The Mayer Law Blog

Discharge Upgrades: Why do I have to fight?

Posted May 7th, 2020 in General

A lot of veterans ask why they must fight for their discharge upgrade. This is a valid question, especially when one believes that they deserve an upgrade. Here are a few points related to this.

  • The burden of proof is on you. Once you are discharged from the military, any review board presumes that you deserve your characterization of service, reason for discharge, and RE code. It is presumed that everything on a DD-214 is correct once a veteran is discharged. So, this is already an uphill battle.
  • Review boards presume that you received adequate counsel at the time of discharge and that you understood the process. I can’t tell you how many times someone is discharged and didn’t take the time to understand the discharge process. Sometimes, this is the fault of the advising lawyer at the time of discharge. However, most of the time it is because the service member disengaged from the process–sometimes on purpose, sometimes because of depression and anxiety, and sometimes because of a general state of denial. Whatever the reason, boards presume that a veteran understood the process at the time of discharge and was an active and effective participant in this process. Proving otherwise is a fight.
  • Some board members might even presume that the proven allegations in your official military records are just the tip of the iceberg and that you are guilty of much more, but never got caught. Nothing raises more eyebrows with board members than when an applicant says “I only did <drug> once, and I got caught the next day at a urinalysis.” In that case, most experienced board members believe that an applicant used a drug illegally more than once, but the file just shows that they were caught once. This requires a very careful structuring of the arguments presented to a board. If the board finds your arguments and points laughable, that is probably not a good thing. Do some people get caught after the first and only time of illegal drug use? Yes, but proving that requires skill.

These are just three examples of why it is necessary to aggressively and carefully fight for an upgrade to a discharge. Can some applicants do this alone, without a discharge upgrade lawyer. Yes, they can. Others need more help and guidance. Either way, it is important to understand the process and that it is necessary to correctly frame issues and support them adequately with good evidence.

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