Court-Martial Trial Practice Blog
Until now, a person wishing to upgrade their discharge would file a petition with the Service discharge review board. Beginning April 2021, the Department of Defense has established a new and final board of appeal, called the Discharge Appeal Review Board.
The new Discharge Appeal Review Board will allow those service members a final review of their requests to upgrade their discharge or dismissal characterization after they have exhausted all other available administrative options, the Defense Department’s release said. Congress ordered the board created in the fiscal 2020 National Defense Authorization Act.
Prior decisions of the boards are available on line at: https://www.secnav.navy.mil/mra/CORB/Pages/NDRB/default.aspx. Unlike civil and criminal appeals, the decisions of the board in individual cases are not binding precedent. However, they can, like unpublished appellate opinions be argued as persuasive when the specific issues and facts in a DRB appeal are the same of similar.
To begin a discharge review it is important that you have all the records available to make the appeal package robust and convincing. This is especially important in situations where the discharge resulted from a criminal investigation. As military defense lawyers, we can help you get started with the process and then work with you to prepare the best presentation possible.
In 2017 the DoD made a significant change to policy for those applying for upgrades with a particular issue of a persons mental health leading up to the discharge or at the time of discharge. Some have characterized this as an “invisible wounds” theory for an upgrade. Combat-related PTSD would fit into this category and would psychological trauma associated with being a victim of sexual assault. Here is the DoD policy memorandum for your guidance as well as to the boards.
Generally, there are several basic reasons for an upgrade,
- you were denied due process in the manner in which the discharge was approved. For example in a recent case, the recorder had failed, in violation of the Navy instruction, to provide evidence in advance of the hearing. As it turned out it didn’t matter–after vigorous cross-examination of the drug lab expert the board found no misconduct;
- your discharge was otherwise legally wrongful;
- your post-discharge conduct and character have been exceptionally good warranting a finding that the discharge characterization does not fully describe who you are as a whole person.
Experience tells us that unless the basis for an upgrade is a deficiency in the processing of the case, an immediate request for an upgrade is unlikely to succeed. (Note, the law allows you to submit a petition from six months to 15 years after the date of discharge.)
The recommended course of action in other cases is first to submit a paper submission laying out arguments for an upgrade. Generally, they are denied. What you should then do is wait several years and resubmit the petition and request a personal appearance hearing if one is available. You can attend the hearing and make a presentation and you can be accompanied by a military defense lawyer to lay out your case and arguments for an upgrade. Witnesses are allowed, although it is recommended that there be only one of two at the hearing. Other witnesses can submit written affidavits for consideration.
To be successful you need to have done more than get a job, get married, go to school; and otherwise stayed out of trouble. Nearly every applicant can show that. You need to have a stand-out reason or reasons why you are different from the ordinary petitioner.
If your discharge involved drugs or alcohol you need to be able to show long-term consistent actions to obtain and maintain sobriety. AA or NA attendance helps as does a significant period of related counseling.
How long will this all take–a long time, especially because of COVID-19s impact. The AF has a general timeline here, but experience tells us that it can take months longer. Some cases can go on for several years, especially the more complicated ones.
You should apply. We do not mean to dissuade you from applying for an upgrade, rather our intention is to give you a realistic understanding of the process and timing.
Feel free to contact us a military defense lawyers experienced in discharge upgrade cases. The initial consultation is free.