How do I fight my military discharge?

Asked over 2 years ago - Jacksonville, FL

I went to mast and was had my ranked dropped to a e4 from a e5. That was pose to be the end of it. I went on leave came back and was told I was being separated for misbehavior. I had not been to this base for a couple months. At my previous base I worked I had excellent evaluations and only got in trouble once but I had no consequences. What can I do if anything to fight this. I've already been out for 4 months

Attorney answers (3)

  1. Philip Douglas Cave

    Pro

    Contributor Level 17

    8

    Lawyers agree

    Answered . Not sure you may not have already given up your first line.
    When notified of the separation proceedings you should have been told the type of discharge sought and the opportunity to talk with a lawyer. If they were seeking an OTH, then you should have been told about - and exercised -- your right to a discharge board. If it was a General or Honorable discharge, then your only right was to submit a written rebuttal.
    Your next step is the Navy Discharge Review Board (with about a 12-15% success rate) to upgrade. Or the Board for Correction of Naval Records depending on the issues in the separation procedure process.
    Neither can put you back on active duty.
    If there was a substantial error in the discharge process, you might get into federal court for pay up until your EAOS. All very difficult.

  2. Douglas L Cody

    Contributor Level 6

    5

    Lawyers agree

    Best Answer
    chosen by asker

    Answered . I agree with the previous answers: your remedy, if any, is with the Discharge Review Board or Board of Corrections. Information for each is provided below.

    Dicharge Review Board

    Review of a service member's discharge or dismissal is governed by the federal statute found at 10 U.S.C. § 1553. Pursuant to that statute, the Secretary of each service is directed to consult with the Secretary of Veterans Affairs and to establish a board of review, consisting of five members, to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member, or, if the service member is deceased, his surviving spouse, next of kin, or legal representative.

    A motion or request for review must be made within 15 years after the date of the discharge or dismissal. A board established under this statute may, subject to review by the Secretary concerned, change a discharge or dismissal, or issue a new discharge, to reflect its findings.

    A review by a board established under 10 U.S.C. § 1553 shall be based on the records of the armed forces concerned and such other evidence as may be presented to the board. A witness may present evidence to the board in person or by affidavit. A person who requests a review under this section may appear before the board in person or by counsel or an accredited representative of an organization recognized by the Secretary of Veterans Affairs.

    Pursuant to Department of Defense (DoD) Instruction 1332.28., applications shall be submitted to the appropriate Discharge Review Board (DRB) on DD Form 293, "Application for the Review of Discharge from the Armed Forces of the United States," or computer-generated equivalent, with such other statements, affidavits, or documentation as desired.


    Correction of Military Records

    Whether a service member is on active duty, separated, or retired, he can apply to the service's Board for the Correction of Military Records to correct an error or an injustice in military personnel records. Any person with military records, or his heirs or legal representative, may apply to the appropriate service's Board for the Correction of Military Records. The Army, Air Force, and Coast Guard have separate boards. The Navy operates the Board of Correction of Naval Records for both Navy personnel and members of the United States Marine Corps.

    Title 10, United States Code, Section 1552 is the federal statute governing correction of military records. This statute authorizes the Secretary of the service concerned to correct any military record when "necessary to correct an error or injustice." The statute provides for the service secretaries to act through a board of appointed civilians in considering applications for correction of military records. The Navy and Marine Corps implements the statute through the Code of Federal Regulations; Title 32, Part 723.

    Application is a simple process. Service members should use a DD Form 149, Application for Correction of Military Record. Copies of statements or records that are relevant to the case should be attached. The form must be signed and the completed form mailed to the appropriate address on the back side of the form.

  3. Stephen P. Kelly

    Contributor Level 13

    5

    Lawyers agree

    Answered . Not sure where you stand right now. I'll assume you were on active duty and not a reservist. You say you've been out for 4 months now, which leads me to believe your involuntary separation has already been processed. If that's the case and you were separated for misconduct, then you likely received an other than honorable (OTH) or general service characterization. If you received an OTH or were on active duty for more than six years, then you would have been given an opportunity to have your case heard before a board of officers. Once the discharge has been approved, your only recourse is to request relief from the Naval Discharge Review Board or. depending on the circumstances, the Board for Correction of Naval Records.

    Answers to posted questions are for general interest only and do not constitute legal advice. No attorney-client... more

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