Discharge Upgrades vs. VA Character of Service Determination

 Posted on November 20, 2018 in Uncategorized

A veteran with a less than fully honorable discharge has three forums that they can petition to make them eligible for VA benefits. Two of the forums are part of the military service departments. Each military service branch has a Discharge Review Board (DRB). The Air Force, Army, and Coast Guard have a Board for Correction of Military Records (BCMR), and the Navy and Marine Corps have a joint Board for Correction of Naval Records (BCNR). The last forum is the VA, which can determine that the veteran is not barred from VA benefits through a process called a character of discharge determination.

Where board should a veteran apply to get a discharge upgrade?

If a veteran is primarily interested in a discharge upgrade, an application should be filed with the Discharge Review Board or the Board of Corrections.

1. The Discharge Review Boards: The DRB has limited powers. It can upgrade a discharge except for a Bad Conduct Discharge or Dishonorable Discharge issued by a general court-martial. In other words, the DRBs can review a General Discharge, an Other Than Honorable, and a Bad Conduct Discharge issued by a special court-martial. It can also change the reason for a discharge.

DRB applications must be received within fifteen years from the date of discharge. This deadline cannot be waived or extended. A veteran with a compelling story should apply to a DRB if at all possible because a personal appearance hearing is guaranteed.

2. The BCMR and BCNR: The BCMR and BCNR application filing period is three years "from the date of discovery of the error or injustice." However, there are exceptions to this rule. First, if a DRB denies your application, then you have three years from the date of the denial to apply to a BCMR or BCNR. Second, the BCMR or BCNR will waive the three-year deadline "in the interest of justice." This is especially true if relief on the merits appears appropriate. Third, the deadline will be waived if you are raising issues that involve PTSD and related conditions such as TBI.

A veteran with certain statutory benefits to VA benefits can only be made eligible for VA benefits by a BCMR, except in cases where insanity is an issue. A Bad Conduct Discharge and a Dishonorable Discharge may only be reviewed by a BCMR or BCNR, and then only for clemency.

What is a Character of Discharge Review from the VA?

The VA cannot upgrade a discharge, but it may rule on a case-by-case basis that the circumstances surrounding the veteran's service should allow a grant of VA benefits despite an "undesirable" discharge or discharge "under other than honorable conditions." This VA process is called a "character of discharge determination."

To obtain a Character of Discharge review, a veteran must first apply for a benefit with the VA such as disability compensation. When the veteran applies for the benefit, they should explain to the VA why they should be eligible for VA benefits. For instance, the veteran should explain that they were affected by PTSD or TBI while in service. Another example is explaining that besides from the misconduct, the veteran's service was otherwise "honest, faithful, and meritorious." For example, perhaps they had good performance evaluations or were deployed in hardship conditions.

The VA will take into account these circumstances and then make a determination if their service qualifies them for VA benefits. Remember, the finding that you are a Veteran for VA benefits purposes is only the first step in the eligibility test. Some benefits, such as educational benefits, require you to have a fully honorable discharge. You may still need to meet other qualifications such as a minimum length of service or service during a period of war.

The material and information contained on these pages and on any pages linked from these pages are intended to provide general information only and not legal advice. You should consult with an attorney licensed to practice in your jurisdiction before relying upon any of the information presented here.

Edward M. Farmer is a U.S. Army veteran and an experienced VA attorney in DuPage County Illinois. The majority of his career has been dedicated to assisting veterans with legal issues nationwide. Call toll-free at 1-800-700-4174.