Fact vs. Myth
One of the most common urban legends that persists throughout the military is that a negative service characterization or discharge will be upgraded after six months. Throughout the last decade and a half that I have been practicing military law I have heard this idea repeated many times. “I thought my discharge would be automatically upgraded after six months.” The source of this myth may be a WWII era regulation that used to require units to hold records for six months before forwarding them to the National Personnel Records Center.
Regardless of the source of this myth, it is important that military members understand they should not waive any of their rights during the separation process. Rather than relying on rumors or the advice of “Barracks Lawyers” all military members should consult with an experienced attorney before signing any of their separation paperwork. After separation, the only way to have a discharge upgraded is to apply to the appropriate review board.
Will the Request be Granted?
Understanding that the “automatic upgrade” is a myth, the next important question becomes, if a veteran applies for an upgrade, will the request be granted? The answer to that question is entirely dependent on the circumstances of each case and the available evidence. Because the review boards apply a “presumption of administrative regularity” when reviewing a case, the majority of requests submitted by veterans are denied. The burden is on the applicant to overcome the presumption and make a strong case for relief. In my practice, I encourage veterans who are seeking an upgrade to consult with an attorney with significant experience in this practice area because it is a unique area of the law and it takes careful analysis and persuasive arguments to win these cases.
Example Cases:
One of our recent successes involved a case where we argued that the demonstrated character and community service of our client after his military service should be considered and the Board found the argument compelling and awarded an honorable discharge. In another case, we successfully argued that combat related PTSD was a triggering factor for drug use and misconduct. As a result, the veteran received an upgrade to an honorable discharge. In addition to the specific facts of these cases, success was achieved based on a thorough review of recent decisions and trends at the Boards and the tailoring of legal arguments based on those trends.
If you are a veteran who is interested in applying for a discharge upgrade, please contact Crisp and Associates at 717-412-4676 and speak to one of our attorneys about your options. As veterans we are passionate about these cases and always eager to help you those who have served our country.