Discharge Upgrade

[gp747]

i was discharged under honorable conditions,recently granted 30%

sc for the reasons i was discharged. examiner cited that my disorder

was the cause for the actions that lead to discharge. i recently applied

for upgrade in discharge and told them i did not see any reason i needed

someone to represent me. is this going to be a battle? i sent them copy

of my disability award.

[Wings]

In order to prevail at an administrative level to upgrade a discharge you must prove one of two things. That the presumption of regularity in government affairs is not appropriate in your case and therefore the discharge should be set aside, meaning the governmment did not follow established rules and procedures in discharging you; or that the discharge character was too harsh given the misconduct when compared with other servicemen/women who committed similiar misconduct and the length of time that has passed and your civlian accomplishments warrant an upgrade.

If you were in the military over a set mumber of years based on your branch, you must be afforded an opportunity to appear before a discharge board to contest the discharge. Now here is the killer. If that occurred and you signed a waiver permitting your discharge and waiving the hearing, you will NOT obtain an upgrade. There is not one case at any service upgrade Board that has upgraded a case where the SM has waived his rights to a hearing. It does not happen. Attack the procedures first even if you did not have a board hearing as the regulation number they used may have been incorrect and that would be what you would you need to show the discharge was improper. Liken it to being in court charged with murder when you committed larceny. The murder case gets tossed. Since you have already been discharged, the govt does not get another bite at the apple, and you get all your back pay and allowances until the time of your discharge (if enlisted) or to the time of the correction of your miltary records (if an officer).

Remember that you have a statute of limitations of 15 years to file. If you dont you are forever barred, and then if you are denied you have one year to bring an action in the US Federal COurt of Claims to attack the Service Boards denial. Legal fees in the Washington DC area currently are running about 35-40,000.00 to handle these cases. THe win ratio is high, primarily because lawyers wont take them if they dont have a solid win. You cannot brag about a loser on your web site. Hope this helps....Jerry

Jerry,

Pretty good synopsis!

However, that 15 year rule can be "waived" IN THE INTERESTS OF JUSTICE.

Also, there really is no such animal as a "waiver" of your "constitutional right" to appeal.

In any case, that "waiver" must be truly voluntary and not coerced in any way; and you must have been afforded competant legal advice and your rights must have been written, numbered, enumerated and explained in detail--which I'm fairly certain was never done by a service department.

These two terms must be addressed throughout your appeal: EQUITY AND PROPRIETY, which Jerry has aptly illustrated in his post.

~Wings

Edited November 15, 2008 by Wings

[gp747]

Carlie, he has a General, Under Honorable Conditions discharge. He wants to upgrade it to a Honorable Discharge. That is the same kind of discharge that I have. Any time you serve less than what you enlisted for, this it the best that you can ets with, unless you are medically discharged or discharged for the good of the service. I've considered trying to upgrade mine, but never really had a need, so I let it go.

yes that is exactly the kind of discharge i have general under honorable

i signed up for 3yrs and served over 2yrs. close to 3 yrs. it just seemed to me

the examiner named every reason for my discharge as part of my 30% sc.

i wrote and told them the reason i wanted the upgrade was for my mental

health as it was bothering me and i think about it a lot. i mean i had just

came back from Vietnam and was mentally ill,big time . but just now having

it service connected. i waited until i was service connected to apply.

i would not have attempted it unless i could prove i was mentally ill at time

of discharge and told them at that time bi-polar was not known and did not

blame them for not knowing.

[Wings]

yes that is exactly the kind of discharge i have general under honorable

i signed up for 3yrs and served over 2yrs. close to 3 yrs. it just seemed to me

the examiner named every reason for my discharge as part of my 30% sc.

i wrote and told them the reason i wanted the upgrade was for my mental

health as it was bothering me and i think about it a lot. i mean i had just

came back from Vietnam and was mentally ill,big time . but just now having

it service connected. i waited until i was service connected to apply.

i would not have attempted it unless i could prove i was mentally ill at time

of discharge and told them at that time bi-polar was not known and did not

blame them for not knowing.

If it mean anything to you, I did the same thing: got service-connected for PTSD first, then applied for a discharge upgrade. I won in 4 years, but it was a good fight. ~Wings

[gp747]

If it mean anything to you, I did the same thing: got service-connected for PTSD first, then applied for a discharge upgrade. I won in 4 years, but it was a good fight. ~Wings

oh it means a lot to me, thanks wings.

[Wings]

oh it means a lot to me, thanks wings.

You can read all cases by year or Search Boards of Review Reading Rooms, left side of page, choose your branch of service. Read a few cases.

http://boards.law.af.mil/

Edited November 15, 2008 by Wings

[mountain tyme]

rentalguy you wrote:

Carlie, he has a General, Under Honorable Conditions discharge. He wants to upgrade it to a Honorable Discharge. That is the same kind of discharge that I have. Any time you serve less than what you enlisted for, this it the best that you can ets with, unless you are medically discharged or discharged for the good of the service. I've considered trying to upgrade mine, but never really had a need, so I let it go.

Not all veterans who served less then there enlistment will receive a general unless they were medically discharged. I served less then my enlistment period and I received an Honorable discharge...but I was given a re-enlistment code that would have prevented me from re-enlisting...which I did not agree with based on principal...so I contacted the American Civil Liberties Union...and they helped me have my code changed so if I wanted to re-enlist I could...but after what I had experianced during my en-listment I passed.

any ways It depends upon the circumstances, your commander mood what type of discharge you could receive...alot of politics if you ask me.

MT