Changing Laws & Attitudes: How A Veteran Attorney Can Win Your Discharge Upgrade Case
This blog explains how an experienced attorney can help you navigate the complex discharge upgrade process, from gathering evidence to advocating on your behalf. If you've received a less-than-honorable discharge, legal assistance can significantly improve your chances of restoring your benefits and clearing your military record.
How an Attorney Can Help Your Discharge Upgrade and Why Changing Laws and Attitudes Matter
Receiving a less-than-honorable discharge from the military can have long-lasting and serious consequences. It may affect your access to veterans' benefits, health care, educational opportunities, and even your employment prospects. Fortunately, a discharge upgrade is often possible, particularly if there were circumstances that were not properly considered during your initial separation or if changing laws and attitudes now present new grounds for reconsideration.
Hiring an experienced attorney to help you navigate the discharge upgrade process can greatly improve your chances of success. This blog will explain how an attorney can assist with preparing your case, as well as how shifts in the legal and cultural landscape, such as changes in views on PTSD, mental health, and Don't Ask, Don't Tell, can provide justification for an upgrade.
The Discharge Upgrade Process
A military discharge upgrade is a formal request to the military to change your discharge characterization from General (Under Honorable Conditions), Under Other Than Honorable Conditions (UOTHC), or Bad Conduct Discharge (BCD, with some exclusions) to a more favorable status, such as Honorable or General (Under Honorable Conditions). Depending on when your discharge occurred, the case will be heard by either a Discharge Review Board (DRB) or a Board for Correction of Military Records (BCMR).
Steps Involved in the Discharge Upgrade Process
- Filing the Application
The process begins by submitting DD Form 293 to the DRB or DD Form 149 to the BCMR, depending on the age of your discharge. In this form, you explain why you believe your discharge should be upgraded and provide any supporting documentation. - Gathering Evidence
The key to a successful discharge upgrade is strong supporting evidence. This may include medical records, service records, letters of recommendation, character references, or proof of post-service rehabilitation and accomplishments. - Attending the Hearing
You may be permitted to attend a hearing before the DRB to present your case. At this hearing, you will have the opportunity to explain the circumstances surrounding your discharge, provide additional evidence, and answer questions from the board members. - Decision and Appeals
Once the board reviews your case, they will issue a decision. If your request is denied, you may be able to appeal the decision or pursue legal action in federal court.
How an Attorney Can Help with a Discharge Upgrade
The discharge upgrade process is complex, and the burden is on you to prove that your discharge was improper or inequitable. A skilled attorney can be invaluable throughout this process, helping to ensure that your case is presented in the strongest possible light.
1. Building a Strong Case
An attorney will help you collect and organize the evidence necessary to support your request. They can gather service records, medical records, and character statements from former commanders, colleagues, or community leaders. In cases where PTSD or mental health conditions played a role in the events leading to your discharge, an attorney can help ensure that these factors are properly documented and presented to the board.
2. Navigating Complex Military Regulations
Discharge upgrade boards apply both equity and propriety standards when reviewing cases. An experienced attorney understands these standards and can tailor your case to address both. The equity standard focuses on whether the discharge was fair, given the service member’s entire record, while the propriety standard looks at whether the discharge followed the rules and regulations in place at the time. A skilled attorney knows how to frame your argument to satisfy these standards.
3. Legal Advocacy
If your case involves a hearing before the DRB or BCMR, your attorney can represent you and make compelling legal arguments on your behalf. Your attorney will be your strongest advocate, ensuring that your story is heard and understood by the board members.
4. Filing Appeals and Pursuing Further Legal Action
If your request for an upgrade is denied, your attorney can guide you through the appeals process or pursue judicial review through the federal court system. They can help identify legal errors or procedural issues that may have affected the board’s decision, and they will work tirelessly to get you the outcome you deserve.
How Changing Laws and Attitudes Can Justify a Discharge Upgrade
In addition to the legal and procedural aspects of your case, cultural and legislative shifts may create new grounds for an upgrade. Many service members received less-than-honorable discharges due to policies or attitudes that have since changed. Here are a few examples:
1. Changes in Policies Like Don’t Ask, Don’t Tell
From 1993 to 2011, the military’s Don’t Ask, Don’t Tell (DADT) policy prohibited openly LGBTQ+ individuals from serving in the armed forces. Many service members received UOTHC or other unfavorable discharges simply because of their sexual orientation. In 2011, the repeal of DADT allowed LGBTQ+ individuals to serve openly, but many of those previously discharged under this policy have not had their discharges upgraded.
Since the repeal of DADT, there has been growing recognition that the discharges issued under this policy were unjust. The DRB and BCMR have been open to reviewing cases related to DADT and upgrading discharges based on these outdated policies. If you were discharged under DADT, an attorney can help you present your case in light of current laws and ensure that past discrimination does not continue to affect your future.
2. Recognition of Mental Health Conditions like PTSD and TBI
Post-traumatic stress disorder (PTSD) and traumatic brain injuries (TBI) are now widely understood to be serious medical conditions that can affect behavior and decision-making. Many service members who were discharged for misconduct or other issues may have been suffering from undiagnosed or untreated PTSD or TBI. In the past, military discharge boards may not have fully understood the effects of these conditions, leading to discharges that may now be considered inequitable.
With increased awareness of mental health issues among veterans, the DRB and BCMR have been directed (e.g., through directives from the “Hagel,” “Kurta,” and “Wilke” memoranda) to consider PTSD and TBI as mitigating factors. An attorney can help you gather the necessary medical evidence and argue that your discharge should be upgraded due to the impact of PTSD or TBI on your behavior during your service.
3. Shifting Attitudes Toward Substance Abuse and Rehabilitation
In recent years, the military has adopted more progressive approaches to substance abuse, recognizing it as a health issue rather than purely a disciplinary problem. Service members who were discharged for drug or alcohol-related misconduct may now have grounds for a discharge upgrade if they can show that they have completed treatment or rehabilitation programs and have maintained sobriety.
An attorney can help you present evidence of your rehabilitation and demonstrate that you are deserving of a discharge upgrade, allowing you to access VA health care and other benefits that may have been denied due to substance-related misconduct.
Why You Should Hire a Veteran Attorney for Your Discharge Upgrade
At Patriots Law Group, our attorneys have military backgrounds and understand the unique challenges service members face. We are well-versed in the discharge upgrade process, including the legal and cultural shifts that may now provide new opportunities for veterans to seek upgrades.
We will help you gather the evidence needed to support your case, prepare you for hearings, and ensure your discharge is evaluated fairly in light of current laws and attitudes. Whether you were affected by outdated policies like Don’t Ask, Don’t Tell or have struggled with untreated mental health conditions, we are here to help you fight for the discharge you deserve.
Call to Action
If you’re a former service member who received a less-than-honorable discharge, don’t wait to seek an upgrade. Contact us today to schedule a consultation at 301-952-9000 or use our online scheduling link (CLICK HERE). Let us help you take the next step toward restoring your benefits and rights.
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.
.svg)
.svg)
