C. Todd Lopez
WASHINGTON: Veterans who left the military after Dec. 20, 2019 with a discharge that’s less than honorable will now have the opportunity to appeal that discharge characterization via the Discharge Appeal Review Board and have their military record changed.
When a service member leaves the military, their discharge paperwork indicates the character of their discharge on a DD214. Most veterans will leave service with an honorable discharge. But due to their own actions while in uniform, a service member might receive a less favorable characterization of their service such as a bad conduct discharge or a discharge under other than honorable conditions.
The characterization of a discharge can affect the types of benefits a veteran is eligible for after military service — including educational benefits — and can also affect the kinds of jobs a veteran might be able to apply for after their military service concludes.
Veterans can already appeal the status of their discharge by having their own military service’s discharge review board, or DRB, reconsider the discharge status. Following that, they can also appeal to their service’s Board for Correction of Military/Naval Records, or BCM/NR.
Those avenues for reconsidering a discharge status are managed by individual services, each with their own cultures, customs and norms. Because of this, one veteran who hopes to change his or her discharge status might get a different outcome than a service member from a different service, even if their circumstances are similar.
“There may be a possibility of different outcomes, as each service has its own regulations for discharge in relationship to the type of offense, and some may emphasize certain factors over others,” said Phyllis Joyner, who chairs the DARB. “Commanders have the discretion to consider a wide variety of factors in determining what actions they take.” Joyner explained that many times, the less favorable discharge characterizations are decided by service members at discharge boards or courts-martial. When it comes to dismissals and dishonorable and bad conduct discharges, these are part of a court-martial sentence meted out by a military judge or military court members. Similarly, the administrative discharge characterizations are at times decided by a panel of board members, not just the commander.
“The combination of service culture, command discretion, and service characterization being determined by boards or courts composed of different service members leads to individualized outcomes, which may, at times, create unintended disparity,” noted Joyner. “The DARB will offer service members a final opportunity to seek relief at the DOD level,” Joyner added. “We just want to make sure that applicants receive a fair, just and equitable discharge from the outcomes across the services.”
The DARB, which was established by the 2020 National Defense Authorization Act, operates independently of the military services and sits at the level of the Office of the Secretary of Defense. It provides veterans with a review of their discharge status that adheres to a consistent standard.
If a veteran has already appealed to their service’s DRB and Board for Correction of Military/Naval Records, and they are unhappy with the outcome, they can now appeal to the DARB as well.
There are many reasons a veteran may believe their discharge status warrants a change, Joyner said. One example may be that the event that led to a less-than-honorable discharge characterization may have been driven in part by the presence of a traumatic brain injury or by post-traumatic stress disorder, which might not have been considered when someone was initially discharged.
Another reason might be that due to policy changes in the military, a service member who committed a similar offense might today be discharged with a different characterization.
A service member might also have faced a court-martial for an offense at one duty location, even though the same offense is routinely handled administratively at other duty locations.
Before a veteran can appeal to the DARB to have their discharge characterization changed, they will first need to apply to their own service’s DRB and BCM/NR, Joyner said. Once that’s happened, if they are unhappy with the outcome, they can appeal to the DARB which will review the records that were submitted to those boards and make their own recommendation.
“Some things that we would look at … remembering that each case is unique … include the length of time since the misconduct occurred, their positive impact on society since they’ve been discharged. Also … accepting responsibility or atonement for the misconduct that happened while they were in the military service,” Joyner said. “Even age may play a factor — if the offense occurred when they were young while in the military. But every case is unique and there’re a lot of factors to consider.”
The DARB cannot investigate a veteran’s history — it can only review documents from the boards a veteran has previously appealed to, Joyner said. Additionally, the DARB does not make the final decision to change a veteran’s record — they make a recommendation, and the respective service secretary will make the final decision to change a veteran’s record.
Veterans have a better chance of gaining a favorable outcome from the DARB, Joyner said, if the information they have previously provided to their service’s DRB and BCM/NR was complete and compelling.
According to Joyner, a veteran might provide a written statement which explains any extenuating circumstances that may have led to their discharge but which might not have been originally considered by their service. If they suffered from PTSD, for instance, and that contributed to the circumstances that led to a less-than-honorable discharge, and there are medical documents or other proof that points to that PTSD, then those documents should also be provided to all review boards.
“They need to provide as much information in their package to tell the parts of the story that may be missing,” she said. “We want them to fill in the gaps of why the misconduct happened and/or why clemency should be considered.”
Not every service member who received a less-than-honorable discharge should be have their discharge characterization upgraded. But some veterans do deserve such a change, Joyner said, and all are entitled to have their case heard.
“The military is a microcosm of society — you are going to have some people who make mistakes. But everyone deserves second chances. The DARB provides that additional chance to have a discharge characterization reconsidered,” Joyner said.