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Discharge Review Cases. What's That All About?
DESCRIPTION: Every service member gets some kind of formal discharge from the armed services when the term of service is over. The best kind, an Honorable Discharge, is given in 90% of all discharges- if the vet committed no major military offenses, and was a good service member, the discharge papers will be "honorable" entitling the vet to apply for VA benefits, Montgomery GI Bill benefits, and to qualify for federal, state and local veterans preferences in hiring. The next best kind of discharge is a General Discharge, which is given under honorable conditions to a service member whose service was not so good, but not bad enough to be less than honorable-you lose your GI bill benefits, and veterans preferences but may still qualify for VA benefits.
TRANSCRIPT:
You said something about changing a discharge, what's that all about? Every service member gets some kind of formal discharge from the armed services when the term of service is over. The best kind, an Honorable Discharge, is given in 90% of all discharges- if the vet committed no major military offenses, and was a good service member, the discharge papers will be "honorable" entitling the vet to apply for VA benefits, Montgomery GI Bill benefits, and to qualify for federal, state and local veterans preferences in hiring. The next best kind of discharge is a General Discharge, which is given under honorable conditions to a service member whose service was not so good, but not bad enough to be less than honorable-you lose your GI bill benefits, and veterans preferences but may still qualify for VA benefits.
A less than honorable discharge is given to trouble-makers with a record of petty military offenses, or a record of shirking duty-it cuts off all VA benefits in addition to loss of preferences. And you can't join a service organization like the VFW with a less than honorable discharge-even if you have been awarded combat medals. If you commit a serious military offence and are court-martialled, the court martial can give you a punitive discharge, Bad Conduct if your offense was small-time and tried by a Special Court Martial, Dishonorable, if you got substantial prison sentence from a General Court Martial. These are like civilian conviction records-they affect your credit, your ability to get a civilian job and show up every time a credit report is run on you.
If I was a veteran who got a less than honorable discharge, what can I do about it? If you have been out of the service less than 15 years, you can apply to the Discharge Review Board for your branch of service. If you have been out more than 15 years, you must apply to the Board for Correction of Military Records for your branch of service?
Is this hard to do? Yes. It is not a matter of filling out a Form 148 or 149 and sending it in. You need to get your entire military service record, and any pertinent medical or psychiatric records from the service or private medical sources relating to your discharge. Ordinarily a less than honorable discharge is presumed to be legal, and the burden is on the vet applying for a change of discharge to prove it was given illegally-so you need copies of your services regulations for administrative discharges and a review of all this by a lawyer who is competent to do discharge review work-that is one of the Veterans Law Clinic's special areas of expertise.
So let's say I contact you and you agree to represent me-what do you do and how long do I have to wait for a result? We prepare your DOD From 148 or 149 for you, prepare an affidavit for you to sign setting out the facts of your discharge, gather your military records and civilian records and submit a written brief showing why your less than honorable discharge was illegally given and unjust to you.
We then send this information to your service Board. It takes about a year for the Board to review your paperwork. Ordinarily the Board makes a decision based on the paperwork without a personal hearing.
If the decision is against me, what then? You may appeal the decision to one of two federal courts, the U.S. District Court in your state, or the Court of Federal Claims in Washington, depending on the circumstances of your case. If you have a claim for back pay, you must ordinarily go to the Court of Federal Claims-if you just want the character of the discharge changed, you should go to the U.S. District Court.
That sounds like a very complicated long-term process-you said something earlier about veterans with a medical discharge-can you tell me more about that? Sure. A veteran who has a service-connected illness or injury and is getting VA compensation may be eligible for medical retirement from his or her branch of service. If the vet never had a Medical Evaluation Board and the vet's medical records showed that the vet had a disease or injury, the vet can file a Form 149 with the Board for Correction of Military Records for his or her branch of service-to set aside the non-medical discharge and pe discharged medically with retirement benefits or severance pay.
Does this happen often? Yes. Many vets are in such a hurry to get out that they refuse to disclose that a service injury or disease is making them ill or disabled, so they get out, go to the VA, get compensation and miss out on service retirement benefits.