Other than an Honorable Discharge
According to the most recent U.S. Census statistics, approximately 16.5 million veterans live in the United States. When service members leave the armed forces, they receive a formal discharge of duties and a D.D. Form 214 that spells out the character of their service. Statistics regarding this process vary widely from year to year based on a variety of factors, including the active or peacetime climate of the Department of Defense at the time.
500,000 veterans are currently living with an “other than honorable discharge.”, according to The Department of Veteran Affairs (V.A.). Current statistics found that 16% of veterans discharged from service received a discharge characterization that did not meet the honorable threshold. Approximately 1% of discharges result in the most severe form of separation, a punitive discharge, labeled as a “Dishonorable” or “Bad Conduct” discharge.
Why “Bad Paper Matters”
Bad Paper is a term used to describe those that receive a DD 214 with a less than “honorable” characterization. After serving any number of years, a veteran’s entire service is condensed down to one block on a government document. This piece of paper then follows them around for the remainder of their life. While other than for draft purposes, Americans are not required to provide military service in the United States, those that do are often required to provide their discharge papers to various authorities. Job seekers and those wishing to obtain membership in multiple settings are, more often than not, required to show proof of their military service and, subsequently, the character of that service via their DD 214.
In cases of other than honorable characterizations, this can lead to a less competitive resume or even a flat refusal of employment. In most cases of punitive discharges, like bad conduct or dishonorable discharges, they can be an outright bar to employment. A dishonorable discharge is similar to a felony. It restricts veterans’ rights, including the prohibition of obtaining student loans, veteran and some civilian benefits, and the right to own a firearm.
The VA requires a discharge characterization of anything other than dishonorable to obtain V.A. benefits. Under 38 U.S.C. § 5303 and 38 C.F.R. § 3.12(d), there are statutory bars to obtaining V.A. benefits if a person has a discharge characterization that is not honorable. However, those individuals with “other than honorable” discharges may still obtain V.A. benefits in certain circumstances. To obtain benefits, the person must either successfully upgrade their discharge or, upon a characterization of service determination by the V.A. V.A. Character of discharge determinations are done on a case by case basis, using a variety of factors and in accordance with applicable law and V.A. regulations.
While a V.A. character of discharge determination may be a path to obtaining V.A. benefits, it is not always the best avenue to address the veteran’s issues. For many, serving their country is a point of pride, and an unfavorable discharge is a stain on their honor. A discharge upgrade is a chance to solve this problem and, in many cases, correct an injustice.
Upgrading a Discharge Characterization
Generally, the DD 214 at Block 24 will show a service member’s character of service as Honorable, General (Under Honorable Conditions), Other Than Honorable (O.T.H.), Bad Conduct, or Dishonorable. Additionally, there are “Entry Level” and “Non-Characterized” types of discharges that are generally used for administrative separations, generally not associated with conduct, and can occur early in a service member’s career.
The process to upgrade a veteran’s characterization of discharge begins with determining the proper venue for their request. The upgrade process will fall within the jurisdiction of one of two types “Boards.” These boards exist for each military branch: Army, Air Force, and Coast Guard, with the Navy and Marine Corps sharing their respective boards.
If a veteran’s claim is within 15 years from their date of separation from the military, they can generally apply to the Discharge Review Board (D.R.B.). Those applicants outside of the 15-year time restriction must apply to the Board for Correction of Military Records (BCMR) for veterans of the Army, Air Force, and Coast Guard. Veterans of the Navy and Marine Corps utilize a joint board called the Board for Correction of Naval Record (BCNR). Additionally, the D.R.B. is more limited in power, and the BCMR/BCNR’s do have more latitude in their powers to change and correct.
The respective boards utilize a formal application form and process. The D.D. Form 149 for BCMR/BCNR applicants and the D.D. Form 293 in cases of D.R.B. applicants. The form may, and should, be accompanied by a legal brief in support of the application for an upgrade. Additionally, the veteran should submit any evidence from their personnel record pertaining to their service and in support of their argument for an upgrade. Finally, the process does allow for a personal address to the board. These appearances are at the expense of the applicant, who must travel to Washington, D.C., and often significantly delay decisions. Further, many decisions are made solely on the application and brief alone.
The boards, regardless of branch, are guided by federal law governing their creation and what they are allowed to consider in their deliberations. Most importantly, this allows for certain arguments when addressing the board. D.R.B.’s consider issues of “propriety” and “equity.” While the BCMR/BCNR will consider issues of “error” and “injustice.” A well written brief crafted in accordance with the available avenues of relief, supported by a careful documentary review of the veteran’s service records, has a much greater chance of success than by form application alone.
Special Considerations: The Kurta, Carson and Hegel Memo’s
The Department of Defense has issued several memorandums addressing special circumstances. The memos state that the Secretary allows for discharge upgrade applicants to offer extenuating circumstances that were a mitigating factor that resulted in the veteran’s unfavorable discharge.
These memos generally allow for the consideration of Post-Traumatic Stress Disorder (PTSD) and Traumatic Brain Injury (T.B.I.) to be shown as a reason why the applicant’s conduct should be excused or their discharge upgraded. A common example of this is a veteran with combat service resulting in service-connected PTSD that either engages in out of character physical misconduct or substance abuse as a result of their mental health issues.
The memos listed above are each slightly different, and there are specific arguments to be made in accordance with them that are available to the veteran in those eligible circumstances. Again, a smartly crafted brief with applicable evidence is a brighter path to success than by application alone.
Conclusion
When a person swears their oath and joins the military, they give themselves to their nation. However, veterans, while often accomplishing seemingly super-human feats, are still human and subject to human mistakes and errors. In many cases, there are also errors of injustice in a veteran’s discharge. The discharge upgrade and review process is a way to right a wrong. The upgrade process is a way to correct an injustice and ensure that a veteran’s DD 214 reflects the service they gave. The path is not an easy one, and veterans need help to ensure it is done right and with maximum effort.
A veteran law attorney is a great asset to this process. It can provide the veteran with an understanding of the process as well as draft a thorough brief in support of their application. Additionally, the attorney can provide the most helpful extractions of evidence from the veteran’s records to illuminate their issues. A service member would never go into battle without the correct specialized operators for the mission. A veteran law attorney is equipped to assist veterans in their mission to restore honor to their names and obtain the benefits they have earned.
If you’re looking for a legal representative to speak with, Bluestein Attorneys is here to help. Whether it’s a workplace-related illness or injury, an automobile accident, medical malpractice, business litigation, personal injury, or more, you deserve attorneys who are dedicated to helping you protect your individual rights. We can be reached by phone at (803) 674-8815, or you can schedule your free consultation online by clicking the image below.
