Military Discharge Upgrade Lawyer
Military discharge upgrade lawyer Brett O’Brien, Esq., knows that, unless upgraded, less-than-honorable discharges can negatively impact veterans for the rest of their careers and make them ineligible for future benefits. If your military discharge was less than optimal or has affected your ability to obtain a job or benefits, discharge upgrade lawyer Brett O’Brien can help.
We represent clients in the upgrade process nationwide. Moreover, should your case require a hearing, our office is conveniently (and cost-effectively) located in Washington, D.C., where discharge hearings take place.
Types of Military Discharges
There are various types of military discharges. Below is a general description of each type of discharge along with some of the effects that type of discharge may have on future education, benefit, and/or employment opportunities. For a more detailed analysis of the benefits that are available to you depending on your discharge type, you can also view a chart of the Benefits at Separation.
Honorable Discharge. An Honorable Discharge is the highest-level of discharge that a service member can obtain. It reflects a service member who has served with distinction. Those who receive an Honorable Discharge will receive all rights and benefits afforded to veterans.
General, Under Honorable Conditions. A person discharged with a General, Under Honorable Conditions discharge will be seen by employers as having potential problems with discipline and conduct. Thus, most employers would look upon an individual with a General discharge less than favorably. In addition, if you have been discharged with a General discharge, some benefits will be lost, including the GI Bill. If you were discharged with a General discharge, you are eligible for review with your service’s Discharge Review Board (DRB). You may strongly want to consider hiring a discharge upgrade lawyer to increase your chances of obtaining an upgrade to an Honorable Discharge.
Other Than Honorable. A person who is discharged with an Other Than Honorable (OTH) will be viewed by potential employers as having substantial problems with discipline and conduct. Most, if not all, employers would therefore avoid hiring these individuals, thus making it difficult to find meaningful employment. In addition, persons discharged with an OTH will lose out on significant benefits. If you have been discharged with this type of discharge you might feel as though you have been short changed or cheated by the government. You are, however, eligible for review with your service’s Discharge Review Board (DRB). You may strongly want to consider hiring a discharge upgrade lawyer to increase your chances of obtaining an upgrade. In some cases, a discharge upgrade lawyer will be able to upgrade you from an OTH to an Honorable. In other cases, you might only be able to obtain an upgrade from an OTH to General. Discharge upgrade lawyer Brett O’Brien will fight for the highest possible discharge level. Each individual case will vary. Even in those scenarios where it is only possible to upgrade you to a General (as opposed to an Honorable), however, it is important to keep in mind that there are many benefits that you can obtain with a General that you cannot otherwise receive with an OTH, as can be seen on the Benefits at Separation Chart.
Bad-Conduct, Dishonorable, or Dismissals. Bad Conduct, Dishonorable, or Dismissal discharges are considered punitive. Employers will stigmatize and look disfavorably upon these individuals. Bad-conduct discharges from a special court-martial conviction can be upgraded by the DRB. Discharges that result from a general court-martial conviction, however, are not eligible for an upgrade by the DRB. If you received a general court-martial discharge or if you want to change your discharge to or from medical retirement or medical discharge,you will have to apply to the Board for Correction of Military Records.
Uncharacterized/Entry-Level Separation. This type of discharge is used when the service member has less than six months of service. While this discharge is technically not an adverse determination, stigma can nonetheless result from this discharge as the service member may be viewed as someone who lacked the ability and/or motivation to finish basic training. Although upgrading these discharges is difficult, it is possible.
Why Upgrade My Discharge?
There are multiple reasons for wanting to update a discharge. Some of these reasons include:
- Greater career or job prospects;
- Increased educational benefits;
- To mitigate issues in the security clearance application process;
- To restore your reputation;
- To obtain federal or state employment;
- To obtain Veteran’s Affairs benefits; and/or
- To obtain compensation for service-connected illnesses and injuries.
Your less-than-favorable discharge ranking can negatively impact each of the above-mentioned considerations. Thus, it is important that you try to obtain the best possible discharge in order to ensure that you set yourself up for future success in terms of your career and ability to obtain benefits.
Your record of service, or Certificate of Release or Discharge from Active Duty (DD-214 or NGB-22, if National Guard), should reflect the most honorable discharge level possible. Those military members who leave the service with anything less than an Honorable Discharge often face reduced job prospects and either reduced or eliminated benefits.
Many veterans who seek upgrades have gone on to live exemplary lives since their discharge and are frustrated by the fact that they are being discriminated against based on a single incident that might have occurred at a young age. Whether the underlying discharge was due to a criminal violation, such as drugs or theft, or some other reason altogether, employers might be hesitant to hire such individuals. In today’s competitive job market, even if such incidents happened years ago, discharged veterans are at a disadvantage.
Those who can obtain an upgrade are more likely to obtain better jobs, plain and simple. In addition, they are able to obtain benefits, such as the GI Bill, which can enable them to pursue educational opportunities.
What is the Procedure for Obtaining an Upgrade?
You can apply to the Discharge Review Board (DRB) of your branch of the service for a discharge upgrade or a change in the discharge reason (that is, character of service). Each service branch has its own DRB, which is tasked with evaluating discharge upgrade requests.
The procedures for upgrading discharges are governed by service regulations and can be complex and cumbersome. While the DRBs for each service are different, they all follow the same general guidance from the Department of Defense. However, each DRB each has its own distinct process for filing an upgrade.
So long as your discharge was not part of a general courts-martial, the applicable DRB has the authority to review your discharge. In doing so, the DRB may examine, change, modify or correct the characterization of service and the for your discharge.
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). You can obtain this form online, but just make sure you are using the most updated version of this form. It is important to be thorough when completing this form, as any issues that you fail to list cannot be considered by the board, even if you or your attorney tries to raise them later on.
In order to complete your application, you should first request a complete copy of your military and any relevant medical records so that you can submit them with your application. You can obtain these records through the Veterans’ Service Records section of the National Archives and Records Administration website. Obtaining the records may take weeks, or even months in some cases. In practice, often a second request for records may be necessary if the service fails to provide complete records. It is also recommended that you include language referring to the Freedom of Information Act (FOIA) in any record requests from the armed forces.
Should you retain us to represent you in the upgrade process, discharge upgrade lawyer Brett O’Brien will request and obtain the requisite files on your behalf. We will then complete your application. In addition to completing the DD-239 and enclosing relevant medical and/or military issues that relate to your upgrade request, we will also draft a persuasive and comprehensive legal brief going over all of the reasons why you deserve an upgrade as well as a Statement of Material Contentions (a legal document that lays out the issues we want the DRB to address).
In addition, we may submit any of the following documentary evidence, as applicable: Military records; Medical records; Records showing rehabilitation for drug or alcohol abuse; Good performance reviews; A statement from the service member; Statements from other services members that you served with (the higher the rank, the better); Character reference letters (these can be from friends, family members, employers, clergy, etc.); Educational records; Post-service employment records; Credit reports; Family responsibility documents (birth and marriage certificates, etc.); Awards; Criminal record reports; and/or Volunteer, charitable, or donation records.
When requesting an upgrade, the burden is on the discharged veteran to prove that an upgrade is warranted. To get your discharge upgraded or your character of service changed, you will need to demonstrate that your discharge was either “improper” or “inequitable.” An improper discharge means that the discharge was based on factually incorrect information or was inconsistent with the law. An inequitable discharge means that the discharge was unfair or was inconsistent with the traditions and policies of the service. An example of a discharge that qualifies for an upgrade might be that a veteran served honorably and had a single bad incident or was abusing drugs or alcohol as a means of self-medicating post-traumatic stress disorder.
In considering whether to grant you an upgrade, the DRB can consider the circumstances surrounding your discharge, your service record in its entirety, whether the discharge was fair and proper, as well as your life outside of the military.
Despite some common misconceptions, you should know that discharge upgrades are never automatic. While having Post Traumatic Stress Disorder (PTSD) and a Traumatic Brain Injury (TBI) might improve your chances of obtaining an upgrade, there is no guarantee.
Discharge Upgrade Hearings – On the DD-293 application, you will be asked whether you would like the DRB to decide your case on the papers or whether you would like an in-person hearing. If you ask for the DRB to decide your case on the papers, without a hearing, and they subsequently deny your request for an upgrade, you can then submit a request for a hearing. This allows you to get two chances at a favorable decision.
If a hearing is required in your matter, it will take place in Washington, D.C. The hearing will take place before the DRB, which usually consists of five officers. At the hearing, you can testify if you choose to. If you choose to testify under oath, the board can ask you questions. In lieu of testifying under oath at the hearing, you can submit a written statement to avoid being questioned by the board under oath.
At the conclusion of the hearing, each board member will vote. Your upgrade request will be granted if the majority votes in favor of the upgrade. If you are granted an upgrade, you will receive a new DD-214 as well as a copy of the board’s decision. If you are denied an upgrade, you will receive a letter from the board explaining their decision.
If your request was denied, you can appeal the DRB’s decision to the Board of Corrections for Military Records (BCMR) using DD-Form 149.
How Long Does the Process Take? The discharge upgrade process is not quick. In fact, most discharge cases take between several months to 24 months to complete. Unfortunately, even if you hire a discharge upgrade lawyer, your case will still take this long to process. This is because all boards currently have significant backlogs. Thus, while having an experienced discharge upgrade lawyer will drastically help with the presentation and persuasiveness of your case, it, unfortunately, will not speed up the process.
Is There a Time Limit to Request an Upgrade? You should always be mindful of your discharge date. In most cases, you need to file a petition for an upgrade within 15 years of your discharge. Once your discharge turns 15 years old, your chances of obtaining an upgrade are significantly reduced since it can no longer be requested through the DRB after 15 years. After 15 years, you would need to request a “correction” to your military records through the Board of Corrections for Military Records (BCMR).
Likelihood of Success Tens of thousands of discharge upgrade requests are submitted each and every year before the various DRBs. The success rates before each of the services’ DRBs are highly variable and, in most instances, fairly low. According to The American Veterans and Servicemembers Survival Guide success rates are as follows:
- Navy Discharge Review Board: 4%
- Army Discharge Review Board: 41%
- Air Force Discharge Review Board: 19%
- Coast Guard Discharge Review Board: 1%
There are two reasons for this low success rate. First, DRBs are required by law to review applications with the presumption that the discharge was correct. It is your burden to overcome this presumption. Second, most applications are submitted either incorrectly and/or incompletely and do not fully develop and submit the issues for review. For example, many applications consist of only a DD-293 plus a written statement and a few character reference letters.
A successful application, however, consists not only of the requisite forms but also of documentary evidence and persuasive legal arguments that convince the board that a discharge upgrade is warranted. Having an experienced discharge upgrade lawyer, however, can greatly increase the likelihood of success.
Should I Hire a Discharge Upgrade Lawyer?
Hiring a discharge upgrade lawyer can be a big decision. You might be wondering whether it is worth hiring a discharge upgrade lawyer at all or you might be wondering how to find the right discharge upgrade lawyer.
In order to determine whether it makes financial sense to hire a discharge upgrade lawyer to handle your case, you will want to consider the likelihood of being upgraded. If your chances are slim and your finances are tight, for example, it might not make sense to pursue a discharge upgrade lawyer. If, on the other hand, you have a good chance at obtaining an upgrade, and such an upgrade would help in terms of broadening future employment opportunities or increasing benefits available to you, then hiring a discharge upgrade lawyer would probably be a wise investment.
Discharge upgrade lawyer Brett O’Brien offers a free (no pressure) consultation specifically to help you evaluate these factors. We will properly evaluate your case and provide open and honest feedback – even if that means tell you that your chances are slim.
That being said, if your chances of obtaining an upgrade are high and you truly wish to reduce the stigma associated with your discharge, then you should most definitely consider hiring a discharge upgrade lawyer. For the reasons discussed above, your DD-214, which contains a summary of your service and lists your discharge characterization, is quite possibly the most important document you may ever receive. Your DD-214 can benefit you substantially when you seek future education and employment. However, if your DD-214 contains negative discharge information, it can severely adversely affect your future opportunities.
Having an experienced discharge upgrade lawyer make a persuasive, organized, and comprehensive presentation and argument to the board can mean the difference between obtaining an Honorable upgrade or obtaining no upgrade at all. A discharge upgrade lawyer will review all of the relevant records and formulate an argument on your behalf. Moreover, they will have the experience to know which types of arguments work with the board and which don’t. They also know how to persuasively present your case to the board – both in writing at and a hearing.
Moreover, beyond merely filling out the DD-293, your discharge upgrade lawyer will request and review relevant records, gather other documentary evidence, draft an accompanying legal brief and prepare for your hearing before the board. This is a significantly time consuming process.
Nationwide Discharge Upgrade Lawyers
If you are looking to hire a discharge upgrade lawyer, please be advised that you do not need to hire a local lawyer. This is because this is a federal practice area. In fact, a local discharge lawyer might not have the experience and background that a nationwide discharge upgrade lawyer might have.
Regardless of where you are located, discharge upgrade lawyer Brett O’Brien will communicate with you through phone, email, etc. Moreover, even if your case requires an appearance before a board (not all do) our law firm is conveniently located in Washington, D.C., where the board hearings take place. Thus, you will not have to charge higher fees for an out-of-state lawyer to travel to appear before the boards in Washington, D.C.
If you received a less-than-honorable discharge, you owe it to yourself to fight for the honorable discharge you deserve. Contact discharge upgrade lawyer Brett O’Brien today for a free consultation at 202-600-4996.
Additional Helpful Resources
For more information on the military discharge upgrade process, please visit some of the following online resources:
Boards of Review Reading Room – searchable database of past decisions of the DRBs and BCMRs for each military service, which can help one understand how the boards analyze applications and make decisions.
Benefits at Separation Chart – chart that displays the various benefits that are available according to discharge type.
Connecticut Veterans Legal Center’s Veterans Discharge Upgrade Manual – comprehensive manual provided by the Connecticut Veterans Legal Center
Applying for a Discharge Upgrade When You Have PTSD – supplemental guide to the Connecticut Veterans Legal Center’s Veterans Discharge Upgrade Manual dealing specifically with PTSD
Hagel Memo – guidance from the Secretary of Defense relating to discharge upgrades for veterans with PTSD
Guide to Filing Military Discharge Review Board and Board for Correction of Military Records Applications – complete guide to applications from the Amercian Legion
National Archives Website – to request a complete copy of your military and/or medical records
Department of Defense Forms – to access applicable forms
Instructions from Veterans Affairs – VA guidance on how to apply for a discharge upgrade
Army Discharge Review Board – Army guidance on how to apply for a discharge upgrade
Naval Discharge Review Board – Naval guidance on how to apply for a discharge upgrade
Air Force Discharge Review Board – Air Force guidance on how to apply for a discharge upgrade
Coast Guard Discharge Review Board – Coast Guard guidance on how to apply for a discharge upgrade
FAQs Army Discharge Review Board – for answers to some frequently asked questions regarding the Army DRB