It is an honor to help fellow veterans who are facing difficulties in their lives and don’t know who to turn to for answers. While I enjoy answering questions on an individual basis, I’d like to share some of common questions as you may have the same questions. Please note that these are general answers and not legal advice. There may be exceptions to some of the answers below based upon the facts and circumstances of a veteran’s discharge. Therefore, it is always best to consult with an attorney or Veterans Service Office for advice regarding your particular case.
Question: I was discharged 20 years ago and missed the 15 year deadline for upgrading my discharge at the Discharge Review Board. Is there anything I can do?
Answer: Yes, you can file an application at the Board for Correction of Military Records (BCMR) for your service. While the statute for filing a claim is 3 years from the date of discovering the error or injustice, this can be excused in the interest of justice.
Question: Are you entitled to a personal hearing at the BCMR as in the DRB?
Answer: While the BCMR may grant personal hearings, they are very rare. The last personal appearance granted was in 2014.
Question: Should I request a document review first or request a personal appearance at the Discharge Review Board?
Answer: It depends. While you are entitled to a personal appearance at the DRB, it depends upon the facts of your case. You should speak to an attorney to discuss this issue.
Question: Will the DRB or BCMR correct my discharge if I have been doing great things since I was discharged from the armed forces?
Answer: The standard for review in the DRB is inequity and impropriety and the standard at the BCMR is error or injustice. That is, they will correct records only when necessary to correct an error (legal error/impropriety) or injustice (inequity). The Boards are there to correct errors and remove injustices. So, you should focus your case on this—showing the error and/or injustice in your case.
Question: Can I have an attorney or veterans’ service organization (VSO) appear at the DRB hearing with me?
Answer: Yes, your attorney or VSO can appear and advocate for you at the DRB hearing.
Question: I was discharged under the DADT policy and my DD 214 states “homosexuality admission” under the narrative reason, can I change this?
Answer: Yes. The Boards will change administrative discharges under the DADT policy upon a request to the DRB or BCMR. They will typically change the narrative reason to “Secretarial Authority.”
Question: If my request to upgrade or change my discharge narrative at the DRB is denied, what can I do?
Answer: You can apply to the BCMR for your service.
Question: If I apply to the BCMR and my application is denied, can I apply for reconsideration:
Answer: Yes. The law allows you to apply for reconsideration so long as you provide new materials that were not previously presented to or considered by the BCMR. There is no longer a one-year deadline to file for reconsideration.
Text of law: Any request for reconsideration of a determination of a board under this section, no matter when filed, shall be reconsidered by a board under this section if supported by materials not previously presented to or considered by the board in making such determination. 10 USC §1552 (a)(3)(D).
Question: Does the DRB or BCMR do its own investigation regarding your case?
Answer: No. The ABCMR decides the case based upon what you have presented as well as the official personnel files and your Service Treatment Records (STR). They are not an investigative body and will not seek out or obtain records to support your application. You, the applicant must provide all relevant documents or evidence to support your application.
Question: May I get my GI Bill education benefits with a general under honorable conditions discharge?
Answer: No. You must receive an honorable discharge to receive GI bill education benefits.
Question: Can the DRB upgrade my punitive discharge from a court-martial?
Answer: The DRB may upgrade a punitive discharge issued by a special court-martial on the basis of Clemency. The DRB may not upgrade a punitive discharge to an administrative discharge if the discharge was issued by a General Court-Martial.
Question: Can BCMR upgrade a punitive discharge from a General Court-Martial?
Answer: Yes. The BCMR can do everything a DRB can do and can also upgrade a characterization of service issued by a General Court-Martial (Bad Conduct Discharge, Dishonorable Discharge, Dismissal) on the basis of Clemency.
Question: Can the BCMR medically retire me?
Answer: Yes, the BCMR can medically retire a veteran, change the re-enlistment code and even reinstate someone into the military.
Question: If I apply to the DRB or BCMR, can I get a worse discharge characterization?
Answer: No.
Question: What is the new DoD Guidance (August 25, 2017) and can it help my case?
Answer: This guidance was intended for DRBs and BCMRs when reviewing applications from veterans to modify their discharges. The Office of the Undersecretary of Defense for Personnel and Readiness issued guidance stating: Liberal consideration will be given to veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including Post-Traumatic Stress Disorder (PTSD); Traumatic Brain Injury (TBI); Sexual assault; or Sexual harassment.
Boards will examine whether the mental health conditions excused or mitigated the misconduct that caused a less than honorable conditions characterization of service in determining whether the veteran’s discharge should be corrected.
Ferah Ozbek is a retired USAF Judge Advocate who uses her 25+ years of experience and insight as a former military attorney (retired Colonel) to develop the best strategies to represent her clients. As a former Senior Legal Advisor and voting member to the Secretary of the Personnel Council’s Discharge Review Board, she reviewed hundreds of applications by service members and knows what the military looks at when deciding whether your discharge should be upgraded.
To learn more about Ferah Ozbek and how she can help you Retire in Grade, Upgrade your Discharge or Correct your Military Records, contact her at [email protected].
