How To Appeal A Discharge From The Military

How To Appeal A Discharge From The Military

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Upgrading Your Military Discharge Status

Military Discharge Status, Upgrades, and VA Benefits

If you think you received an inappropriate discharge status when you separated from military service, its worth your time and attention to find out whether youre eligible for a discharge upgrade.

With the right kind of documentation, you can strengthen your claim and successfully upgrade your military status. The application process can be frustrating, but you dont have to do it alone. If the task feels overwhelming, you can always work with a VSO or lawyer to help you gather the information you need to make your case. So dont wait get started today on making sure you can access the VA benefits youve earned through service to your country.

Discharge Review Board Hearing

On your application, you have a choice about whether to ask for a DRB hearing or ask the DRB to make a decision based on your application. If you ask the DRB to just review your records without a hearing, and they deny your application, you can then submit a request for a hearing. This gives you two chances to get a favorable decision.

Sometimes it helps to present yourself at a hearing where you may be able to establish a personal rapport with the DRB. However, hearings often take place in Washington, D.C. and you will not be reimbursed for any of your expenses.

A disability lawyer may be able to help you decide which course of action is best for you.

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 OBrien offers a free 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.

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.

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Can I Get Disability Compensation Or Other Benefits From Va

You can’t get compensation for the traumatic event itself. But you may be able to get disability compensation for conditions resulting from MSTlike PTSD .

Or get help applying for disability compensation by:

  • Reading our fact sheet on disability compensation for conditions related to MST.
  • Talking to the MST coordinator at your nearest VA regional office. Find an MST coordinator near you

Consequences Of A Dishonorable Discharge

Form DD214 Download Fillable PDF or Fill Online Application for Copy of ...

A Dishonorable Discharge can only be given by general court martial for charges of serious crimes or reprehensible behavior.

It is very serious and even considered to be shameful in the military.

Not only does it rightly end ones military service, but it does not mark the end of an individuals legal troubles.

Since a Dishonorable Discharge is often the result of a serious felony such as rape and murder, the discharged military member might face a prison sentence, fines, and other serious legal consequences that come with such serious charges.

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Meet Our Expert Ferah Ozbek

Our expert is Ferah Ozbek, a retired USAF Judge Advocate. Ferah has over 25 years of experience and insight as a former military attorney . This experience helps her develop the best strategies to represent her clients. As a former Senior Legal Advisor and voting member to the Secretary of the Personnel Councils Discharge Review Board, she reviewed hundreds of applications by service members and knows what the military looks at when deciding whether your discharge rating should be upgraded.

You can learn more about Ferah Ozbek and her work at her , or on her website, FerahOzbek.com. Ferah also runs the Military Law Matters Podcast, in which she covers legal topics as they pertain to military members and veterans.

Two: Explain Why You Should Get An Upgrade

In most cases, the Board wonât be able to see why you should get an upgrade from reviewing your military records alone. It is important that you explain why your request should be granted, using specific legal language and concepts.

A DRB considers two basic issues: âequityâ and âproprietyâ .

If you believe your discharge was unfair, or âinequitable,â youâll need to explain why. The Department of Defense Instruction, Discharge Review Board Procedures and Standards, has a list of examples for why a discharge might qualify as inequitable that can be helpful guidance for writing an explanation of your circumstances. Some common examples might include:

  • You received an Other Than Honorable discharge for a single offense after years of faithful service to your country.
  • Your branchâs polices have changed since you were discharged, and if current policies had been in place when you served, you likely would not have been discharged.
  • You were experiencing significant personal or family problems or discrimination that affected your ability to serve.

If youâre claiming illegality, or âimpropriety,â youâre claiming that the military didnât follow its own rules when it discharged you. Youâll need to explain how the military ignored or misapplied a specific rule, regulation, law, or procedure that was in effect at the time of your discharge.

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Mistakes Can Happen And You Can Appeal Your Discharge

The military makes mistakes and these mistakes have a huge impact on you and your family. The Department of Defense wants all veterans to know that you have an opportunity to have your discharge and military records reviewed to correct any injustice.

Why? Because the Department of Defense wants to ensure that all Veterans who have sacrificed so much in service to our great Nation receive all of the benefits they deserve.

What To Submit With Your Application

Charlie Foxtrot: Valley veteran appeals his ‘other than honorable’ discharge

Request your military and/or medical records so you can submit any needed records with your application. For information about obtaining your records, visit the National Personnel Records Center website.

Submit any medical and/or military records that relate to the issues that relate to your upgrade request. For instance, if you are arguing that post-traumatic stress disorder caused the bad conduct that led to your “bad paper,” it will be important to get a medical opinion from a doctor supporting your claim. Medical records showing you are clean and sober will also help.

In addition, submitting the following may influence the Discharge Review Board in your favor:

  • your statement
  • information about your good conduct after service .

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Types Of Military Discharge

    The first 3 are administrative, even though they may be the result of some misstep on the part of the service member.

    The next 2 are punitive, meaning that they are the result of misconduct, criminal behavior, or even felony behavior on the part of the service member.

    The last 3 are each unique:

    Entry-Level Separation: Is a type of discharge that occurs at the beginning of ones career before it even got started. Think of someone that gets booted from boot camp before graduation.

    Medical Separation: Are those that become so sick or injured, that they can no longer continue their military service.

    Is a very rare type of discharge, well get into this in more detail below.

    Correction Of Military Records

    The secretary of a military department, acting through a board for correction of military records, has authority to change any military record when necessary to correct an error or remove an injustice. A correction board may consider applications for correction of a military record, including a review of a discharge issued by courts martial.

    The veteran, survivor or legal representative generally must file a request for correction within three years after discovery of an alleged error or injustice. The board may excuse failure to file within the prescribed time, however, if it finds it would be in the interest of justice to do so. It is an applicants responsibility to show why the filing of the application was delayed and why it would be in the interest of justice for the board to consider it despite the delay.

    To justify any correction, it is necessary to show to the satisfaction of the board that the alleged entry or omission in the records was in error or unjust. Applications should include all available evidence, such as signed statements of witnesses or a brief of arguments supporting the requested correction. Application is made with DD Form 149, available at VA offices, from veterans organizations or from the Internet .

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    Forms Of Military Discharge

    Many people are under the impression that military discharge comes in one of two forms: honorable or dishonorable. If an enlisted person received less than an honorable discharge they are often under the impression that they received a dishonorable discharge. However, to be clear, you would absolutely know if you received a dishonorable discharge it is designed to ruin your life ever after and is often accompanied by an extensive visit to a military prison.

    How Long Do I Have To Request An Upgrade

    How To Get A New Dd214 Form

    You have 15 years from the date of your discharge to apply for an upgrade to your discharge status or the reason for your discharge through the Discharge Review Board . If it’s been longer than 15 years, even though the DRB can’t help, you can still request a “correction” to your military records from the Board of Corrections for Military Records . There is a three-year statute of limitations for submitting requests to the Board of Corrections for Military Records but very frequently BCMRs accept late applications as long as a good reason for the delay is provided.

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    Special Consideration For Certain Veterans With A Bad Discharge

    All branches of the military consider you to have a strong case for a discharge upgrade if you can show your discharge was connected to any of these categories:

    • Mental health conditions, including posttraumatic stress disorder
    • Traumatic brain injury
    • Sexual assault or harassment during military service
    • Sexual orientation

    The information you enter on the next page is completely confidential.

    Even with a less than honorable discharge, you may be able to access some VA benefits through the Character of Discharge review process. When you apply for VA benefits, we’ll review your record to determine if your service was “honorable for VA purposes.” This review can take up to a year. Please provide us with documents supporting your case, similar to the evidence you’d send with an application to upgrade your discharge.

    You may want to consider finding someone to advocate on your behalf, depending on the complexity of your case. A lawyer or Veterans Service Organization can collect and submit supporting documents for you. Find a VSO near you.

    Note: You can ask for a VA Character of Discharge review while at the same time applying for a discharge upgrade from the Department of Defense or the Coast Guard.

    If you need mental health services related to PTSD or other mental health problems linked to your service , you may qualify for VA health benefits right away, even without a VA Character of Discharge review or a discharge upgrade.

    Learn more about:

    Winning A Discharge Upgrade

    As the Army’s Presidio website notes, most requests for discharge upgrades aren’t approved. However, if you can convince the military records review board that your BCD was given for inequitable or improper reasons, your upgrade request may be approved. An inequitable military discharge is one that isn’t consistent with the policies and traditions of your former military service branch it was unfair, in other words. An improper military discharge is one that was based on evidence that shouldn’t have been allowed at discharge proceedings.

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    Some Of The Offenses That Result In A Bad Conduct Discharge Could Be:

    • Being drunk on duty,

      Medical discharges take place when a service member becomes ill or is injured during their military service and are now unable to perform the duties required of a productive member of the military. These separations are based on a medical evaluation. Most people who receive a medical discharge are entitled to VA benefits. If it is a service related injury or medical condition such as traumatic brain injury, combat injury, PTSD, or a chemical exposure, the individual may be eligible for disability benefits.

      Depending on the branch of military service, this form of discharge may be called Entry-Level Separation or Entry-Level Discharge. Service members who receive this form of discharge were unable to complete basic training, unable to adapt to military life, or unwilling to complete the training. The recipient is a new recruit who has been in the military for less than 180 days and has received written notifications recommending ways they may improve their behavior or performance.

      Such discharges are not considered good or bad. The recruit who receives an ELS is not considered a veteran and is not entitled to any veterans benefits. Those that receive an ELS may reenlist.

      This is not a way for a person to get out of their service contract. A commanding officer uses this form of discharge as a way to eliminate those who will not be successful in the military.

      If You Disagree With The Peb’s Decision Regarding Your Fitness For Military Service You Can Appeal

      Wisconsin National Guard whistleblower wins appeal of medical discharge, can return to duty

      After you have had a formal Physical Evaluation Board hearing to decide if disability has made you unfit for duty , you can choose whether to accept or appeal the PEB decision about issues such as your fitness to serve, your disability rating, and the type of unfitness finding issued.

      If you accept the decision, it will be forwarded through personnel channels up to the Secretary of your branch of the military for final approval, and you may lose your rights to later appeal the decision.

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      How Involuntary Administrative Discharge Works

      The different military branches refer to involuntary administrative discharge in different terms:

      • Admin Discharge
      • Admin Separation
      • AdSep
      • Being Chaptered

      For military officers, involuntary administrative discharge action can be referred to as:

      • Administrative Discharge
      • BOI or Board of Inquiry
      • Show Cause
      • Officer Elimination

      Depending on the rank or years of service of the military member, and/or the characterization of administrative discharge sought by the military, the military member may be entitled to a formal administrative discharge board hearing.

      This hearing is a litigated administrative board hearing that looks similar to a trial, with fewer evidentiary rules. The procedure is as follows:

      • Evidence is admitted
      • Witnesses are questioned and cross-examined
      • Arguments are made by the attorneys for each side to the administrative board members
      • The board members deliberate and return their recommendation about the proposed discharge.

      Defending military members facing involuntary administrative discharge or appealing an administrative discharge is what military defense lawyers Richard V. Stevens and Frank J. Spinner do. The only type of law they handle is military law. Mr. Stevens and Mr. Spinner are civilian criminal defense attorneys and former military JAG lawyers who exclusively defend military members stationed around the world who are facing military trials, discharge/separation, appeals, discipline, and investigations.

      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 OBrien will communicate with you through phone, email, etc. Moreover, even if your case requires an appearance before a board 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 OBrien today for a free consultation at 202-600-4996.

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      How Your Discharge Characterization Impacts Your Future

      Having an honorable discharge can open many doors, including preference points for military service when applying for a federal position, access to certain military and veterans benefits, and more. On the flip side, a even a general discharge under honorable conditions may not be high enough to earn certain benefits.

      How does your discharge negatively affect you?

      • Unless you have an honorable discharge, you are ineligible for the Post 9-11 GI Bill education benefit which is worth tens of thousands of dollars.
      • Unless you have a discharge under honorable conditions, you are ineligible for VA compensation and a VA pension.
      • Unless you have a discharge under honorable conditions you may be disqualified to receive VA medical care.

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