Discharge upgrades

Philip Douglas Cave

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Military Law Attorney

Contributor Level 17

Posted almost 4 years ago. 2 helpful votes

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In 1972 the military departments illegally handed out other-than-honorable (OTH) conditions discharges to thousands of service-members, as a result of the command-directed urinalysis programs. The United States Supreme Court ruled against the Army for this practice, so the Department of Defense created a program which allowed service-members discharged because of a command-directed drug test prior to 1972, to receive an automatic upgrade of this discharge to honorable.

Unfortunately, the curative action spawned one of the most pernicious and still widely held beliefs that an OTH is automatically upgraded after six-months. Many “counselors" and occasionally a lawyer who should know better still encourage service-members to waive their rights at discharge citing this “rule." The truth is that there are NO AUTOMATIC UPGRADES and discharges can be extremely hard to upgrade.

It is true that a person can apply for a discharge upgrade from the first day after discharge up until 15 years from the date of discharge. However, to justify the upgrade the person must persuade a Discharge Review Board that the discharge was either "inequitable" or "improper."

“Inequitable" means the reason or characterization of the discharge is not consistent with the policies and traditions of the service. For example, an "Inequity" would be: "My discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action."

“Improper" means that the reason or characterization of the discharge is in error (i.e., is false, or violates a regulation or a law). For example, “Improper" would be: “The discharge is improper because the applicant's pre-service civilian conviction, properly listed on his enlistment documents, was used in the discharge proceedings."

Another “reason" for upgrade is post-discharge conduct and actions. It is not a correct term in the rules, but “clemency" would be the effective analogy to make when a discharge is upgraded later in life.

Note. Except for the Air Force, changes to re-enlistment codes go through a board for correction of military records.

Note. DRB petitions must be submitted within 15 years from the date of discharge on the DD214. There are no waivers of this deadline.

Note. BCMR petitions must be submitted within three years from the date of discharge on the DD214. There are some discretionary waivers of this deadline, but only “for good cause." In an extraordinary and very meritorious situation the BCMR might consider a discharge upgrade that is submitted after the 15 years deadline.

Note. The DRB’s will not usually hold a personal appearance hearing on a first application. Typically they will do a records review first. The exceptions to the policy appear to be: you are close to the 15 year deadline, so this will likely be your last opportunity to petition; or you have a stand-out case which really gets their interest.

Note. There are a number of factors that seem to improve the chances for success. Here is a non-exclusive list of what we find to have been most helpful.

a. Community service. If you have a long and good history of community service since leaving the military, you have a positive factor toward upgrade. (I include law enforcement or fire department service in this category.)

b. Pristine life. No traffic tickets or law enforcement related incidents, excellent work history, evidence of maturity. Included here are such factors as attending AA or NA if the reason for discharge was substance abuse related.

IT IS A MYTH – a lie, there are NO automatic upgrades after six months. Regrettably I still hear of people being told this, oftentimes by people who should know better.

Additional Resources

http://court-martial.com/upgrade-of-a-military-discharge/

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