HCBA Lawyer Magazine No. 31, Issue 4 | Page 50

Discharge upgraDes : an opportunitY for treMenDous iMpact
Military & Veterans Affairs Committee Chairs : Matthew F . Hall – Hill Ward Henderson PA & Alexandra Srsic – Bay Area Legal Services
for attorneys seeking a truly meaningful pro bono experience , filing a discharge upgrade application for a veteran may fit the bill .
Photo Credit : Thompson Brand Images .

Who is a veteran ? That may seem like unemployment , and untreated service occurred . The veteran will a simple question , mental and physical health issues . need to submit a VA form to the but the answer Many veterans and civilians think appropriate Discharge Review

depends on who one is talking about . Perhaps more importantly , the answer will determine what services and resources an individual who served in the military may receive . The Department of Veterans Affairs ( VA ”) defines a veteran as : “ a person who served in the active military , naval , or air service , and who was discharged or released therefrom under conditions other than dishonorable .” 1 While “ other than dishonorable ” seems to suggest that veterans with any discharge that is not dishonorable would meet this definition , that is not the case .
Military discharge can be administrative or punitive . The four administrative discharge types are Honorable , General ( under honorable conditions ), Other Than Honorable ( OTH ), or Entry-level Separation . The three punitive discharge types are Bad Conduct , Dismissal , and Dishonorable . All discharge types aside from Honorable and General are considered “ bad paper .” Many veterans who were discharged with bad paper are not eligible for VA healthcare , home loans or service-connected disability compensation . These veterans are at great risk for homelessness ,
it is easy enough to get an Honorable discharge . However , veterans who experience post-traumatic stress or other mental health issues may be discharged with an OTH because of behavior that is related to or caused by the mental health issue . LGBT veterans may have been discharged with bad paper as a result of the “ Don ’ t Ask , Don ’ t Tell ” policy , which was repealed ten years ago . Many other circumstances exist which warrant a second look at whether the discharge was justified .
What options exist for veterans who served their country , but received an OTH , dishonorable or bad conduct discharge ? They can apply for a discharge upgrade . A successful discharge upgrade results in a change to the character of the discharge on the veteran ’ s DD-214 ( the discharge form ) to a more favorable discharge ( e . g . honorable or general other than honorable ).
How Does a Veteran Apply ?
First , the veteran should request their military personnel and medical records . Next , the veteran must decide where to file their discharge upgrade application , depending on which branch they served in and when separation from
Board ( DRB ) or Board for Correction of Military Records ( BCMR ). Time deadlines apply to each Board , which the veteran must consider when applying .
How Can Attorneys Assist ? While the DRB or BCMR application form is only one page , if the veteran does not submit any supporting documentation or statements , the chances of receiving an upgrade are very slim . A successful discharge upgrade application will likely include a personal statement by the veteran , letters of support from commanding officers , battle buddies , and family as well as other evidence supporting the veteran ’ s request . Attorneys can submit a brief in addition to the veteran ’ s personal statement or represent the veteran at a personal appearance hearing . When attorneys represent a veteran before either board , the veteran ’ s chances for receiving a life-changing discharge upgrade improve dramatically .
For attorneys seeking a truly meaningful pro bono experience , filing a discharge upgrade application for a veteran may fit the bill . While it can be a labor-intensive continued on page 49
4 8 M A R - A P R 2 0 2 1 | H C B A L A W Y E R