Upgrading a Discharge for Veterans with PTSD or TBI

 Posted on November 14, 2018 in Uncategorized

Since 2014, significant changes have occurred in the discharge upgrade criteria involving veterans which greatly increase a veteran's likelihood of success in obtaining a discharge upgrade. A veteran should be familiar with these changes, so they can submit the best argument on their behalf. If the circumstances of a veteran's discharge were the result of Posttraumatic Stress Disorder (PTSD) or related conditions such as Traumatic Brain Injury (TBI), the veteran's request may be eligible for "liberal consideration" under the "Hagel Memo." Similarly, if the circumstances of a veteran's discharge were the result of a mental health condition (including PTSD), TBI, or sexual assault or harassment, a veteran may be able to strengthen their application by submitting special types of evidence, in addition to military service records, that will also be given liberal consideration under the "Kurta Memo."

What is the Hagel Memo?

In 2014, the Secretary of Defense, Chuck Hagel, recognized that many veterans may have been discharged from the military for misconduct but in retrospect were suffering from PTSD or TBI. PTSD was not even recognized as a mental health disorder before 1980 and it would have been difficult before that time to establish a nexus between PTSD (and related conditions) and the misconduct. Thus, the Department of Defense released the "Hagel Memo" which requires the Discharge Review Boards and the Board of Corrections to give "liberal consideration" to discharge upgrade requests are required to follow if a veteran's discharge was related to PTSD, TBI, or other mental health conditions.

Under this rule, the veteran should submit medical evidence of their diagnosis of PTSD, TBI, or related conditions. This evidence can include military Service Treatment Records showing an in-service diagnosis of the condition. VA Compensation and Pension exams linking the condition to service are also extremely helpful.

Further, the veteran should present evidence that the PTSD or TBI excuses the misconduct that led to the discharge. For example, if the veteran was discharged telling off his superior, the veteran should present evidence explaining that the insubordination was the result of the depression and anxiety he was experiencing from his PTSD that day.

What is the Kurta Memo?

The Kurta Memo expands the favorable provisions found in the Hagel Memo. It clarifies that the Discharge Review Boards and the Board of Corrections must sympathetically consider applications based on all mental health conditions (including PTSD), TBI, and those based on sexual assault and harassment. The Kurta Memo also explains that the Discharge Review Boards and the Board of Corrections must consider evidence that is not part of a veteran's service records but can help show that the veteran had a condition or experience that can excuse or mitigate the discharge. For example, veterans can submit statements from family members, friends, co-workers, and fellow service members, as well as current mental health treatment records, to help prove that they had a condition or experience in service that excuses their discharge. The veteran should also write a personal statement explaining their condition in service and its effects on the veteran's behavior.

Substance Abuse and the Kurta Memo:

The Kurta Memo also has some helpful rules about discharges resulting from substance abuse. If the veteran's discharge was based on substance use that was actually an attempt to self-treat a mental health condition, the veteran should explain this in their application. For example, perhaps the veteran was smoking cannabis in an effort to relieve his depression symptoms caused by his PTSD. This argument should carry particular weight if the veteran was discharged a long time ago when cannabis was considered to be a more serious substance than it generally is today.

If you need assistance with requesting a discharge upgrade where PTSD or TBI was a mitigating factor, contact an experienced discharge upgrade attorney.

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.