Upgrading Your Military Discharge after Adverse Action

Upgrading Your Military Discharge after Adverse Action

By Ellis L. Bennett ebennett@dunlapweaver.com

Many recently discharged service members – especially those separated administratively with an Other Than Honorable (OTH) conditions discharge – are led to believe that their discharge will be automatically upgraded to Honorable (H) after six (6) months.  This is one of the most prevalent and widely held false beliefs within the military community, perpetuated by rumor that has been circulated throughout the military for years.  Victims of this widely spread rumor often suffer significant consequences as an adverse discharge carries with it many consequences that will have repercussions for years.  Discharge upgrades are never “automatic.”  It is much better  for a former service member to take proactive steps in an effort to obtain a discharge upgrade rather than making those efforts only after being rejected for federal employment or being turned down for a loan.

First and foremost, in order to obtain an upgrade, a service member must request the discharge within fifteen (15) years of from the date of discharge.  In order to obtain an upgrade a former service member must convince the Discharge Review Board that his/her discharge was either (1) “inequitable” or (2) “improper.”

Any person who has been discharged or dismissed from military service (or his/her heirs or legal representative), may submit an application for discharge upgrade.  Title 10, U.S. Code § 1553.  The Secretary of each branch of service is required to “establish a board of review, consisting of five members, to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member or, if he is dead, his surviving spouse, next of kin, or legal representative.”  The Boards cannot revoke a discharge, or recall a person to active duty.

The formal application process for a discharge upgrade begins with the submission of a DD Form 293, Application for the Review of Discharge or Dismissal from the Armed Forces of the United States.  This form is easily found on-line, and completion of the form is relatively simple.  However, actually obtaining a discharge upgrade is a tall task.  In order to establish that a discharge is “inequitable” a former service member must establish that his/her discharge is not consistent with the policies and traditions of the service.  In order to establish that a discharge is “improper” a former service member must establish that the reason or characterization of the discharge is in error (i.e. that it is false or contradicts a governing law or regulation).  Gathering and assembling the evidence to successfully support an upgrade request is a complex and difficult process.  The Discharge Review Board will offer little to no assistance.  Given the importance of obtaining an upgrade, former service members are wise to seek the guidance of experienced counsel when tackling the process.  Going it alone in this endeavor is a difficult proposition with a huge down side.  Only those former service members who properly support their applications to meet the taxing upgrade standards imposed by the government will find success.