Is your OTH discharge preventing you from accessing VA benefits? DVRC can connect you with pro-bono attorneys who can help.
Roughly 1 in 7 veterans leave active duty with a less-than-honorable discharge, barring them from accessing their full VA benefits. However, veterans have the right to seek a VA discharge upgrade. An upgrade improves the characterization of service or narrative reason for separation, allowing veterans to receive increased benefits. Veterans can seek a discharge upgrade even if they left the military years ago.
DVRC has a network of attorneys who may be willing to handle discharge upgrades for you. With the proper legal support, veterans with improved discharge status can access healthcare and housing benefits, advance their employment prospects, and enhance their self-esteem and mental health.
Who Is Eligible for a Discharge Upgrade?
Veterans have the strongest case for a discharge upgrade if they can demonstrate their OTH discharge was connected to one of these circumstances:
Mental Health Conditions, Including PTSD
Post-traumatic stress disorder (PTSD), depression, anxiety, and other mental health conditions can manifest as behavioral issues. Service members who suffered from mental health issues, even if they weren’t diagnosed during service, can challenge their less-than-honorable discharge by demonstrating that their behavior was the result of a mental health condition.
Improper Diagnosis of Personality Disorder or Adjustment Disorder
Veterans may receive a less-than-honorable characterization of service or an incorrect narrative reason for separation by being improperly diagnosed with an adjustment disorder or personality disorder. This issue can sometimes be resolved by seeking a discharge upgrade.
Traumatic Brain Injury (TBI)
Traumatic brain injuries (TBIs) are one of the most common injuries among veterans of the wars in Iraq and Afghanistan. This type of injury frequently produces cognitive and behavioral problems that appear to be intentional misconduct. Veterans with TBIs may be able to argue that their service-connected injury caused a behavior change that led to their discharge.
Military Sexual Trauma (MST)
It is common for service members who experience military sexual trauma (MST) to engage in self-destructive or risky behaviors that outside observers don’t understand. Survivors of MST who received less-than-honorable discharges for misconduct may be able to demonstrate that their behavior was a reaction to MST.
Sexual Discrimination Due to Don’t Ask, Don’t Tell (DADT)
LGBTQ+ veterans who were dishonorably discharged due to their sexual orientation under Don’t Ask, Don’t Tell (DADT) can seek a discharge upgrade. The DOD now allows for changes to a veteran’s characterization of service or narrative reason for separation if the discharge was based on DADT or other discriminatory policies.
Racial Discrimination
A 2022 study by the Veterans Inclusion Project found that Black servicemembers are 1.5 times more likely to receive an OTH discharge and 2 times more likely to receive a general discharge than white service members. Veterans of color may be able to argue that racial discrimination influenced the characterization of their discharge and/or was the cause of their alleged misconduct.
Isolated Misconduct
A veteran may seek an upgrade by demonstrating that the misconduct that led to their discharge was an isolated incident. A veteran can argue that their history of honorable service was overshadowed by a single event, particularly if that event is tied to mental health challenges. Department of Defense guidance also encourages review boards to consider the veteran’s post-discharge conduct when making their determination.
How to Get a Discharge Upgrade
Veterans have 15 years after discharge to request an upgrade from the Discharge Review Board (DRB). After 15 years, veterans should submit requests to the appropriate Board for Correction of Military Records (BCMR). The BCMR also handles appeals of DRB denials. It can take six months to two years to receive a decision.
The discharge upgrade process begins when a veteran submits a DD Form 293 to the DRB or a DD Form 149 to a Board of Corrections. Along with these forms, the veteran must demonstrate that their OTH discharge was improper (made based on incorrect or incomplete information) and/or inequitable (discriminatory, too severe, or inconsistent with today’s standards). Therefore, forms should be submitted with as much supporting evidence as possible.
Veterans can use a variety of evidence to demonstrate their discharge was improper or inequitable, including:
- VA Medical Records (C-File)
- Statements from commanding officers or people the veteran served with
- Proof of post-service policy changes
- Pre-service and post-service medical records
- Letters of support from family, employers, co-workers, community members, clergy, mental health professionals, or other people the veteran has interacted with
- Explanations of legal or administrative errors
- Employment records
- Documentation of post-discharge behavior
- Documentation of PTSD, MST, TBI, or other conditions that may have influenced conduct
- Criminal background checks
- Additional records that may not be included in the veteran’s official military record
Legal Assistance for Discharge Upgrades
Many veteran benefits law firms help with discharge upgrades. However, most attorneys charge up-front retainers for this work, with no guarantee of a successful outcome. This is inaccessible for many veterans.
DVRC has developed a network of trusted lawyers who provide discharge-upgrade representation. There are no guaranteed results. Our team will review your case and, when appropriate, connect you with an available attorney who can guide you through every step of the process. With skilled legal support through completing forms accurately, compiling compelling evidence, and pursuing an appeal if a decision is denied, you’ll have the strongest possible chance of securing an upgrade.
A less-than-honorable discharge doesn’t define your service
and shouldn’t hinder your future.
Reach out to our pro bono liason at DVRC at 470.751.9910
We will walk you through your options, assess your eligibility,
and match you with legal services at no cost to you.