We are one of the most experienced firms in the country representing service members before the various Discharge Review Boards. This article is provided to give you some background on the discharge review process.
There is significant value in consulting with an attorney that practices before the discharge review boards frequently. The membership of the boards can change with regularity. The personalities on the board can dictate the questions that they tend to ask.
For example, the Army Discharge Review Board will nearly always ask variations of the following questions:
-Why do you want your discharge upgraded?
-How has your discharge affected you?
-Why should we upgrade your discharge?
There are also other specific issues that certain members of the board may show an interest in. For instance, the Navy and Marine Corps Discharge Review Board often has very specific lines of questioning in cases where the service member waived his or her right to the board in exchange for an other than honorable discharge. It will certainly help for you to be ready for those questions.
Each of the boards for the different branches also conducts the hearings in slightly different ways that can influence how you may decide to present your case.
Additionally, there is an increasing sensitivity to service members with Post-Traumatic Stress Disorder and other service-connected injuries. In that regard, having an attorney with legal experience in the areas of psychology and medicine can be a great asset.
The discharge review boards were created in the wake of World War II. There was an influx of service members exiting the service with undesirable discharges. Their only recourse was the federal courts. The strain on the courts helped drive Congress to create Discharge Review Boards under 10 U.S.C. 1553.
Generally, the boards review the propriety and equity of an applicant's discharge. Propriety is basically a question as to whether or not the military followed the proper regulations in processing your discharge. If there are irregularities in your discharge, a legal consult is definitely advisable. The question of equity is simply a question of fairness. Your post-service conduct can play a role in examining whether your characterization of service was appropriate.
There is a 15-year statute of limitations because Congress wanted to give people an opportunity to make amends for anything they may have done in service. Docket Number ND97-01164. Sometimes the board members need to be reminded that we want people to have their discharges upgraded where they have been good citizens.
One of the first steps we take in reviewing a case is to assist you in obtaining your military records. Once we have your records, we conduct a full review of your service records. We may also want examine your medical records if relevant. Our firm is unique to other military law firms because we handle a substantial number of medical cases. So we have a solid understanding of the medicine, psychology, and disability system.
Discharges are presumed proper unless there is an error of fact, law, procedure, or discretion that exists associated with the discharge at the time of issuance. (DoDI 1332.28 E.4.2.1). The firm is surgical in our search for errors of fact, law, procedure, or discretion.
A few other aspects of 10 U.S.C. 1553 are worth mention. Firstly, the DRB will not review discharges resulting from the sentence of a general court-martial. Those cases must be submitted to the Board for Correction of Military Records under 10 U.S.C. 1552. We use a similar process for preparing those cases.
In PTSD and medical related cases, you can expect a physician, psychiatrist, or psychologist to be on the board. Our experience is that there is usually a forensic psychiatrist on the board. It definitely helps to have an attorney on your side that can speak the language and discuss the issues that a doctor will be interested. This is especially true if there was a substance abuse issue related to your discharge.
In a PTSD case, the board will be asking the following questions:
-is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge?
-does the applicant's record contain documentation of the occurrence of a traumatic event during the period in service?
-does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms?
-did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider?
-was the applicant's condition determined to be incurred ruing or aggravated by military service?
-do mitigating factors exist in the applicant's case?
-did the applicant have a history of misconduct prior to the occurrence of the traumatic event?
-was the applicant's misconduct premeditated?
-how serious was the misconduct?"
When we are looking at post-service conduct, the Department of Defense Instruction clearly spells out the factors that the boards consider. DoDI 1332.28 E.4.3.
The factors include:
-Service history, date of enlistment, period of enlistment, highest rank achieved, conduct or efficiency ratings;
-Awards and decorations;
-Letters of commendation OR reprimand;
-Combat service and wounds received in action;
-Promotions or demotions;
-Level of responsibility;
-Other acts of merit;
-Length of service subject to review;
-Prior military service and discharges;
-Convictions by courts-martial;
-Records of NJP;
-Periods of unauthorized absence;
-Discharges in lieu of court-martial;
-Age, educational level, and aptitude scores;
-Family and personal problems in extenuation and mitigation;
-Arbitrary or capricious action by the commander; and,
Our experience goes a long ways in helping you prepare to address all of those issues before the board. The key point, is that we want to show the board that any alleged misconduct that led to your discharge was an aberration and is not indicative of your overall character. Docket Number ND09-00578. Verifiable proof, however, is required. This is especially true in drug cases - proof of a drug free lifestyle is important.
The day of the hearing itself can be stressful. Each of the boards has fairly different processes. If you would like to know more about the conduct of the hearing, feel free to email or text Mr. Conway with the links below. We hope this information was useful. We're happy to answer more questions.
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8 March 2016 - The Naval Discharge Review Board
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