Upgrade a Military Discharge

MILITARY ONESOURCE

WEBINAR: Nov.14, 2023 - 1 p.m. ET

Discharge Review Boards or "How to Upgrade a Military Discharge"

Presenter: Robert Powers, president, Naval Discharge Review Board

Disclaimer

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What Are the Discharge Review Boards?

• Administrative boards, not courts of law.

• Each military department (Air Force, Army, Navy) has its own ORB.

• DRBs hear cases from former service members requesting a change to their discharge.

• DRBs review the individual merits of each application on a case-by-case basis.

• DRBs decide if the discharge was proper, fair, and equitable.

Why Apply for a Discharge Upgrade?

• A ORB is not necessary for most former service members.

• But ORBs provide former service members with an opportunity to appeal and make changes to their discharge or upgrade the characterization of their discharge.

• If the ORB upgrades an applicant's discharge characterization of service or other terms, they may be eligible for additional veterans benefits.

Who May Apply to the DRB?

• Former service members whose discharge was issued within the last 15 years.

• If the former service member is deceased or incompetent, their surviving spouse, next-of kin, or legal representative may apply on their behalf.

DRB Application Process

STEP 1 Applicant gathers relevant documents and information.

STEP 2 Applicant completes and submits the DD Form 293 and supporting evidence.

STEP 3 ORB staff screens the application package.

STEP 4 ORB staff contacts the applicant to confirm receipt and requests any additional needed information.

STEP 5 Applicant provides the requested information.

STEP 6 ORB staff notifies the applicant of the personal appearance hearing date and time, if requested.

STEP 7 Applicant attends the personal appearance hearing, submitting any additional relevant evidence or information.

STEP 8 ORB takes the case under consideration to make a decision.

How to Apply - Completing DD Form 293

https://www.esd.whs.mil/portals/54/documents/dd/forms/dd/dd0293.pdf

• Fill out each applicable section.

• Takes approximately 45 minutes to complete.

• Most of the information requested should be readily known to the former service member or found in their discharge documentation, such as their DD 214 or NG 22.

• What does the applicant want changed about their discharge?

• ORB cannot "undo" the discharge, but they can change:

• Character of service (e.g. "General" to "Honorable")

• Separation code

• Reentry code

• Narrative reason for separation (e.g. "Misconduct" to "Secretarial Authority")

• Basis for reconsideration:

1} The only previous consideration was on the motion of the ORB.

2} A change in policy is announced, made expressly retroactive.

3} New, substantial, relevant evidence not available to the applicant at the time of the original review.

• Applying for reconsideration is most likely to be successful if the subsequent application is significantly different from the last time applied.

• Documentary Record Review - paperwork-only review of the available military personnel records, service medical records and documentary evidence provided with the application.

• Personal Appearance Hearing - allows the applicant to appear in person to directly present their case to the DRB, including the option of presenting witnesses and/or additional evidence.

Each applicant is entitled to one of each type of review. However, if an applicant chooses to first request a personal appearance, they will no longer be entitled to a records-only review.

• Blocks 18 and 19 are designed to help the DRBs identify potential cases where specific policy considerations apply.

• Applicants who select one of the boxes in Block 19 should ensure that they explain how the selected condition is related or connected to their discharge in Block 20.

• Additional information regarding policy changes pertaining to these conditions can be found on the review board agency websites, DOD and VA websites.

• Applicants should explain ALL the issues related to their discharge that they want the DRB to consider and address in their decision and the specific reason(s) for why the issue(s) involve proprietyl equity and/or clemency.

• Explanation in Block 20 should be thorough, detailed and as complete as possible.

• Applicants are not limited to the space provided in Block 20 and may attach additional separate sheets to the form to fully explain their case.

• DRBs are not investigative bodies, and the applicant has the burden to show why the discharge request should be granted.

• Applicants should submit any information or documents that can help explain the issues in their case, especially if such documentation is not likely to be found within their official military records.

• Use Block 21 to list (general description/titles can be used) the evidence included as part of the DD Form 293 for submission.

• All applicants are entitled to be represented by a lawyer at their election, but all costs of representation are paid by the applicant and not subject to reimbursement.

• Applicants do NOT need to have a representative or attorney to apply to the ORB.

• Many legal aid, military and veteran service organizations will assist veterans free of charge with their applications and/or legal representation.

• If the former service member is deceased or legally incompetent, their next of kin, surviving spouse or a legal representative can apply on their behalf.

• Application needs to include evidence in support of the service member's death or incompetency and relationship of the applicant to the service member.

• Common supporting documents submitted to establish eligibility include death certificates, court incompetency documents, marriage licenses, birth certificates, court appointments of conservatorship, or notarized powers of attorney.

• Applicant should indicate their preferred method of receiving correspondence from the DRB - check "yes" to receive correspondence electronically via email.

• Sign and date the form to certify the information provided in the DD Form 293 application is true.

• An attorney may not sign Section 7 of the application unless the applicant is incompetent or deceased and legal proof of such is attached.

Requesting Service Records

https://vetrecs.archives.gov/VeteranRequest/home.html

What is an Issue of Propriety?

• An "error of fact, law, procedure or discretion" in deciding upon the discharge.

• The discharge authority got something wrong with the facts or the reasoning behind the discharge.

• "Substantial doubt" that the applicant would have gotten the same discharge.

• There must be reason to believe, if the mistake had not been made, that the applicant would have received a different discharge.

• There has been a changein discharge policy made expressly retroactive.

What is an Issue of Equity?

• Applicant was discharged because of policies that are different in important ways and new policies are better for former service members and there is substantial doubt the applicant would have received the same discharge.

• At the time, discharge was inconsistent with standards of discipline.

• Relief is warranted based on consideration of the applicant's service record and other evidence presentedviewed in conjunction with quality of service and capability to serve factors.

What is an Issue of Clemency?

• Recent DOD policy guidance now permits the DRBs to consider granting discharge relief to ensure fundamental fairness and directs the DRBs to consider both clemency and rehabilitation in their decision-making process even if the discharge was the result of administrative proceedings rather than a criminal sentence.

• When considering clemency, DRBs may consider several factors such as:

• The severity of misconduct.

• The aggravating and mitigating facts related to the record or punishment.

• An applicant's candor and acceptance of responsibility, remorse or atonement.

• Positive or negative post-conviction conduct.

• Length of time since misconduct.

• Character and reputation of the applicant, and/or evidence of rehabilitation.

• Victim support or opposition for relief, and any reasons provided.

What Type(s) of Evidence Should Be Submitted?

• Only submit RELEVANT evidence:

• Makes a fact of consequence more or less likely.

• Has a direct connection to the issues in the case.

• Do not submit original documents; provide legible copies.

• Submit early - there is no reason or advantage in delaying to submit available relevant evidence

What Happens at a Personal Appearance Hearing?

• DRB hearings are not adversarial proceedings where an applicant will be intimidated or challenged for the purpose of impugning motives or the integrity of the case. The formal rules of evidence do NOT apply.

• Applicants may bring witnesses, provide written statements, submit statements of others, and/or provide other documentary evidence during the hearing.

• Applicants may, at their option, testify under oath, make an unsworn statement, or say nothing.

• DRB members may ask questions to resolve doubt and clarify confusing testimony or evidence. The DRBs are not interested in asking trick questions, but applicants should anticipate hard questions, and in some cases, personal questions that have a bearing on the case.

How Long Does It Take for a DRB Case To Be Decided?RB Case To Be Decided?

• Each ORB case is evaluated on its individual merits.

• Case processing time varies depending on several factors, including the complexity of the issues raised, if a personal hearing is requested, and the availability of relevant service records.

• ORB cases are normally heard in the order in which they are received.

• Due to the number of applications already on hand, it may be as long as 12 months before an applicant receives notification of the decision on their request.

Where Can You Get Help With an Application?