Discharge Upgrades & Court Martial Appeals

When somebody has been discharged from the military (for example: a general discharge, other than honorable discharge (OTH), bad conduct, or dishonorable discharge), after they’ve left the military, they can appeal for an upgrade of their discharge. Each military branch has two different boards that deal with those sorts of requests, and they look at cases where people petition to have the characterization of their discharged changed and upgraded from what they received when they left the military.

How to Start the Discharge Upgrade?

There is a DD form that discharged service members can fill out and submit in order to request an upgrade of their characterization. It is important to provide more information than the form requires, so many people hire an attorney or law firms to assist in making that sort of request. Along with the form, you are allowed to present a full appeal, which resembles a person laying out any legal errors that your command or the military committed in the process of discharging you before a court.

Often, we see cases where commands have not followed different relevant regulations correctly, so you can make those sorts of appeals.You could also lay out in full what happened leading up to your discharge (for example: why that discharge, why the characterization you received was unjust, why even being discharged was unjust), and to attempt to justify a better discharge, you can provide context and additional details about what you’ve done since leaving the military.

The process is often in writing through an application that we put together. There is also an opportunity to present a case in person; however, there are some complications with that.We often start by completing an application in writing in order to preserve all of the opportunities that are provided in the law for people seeking upgrade. But ultimately, you could present a case in person, as well.

DD Form 293, Application for Review of Discharge

The DD-293 itself is fairly straightforward. It asks someone who is seeking an upgrade to provide certain basic information about their services to include in the branch that they served in, the date they were discharged, the type of discharge, what specific sort of action they’re requesting the board to provide for them, and their last unit when they were in the military. That form also provides a box where somebody can list why it is that they’re asking for an upgrade.

The DD-293 is fairly straightforward. It asks someone who is seeking an upgrade to provide certain basic information about their services; for example, their branch, discharge date, discharge type, type of action they wish the board to provide them, and their last military unit.That form also provides a box where somebody can list why they’re asking for an upgrade.

Frankly, a lot of people don’t hire lawyers; they just fill out that box. They send in only that form to request an upgrade, and they almost always get denied. This is because writing one paragraph usually is not enough to justify to a board why somebody’s upgrade should be changed.

The people on these boards are either military or former military, and they tend to start from the assumption that the military got it right. In a lot of cases, the military didn’t get it right, but you’ve got to convince people of that. You’ve got to provide more details than what you can put in one paragraph.

While the form is required to get things started, it is not enough itself to convince a board to change somebody’s upgrade. It is essentially the cover sheet that goes along with a much more significant appeal that we work with our clients to put together.

In-Person Appearance During Upgrade Hearing

Somebody considering an upgrade can request an in-person appearance, and I think most people would assume that’s the better way to go. However, under the law, if someone begins by appearing in-person, it is their only chance to get the results they want. If they choose to wait to appear in-person, if they get denied or aren’t completely satisfied with their initial results, they can then request an in-person hearing and get a second chance.

Normally, we advise clients to start by submitting an appeal in writing to give whomever is on that board the opportunity to provide our client with the relief we’re hoping for. And then, if we don’t get that relief or don’t get it in full, we’ve got a second opportunity by requesting an in-person appearance.

Now, there are times when we might request an in-person hearing right off the bat (for example, a quickly-approaching deadline), but if and when we can, we advise our clients to start with an appeal in writing and then move on to an in-person appeal if necessary.

Eligibility of a Discharge Upgrade

For people who have been discharged through a court martial, both their options and the options of a discharge review board or board for correction military records are limited. But it’s not to say that relief isn’t an option.

For somebody who’s been discharged through a court martial and has a negative discharge, they should still contact us, and we can go through their case on a case-by-case basis and talk about what opportunities for relief exist.

Sometimes, applying to either the DRB or the BCMR makes sense. Sometimes, there are other ways to get those folks. But for people that have been discharged through the administrative process (for example, their command has separated them without a court martial, sometimes through a hearing, sometimes without one), for people who’ve got a negative discharge, they are potentially able to apply through the DRB or the BCMR. The only reason I say potentially is because those entities boards have statutes of limitation.

There are times when somebody has been discharged too long ago to really get help from those boards. But frankly, even in those instances, there are ways to ask either the discharge review board or the BCMR to set aside its statute of limitations. Really anybody who’s got a discharge characterization that is not an honorable, should contact a lawyer to make sure that they know what their options are for getting an upgrade.

Deadline for a Discharge Upgrade

Generally speaking, the person who’s been discharged has 15 years to apply to the Discharge Review Board for an upgrade. For a person who’s beyond those 15 years, appealing to the board for correction for military records can be an option. Typically, the deadline for those forms is three years from the date of a decision by the DRB, but even if you are beyond the three years, you can ask the BCMR to set aside that deadline.There are good reasons to not wait too long, but even for somebody who has waited too long and is now getting around to realizing that they really want to fight their discharge, they should still contact a lawyer and see what their options are.

Appeal Discharge Review Board Decision

There can be a few different ways. One way is to apply to the Board for correction of note to military records. A second way is to appeal to Federal Court.

There is a common misperception in the military that you can’t sue the military. In reality, people sue the military all the time. And there are a number of instances where federal courts look at how the military has discharged someone and have decided that the military didn’t follow its own regulations. And just like any other government entity, the government is going to file the law. And when the government has involved law, federal courts will step in and correct the issue.

There have been plenty of instances where someone has lost at the DRB level, sometimes even lost at the BCMR level, too, and have gone to federal court and have gotten justice.

Power of Discharge Review Board

The discharge review board has the power to upgrade somebody’s discharge. It’s fairly straight forward. They can look at a case of somebody who got an OTH and decide that the veteran should have either an honorable discharge or a general discharge. Even an upgrade from an OTH to a general discharge can be meaningful for somebody.

Specifically, for example, with regard to their eligibility for VA benefits, the board for correction of military records has greater power and can do more than simply change somebody’s discharge characterization. They have a lot of power to add to somebody’s military records (for example, to take or subtract documents). And in specific cases, that can also lead to a difference in benefits that a veteran is eligible for. It can also wind up affecting what sort of discharge the board believes that person should have received.So, the BCMR has even greater power compared to the DRBs.

How Long For Discharge Review Board Decision?

It takes a while.The Discharge Review Boards and the BCMR, especially right now, are pretty slammed with applications. So, the time that it’s taking does vary somewhat by branch. Some branches are faster than others, but right now, it can take anywhere from 1-2 years in general, and sometimes even longer depending on how complicated the case is.

Over the last few years, there has been a lot more attention focused on veterans who were separated for some sort of alleged misconduct (where there was either PTSD or traumatic brain injury involved that may have been related to the reason why the veteran was discharged). Boards have been told a number of times by both the Defense Department and federal courts that they need to pay more attention to those claims and be more liberal in recognizing the possible connection between service members PTSD or TBI and their alleged misconduct.

So, in some cases, boards are being directed to go back to applications that they’ve already processed. While this is a good thing for those veterans, it also adds to the boards’ workload. Since it is a slow and frustrating process, it is a good reason to tackle this sort of issue earlier rather than later.

Discharge Requirements for Compensation Benefits

It gets complicated. It depends a lot on what sort of benefit we’re talking about. But for example, with the GI Bill, you need to have an honorable discharge. So, folks who may have gotten kicked out of the military for something that’s really not all that serious and gotten the general discharge as a result, are living with a serious consequence in that they are not eligible for the education benefits that they would otherwise be eligible for. Those education benefits are worth a lot, both in terms of the value of education they could receive and the long term economic impacts of having a degree.

So, that’s one example with VA Benefits. There are instances, for example, if you have an honorable or a general discharge, you are eligible for VA Benefits. If you have an OTH or anything worse than that, it gets more complicated, and you may not be eligible for VA Benefits. It also depends on when your service-connected disabilities arose and whether those disabilities occurred during an honorable period of service or not. So, it gets complicated, but having anything worse than a general discharge may mean that somebody is not eligible for VA care. That’s why getting an upgrade from a comrade other than honorable to a general, can mean a big difference for people who apply to the PRBs or BCMRs.

Discharge Requirements for Pension Benefits

To be eligible for a pension, you need to have received an honorable discharge. There are instances where a person served long enough that they received an honorable discharge, and they would be collecting a military retirement. So, there’s another instance where an upgrade can make for a huge difference in terms of that person’s standards of living.

Discharge Requirements for Education Benefits

This relates to the GI Bill, which was mentioned earlier. To receive the GI Bill, somebody has to have received an honorable discharge. Folks who are kicked out with a general, or anything worse, are not eligible for the GI Bill. The GI Bill is worth quite a bit, given that it means basically free attendance at a state school and a significant discounted tuition rate at a private school. So, getting an upgrade to an honorable and being able to obtain a degree and the economic earning ability that comes with that can make going and seeking an upgrade worth quite a bit.

Discharge Requirements for Insurance Benefits

Generally, one would need to have had an honorable discharge to receive any sort of insurance benefits.

DD Form 149, Application for Correction of Military Records

The DD 149 is similar to the form that you use to seek an upgrade through the discharge review boards.

Essentially, it asks for the applicant’s service history (including branch), discharge type, and when they were discharged. It also provides a block where applicants can explain why they believe they received an unjust or incorrect discharge. Since BCMR has powers beyond simply changing somebody’s discharge, applicants can also explain why there is something else in their file that is unjust. That box also asks whether the application is an additional request, new request. In other words, it asks whether the applicant has already sought this sort of relief by the BCMR previously.

Sometimes, we have clients who have reached out to us who have already applied to either the DRB or the BCMR and did not get sort of relief that they were hoping for. That does not necessarily mean that all hope is lost. Even if you’ve already on your own sought relief from the BCMR, the DRB, it still makes sense to contact a lawyer to see whether you have any more hope of getting sort of relief you’re looking for.

The form itself is mostly biographical information, along with those one or two sections that really asks for the heart of your case. But again, it’s really important not to limit yourself to those couple of boxes. If you do, you’re likely not providing the BCMR with enough information on why what occurred in your case was contrary to the law or unjust. So, it’s really important to provide more information along with that form. And that’s what we work with clients to do.

Ways to Get Discharged From the Military

There are a number of ways that people get discharged from the military. Most often people get discharged because they decided on their own that it’s time to leave and that they’ve performed their obligation, and they are discharged with an honorable discharge. In other cases, folks get involuntarily separated, meaning that they are terminated by the military short of the time period that they had initially said they would serve. In these cases, their command has decided to separate them for anyone of a number of reasons, and those reasons can stem from things as simple as a soldier’s inability to comply with weight requirements.

The military requires that its folks maintain a certain level of physical fitness, and as part of that, they maintain a certain weight that is in relation to their height. So, sometimes folks get separated for being overweight. Sometimes, folks get separated for failing the Army’s Physical Fitness Test.

Folks can also get discharged for drug or alcohol related issues. There are also folks who get discharged for “misconduct,”which can include things related to drugs and alcohol or other offenses under the CMJ (for example: assault, larceny, and sexual assault). In a number of cases, the discharge is due to misconduct.

There are people who are discharged through the court-martial process. To court-martial, along with having the power to send in someone to confinement, or to find somebody guilty and then send someone to confinement, also has the power to discharge a service member for the misconduct that he or she is found guilty of. And so sometimes, it discharges based on a court-martial conviction.

Appealing a Military Court-Martial Conviction

Anybody who’s been, or most people who have been found guilty of court-martial, are advised of their rights to appeal in court as well as out of court by their trial defense attorney. They are also often contacted by an appeals attorney in the military, so a JAG attorney who is not their defense attorney at trial, but who, for appeal, serves as their defense attorney. Whether a service member is sent to confinement or is not sent to confinement but has the conviction of a certain type, they will be contacted by an appeals attorney.

However, if a little bit of time goes by and they’ve not been contacted, they should reach out to their trial defense attorney, and they can also contact a civilian attorney. A number of civilian attorneys, including the attorneys at our firm, handle courts-marshal appeals. However, there is a timeline to appeal any sort of court-martial conviction. It’s important to act fast, to make sure that you understand your rights and you understand the timeline that you have to exercise those rights.

Eligibility for a Military Court-Martial Appeal

Everyone who has been convicted in a court-martial has some sort of appeal rights. If you’ve been convicted at a court-martial, you should absolutely consult with your trial defense attorney and reach out to an appeals attorney, like the attorneys at our firm, to understand what your appeal rights are. They may be greater or not as great depending on what exactly the person was convicted of, but in nearly every instance, there’s some sort of way to appeal that conviction.

Don’t Recommend Appealing Your Own Military Court-Martial Conviction

They can, but we would highly recommend against that. The law is complicated. It’s complicated for attorneys. It’s even more complicated for non attorneys. And so appealing a court martial conviction requires the ability to do a number of things, including really identify what a court got wrong and to understand what the legal requirements are in the first place. And so while somebody certainly has the right to do things on their own, an attorney who’s been trained on the law and a military law attorney who’s ideally spend some time in the military and understand how the military works and how military law works is going to put somebody in a much better position to win an appeal.

How Long Does a Military Court-Martial Appeal Take?

Fixed time, it can be relatively quick. The military has a heavy caseload and appeals that they are reviewing. So, it often takes some time for a case to be resolved. Plus, courts and attorneys involved in these cases really want to make sure that they get things right. Appeals can take some time. Can take, for example, as much as a year or two years, and in some cases even longer. It’s not a quick process by any means.

Court Martial Appeal Differences Between Branches of Military

Each branch of the military has its courts marshal, which are trial courts. They also each have their own appeals court, so the Army, for example, has the Army Court of Criminal Appeals. There is above each one of those branches, appellate courts. There is an appellate court called the Court of Appeals for the Armed Forces that has the power to review appellate decisions by courts such as the Army Court of Appeals. And so the Court of Appeals for the Armed Forces, which reviews the military appeals courts, is made up of civilians. Whereas service members, JAG attorneys sit on the Army Court of Criminal Appeals, and the similar courts for the other branches.

And then on top, if you’re looking at things in terms of a pyramid, you have each branch’s military appeals courts at the bottom. Then you have the Court of Appeals for the Armed Forces in the middle, and then you have the Supreme Court, which does have the ability to review decisions by the Court of Appeals for the Armed Forces. It doesn’t often do so. It most often will decline to hear those cases, but there are times when the Supreme Court will even review appeals from the military appeals courts.

Military Court Martial Appeal Process

Generally, following a military court martial conviction, the person who’s been convicted will be advised of their appellate rights. They will be contacted by a military appeals attorney who, like as with TDS or the ADCTS and the army, the ADC and air force, in other words, the military appointed trial attorney. At the appeals level, the service member also gets a military appointed attorney, but has the right to hire a civilian attorney too. And so, following court martial conviction, there’ll be a certain time period by which a service member can then file an appeal with their branch’s criminal appeals court. Following that appeal then the government, the attorney representing the command side of things will respond to the appeal submitted by the person who’s been convicted and the government will make its case for why, generally speaking, the conviction that the service member received was valid, was correct, was legally correct.

Then, there may sometimes be even more back and forth between the two sides, but ultimately, the appeals court will take both arguments, and they may decide that it wants to hear an in-person argument or an oral argument by attorneys for both sides. Either way,they will then issue a decision, and on any of the legal errors that were argued, and depending on what that court believes about the legal arguments, they may alter or even vacate the decision by the court marshal. Depending on what that appeals court decides, then the service member, the veteran, will have a limited period of time to notify the court of appeals for the armed forces, which sits above each branch’s appeals court, that he or she intends to appeal to that court. The court of appeals for the armed forces is not required to hear every appeal. It will look at the notice that the veteran has filed and the legal arguments that the veteran has raised in that notice, and will decide whether to permit the veteran to provide a more lengthy appeal.

Then, the court of appeals for the armed forces, if it takes that case, will then do the same thing. After receiving a brief by the veterans attorney, it will then receive a response, often a lengthy response, by the government where the government again will explain why the government believes that the conviction should stand. Then, the court of appeals for the armed forces will again have the ability to hear an in person argument from the attorneys in the case and then will ultimately issue a decision based on its reading of the record of trial and the various laws that are relevant to the particular case. It’s a lengthy, detailed, thorough process that really gets into the weeds of a case and the laws that pertain to that case. And so, hiring a military lawyer for an appeal can make for a big difference in somebody’s case.

Notice of Appellate Rights

In general, a notice of appellate rights is going to explain to somebody who’s been convicted what their exact rights are with regard to appeal. So, it’s going to weigh out what representation that person is entitled to by the military at their own costs pay for a civilian attorney to represent them. It’s going to explain the general timeline that exists and allows them to appeal. It’s going to decide who exactly is going to hear their appeal in terms of which court and who sits on that court and what the powers of that court are to look at their appeal and potentially alter the outcome of their court-martial.

Appellate Brief in the Military

An appellate brief is something that a person’s attorney puts together that identifies any important legal errors that occurred either before, leading up to, or at the person’s court-martial.

An appellate brief can identify and explain, for example, issues with how someone was charged or with a military judge’s ruling on objections that were raised by the person’s attorney at trial. It can identify and explain legal errors with how a jury was put together, a military panel with identifying any sort of issues with testimony that was provided or how evidence was acquired that was then used at a court-martial.

An appellate brief is the opportunity that somebody’s attorney has to lay out any and all significant errors that occurred that should be corrected by an appeals court and taken into account in re-evaluating that person’s conviction and sentence.

Granting Clemency

In general, after a person has been convicted, there are instances where either the command or, later on, the President of the United States, can reduce somebody’s sentence. Clemency power is limited, and is not often used, but it’s not to say that it’s never used. So, depending on the details of somebody’s case, a request for clemency might make sense and certainly can, if granted, mean a big difference to a particular person, particularly somebody who is, for example, still in confinement, and who has their confinement reduced. So, clemency is basically a way for their command or the President, for example, to alter, in the sake of fairness, somebody’s sentence.

Military Appeal Lawyers

In appeals, so the first thing, one of the very first things that an attorney does when representing somebody in an appeal is to read the record of trial. The record of trial can often be long and detailed, but that is the primary place where an attorney is going to find, really figure out what happened at a trial and identify any sort of error that occurred at that trial. It’s where the attorney is going to get a sentence, what evidence could government use to convict somebody, what sort of documents they use, what sort of witnesses they called, what those witnesses said and how ultimately either a judge or a jury decided to convict someone.

We start by digging through that record of trial and getting a good understanding of the case and what each witness provided. They also look at what somebody defense attorney did for him or her in order to get a sense of whether there was anything missed by that defense attorney and whether there might be other evidence out there that wasn’t presented at a court martial but perhaps should have been it might’ve made a difference for a client.

We then start applying what we know about the law based on our years of experience and lying up what occurred at trial wasn’t in accordance with the law. And we spend some making a legal argument to the judges on that appellate court. And then we use our knowledge of military law, we start searching for other cases that support our position. So putting together a strong appeal means taking the time to understand what happened at trial, understand what was and wasn’t presented at trial, who the players were, and then linking those issues to the requirements in the law and history, past cases that support our position to make the best possible argument for our client.

Military Discharge Upgrade Lawyers

So, with a discharge upgrade case, we want to understand why a person was discharged in the first place. And so, having or getting our hands on paperwork that was generated by the service member’s command through that discharge process is important. This helps us try to understand what the command was doing and why it did what it did. Specifically, why it believed that our client deserved or should have been discharged.

Then, we work with our client to understand what is left out from those documents and identify any areas where command just got things wrong. There are times when commanders have not correctly applied the law in a particular case, or got bad advice from their JAG attorney and didn’t go about the discharge process correctly.

So, we identify those legal errors to raise in a brief to the Discharge Review Board. Then, we also work with our clients to get a better understanding of who our client is.For example, what their service history was. Also, if that person has been out of the military for a while, we try to understand what that person has done since leaving the military. Because sometimes with discharge upgrade case, it can be valuable to show that somebody has been a contributing member of society since leaving the military. For example, have they had a steady and meaningful job?Or do they have some sort of valuable role in their community? Have they been a parent raising children? There are a lot of ways to help persuade a Discharge Review Board that a person’s life after the military, also, in combination with what occurred while the person was serving, all merit upgrading that person’s discharge, and upgrading that person’s ability to receive valuable military benefits.

And then, the other thing that we do, in any case where a client has some history of PTSD or traumatic brain injury, we look to see whether there was any connection between that PTSD or TBI, and the reason why the person’s command kicked him out of the military. And if we can tie those two things together, we can then paint a better picture for the Discharge Review Board of how that PTSD played a role, and how it mitigate whatever sort of alleged misconduct led to the person being discharged.

As I mentioned before, Discharge Review Boards have been instructed by the Defense Department and now Congress, to pay more attention to cases with PTSD or TBI, and more liberally, consider the role that PTSD or TBI had in a particular person’s case played, in order to more liberally consider upgrading a person’s discharge in that case.

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