearance, the applicant can retain an attorney or represent himself. The final option for review is another form of personal appearance, but this time before a traveling panel in a city other than Washington, DC. Appearances before a traveling panel are less common. It is typically advisable for an applicant to request a record review before requesting either type of personal appearance. In those situations where the Discharge Review Board denies a request after a record review, the applicant is free to submit a second DD Form 293 requesting a personal appearance. This second bite at the apple does not work in reverse; if an applicant first requests a personal appearance and the Board denies their claim, the applicant cannot then submit a request for a record review.
How To Appeal an Unfavorable Decision
There are generally two methods to appeal. First, as mentioned above, a decision based on a records review can essentially be appealed by resubmitting an application (preferably with some more supporting evidence or revised argument) for personal appearance. The other alternative is to submit a DD Form 149 to the appropriate service's Board of Correction for Military Records. That application is substantially similar to the DD Form 293.
An applicant only has a couple of chances to submit a successful discharge upgrade application. Because the chances of success are so low and the stakes are so high, it is advisable to retain an attorney familiar with the discharge upgrade process. Matthew T. Smith Law has handled discharge upgrade requests for clients in all branches of the service and for a variety of different reasons. If you would like to retain Matthew T. Smith Law to assist you with your discharge upgrade request, please click HERE to request your free consultation.