An In-Depth Guide to the Military Discharge Upgrade Process

For many former service members, a discharge with a less-than-honorable characterization can have lasting effects on their ability to access key benefits like VA health care, GI Bill educational benefits, home loans, and even civilian employment opportunities. If you were discharged with a General (Under Honorable Conditions), Under Other Than Honorable Conditions (UOTHC), or Bad Conduct Discharge (BCD, with exclusions), you may have the option to request a discharge upgrade. This process can be complex, but with the right guidance, it can lead to significant improvements in your post-military life.

This blog will provide an in-depth overview of the military discharge upgrade process, including timelines, courts, standards of review, appeal options, and how an upgrade can benefit you. It will also explain how skilled veteran attorneys can help navigate the process.

What Is a Discharge Upgrade?

A discharge upgrade is a legal process in which a former service member petitions to have their discharge characterization changed to a more favorable status. Discharge characterizations such as General, UOTHC, and Bad Conduct can limit access to veterans' benefits, affect employment prospects, and tarnish a service member's legacy.

An upgrade to an Honorable Discharge or General (Under Honorable Conditions) can restore access to benefits and improve career opportunities.

Benefits of a Discharge Upgrade

Upgrading your discharge can provide several important benefits:

1. Restoration of VA Benefits: Veterans with an upgraded discharge may regain access to VA health care, disability compensation, and education benefits through the GI Bill.
2. Improved Employment Prospects: Many employers, especially those in government or defense industries, require applicants to have received an honorable or general discharge to qualify for employment.
3. Restoration of Civil Rights: An upgrade from a Bad Conduct or Dishonorable Discharge can restore certain civil rights, including voting and gun ownership, that may have been lost due to the initial characterization.
4. Mental and Emotional Healing: For many veterans, a discharge upgrade can provide closure and a sense of justice after a negative discharge that may have been based on unfair circumstances or incomplete evidence.

Timelines for Filing a Discharge Upgrade Request

The timeline to file for a discharge upgrade depends on your specific situation:

• General Timeline: Service members can apply for a discharge upgrade at any time. However, there are certain deadlines for requesting a formal review based on the board or process you use.
• Three-Year Rule for the Board of Corrections of Military Records (BCMR): While there is no strict statute of limitations, the BCMR encourages veterans to file for an upgrade within three years of discovering the issue. However, the board has the discretion to waive this timeline if the request is filed "in the interest of justice."
• Fifteen-Year Limit for Discharge Review Boards (DRB): If you were discharged less than 15 years ago, you can apply for a review through your branch’s DRB. The DRB can upgrade your discharge based on your military record and post-discharge conduct.

Where to File for a Discharge Upgrade

There are two primary boards where you can file for a discharge upgrade, depending on the nature of your case:

1. Discharge Review Boards (DRB): Each military branch has its own DRB, which reviews discharge upgrade requests for service members discharged within the last 15 years. The DRB is limited to reviewing the characterization of your discharge and cannot change the underlying reason for the discharge (e.g., misconduct). DRBs focus on whether the discharge was equitable and appropriate given the service member’s record and the circumstances at the time.
2. Board for Correction of Military Records (BCMR): For discharges older than 15 years or for requests to change both the characterization and the reason for discharge, you must file with the BCMR for your branch of service. The BCMR has broader authority to review and change discharge characterizations, including correcting errors or injustices related to the reason for separation.

Branch-Specific DRBs and BCMRs

• Army Discharge Review Board and Army Board for Correction of Military Records
• Navy Discharge Review Board and Board for Correction of Naval Records (covers Navy and Marine Corps)
• Air Force Discharge Review Board and Air Force Board for Correction of Military Records
• Coast Guard Discharge Review Board and Coast Guard Board for Correction of Military Records

Standard of Review

The standard of review for discharge upgrade cases is based on whether the discharge was "proper and equitable."

• Equity Standard: This examines whether the discharge was fair considering the service member’s overall service record and whether they were treated equitably compared to others in similar situations.
• Propriety Standard: This evaluates whether the discharge was handled in accordance with the law, regulations, and policies in effect at the time of separation.

For a discharge upgrade to be successful, applicants often need to demonstrate that the original discharge decision was either unfair (inequitable) or improper (did not follow military rules or regulations). The BCMR can also consider new evidence that may not have been available during the original discharge proceedings, such as medical records, character references, or documentation of post-discharge behavior.

Appeal Process

If your initial request for a discharge upgrade is denied by the DRB, you may still have the option to appeal to the BCMR. Additionally, if the BCMR denies your request, you can file an appeal through the U.S. District Courts to seek judicial review of the board’s decision. Judicial review typically focuses on whether the board acted arbitrarily, capriciously, or unlawfully in making its decision.

How an Attorney Can Help with the Discharge Upgrade Process

The discharge upgrade process is complex, and the boards reviewing your case often require detailed documentation and legal arguments to support your request. Here are several ways a veteran attorney with military experience can help:

1. Crafting a Strong Case: An attorney can help you gather relevant evidence, including military records, medical documentation, and character statements, to build a strong case for an upgrade. They understand what boards look for and can tailor your application to address the equity and propriety standards.
2. Navigating Legal Complexities: There are often legal nuances to the discharge upgrade process, such as timelines, legal precedents, and evidence rules. A skilled attorney knows how to navigate these complexities and present your case effectively.
3. Appeals: If your initial request is denied, an experienced attorney can guide you through the appeals process, helping you prepare additional arguments and evidence for the BCMR or even file for a judicial review in federal court.
4. Mitigating Factors: A veteran attorney will also know how to highlight mitigating factors that may have contributed to the discharge. For example, if you were dealing with undiagnosed PTSD or another mental health issue, this may serve as grounds for reconsideration.
5. Post-Service Behavior: Attorneys with military experience know that post-discharge behavior can play a major role in the board’s decision. They will help present your post-service accomplishments, such as obtaining employment, educational achievements, or community service, to strengthen your case.

Conclusion: Why Veterans Should Seek Legal Help for Discharge Upgrades

For veterans who received a less-than-honorable discharge, the upgrade process provides a critical opportunity to restore benefits, rights, and dignity. However, this process can be challenging without the right guidance. Working with a veteran attorney who understands military regulations and discharge review boards can increase your chances of success.

At Patriots Law Group, our experienced veteran attorneys have helped countless service members navigate the discharge upgrade process. We understand the emotional and financial stakes involved and are dedicated to fighting for your rights and ensuring you receive the benefits and recognition you deserve.

Contact us today to schedule a consultation and begin the process of securing your discharge upgrade. Call 301-952-9000 or use our online scheduling links to get started.

DISCLAIMER: The information provided in this blog is for general informational purposes only and does not constitute legal advice. Reading or engaging with this content does not establish an attorney-client relationship between you and our law firm. If you need legal assistance regarding your specific situation, we encourage you to contact us directly for a consultation.

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