RECORDS CORRECTION / DISCHARGE UPGRADE

Records Corrections

Current and former Military members (including Reserve) may apply for a correction of an error or injustice in their record. Others may use them if a service member is deceased or incompetent. The member’s spouse, widow or widower, next of kin, or legal representative can apply for the service member.

Each branch of the military offers administrative remedies to correct a service member’s military records. The solutions include administrative discharges, punitive discharges from a court-martial, and medical retirement eligibility. They also include non-judicial corrective actions, reprimands, evaluation reports, etc.

Correcting a service member’s military records can become confusing for various reasons. The administrative boards have different authorities and jurisdictions to correct specific information. These boards also have diverse legal standards, statutes of limitation, and evidentiary restrictions that cause further confusion.

The Discharge Upgrade Boards (DRB)

If the service member served in the Air Force, Army, or Coast Guard, they must apply to their respective DRBs. The AFDRB, the ADRB, and the CGDRB have limited capabilities but can upgrade a discharge and change the reason, or narrative, for a discharge.  If the service member served in the Navy or the Marine Corps, these entities have a joint DRB (NDRB).

The Board of Corrections for Military Records (BCMR)

In addition to the DRBs, there are also different Boards for Correction of Military Records (BCMRs). The Air Force (AFBCMR), Army (ABCMR), and Coast Guard (CGBCMR) have their separate boards, but the Navy and Marine Corps have a joint Board known as the Correction of Naval Records (BCNR). The veteran will be required to apply to the appropriate board.

The respective BCMR or BCNR will only accept the application if the applicant has tried other ways of obtaining relief. If the service member requests something the DRB can do – a Discharge Upgrade, a Change in the Reason for Discharge, or both – the veteran must first apply to a DRB unless the deadline for applying to the DRB has passed. If the veteran requests anything else, the DRB may be bypassed, and the application presented directly to a BCMR or BCNR.

The Process of Upgrading Your Discharge

While the DRBs for each service are different, they all follow the same general guidance from the Department of Defense. However, each DRB has a distinct process for filing an upgrade.

The first step in requesting an update is to complete an Application for Review of Discharge from the Armed Services of the United States (or DD-293).  The applicant will be asked on the application whether they would like the DRB to decide the case based on the application and supporting documents or an in-person hearing. If a request is made for the DRB to settle the case based on the application without a hearing and denied, the applicant can then submit a hearing request.  This process allows the applicant two opportunities for a favorable decision.

If an in-person hearing is required, it will occur in Washington, D.C., before the DRB.  The DRB usually consists of five officers. The applicant may testify at the hearing if they choose to do so. The board may ask the applicant questions if the veteran elects to testify under oath. The applicant may submit a written statement instead of testifying under oath at the hearing.

The boards will consider several factors when making a decision, including:

• The reason for the discharge,

• The length of time that has passed since the discharge,

• The applicant’s record of community service,

• The applicant’s employment record,

• The veteran’s general conduct,

• Educational achievements,

• Family relationships, and

• Reference letters
  

If the request is denied, you may go to the BCMR. The applicant may submit a request to appeal the DRB’s decision to the BCMR using DD-Form 149.

If the discharge occurred more than 15 years ago, the veteran may apply directly to the Board for Correction of Military Records (BCMR). However, veterans should apply to the BCMR within three years of discovering the error or injustice they request to correct. The application may be accepted and reviewed after three years, and it is in the “interests of justice” for the BCMR to receive and review the application.

The applicant may submit a DD-2870  to request medical and dental records. Veteran’s Administration forms 10-5345 and 10-5345a allow disclosure of medical or dental records kept by the VA.

Service members have a limited number of opportunities to appeal to these boards. Therefore, speaking to a lawyer well-versed in military administrative law’s nuances is essential to maximize the chance of successfully correcting a service member’s military records.

News

A 2017 article states, “Veterans Affairs Secretary David Shulkin said his department will start offering mental health services for veterans with other-than-honorable dismissals as soon as possible, saying the issue is too important to wait for congressional intervention.”

The Department of Defense recognized many veterans were discharged unjustly or inappropriately. A recent press release states, “The department is reviewing and consolidating all of the related policies to reinforce the department’s commitment to ensuring fair and equitable review of separations for all veterans.” If you have been discharged from the military unfairly or incorrectly, call Crisp and Associates Military Law today to speak with one of our attorneys with expertise in military discharge upgrades.

Special Consideration Memorandums

Several recent statutes have increased the likelihood for veterans who experienced PTSD, TBI, or MST to upgrade their discharge. The memorandums require that Boards give “liberal consideration” to applications that meet specific qualifications based on being diagnosed with PTSD, TBI, or mental health conditions.

• Hagel Memo

• Kurta Memo

• Wilkie Memo

• Carson Memo

Case Results

United States Army, O-5, Board for Correction of Naval Records. Attorney Gordon sulped, arguing that his client should be retroactively awarded the Army Bronze Star Medal with “V” for meritorious service in a combat zone in 1968.

United States Army, E-1, Army Discharge Review Board. Attorney Gordon successfully argued that his client’s military discharge should be upgraded from a General Under Honorable Conditions characterization to an Honorable characterization. The DRB found that the client was the victim of a substantial error of fact by his chain of command. In conclusion, Attorney Gordon convinced the DRB that his client’s discharge was too harsh based on his overall quality of service.