31 August 2010

Two basic rules


General information

In 1972 the military departments illegally handed out other-than-honorable (OTH) conditions discharges to thousands of service-members, as a result of the command-directed urinalysis programs.  The United States Supreme Court ruled against the Army for this practice, so the Department of Defense created a program which allowed service-members discharged because of a command-directed drug test prior to 1972, to receive an automatic upgrade of this discharge to honorable.  Unfortunately, the curative action spawned one of the most pernicious and still widely held beliefs that an OTH is automatically upgraded after six-months.  Many “counselors” still encourage service-members to waive their rights at discharge citing this “rule.”  The truth is that there are NO AUTOMATIC UPGRADES and discharges are extremely hard to upgrade.

     It is true that a person can apply for a discharge upgrade from the first day after discharge up until 15 years from the date of discharge.  However, to justify the upgrade the person must persuade a Discharge Review Board that the discharge was either "inequitable" or "improper."

     “Inequitable” means the reason or characterization of the discharge is not consistent with the policies and traditions of the service.  For example, an "Inequity" would be: "My discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action."

     “Improper” means that the reason or characterization of the discharge is in error (i.e., is false, or violates a regulation or a law).  “Improper” would be: “The discharge is improper because the applicant's pre-service civilian conviction, properly listed on his enlistment documents, was used in the discharge proceedings.”

     You Have the Right to Apply for a Correction of Records.

     Any person who has been discharged or dismissed, or his or her heirs or legal representative, may apply to the appropriate Service DRB.      Title 10, U. S. Code §1553, is the statute for upgrading of military discharges.  The Secretary of the service concerned 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.  Bad conduct discharges imposed by Special Court-martials are reviewed only as a matter of clemency.

     The formal application process begins with submission of a DD Form 293, Application for the Review of Discharge or Dismissal from the Armed Forces of the United States.

     You can get the form on-line, from most military legal assistance offices, and from the local Veteran’s Administration office.

     Finding the form and filling it out is quite simple.  Supporting the request is a much more complex matter.  You need to submit evidence in support of your claim, submit an affidavit of your own, make arguments as to why you should be granted relief, and in appropriate cases make a personal appearance.  You and you alone are responsible for gathering and submitting evidence.  The DRB’s will not do that for you.