Correcting Your Military Discharge

by Valerie M. Buck


What Is A Discharge

A military discharge is a release from active duty service from the Armed Forces of the United States.  Discharges are based on many factors, including completion of training, completion of term of service, quality of service, whether service was ended prematurely, dependency issues, conviction of any crimes, need of punishment, etc.  An official discharge is constituted by receipt of form DD 214.

Ordering DD214

If you are in need of your DD214/ Military Discharge records go to this link: archives.gov/veterans/military-service-records/

Types of Discharges [1]

Entry Level Separations or uncharacterized discharge. Given to those who separate or initiated separation before completing 180 days of service.  This discharge doesn't depict service as either good nor bad.

Honorable. Given to those who meet or exceed required standards of performance and conduct.  Premature discharges can still be honorable as long as the discharge is not due to misconduct.

General. Given to those whose performance is satisfactory but may have issues, such as minor misconduct. Service members are required to sign documents acknowledging potential prejudice which may be received in civilian life under this discharge which may exclude them from certain benefits, programs, disability benefits, etc.

Other Than Honorable.  Given to those who have conduct and performance other than expected of military members, which may include certain civil hearings. Service members who receive this discharged are barred from reenlistment in regular and reserve service, which may include Army National Guard or Air National Guard.

Clemency Discharge. Given to those who resisted again the Vietnam War, military personnel can receive a Presidential Pardon and have their punitive discharges changed to Clemency Discharge.

Bad Conduct Discharge. Given to those by a court-martial as punishment to an enlisted service-member. These discharges are often preceded by incarceration in a military prison.

Dishonorable. Given to enlisted members by a general court-martial for serious offenses that require dishonorable discharge as part of the sentence.  All Veterans benefits are lost.  Since this discharge is deemed the equivalent of a felony conviction Federal law prohibits ownership of firearms.

An important note about Veterans Benefits according to the National Archives "Veterans with disabilities incurred or aggravated during active military service may qualify for medical or related benefits regardless of separation and characterization of service." [5]

Statistics [1]

According to the Department of Defense, out of the 207,000 service members who were discharged in 2014, the following statistics apply:


Loss of Benefits

Those with Other Than Honorable discharges may receive Veterans Benefits if they received at least one honorable discharge.  Other negative discharges (such as Bad Conduct Discharge & Dishonorable) may result in loss of benefits including loss of GI Bill, Pension, State & Local Benefits such as discounts on property taxes ,etc…

Who can request to change Military Service Records or Discharges?

The Veteran, surviving spouses, next of kin, legal representatives of deceased or incompetent veterans can request to change Military Service Records or Discharges.  According to the national archives "The veteran, survivor or legal representative generally must file a request for correction within three years after discovery of an alleged error or injustice. The board may excuse failure to file within the prescribed time, however, if it finds it would be in the interest of justice to do so. It is an applicant's responsibility to show why the filing of the application was delayed and why it would be in the interest of justice for the board to consider it despite the delay." [5]

DD Form 149 Application for Correction of Military Record: dtic.mil/whs/directives/forms/eforms/dd0149.pdf

DD Form 293 Application for the Review of Discharge from the Armed Forces: dtic.mil/whs/directives/forms/eforms/dd0293.pdf

Air Force Board For Correction of Military Records: afpc.af.mil/afveteraninformation/airforceboardforcorrectionofmilitaryrecords/

Army Review Boards Agency: arba.army.pentagon.mil/

Naval (& Marine) Board for Correction Of Naval Records: secnav.navy.mil/mra/bcnr/Pages/default.aspx

United States Coast Guard Board for Correction of Military Records: uscg.mil/legal/BCMR.asp

How long do I have to correct my military discharge? [2]

If you are apply to upgrade your discharge, you would submit your application within 15 years.  If your discharge is older than 15 years, you would apply for a correction of military records.

What Is Required? [2]

A copy of your military service records.

It is up to the person requesting a correction/upgrade to prove that the discharge is improper or severe. You'll need to provide evidence such as witness statements, copies of records that support your case, including a clear statement from the Veteran explaining why the records are improper. Those statements from people who have direct knowledge or involvement are important.

PTSD and Changing Military Discharge

PTSD and Drug Use
2+ of 10 Veterans with PTSD struggle with Substance Abuse (use of drugs, excessive smoking, heavily drinking).  PTSD increases the risk of developing a struggle with Substance Abuse. If the Veteran was discharged for misconduct relating to Substance Abuse consider if PTSD could have been the source.

PTSD
PTSD was not officially recognized until 1980 when the American Psychiatric Association added PTSD to the Third Edition of its Diagnostic and Statistical Manual of Mental Disorders. Unfortunately, it wasn't until 1989 that a Congressional Mandate (PL 98-528) addressed the needs of Veterans and other trauma survivors with PTSD. Then in 2010, VA Secretary Shinseki reduced the medical evidence needed by Veterans who were seeking health care and disability compensation for Post-Traumatic Stress Disorder. Shinseki simplified the application process which allowed for faster and more accurate decisions and quicker access to medical care for Veterans with PTSD. If discharge was previous to the 1989 date and PTSD is a possibility, correcting Military Discharge records is more feasible now than ever.  [4]

Veterans with PTSD or other Psychological Health issues leading to conduct concerns should obtain a well versed medical opinion from a licensed Psychologist or Doctor.  Their medical opinion should explain the cause and effect leading up to the misconduct. [2]

Sexual Orientation and Changing Military Discharge

Roughly 100,000 service members may have been discharged for being homosexual between WWII and the repeal of "Don't Ask, Don't Tell" in 2011.  Exactly 8,446 of those discharges happened between 1983 through 2010. [7] The Obama Administration announced a policy to grant honorable discharges to any veteran discharged from the military for homosexuality. [6]

Gender Identity and Changing Military Discharge

There isn't much information online about Gender Orientation and correcting your military discharge online for research purposes. However this PDF is informative on Gender Identity and the Military – Transgender, Transsexual, and Intersex identified Individuals in the U.S. Armed Forces February 2007: http://www.palmcenter.org/files/active/0/TransMilitary2007.pdf

Individuals who are entering the military are subject to both a physical and a mental examination. If such an individual states that he or she is transgender, transsexual or trans-identified, then they will be rejected as unfit under the applicable medical standards of the branch of service the individual is attempting to join. An individual who has undergone any sort of gender modification, such as hormones or gender-confirming surgery, will be rejected both from the perspective of being psychologically unfit as well as having had surgery that is considered a "major genital abnormality or defect." Should an individual attempt to conceal a history of gender modification, in the course of routine entry-level security background checks, an individual's gender, as designated at birth, and if different than the self-identified current gender, will be substantiated and can be used to discharge a potential military candidate. Moreover, falsification of the entries on the form may be construed to be a fraudulent enlistment and subjects the service member "to UCMJ penalties and discharge." Individuals who decide to transition during their enlistment from female to male or male to female may be discharged under enlistment violations, as well as through rules relating to homosexuality or cross-dressing or through being classified as psychologically unfit or having a personality disorder. The military does not recognize the professional standards of care when it comes to hormone therapy, living in the appropriate gender identity, and gender confirming surgery. Consequently, the military will not provide the medical support necessary to assist a service member in transitioning from his or her original gender identity to the target identity. Making use of the military's medical and psychological services to address trans-related issues can also be problematic for a service member as "conversations with military health-care providers are not confidential and any statement concerning being transgender can, and most likely will, be reported to their commands and separation proceedings begun."

Reading over this small section, appealing a discharge due to gender orientation would be hopeless because there hasn't been updates regarding the ability to join or stay in the military and collecting sufficient evidence to provide unjust discharge, at this point in time, would be unfruitful.

According to Wikipedia:

In 2015, the American Medical Association approved a resolution against the ban on openly transgender troops.[103]

Also in 2015, the Army issued a directive that protected transgender soldiers from being dismissed by mid-level officers by requiring the decision for discharge to be made by the service's top civilian for personnel matters.[104]

Also in 2015, the Air Force stated that for enlisted airmen, there was no outright grounds for discharge for anyone with gender dysphoria or who identified as transgender, and that a person would only be subject to eviction from the Air Force if his or her condition interfered with their potential deployment or performance on active duty.[105]

Also in 2015, Navy Secretary Ray Mabus signed a memorandum directed to the chief of Naval operations and commandant of the Marine Corps stating: "Effective immediately, separations initiated under the provisions of the reference for service members with a diagnosis or history of gender dysphoria, who identify themselves as transgender, or who have taken steps to externalize the condition, must be forwarded to the assistant secretary of the Navy (manpower and reserve affairs) for decision."[106]

Later in 2015, Defense Secretary Ash Carter ordered the creation of a Pentagon working group "to study over the next six months the policy and readiness implications of welcoming transgender persons to serve openly."[107] He also stated that all decisions to dismiss troops with gender dysphoria would be handled by the Pentagon's acting under secretary of Defense for personnel and readiness (Brad Carson).[107]

According to Wikipedia, many branches of the military will not discharge a service member for gender identity. There was nothing online I could find about being able to appeal a discharge for those who were discharged due to gender identity. I couldn't find if the military will allow those with gender identity to enlist in the military.  I assume based on what I've read, that until those with gender identity concerns can serve openly in the military, those with pre-existing discharges that are Other Than Honorable will not be able to appeal.

Needing Help with Appeals, My Recommendation

There are military discharge upgrade lawyers available in every almost state, we did search through Utah and there was only one posted.  We are not linking to any because we believe you should find a reputable one, which would be hard for me to research every single one in every single state. We recommend looking them up, finding any complaints or reviews on the lawyer.  Lawyers can be expensive and the process of Appeals may be long depending on the evidence gathering needed, so this is something you'll want to research before you call a lawyer.  The easiest place to start is your State Bar, as they will have a list of lawyers you can search through and narrow down from there.


Sources

[1] en.wikipedia.org/wiki/Military_discharge
[2] realwarriors.net/veterans/discharge/upgrade.php
[3] ptsd.va.gov/public/problems/ptsd_substance_abuse_veterans.asp
[4] longtermcarelink.net/article-2015-5-7-Vietnam-and-PTSD-40-Years-Later.htm
[5] archives.gov/veterans/military-service-records/correct-service-records.html
[6] vetlawandbenefits.org/2015/10/07/veterans-who-received-less-than-honorable-discharges-for-being-gay-seek-discharge-upgrades/
[7] military.com/daily-news/2014/06/16/gay-soldiers-discharge-upgraded-to-honorable.html