Preparing for a Military Discharge Upgrade Hearing: What You Need to Know

A military discharge upgrade hearing is one of the most crucial opportunities for former service members to present their case for upgrading a less-than-honorable discharge. This process can restore benefits, enhance employment opportunities, and provide emotional closure. Proper preparation is essential to maximize your chances of success. In this blog, we'll explain the discharge upgrade hearing process, standards of evidence, rules to follow, and tips for presenting your case effectively.

Overview of the Discharge Upgrade Process

Before diving into the hearing, it’s important to understand where and how the discharge upgrade process takes place. Discharge upgrade requests are handled by two primary boards, depending on the nature of the case and when the discharge occurred:

1. Discharge Review Board (DRB): Each branch of the military has its own DRB, which reviews discharge upgrade requests for service members who were discharged within the last 15 years. The DRB evaluates whether your discharge was equitable and proper. However, the DRB can only upgrade the characterization of your discharge, not the reason for separation.
2. Board for Correction of Military Records (BCMR): If your discharge occurred more than 15 years ago, or if you want to change both the characterization and the reason for discharge, you must appeal to the BCMR. The BCMR has broader authority than the DRB and can correct errors or injustices related to your military records.

The discharge upgrade hearing is typically held before the DRB. Most DRB hearings take place in Washington, D.C., although some boards may offer remote hearings or satellite hearings at locations closer to your residence.

Preparing for the Discharge Upgrade Hearing

Preparing for a discharge upgrade hearing is critical. Here are some key steps you should take to ensure you’re ready to present the strongest case possible:

1. Gather Evidence Supporting Your Case

The success of your discharge upgrade request depends heavily on the evidence you present. The board will evaluate whether your discharge was fair (equitable) and followed proper procedures (proper). Collecting and organizing relevant documents is crucial for proving that your discharge does not accurately reflect your overall service or post-service conduct.

Some evidence to consider includes:

• Service Records: These should include your performance evaluations, commendations, awards, and any evidence of positive contributions during your military service.
• Medical Records: If health conditions (such as PTSD, TBI, or other mental health issues) contributed to your discharge, it’s important to present supporting medical records. Documentation of treatment, rehabilitation, and progress can be especially helpful.
• Character References: Letters from former superiors, colleagues, or community members who can speak to your character, dedication, and post-discharge behavior are valuable.
• Post-Service Conduct: Evidence of steady employment, further education, community service, or other accomplishments since your discharge can support your case by demonstrating rehabilitation and personal growth.

2. Know the Standards of Evidence

The discharge upgrade boards follow a more relaxed set of rules for evidence compared to formal courts or courts-martial. While the standard of evidence is preponderance of the evidence, which means the board must believe that it’s more likely than not that your discharge was unjust or improper, the rules allow a wider range of evidence to be considered.

• Preponderance of the Evidence Standard: This means the board must find that the weight of the evidence tips in your favor. The evidence must show that it is more likely than not that your discharge characterization was either unfair or inconsistent with how others were treated in similar circumstances.
• Hearsay Evidence: Unlike formal courts, discharge boards may consider hearsay evidence if it’s deemed reliable. For example, letters or statements from people who were not present at the hearing can still be submitted as evidence, though they may be weighed less heavily.

While the rules of evidence are looser, presenting reliable and credible evidence is key to convincing the board to upgrade your discharge.

3. Appearance Matters

Your appearance at the hearing can have a significant impact. A professional appearance demonstrates respect for the board and the seriousness of your request. Consider wearing a suit or business attire. If your military uniform is available and in good condition, wearing it may also be an option, especially if it reflects awards or rank earned during your service.

Your demeanor during the hearing is equally important. Be respectful, composed, and honest in your statements. Even if you disagree with certain aspects of your discharge, remain professional when addressing the board.

4. Understand the Role of the Hearing

The hearing is your opportunity to present your case, explain your side of the story, and ask the board to upgrade your discharge. It's important to be clear about your reasons for seeking the upgrade and to highlight key factors such as:

• Personal Responsibility: Acknowledge any mistakes made during your service and demonstrate personal growth or efforts toward rehabilitation. Boards often look for indications that the service member has taken responsibility for their actions and made positive changes in their life.
• New Evidence: If you are presenting new evidence that was not available at the time of discharge, such as medical records or information about post-service accomplishments, make sure to emphasize this.
• Unfair Treatment: If your discharge was a result of discrimination, procedural errors, or unfair treatment, be prepared to clearly articulate these points and back them up with evidence.

5. Preparing Witnesses (If Applicable)

In some cases, you may have the opportunity to present witnesses at your hearing. Witnesses can help reinforce your arguments and provide additional context to your service or post-discharge behavior.

• Expert Witnesses: If your case involves medical issues, such as PTSD, you may want to consider calling a medical expert to testify on your behalf.
• Character Witnesses: Former superiors, colleagues, or community leaders can provide powerful testimony about your character and contributions.

Witnesses should be well-prepared to speak on your behalf and should understand the key points they are expected to cover.

6. Prepare a Strong Opening Statement

Your opening statement is your chance to frame the issues and provide an overview of your case. This is where you can highlight the key factors that support your discharge upgrade, such as:

• The contributions you made during your military service.
• Any extenuating circumstances or medical conditions that contributed to your discharge.
• Your accomplishments and conduct since discharge.

The opening statement should be concise but persuasive, setting the tone for the rest of the hearing.

The Hearing Process

At the hearing, the board will review your evidence, hear witness testimony (if applicable), and ask questions about your case. Here’s what to expect during the process:

1. Introduction: The board will introduce the case and explain the procedure.
2. Opening Statement: You (or your attorney) will present an opening statement outlining your case for a discharge upgrade.
3. Review of Evidence: The board will review the documentary evidence you’ve submitted.
4. Questioning: Your attorney (if represented) and the board members may ask you questions about your military service, the events leading to your discharge, and your post-service conduct. You may also call witnesses and ask them questions on your behalf, and the board can question them as well.
5. Closing Statement: You will have the opportunity to make a closing statement summarizing why the board should grant your upgrade request.

The board typically deliberates privately after the hearing and makes its decision at a later date, which will be communicated to you in writing.

How an Attorney Can Help

Navigating the discharge upgrade process can be overwhelming, but a skilled attorney with military experience can greatly improve your chances of success. Here’s how an attorney can assist:

• Case Preparation: An experienced attorney knows how to gather the right evidence and frame your case for the board. They can help you present your military record, medical evidence, and post-service accomplishments in the most favorable light.
• Representation at the Hearing: An attorney can represent you at the hearing, making legal arguments on your behalf and cross-examining any government witnesses. They can also help you prepare your opening and closing statements.
• Appeals: If the board denies your request, an attorney can help you file an appeal or pursue further legal action through the BCMR or federal court.

Conclusion

Preparing for a military discharge upgrade hearing is critical to improving your chances of success. By gathering strong evidence, presenting your case effectively, and ensuring your appearance and demeanor reflect your commitment to the process, you can make a strong argument for upgrading your discharge.

At Patriots Law Group, we are dedicated to helping former service members fight for the discharge upgrade they deserve. Our veteran attorneys understand the complexities of the military discharge process and can guide you through every step of the way.

Contact us today to schedule a consultation at 301-952-9000 or use our online scheduling link (CLICK HERE) to start preparing for your discharge upgrade hearing.

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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