DISCHARGE UPGRADE MANUAL

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1 DISCHARGE UPGRADE MANUAL Produced by the Justice for Veterans Campaign 1405 Montopolis Dr. Austin, Texas Using a question and answer format, this Discharge Upgrade Manual (the Manual ) is intended to provide information regarding the discharge upgrade process for veterans who received a lessthan-honorable discharge. If you are a veteran and you received anything but an honorable discharge, receiving a discharge upgrade may result in your being eligible for veterans benefits such as healthcare, hiring preferences, student loans, home loans, disability benefits, etc. that you may not otherwise be eligible for because of your less-than-honorable discharge. The Manual is intended for informational use only. The Manual does not provide legal advice. Veterans are encouraged to seek help from individuals or organizations experienced in the discharge upgrade process. General Information Who is this Manual intended to help? Frequently Asked Questions This Manual is intended to help veterans who received one of the following less-than-honorable discharges: General Under other than honorable conditions Bad conduct Dishonorable How do I apply for a review of a less-than-honorable discharge? You can apply for a review of a less-than-honorable discharge by completing and filing a DD Form 293 (Application for the Review of Discharge From the Armed Forces of the United States) with the discharge review board for the branch of the armed forces in which you served. A copy of DD Form 293 is attached to this Manual. See the Completing the DD Form 293 section (beginning on page 8 of the Manual) for additional information regarding how to obtain a DD Form 293 and a step-by-step summary of how to complete the DD Form 293. How long will it take to receive the outcome of my request for a discharge upgrade? Generally, it takes six months to two years to receive the outcome of your request for a discharge upgrade. However, the timing depends on a number of factors. For example, review of a veteran s discharge when the veteran was diagnosed with post-traumatic stress disorder or - 1 -

2 traumatic brain injury, generally, has priority over other reviews. Therefore, the outcome of such reviews may be communicated to the veteran more quickly than other types of reviews. Also, a personal appearance (discussed below) takes longer than a review of your records without a personal appearance. Important note: If you wish to obtain a copy of your military record or health record, you can request a copy from the National Personnel Records Center at or at your local veterans administration office. You are strongly encouraged to request copies of your military records before filing the DD Form 293 with the discharge review board. A submission for a request of your military records after filing the DD Form 293 will automatically result in the suspension of the processing of your discharge upgrade request and delay the process. Discharge Review Boards Who will review my request for a discharge upgrade? The discharge review board ( DRB ) for the branch of the armed forces in which you served will review your request for a discharge upgrade. The DRBs each consist of 5 active duty officers and senior enlisted personnel. Each DRB member casts one vote, and the majority rules. What authority do the DRBs have? The DRBs have the authority to upgrade the type of your discharge or change the narrative reason for your discharge. Although the DRB will not directly consider a request to change your reenlistment code (i.e, the code indicated on your discharge papers (DD Form 214) related to your ability to enlist or reenlist at a later time), if it upgrades your discharge, the DRB may consider whether your re-enlistment code should be changed. The DRB cannot otherwise modify the contents of your military records or change your re-enlistment code. Also, a DRB cannot make your discharge characterization worse. Although the DRBs cannot change, and will not review, a discharge resulting from a sentence given by a general court-martial, they can review all other types of discharges including bad conduct discharges issued as part of the sentence of a special court-martial. However, a bad conduct discharge imposed by a special court-martial is reviewed only as a matter of clemency (e.g., conviction cannot be set aside, but the sentence may be reduced or modified). Convincing the DRBs to Grant an Upgrade How can I convince the DRB that I should receive a discharge upgrade? To convince the DRB that you should receive a discharge upgrade (or a change in the discharge reason), you must convince the DRB that your discharge reason or characterization was either inequitable or improper. The DRB cannot change your discharge out of compassion for you or your family, or because the DRB believes that you have become a better person than you were during your period of your service in the armed forces

3 A discharge reason or characterization is inequitable if the reason or characterization of your discharge is not consistent with the policies and traditions of the service. In considering the equity of your discharge, the DRB will consider the circumstances exactly as they were when you were discharged, apply them to today s rules and regulations, and determine whether the outcome would be the same. If the DRB believes it would not, it can use the issue of equity to change your discharge. For example, your discharge may be inequitable if it was based on one isolated incident in your 28 months of service with no other adverse action during your service. A discharge reason or characterization is improper if the reason or characterization of the discharge is in error (e.g., false, or violates a regulation or a law). The branch of the armed forces in which you served must have followed its own rules and regulations in processing your discharge. If the DRB believes there was an impropriety in processing your discharge or your discharge was based upon false information and also believes that the impropriety was so gross that had it not occurred the outcome would very likely have been different, it can use the issue of impropriety to upgrade your discharge. For example, your discharge may be improper if you had a pre-service civilian conviction that you properly listed on your enlistment documents and that conviction was used against you in your discharge proceedings. How will I convince the DRB that my discharge reason or characterization was inequitable or improper? You can convince the DRB that your discharge reason or characterization was inequitable or improper by providing evidence to support your case. Evidence might include relevant records or signed statements by you or other witnesses who have direct knowledge or involvement in your service in the armed forces. For example, statements from witnesses such as persons in your rating chain, your supervisor, first sergeant, or commander, or your chaplain or anyone else with direct knowledge of your service in the armed forces, may be helpful evidence. Generally, the DRB will not be interested in your conduct or behavior after you left the armed forces. Whether you are trying to convince the DRB that your discharge reason or characterization was inequitable or improper, it is crucial to focus on matters that occurred while you were in the armed forces. Important note: The DRB will not contact your witnesses. Therefore, you should obtain signed statements from any witnesses you have, especially if they are not making an appearance (discussed below). What if I am unhappy with the DRB s decision? If you are unhappy with the DRB s decision, you can appeal the decision to the DRB if you have newly discovered evidence. Otherwise, appeals are generally submitted to the Board for Correction of Military Records (discussed briefly on page 7 of the Manual), or you can file an appeal in Federal court. Discussions of the appeals process are generally outside the scope of the Manual

4 Representation Can someone represent me if I apply for a review of my less-than-honorable discharge? Yes. Many veteran service organizations have staff members who will represent veterans in applying to the DRB and assist them in completing the necessary paperwork. Also, you can hire a lawyer, at your own expense, to represent you or you may be able to locate a lawyer who is willing to represent you on a pro bono basis. Important note: Most discharge upgrade requests are not approved. To increase your chances of receiving a discharge upgrade, it is a good idea to be represented by someone with experience in the area of discharge upgrades. Hearings Before the DRBs Can I make a personal appearance before the DRB? Yes, you and/or your representative (i.e., your lawyer, or a non-lawyer who is an accredited representative of an organization recognized by the Secretary of Veterans Affairs) may make a personal appearance before the DRB by requesting a hearing by checking the appropriate box on DD Form 293, item 9. If you request a hearing, you or your representative will be notified of the time, date and location of the scheduled hearing. Any witnesses you have are also permitted to testify before the DRB at the hearing. Important note: If you do not request a hearing, the DRB s review will be limited to consideration of available medical and administrative records and any materials you submitted with your DD Form 293 (referred to as a record review ). Important note: Statistically, personal appearance hearings (whether by you, your representative or both) are more successful than DRB reviews of requests for a discharge upgrade at which a personal appearance is not made. If I request a hearing, will I be required to go to Washington, D.C.? It depends. The Army and Air Force DRBs travel regionally to certain locations within the continental United States. The Navy and Coast Guard DRBs do not travel regionally. Therefore, if you are a Navy, Marine or coast Guard veteran, you can only make a personal appearance at a hearing in Washington, D.C. (Remember, the Naval DRB handles discharge upgrade requests for the Marines as well as for the Navy.) If I request a hearing, when and where will the hearing be held? If you request a hearing, you will be notified of the time, date and place for the hearing

5 Will the hearing be similar to a trial? Your hearing will be an administrative hearing, not an adversarial proceeding or a trial. The purpose of the hearing is to determine whether your period of service was properly characterized. Will my hearing be taped? To provide a record of the proceedings, your hearing will be recorded or videotaped to give the DRB a chance to rehear your testimony if necessary. When a regional hearing is held, the DRBs oftentimes send one officer to the hearing who is designated as a hearing examiner. The hearing examiner will videotape the hearing and play back the videotape to a full panel of the DRB in Washington, D.C., where a final decision will be made. No one has access to the recording except you and the DRB members. You can get a copy by requesting one. No one else can get a copy without your written permission. Is there anything I can do to prepare for the hearing? Yes. Before your appearance at a hearing, you should review the DRB s brief, which is a summary of the available military records in your case. It contains the essential facts in your case and is put into a format that is easily read by the DRB members. You should also re-review your DD Form 293 and anything else you filed (e.g., witness statements) with the DD Form 293. What should I expect at the hearing? Although the DRB members are active duty officers and senior enlisted personnel, they will usually be dressed in civilian clothing to help put you at ease and to create a more relaxed atmosphere. After you enter the hearing room, the recording device will be started and the hearing will be called to order. A DRB member will read into the record that the DRB is meeting to consider your case, and will indicate that you are present and whether you are represented by counsel. Exhibits will be introduced into evidence (e.g., your completed DD Form 293 and attachments, your letter of notification of when and where to appear, the DRB s brief, your issues, etc.). You will then be asked what form of testimony, if any, you wish to give (discussed in the next paragraph). If you indicate that you will give sworn testimony, you will be asked to stand, raise your right hand and take an oath. All this takes about a minute and half and is essentially the only formal part of the hearing. From that point on you may sit. As difficult as it may be, try to relax and make yourself comfortable. At the hearing, you have the right to remain silent, give sworn testimony or give unsworn testimony. If you choose to give sworn testimony, each DRB member will have the opportunity to ask you questions about anything they believe might provide greater insight into your case. Sworn testimony is important because, without asking you questions, the DRB cannot establish your creditability as a witness and has no way of knowing whether or not to believe you. If you choose to give unsworn testimony, the DRB may not ask you any questions. If you choose to remain silent, the DRB will not ask you any questions

6 Although the hearing normally takes less than an hour, there is no time limit and the DRB will take whatever time is necessary to hear your case. If you are represented, your representative will likely make an opening statement on your behalf, ask you questions to draw out your testimony (unless you have chosen to remain silent) and make a closing statement. You will also have a final opportunity to address the DRB. After you are excused you may leave immediately. The DRB will then deliberate and reach its decision. When will I get the results of the hearing? It generally takes about six to eight weeks for you to receive the DRB s decision. If your discharge is changed you will receive a new discharge certificate, a new DD Form 214 (Certificate of Release or Discharge From Active Duty), and the decisional document of the DRB. If your discharge is not changed you will receive the decisional document of the DRB, which will include the specific reasons your discharge was not changed and will also include information regarding any further appeal processes. Will the DRB pay for expenses related to my appearance at a hearing? No. You are responsible for all expenses related to your (and/or your representative s) appearance at the hearing. Neither the DRB nor the Government will reimburse you for any expenses (e.g., travel, lodging, legal fees, witness fees, etc.). What if I request a hearing and cannot make it at the assigned time or location? If you cannot make it to the hearing for any reason, you must notify the DRB in advance. Your failure to appear at the appointed time and place, whether in person or by representative, without having made a prior request for a continuation, postponement, or withdrawal, will be deemed to be a waiver of your right to a hearing. The DRB will complete its review of your discharge and will not grant another hearing unless you can demonstrate that the failure to appear or respond was due to circumstances beyond your control. Time limits for Requesting a Discharge Upgrade How soon after my discharge can I apply for a discharge upgrade? There is no minimum time you must wait to apply for a discharge upgrade. However, you must file a DD Form 293 with the appropriate DRB within 15 years from the date of your discharge. Important note: The DRB may view applications mailed from prison with some skepticism. Therefore, if you are in a military or civilian prison and you are going to be released before the end of the 15-year deadline, you should wait to file your application for review until after you are released from prison. What if I miss the 15-year deadline? If you miss the 15-year deadline, your only alternative is to apply for a change of your military records by filing a DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552) with the appropriate Board for Correction of - 6 -

7 Military Records ( BCMR ). You can obtain a copy of DD Form 149 at Board for Correction of Military Records Is there a deadline for filing with the BCMR? Although the deadline for filing a DD Form 149 with the BCMR is generally 3 years from the date of discharge or the date an error in the applicant s military record is determined, the BCMRs are sometimes willing to hear requests for a discharge upgrade that are filed beyond the 15-year deadline described above if the veteran can show a good reason for the late filing. Can you tell me a little bit about the BCMR? Each armed forces branch has a BCMR, which is a civilian board, with the authority to correct a current or former service member s military record if the BCMR determines that the service member s military record is erroneous or unjust. In addition to having the authority to upgrade a discharge after the 15-year period described above, the BCMRs act as the appellate authority for the DRBs. If you are unhappy with the decision of the DRB related to your request for a discharge upgrade, you can appeal the decision of the DRB to the appropriate BCMR. Unlike the DRBs, the BCMRs rarely grant a personal appearance. Any further discussion of the BCMR is outside the scope of the Manual. Common Myths Regarding Discharge Upgrades Is it true that, if I do nothing, my less-than-honorable discharge will be automatically upgraded 6 months after my discharge? No. If you do not request an upgrade (or someone does not request an upgrade on your behalf), your less-than-honorable discharge will not be upgraded. Is it true that, as long as I can provide evidence of excellent behavior post-discharge, a discharge upgrade will be granted? No. Your post-service behavior, no matter how laudatory and well-documented, is simply not grounds for a discharge upgrade. Is it true that I must receive an upgrade of my less-than-honorable discharge in order to receive veterans benefits? No. A discharge upgrade is not the only way to become entitled to veterans benefits. The Department of Veterans Affairs can grant basic benefit eligibility to any veteran who was discharged with a less-than-honorable discharge unless he received a bad conduct or dishonorable discharge as part of the sentence of a general court-martial

8 Any regional office of the Department of Veterans Affairs can conduct a review of the facts and circumstances surrounding the issuance of a discharge. You need only apply for a benefit to trigger this determination, which is necessary for entitlement to certain VA benefits

9 Completing the DD Form 293 The following is a step-by-step summary of how to obtain, complete and file the DD Form 293. Obtain a copy of DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) o at o at Department of Defense installations o at regional offices of the Veterans Administration o by calling o by writing to: Army Review Boards Agency (ARBA) ATTN: Client Information and Quality Assurance Arlington, VA Complete Section 1a through 1h with your personal information Complete Section 2 with the date of your discharge or separation from military service Complete Section 3 with the name of your unit and its location at the time of your discharge or separation from military service Complete Section 4 with the discharge characterization you received Complete Section 5 with the DRB action you are requesting Complete Section 6 with the reasons why you think your discharge should be changed Complete Section 7 only if you previously filed an application and you are submitting another application to add additional issues, justification or evidence (otherwise, do not complete Section 7) Complete Section 8 by listing any documents you are submitting as evidence Complete Section 9 by indicating whether you are requesting: o a records review without a personal appearance o a hearing at which you appear in person o a hearing at which you and/or your lawyer (or other representative) appear in person Complete Section 10a through 10d only if you are represented by a lawyer or other representative (otherwise, do not complete any part of Section 10) Complete Section 11 only if the application is being filed on behalf of a deceased or incompetent veteran (otherwise, do not complete Section 11) Complete Section 12a and 12b by signing and dating the application - 9 -

10 File the completed application with the DRB of the branch of the armed forces in which you served at: Armed Forces Branch Army Navy / Marine Corps Air Force Coast Guard Mailing Address Army Review Boards Agency ADRB 1902 South Bell Street Arlington, VA (see Secretary of the Navy, Council of Review Boards ATTN: Naval Discharge Review Board 720 Kennon Ave S.E., Suite 309 Washington Navy Yard, DC Air Force Review Boards Agency SAF/MIBR 550-C Street West, Suite 40 Randolph AFB, TX Commandant (CG-122) ATTN: Office of Military Personnel U.S. Coast Guard nd Street S.W., Stop 7801 Washington, DC Important note: Be sure to complete and file the current version of the DD Form 293. The DD Form 293 is revised from time to time - You must file the most recent version of the DD Form

11 Attachment DD Form 293 (Application for the Review of Discharge From the Armed Forces of the United States) and Instructions

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