By: Anthony Kuhn, Esq.
Thousands of service members across all branches have been involuntarily separated from their military branch following misconduct that has resulted in an administrative separation or court-martial. Many of them are denied benefits as a result of the alleged misconduct and their separation. A prior service member, regardless of the classification of service, should never give up hope. The record can be corrected to allow that service member to obtain life changing benefits. Some benefits require an Honorable discharge (i.e. educational benefits), while others require only an Under Honorable Conditions (General) discharge (i.e. VA service-connected compensation payments). A properly prepared application can have odds of success higher than 80 percent at certain boards.
You have as many as three “bites” at the apple before having to decide whether to file suit in federal court. National Guard members may need to first request relief through their state’s National Guard to ensure that they have exhausted all administrative remedies. You are not required to get a decision, only to show proof that you requested the relief. Service members who have no duty or have exhausted their duty to file with the state should consider these three options:
1. Discharge Review Board (DRB)
The first bite at the apple is often the one with the highest chance of success. A separated service member may apply to the DRB for that specific branch within 15 years of separation. Applicants should file the appropriate document (DD Form 293) with a well-written legal brief and supporting evidence outlining their legal arguments and any procedural or regulatory errors that occurred during their separation proceedings. The standard for this board is that a service member proves an inequity or impropriety. Service members will have an opportunity to have their case adjudicated on the written record first and then an opportunity to personally appear at a hearing in Crystal City, VA if they make the request within the strict 15-year window.
2. Boards for Correction of Military Records (BCMR)
The next bite at the apple is usually the Board for Correction of Military Records for that specific military branch. If the service member is requesting a discharge upgrade within 15 years of the discharge, there must first be an attempt in most cases to exhaust administrative remedies by filing an application at the DRB before moving on to the BCMR. Record corrections not involving a discharge upgrade should be filed directly with the BCMR in most cases. Service members generally have three years to submit the appropriate form (DD Form 149) and a well-written legal brief with supporting documentation to support the argument for a record correction and discharge upgrade, but the board will usually consider the application in the interests of justice if there is new and material evidence that has not yet been considered by the board. The standard for this board is that the service member proves that an error or injustice occurred. A request for reconsideration of a prior BCMR decision can now be filed at the BCMR at any time if the service member can provide new and material evidence to support the request.
3. Discharge Upgrades at the Department of Veterans Affairs (VA)
A far-too-often overlooked step in the battle for benefits is the request to have the VA upgrade the classification to something other than dishonorable for VA purposes only. There are two main benefits veterans take advantage of. The VA requires an Honorable discharge for education benefits (i.e. GI Bill), but only requires an Under Honorable Conditions (General) discharge for medical benefits and monthly compensation. The VA considers anything below a General discharge to be dishonorable, which bars the former service member from obtaining benefits. A service member may file an application with the VA requesting a review of their service to determine whether the VA will consider their service to be something other than dishonorable for VA purposes only. Often, service members have a period of honorable service that can qualify them for benefits or the VA will upgrade their classification based on their service prior to the conduct that resulted in separation.
A service member needs only to obtain a victory at one of the three (four if you count the National Guard) bites at the apple outlined above to obtain service-connected compensation and possibly education benefits if the upgrade is to Honorable. The service member should consider filing at the DRB or BCMR and at the VA in parallel filings to benefit from whichever agency returns the quickest favorable decision. The key is to be persistent and aggressive with filings until you have accomplished your goals or exhausted all avenues.
As a Managing Partner at Tully Rinckey PLLC, Anthony Kuhn focuses much of his time on the representation of military personnel. He has extensive experience assisting clients in navigating matters involving security clearance suspensions and revocations, appeals to the Discharge Review Boards and Boards for Correction of Military Records, UCMJ violations and non-judicial punishment, appeals for service-connection before the Department of Veterans Affairs, rebuttals to GOMORs and QMP selection notifications and requests for Special Selection Boards. He can be reached at email@example.com or at (716) 439-4700.
*The views and opinions expressed in this article are those of the authors and do not necessarily reflect the views, policy or position of this publication.