UpgradeDischarge

I would like talk with you about how to fix errors within a military record.

This could be a request to “upgrade” the characterization of discharge listed on your DD214.

Or this could be a request to fix some other error within in your record. Say, for example, you are missing an award that you earned and want to get that put into your records. There is a way to make that happen.

First, I want to dispel a common myth. I have heard, from too many sources, that there is a “6 month rule” that says if you get kicked out, all you have to do is wait 6 months, then apply, and you will get the upgrade you need to rejoin.

This is not true.

There are a set of federal laws that provide a process to upgrade a discharge or have your records corrected. These laws create a “board of corrections for military records”.

The first law can be found in Title 10 US Code Section 1553. This law requires the military branches (Army, Air Force and Navy/Marine Corps) set up a “board” to review veterans requests to upgrade their discharge characterization. I call this the review board.

The second law is found in section 1552 of Title 10; requires the branches to set up a board to review claims of “error” within the military records. This I call the corrections board.

Understanding how these two boards work together is the key to addressing problems with your military records.

Specifically, there are two separate “boards”. A review board (for review of discharges) and a correction board (which can correct any errors). You need to send your request to the correct board.

The boards are set up so that the review board is subordinate to the correction board. This means if you want to get an upgrade to your discharge, you start by filing a request with the review board. If the request is denied? You can forward the same request directly to the correction board. For any other problem with your records, for example, say that you are trying to restore rank you lost in an improperly held non judicial punishment, you would file with the corrections board.

The review board has a 15 year window to file…if you discharge was within the last 15 years, you can file with the review board. There is no waiver for this rule. IF the discharge was more than 15 years ago? You have to file with the corrections board.

There is also a “3 year rule” that says you should file your request for review/correction within 3 years of the event that you are trying to fix. So for a discharge upgrade, within 3 years of the discharge. This rule can be waived. In my experience, if you have a strong case, and some reasonable excuse for the delay? The board will waive the 3 year rule and decide the case for you on its merits. But make sure you do not skip this step (providing the board with a reason for your delay if you are late).

Success with the application is more than simply making the request to the proper board with the proper form. Both the board of review and the board of corrections confer a “presumption of regularity” on all records. This means that they start off with the presumption that your record is accurate. You have burden to prove otherwise. You have to provide evidence to rebut or overcome this presumption.

In my experience, to meet this burden, you need to provide evidence other than just your words. You need more.

And while the corrections board advertises that they will corrects both “error AND injustice”, in my experience, you need to be able to point to some error in the process. Errors are, for the most part, objective. They spell your name wrong? That is an error…and the corrections board will order the name be corrected. Injustice is a subjective term. What you feel unjust may or may not be something the corrections board feels is unjust/unfair. So when filing with the corrections board, try to point to some error or errors in the process if you can…this gives you the best chance to succeed.

And regarding the OTH (other than honorable conditions discharge):

There is a rule for each service that requires the service provide the member who is facing an OTH, to provide the member with the OPPORTUNITY for a hearing on this matter as well as providing an an attorney to assist with the process. The means that if you are in the military and they are trying to kick you out, with an OTH, they have to give you the lawyer and the hearing if you ask for it. So make sure you ask.

We mentioned evidence in addition to your statement…What type of evidence do you need ?

Your military records are the starting point. The board of corrections will have a full copy…you want to have one as well so you know what is in the record and, to the extent possible, you want to use your record as evidence in support of your request.

You will want to use Standard Form 180 to request a complete copy of your entire military record. Make sure when you file this form you check the block in section II that states you want the full record (not just the DD214).

For example, say that there is a mistake on your DD214…it lists the wrong rank held at discharge. To fix this, you can request a copy of your military record and mail in the documentation, from the record, of the proper rank. Or let’s say that you are asking that your discharge characterization be upgraded from OTH to general. If your military records show that you had a, mostly, error free enlistment, that can help you convince the review board or the board of corrections that the OTH discharge was not fair.

Statements from folks familiar with the matter can help. You have your experience and observations of what happened. And you can write up a statement for the board to explain your case. But you need to corroborate your claim…you need to provide evidence to help convince the board that your version of facts is the correct version of facts.

This goes back to the presumption of regularity…the board is presuming that your record is good to go…you want to convince them to fix it? You need to overcome the presumption…you need to prove the error. So reach out to folks who are familiar with this and have them provide you a statement, in writing. For example, say that you are trying to show the review board that you did not get a fair hearing for your discharge because one of the witnesses in the hearing lied that led to you getting the bad discharge lied. If you can provide someone who can help convince the board of this, that can help you obtain the upgrade.

Character Statements from folks who know you well

You should reach out to anyone whom you know well and would be willing to say good things about you. Folks you knew while in the military are good, as are folks you know now. These letters can help paint a favorable picture of you, to the board. Pick folks who are unrelated to you and that know you well, for example, your employer, or coach, or teacher.

A personal appearance can help. In addition to submitting your statement for the board, you have the right to request a personal appearance. If you can travel to the Washington DC area, you should request this option. Specifically, request to attend the hearing and be allowed to speak. In my experience it is much harder to tell someone no in person.

This is something that you may want to hire a lawyer for. This type of law (administrative law) is a highly specialized field. The lawyers who practice in this area will often have the experience that can help them put your request into a “package” that will compel the board to rule in your favor. This does not, necessarily, have to be a local attorney…the folks who do this type of work can typically accomplish the work via phone/email/etc.

I know…the focus of this channel is to help keep your from hiring a lawyer. But this is an exception. Historically, the board of corrections grant around 10% of applications. And most of the ones that are approve are simple ones (like name misspelling). The fact is only a small percentage of requests (other than simple ones) are approved.

The good news is you can likely reduce the cost of the lawyer by doing a good bit of the work yourself…get ahold of the records that relate, track down any witnesses that can help. Then you reach out to the lawyer to help you put the request into the “package”

Good conduct after service

This is like that 6 month myth…the idea that if you can convince the board of corrections that you had a great life/career after leaving the service, you can focus on this to convince the board to give the upgrade. That is not correct. The board will correct an error or injustice. The fact you learned your lesson after discharge, and went on to cure polio and cancer is great; but not a basis to grant the correction. Still, you can include this information. It is not going to take away from the application. Just take care to not make this the focal point of your request.

What happens if they deny your application?

Resubmit with new material evidence. You have up to 1 year to do this. But it only works if you are submitting new evidence, not included in the original claim. You also need to explain why you did not submit this evidence with the original claim.

Appeal to the federal court of claims: generally you have 2 years from the date that the board issued the final denial to file with the federal court.