21 October 2009

Discharge Upgrades

If you have been told you discharge is automatically upgraded after six months, then you need to read this blog entry carefully. The truth is that your discharge will not be automatically upgraded. If you want to upgrade your discharge, you need to file a request for an upgrade with The Army Discharge Review Board (ADRB). The information below is from the ARDB's website. I've included it here so that you can quickly have access to information on most of your questions.

The ADRB reviews discharges for most soldiers.reviews discharges of former soldiers, except those given by reason of a sentence of a General Court Martial or over 15 years since discharge. The purpose of the review is to determine if the discharge was granted in a proper manner, i.e. in accordance with regulatory procedures in effect at the time, and that it was equitable, i.e. giving consideration to current policy, mitigating facts, and the total record.

The objective of the Army Discharge Review Board (ADRB) is to examine an applicant's administrative discharge and to change the characterization of service and/or the reason for discharge based on standards of equity or propriety. (Exceptions: Discharge or dismissal by general court-martial and discharges over 15 years old. These issues can be addressed by the Army Board for Correction of Military Records by submitting a DD Form 149).

The ADRB is not authorized to revoke any discharge, to reinstate any person who has been separated from the Army, or to recall any person to active duty. Bad-conduct discharges given as a result of a special court-martial may be upgraded only on the basis of clemency.

The ADRB will consider applications on a records review basis only or through a personal appearance in Arlington, VA (Crystal City). The ADRB also travels to accommodate personal appearances.

The ADRB conducts reviews in one of three ways at the applicant's option:
1) Applicant personally appears before the Board with or without counsel.
2) Counsel appears on the applicant's behalf.
3) The Board evaluates the case based on documentation in the military record and additional evidence provided by the applicant.

This gives the applicant latitude in presenting evidence, witnesses, and testimony in support of his/her case.

You may engage private counsel at your own expense or you may contact one of the Veterans organizations who provide free counsel or a representative to assist in case preparation.

Here are the frequently asked questions for ADRB reviews:

Question: What is the purpose of the Army Discharge Review Board? Answer: The Army Discharge Review Board is authorized to review the character, reason and authority of a discharge of any service member discharged from active military service within the past 15 years. The authority for ADRB review comes from Public Law 95-126 and Title 10 U.S.C. § 1553. The Department of Defense Directive 1332.28, Discharge Review Board Procedures and Standards, establishes uniform policies and procedures and standards for review of discharges and dismissals. Army Regulation 15-180, Army Discharge Review Board, governs the actions and composition of the ADRB.

Question: Is my discharge automatically upgraded after six months?
Answer: No. There is no automatic upgrade of a discharge after six months or any other time period. Changes or upgrades in discharges are only made if there is a proven error, injustice, or inequity in the discharge. You must provide with your application evidence and supporting documents to show that there is an error, injustice, or inequity in your discharge. You may apply for a discharge review online at http://actsonline.army.mil and send the signature page and evidence as instructed by the online program – or - you may print a blank DD Form 293 from this website under Army Discharge Review Board application procedures, fill in the form and mail it with your evidence to the address shown on the reverse of the form.

Question: Can the Army Discharge Review Board change my Reentry Eligibility (RE) code?Answer: The RE code (Reentry Eligibility code) is determined by the reason for separation, not the character of separation. According to Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program), the Reentry Eligibility (RE) code can only be changed if an incorrect code was entered. For this type of correction, please send a letter and a copy of your DD Form 214 to the following address requesting the correction: Commander, US Army Human Resources Command Attention: Retention Branch (AHRC-EPF)Alexandria, VA 22331-0450
The RE code is not upgraded to allow enlistment. Soldiers separated with an RE-3 or RE-4 code must seek a waiver from a recruiter to enlist. Depending on the type of discharge and disqualification, a waiver may not be possible. If however, a former Soldier can provide evidence that the RE code is an error or unjust, the former Soldier may apply to the Army Board for Correction of Military Records for a correction of the RE code. If the former Soldier can provide evidence that their discharge character or reason for discharge issued in the last 15 years are erroneous or unjust, the former Soldier can apply to the Army Discharge Review Board for a discharge review and request that their RE code be changed according to the correct reason for discharge. The former Soldier may complete an online application at http://actsonline.army.mil/ and send the signature page and evidence as instructed by the online program – or - may print a blank DD Form from the Army Review Boards Agency website at http://arba.army.pentagon.mil/ fill in the requested information, and mail it to the address shown on the reverse of the form. Please provide copies of all relevant military records in your possession and any evidence to support your request.

Question: Is there a time limit to apply to the Army Discharge Review Board (ADRB)?
Answer: Yes, there is a 15 year statute of limitation from the date of discharge for applying for a discharge review by the ADRB. If it has been more than 15 years since the date of discharge, the applicant may apply for a change or upgrade of discharge to the Army Board for Correction of Military Records (ABCMR) online at http://actsonline.army.mil or on a DD Form 149 which can be found on this website under ABCMR application procedures. Changes or upgrades in discharges are only made if there is a proven error, injustice, or inequity in the discharge. You must provide with your application evidence and supporting documents to show that there is an error, injustice, or inequity in your discharge.

Question: If I was discharged by a court-martial, can the Army Discharge Review Board review my request for a discharge upgrade?
Answer: If you were discharged as a result of a Special Court-Martial, you can apply on a DD Form 293 to the Army Discharge Review Board for a discharge upgrade review. If you were discharged as a result of a General Court-Martial sentence, you must apply on a DD Form 149 to the Army Board for Correction of Military Records for a discharge upgrade review.

Question: If I received a disability discharge and my contention is that I should have received disability retirement, can I apply to the Army Discharge Review Board?
Answer: No, issues on disability and retirement must be submitted to the Army Board for Correction of Military Records on a DD Form 149 for review.

Question: What do I need to send with my application?
Answer: Attach to your application copies of all relevant military records in your possession and any evidence to support your request. Send photo copies; do not send originals. As part of your evidence, you need to provide copies of any correspondence you have had with other agencies concerning your discharge.

Question: What is evidence to support an application?
Answer: Evidence is any military record document, witness statement, your written statement, correspondence or other documents that supports your contention of error, injustice, or inequity in your discharge. Please provide only photo copies of documents as they will be retained permanently with your application.

Question: How long does it take to process an application?
Answer: The Board reviews applications in the order in which they are received. Due to the number of applications already on hand and the complexity of many of the cases, it may be as long as twelve months before you receive notification of the decision on your request. Be assured that the Board will consider your application as soon as possible and will notify you by mail as soon as a decision is made. If you request a personal appearance before the Board in Arlington, Virginia at your own expense, that appearance can normally be scheduled within six months. If you request a personal appearance before a travel panel of the Board in your regional location at your own expense, you will be scheduled for such within twelve months.

Question: What are my options regarding hearings?
Answer: You may choose to have your discharge reviewed before an Army Discharge Review Board records review hearing or a personal appearance hearing or by both types of hearings. However, if you first appear before a personal appearance hearing, you are not entitled to a subsequent records review hearing. If you first apply for a record review hearing and do not receive a favorable decision, you can then apply for a personal appearance review. Due to the statute of limitation on the Army Discharge Review Board reviews, both hearings must be conducted within 15 years of the date of discharge.

Question: What is a record review hearing?
Answer: A records review hearing is conducted by a panel of senior active duty officers following a thorough review of your record of service. In such a hearing, you do not appear, but you may submit documentary evidence on your own behalf related to your military service and/or your post service achievements. The Board sends a written decision by mail to your current address. If you move after submitting an application, it is important to notify the Board of your new address and phone number. You can do this by sending an email to the webmaster of this website.

Question: What is a personal appearance hearing?
Answer: A personal appearance hearing is conducted by a panel of senior active duty officers in Arlington, Virginia. You may appear before the panel in person, be represented by counsel, make a statement, provide witness testimony, and present documentary evidence on your own behalf, related to your military service and/or your post service achievements. You are strongly urged to provide the Board with documentary evidence pertaining to post service accomplishments related to work, school, letters of reference, your resume, community or any achievement that enables the Board an opportunity to more thoroughly evaluate your after service record. After the hearing, the Board sends a written decision by mail to your current address. If you move before you receive a decision on your application, please provide your new address and phone number by email to ARBA_I@hqda.army.mil or by mail to Army Review Boards Agency, Discharge Review Board, 1901 South Bell Street, Arlington, VA 22202-4508.

Question: If I can't afford to come to Arlington, Virginia, will the Board travel to my area?Answer: The ADRB periodically travels to regional locations in the United States to hear cases when there are a sufficient number of cases in that area to warrant the expense of travel. Normally, the Board will not appear at a regional location more than once a year
Question: Am I required to have a records review hearing? Answer: Many applicants apply for the personal appearance hearings as a first step and skip their records review hearing. A records review hearing is not mandatory. However, if an applicant has a personal appearance hearing, they are not then entitled to a records review hearing. Requesting a records review hearing as a first step gives the applicant two opportunities (two hearings) to have a review by the Board, a records review and then a personal appearance review. A records review provides the applicant a board decision that can be helpful in preparing for a personal appearance hearing. Personal appearance hearings allow the Board the opportunity to evaluate your evidence, your testimony, and your witnesses through questions and answers.

Question: What are the advantages of choosing a records review as a first step in the discharge review process?
Answer: While a records review hearing is limited in its scope of evaluation of you and your post service conduct, the decision can give you an idea of the types of issues the Board may consider in your case. Choosing a records review hearing as a first step, then proceeding later to a personal appearance hearing if the records review Board does not upgrade the discharge, will provide opportunity for two different reviews. Applying for a records review hearing first provides the applicant a board decision that can be helpful in preparing for a personal appearance hearing. Additionally, having both the records review hearing and the personal appearance hearing may increase the probability of a decision in the favor of the applicant.
Question: Do I need a lawyer to attend an appearance hearing? Answer: A lawyer is not required but you may have representation by an experienced advocate of your own choice and at your own expense. There are free advocacy groups that will represent you at the hearing. These Veterans service organizations are very experienced in preparing you for your hearing. Some include the American Legion, Disabled American Veterans, the Order of Purple Heart, and your local county Veteran Service Officer. These organizations require advanced notice to prepare for your hearings so you should contact them as early in the process as possible to make arrangements.

Question: What should I bring with me to my appearance hearing?
Answer: Bring a photo ID. Also bring any documents that support your issues such as your written statement and the documents that substantiate your claims, documents such as letters of reference, military documents pertinent to your case, references from employers, people who know you, any community involvement or work you have completed, school transcripts, resume, medical documents if they apply, etc. Any witnesses that will testify on your behalf should also bring photo ID.

Question: What other information can you tell me to prepare for my Personal Appearance Hearings?
Answer: The Army Discharge Review Board convenes administrative hearings. The hearing is not a court martial or a trial, but you do have certain rights. You may present documentary evidence or evidence material to your case, remain silent, present witnesses to speak on your behalf, or be represented by counsel. Hearings are in duration anywhere from one half hour to an hour. Some hearings last longer because there may be many issues that are to be presented. As the rules of evidence are relaxed, you may present evidence related or not related directly to your issues. The board consists of five officers of rank O-5 to O-6, each with a one vote count. An applicant must have a majority of the voting officers in order to receive the relief that is requested. The Board may vote to leave alone or change the character, reason, or authority of the discharge, but will not make it any worse than it already is.A typical hearing will be preceded by several formalities, a briefing to tell you what to expect, you will be sworn in, and then have an opportunity to make an opening statement of length of your choosing, or, if represented by counsel, for counsel to present your case for you. You will then be questioned by the Board, with each member asking questions to clarify or to determine facts and circumstances not fully known before hand.It is in your interest to have an idea of what you want to tell the Board before hand. Any additional evidence to be sent after the application has been submitted (or on-line signature page), should be sent by mail directly to our address (not by fax please) at least four weeks before the hearing is to be convened. This is a courtesy request and also one to your advantage, though not compulsory. Since there are many hearings scheduled the day of your hearing, the Board requires advance time to review and be aware of evidence that may potentially help your case or shed light on the issues.We have several briefings before the hearing, one by the Secretary Recorder in order to discuss administrative aspects of the case, and another briefing by the Board President to welcome and give you more information about the hearing process. Additionally, this FAQs letter is sent to your active e-mail address and/or an information letter about hearings is given during the Secretary Recorder's briefing.Dress or uniform for the hearing: There are no requirements for uniform or manner of dress. An applicant may choose dress in a manner that is appropriate to the occasion. An applicant should not dress in a military uniform if the applicant is no longer a member of the armed forces.

Question: On what does the Army Discharge Review Board (ADRB) base its decisions?
Answer: The ADRB bases its decisions on equity and propriety. Each case is evaluated independently based on its own merit and the evidence submitted by the applicant. The burden of proof rests with the applicant to provide evidence that the discharge was not proper or that the applicant was not given equal treatment.

Question: What is Equity?
Answer: Equal treatment; applying the rules and regulations equally to the same set of circumstances.

Question: What is Propriety?
Answer: An issue of Propriety involves whether or not the Army properly followed its own rules and regulations for your discharge.

Question: What is an "issue"?
Answer: An issue is a specific reason why the applicant believes the discharge received may have been improper or inequitable.

Question: What decisions can the Army Discharge Review Board make?
Answer: The Army Discharge Review Board (ADRB) may decide to upgrade the discharge characterization or determine that the current characterization is proper and equitable. If the Board votes to upgrade change the discharge characterization to General under Honorable Conditions or to Honorable, it may then decide whether to change the Reason, the authority, or the RE Code. For example, a decision might result in a change of character from Under other than Honorable Conditions (UOTHC) to General under Honorable Conditions or to Honorable, with no change to the reason, authority, or RE code. The Board may change a characterization from a Bad Conduct Discharge (BCD) to General under Honorable Conditions with no change of reason or RE code. The Board may change any characterization to fully Honorable with a change of reason to Secretarial Authority and change of RE code – or the Board may change the characterization to fully Honorable with no change to reason, authority, or RE code. The ADRB is not authorized to change the discharge issued by a General Court-Martial. The ADRB may consider only the characterization of the discharge issued by a Special Court-Martial. In such cases, the applicant should provide the Board ample evidence of post service good conduct and achievements with the application.

Question: If my discharge is upgraded, will I get a new DD Form 214 and how long will it take? Answer: Yes. The new DD Form 214 will be mailed to you from the Army Review Boards Agency approximately 120 days after the date of the decision by the ADRB.

Question: What will happen to my old DD Form 214?
Answer: In your military record, the old DD Form 214 will be voided and your new DD Form 214 will be put in its place. You may need to provide photo copies of your new DD Form 214 to other agencies. Never give away your original new DD Form 214.

Question: Can the Army Discharge Review Board downgrade my discharge?
Answer: No, a Board decision will not change a discharge to a lesser characterization. The ADRB may either upgrade a discharge or confirm the current discharge. However, if the DD Form 214 does not accurately reflect the discharge that was approved, the Board will direct correction of the DD Form 214 even if that would result in the appearance of a downgrade.

Question: Can the Army Discharge Review Board authorize me to return to active duty? Answer: No, the Army Discharge Review Board does not make decisions regarding return to active military service. For more information regarding requirements for return to active duty, you must contact your recruiter. You should provide your recruiter with your DD Form 214.

Question: There are several other parts of my DD Form 214 that I want to correct.
Answer: If you have issues with your discharge other than the characterization, reason or authority for the discharge, you must address those issues to the Army Board for Correction of Military Records (ABCMR). You may apply to the ABCMR online at http://actsonline.army.mil and send the signature page and evidence as instructed by the online program – or - you may print a blank DD Form 149 from this website under Army Board for Correction of Military Records application procedures, fill in the form and mail it with your evidence to the address shown on the reverse of the form.

Question: What are my chances that my discharge will be upgraded?
Answer: Each case is evaluated independently based on its own merit and the evidence submitted by the applicant. Your case will receive a complete and thorough evaluation and analysis before the Board members convene to review it. A decision is made based on a vote by the five Board members; only three favorable votes are needed to change the any aspect of the discharge.

Question: If my decision did not result in an upgrade or my discharge was not completely upgraded, what can I do to appeal it?
Answer: If you received a decision from a discharge records review records, you may apply for a discharge personal appearance review. For this, you must submit a new DD Form 293 requesting a personal appearance. If you received a decision from a discharge personal appearance review or you do not wish to apply for a personal appearance review, you may appeal the written discharge review decision by applying to the Army Board for Correction of Military Records (ABCMR). You may apply to the ABCMR online at http://actsonline.army.mil and send the signature page and evidence as instructed by the online program – or - you may print a blank DD Form 149 from this website under Army Board for Correction of Military Records application procedures, fill in the form and mail it with your evidence to the address shown on the reverse of the form.

Question: What if I move before I receive my decision?
Answer: Decisions are sent in writing by U.S. Postal Service (USPS) mail to the address you provided on your application. If you move before you receive a decision on your application, please provide your new address and phone number by email to ARBA_I@hqda.army.mil or by mail to Army Review Boards Agency, Discharge Review Board, 1901 South Bell Street, Arlington, VA 22202-4508. If your discharge is upgraded, your new DD Form 214 will be mailed separately from the records correction agency approximately 120 days after the decision is issued. The DD Form 214 will not be forwarded by the USPS so it is important that your address be up to date with the Board.

Question: What can you tell me about my benefits, such as Montgomery GI Bill (MGIB) and/or medical benefits?
Answer: You must contact a representative of the Department of Veteran Affairs (VA) in order for them to make a proper determination regarding any benefits to which you may be entitled. The Army Discharge Review Board does not make determinations regarding benefits. The VA web site http://www.va.gov/index.htm provides information on benefits and contact information for VA representatives.

Question: If my discharge is upgraded, will I receive my Montgomery GI Bill (MGIB) or get the money I paid into it back?
Answer: Policies and procedures related to the Montgomery GI Bill are not under the purview of the ADRB. These questions should be addressed to a representative of the Department of Veteran Affairs (VA). The Army Discharge Review Board does not make determinations regarding benefits. The VA web site http://www.va.gov/index.htm provides information on benefits and contact information for VA representatives.

1 comment:

  1. Can I still get a re code upgrade in civilian court after i exhaust review board appeals?
    answer: carswell_brandon@yahoo.com

    ReplyDelete

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