This information was prepared by Appellate Defense Division, in an effort to assist defense counsel and their clients during the appellate process. If any errors or omissions are noted, please contact Appellate Defense through DSN 612-4770 or 800-414-8847. Official Disclaimer: Since policies and procedures change without notice, clients should consult with local offices and OPRs for verification of this information.
1. Upgrading Administrative or Punitive Discharges
2. Applying to the Air Force Discharge Review Board
3. Applying to the Board of Corrections for Military Records
UPGRADING ADMINISTRATIVE OR PUNITIVE DISCHARGES
This fact sheet is designed to familiarize you with the procedures for upgrading Under Other Than Honorable Conditions (UOTHC) and General (Under Honorable Conditions) administrative discharges, as well as upgrading punitive discharges (bad conduct, dishonorable or dismissals). It should not be used as a substitute for consulting private counsel and/or the Air Force Personnel Center, as well as reviewing applicable regulations.
It is important to understand that punitive discharges are upgraded only on the basis of clemency, whereas administrative discharges are upgraded based on standards of equity or propriety. This handout was originally developed primarily for use by clients trying to upgrade administrative discharges, however, the language and ideas are often equally applicable to court-martial clients.
NOTE: A GENERAL DISCHARGE DOES NOT AUTOMATICALLY BECOME AN HONORABLE AFTER 6 MONTHS. This is a widely circulated rumor that is untrue. You must apply for an upgrade and the Discharge Review Board (DRB) or BCMR must grant the upgrade.
1. Who can apply? A former member of the Regular Air Force and the Air Force Reserve Armed Forces who has been discharged or dismissed administratively in accordance with AF instructions or a court-martial can apply to the Discharge Review Board (DRB). A former member of the Air National Guard must apply to the Board of Corrections for Military Records (BCMR). If the member is deceased or incompetent, the surviving spouse, next-of-kin or legal representative can act on the member's behalf before either the DRB or the BCMR.
2. Who do I apply to?
a. If you have an administrative discharge less than 15 years old or a BCD received from a special court-martial, you should first apply to the Discharge Review Board.
3. What are the DRB and BCMR?
b. If you went to a general court-martial and received a BCD, DD or dismissal, or if your discharge is over 15 years old, or if you have already been denied an upgrade by the Discharge Review Board, you must apply to the Board of Correction of Military Records.
a. The Air Force Discharge Review Board (DRB) is appointed by the Secretary of the Air Force and given discretionary authority to review administrative discharges. A DRB Panel is an element of the DRB and consists of 5 active duty Air Force officer and senior enlisted personnel, authorized to review discharges and dismissals. The DRB Traveling or Regional Panel is a DRB Panel that conducts its reviews in locations outside the Washington, D.C. area. Each member casts one vote and the majority rules.
This page includes sections on both the DRB and the BCMR. See the Corrections Board section of the Air Force Personnel Center homepage (http://www.afpc.af.mil/) and the DoD Electronic Reading Room website (http://boards.law.af.mil/) for more information. It is highly recommended that you review the information available through these websites before attempting to upgrade your discharge!
b. The Air Force Board of Corrections for Military Records (BCMR) is the highest level of administrative review within the Department of the Air Force. Unless procured by fraud, its decisions are final and binding on all Air Force officials and other government agencies.
Applying to the Air Force Discharge Review Board
Starting Point for All Administrative Discharges,
as well as BCDs from special courts-martial
550 C Street West, Suite 40
Randolph AFB, TX 78150-4742
1535 Command Drive, EE Wing
JB Andrews NAF, MD 20762-7002
2. What publications are relevant to my application? DoD Directive 1332.28 and AFR 20-10 (currently under revision) are the relevant publications. The entire DoD Directive can be downloaded through the Corrections Board section of the Air Force Personnel Center homepage (www.afpc.af.mil) or through the DoD publications link (http://www.dtic.mil/whs/directives/index.html). Also, copies of both regulations can be obtained (for a fee) from National Technical Information Service, 5285 Port Royal Road, Springfield, VA, 22161, (703) 487-4650.
3. Time of Application. You may apply for an upgrade immediately upon discharge and up to 15 years after the date of the discharge or dismissal.
4. Who can apply and how do I apply? Former members of the Regular Air Force and Air Force Reserve are eligible to apply. Former members of an Air National Guard unit must submit an application to the Board of Corrections for Military Records. If the former member is deceased or incompetent, a surviving spouse, next of kin or legal representative may apply with supporting documentation (i.e. marriage license, death certificate or power of attorney.)
1. Form for Application
. Use DD Form 293, Application for the Review of Discharge or Dismissal from the Armed Forces of the United States, along with other statements or documentation as needed. This form is available for downloading through the Corrections Board section of the Air Force Personnel Center homepage (http://www.afpc.af.mil/
) and the DoD Electronic Reading Room website (http://boards.law.af.mil/
), at most bases, at regional offices of the Veterans Administration or by writing to:
There are essentially three ways to apply for an upgrade:
(1) Applicant appears personally before the Board, with or without counsel;
(2) Counsel appears on applicant's behalf; or
5. Assistance of Counsel. You may and should seek counsel in making your application, even if you do not intend to have counsel appear for you. Experience has shown that assistance of counsel increases your chances for an upgrade. You may seek assistance from the Veterans' Administration, American Red Cross, American Legion, Disabled American Veterans, Jewish War Veterans of the USA, and the Veterans of Foreign Wars (all of which regularly provide free counseling for upgrade applicants, see list on www.afpc.af.mil) or from a private attorney. Military attorneys cannot provide assistance to you.
6. What changes can I ask for? An application may request a change in the character of or reason for discharge or both, and a change in your reenlistment code:
(3) The Board evaluates the case based on documentation in the military record and additional evidence provided by the applicant.
a. Character of discharge: Block 3 of DD Form 293 provides you with a chance to request a specific change in the character of your discharge. A request from an applicant who does not have an Honorable Discharge will be treated as a request for a change to Honorable unless the applicant specifically requests another character of discharge.
7. What are the standards for upgrade?. The DRB will upgrade an administrative discharge only for the reasons of "equity" and/or "propriety" and a punitive discharge on the basis of clemency (which will often incorporate equity and propriety principles). See DoD Directive 1322.28 for guidance. (www.afpc.af.mil or http://www.dtic.mil/whs/directives/index.html).
b. Reason for discharge: Block 3 of DD Form 293 provides an opportunity to request a change in the reason for discharge. If you do not request a change in the reason, the Board will presume that you do not want the reason changed.
a. "Equity" concerns three general areas: whether service members (at the applicant's base and at other installations) with a similar record to the applicant received a more favorable type of discharge than the applicant, whether the discharge was inconsistent with standards of discipline in the Air Force or based on other factors such as quality of service (service history, decorations, promotions, responsibility level, length of service, disciplinary actions, court-martial) and/or capability of service (total capabilities per education and military record, family and personal problems that may have affected ability to serve, arbitrary or capricious action by commander, or discrimination). See DoD Directive 1322.28 for guidance.
b. "Propriety" generally involves an inquiry into whether all the applicable Air Force regulations were properly followed in the applicant's discharge proceedings (i.e. an error of fact, law or procedure occurred or a change in policy has been retroactively made to this type of discharge). If the Air Force did not follow its directives, including affording the applicant the opportunity to provide rebuttal at the time of the action, it may be proper to upgrade the applicant's discharge. See DoD Directive 1322.28 for guidance.
c. Note that both reasons for upgrade involve the applicant's military service, not post- or pre-service accomplishments or difficulties caused by the discharge characterization. However, these aspects should be included in the application along with the basis for discharge (either equity or propriety) because they may shed some light on, at least, the equity basis. For example, did other service members with a similar record have the same difficulty getting civilian employment? Also, was the service record as reflected in the discharge documentation an inaccurate reflection of the applicant's complete service, as evidenced by other documents (including statements of military supervisors and co-workers) relating to the service and similar post-service documentation of such a glowing nature to cast doubt on the accuracy of the service record (on the theory that "a leopard doesn't change its spots")?
8. Steps in Requesting Upgrade.
d. You can review previous decisions by the DRB by reviewing an index of these decisions and seeing if any appear applicable to your case. The Electronic Reading Room contains the decisional documents for each of the services' Boards from October 1998. (http://boards.law.af.mil/
). Prior decisional documents can be viewed by contacting the Army Review Board Agency at 703-607-3566 or by writing to DA Military Review Boards Agency, ATTN: SFBA (Reading Room), Room 1E520, The Pentagon, Washington DC 20310.
a. Request a copy of your military records.
(1) The best time to get copies of your records is before you separate. Keep your copy of the discharge paperwork in a safe location, where you can find it when and if you decide to apply for an upgrade. Also make copies of your MPF personnel file and squadron Personal Information File. Many of these documents will not become part of your permanent file and will be lost if you don't copy them before you out-process.
(2) Request a copy of your permanent military records using the Standard Form 180 (check with an orderly room or MPF) and following its instructions. In Section II, number 1, write "complete service and medical records." In Section II, number 4, write "discharge review." Make sure your send this form before you file your application for upgrade. Otherwise, your records will not be available for copying as they will be sent to the DRB once they receive your application. See the National Personnel Records Center in St Louis, Missouri home page for further information (http://www.archives.gov/st-louis/military-personnel/).
b. Gather supporting documentation.
(1) Again, the best time to do this is before you outprocess. Ask co-workers and supervisors to provide you reference letters concerning your duty performance and skills. You can submit these letters not only to the DRB if you apply for an upgrade, but also to potential civilian employers. If you don't intend to offer these letters during the discharge process itself (i.e. if you do not intend to submit them to your commander as part of a rebuttal to the discharge), tell your co-workers and supervisors. You willprobably get more letters if the authors do not feel like they have to "fight" the commander in order to help you.
(2) If you did not get them before, track down your coworkers and supervisors, and get statements. Also get letters from your civilian employers; certificates from schools, civic organizations, and churches; a letter reflecting a clean record from your local police department; college transcripts; a copy of your credit report (if debts were a problem that contributed to your discharge); documents reflecting alcohol or drug treatment and attendance at AA and similar organizations (if alcohol or drugs were factors in your discharge); birth certificates from your children; and any other document which supports your argument that you have been a good citizen during and since your discharge and/or that you have had difficulty finding employment due to your discharge and/or that your discharge was "unfair".
(3) Be sure to list all documents in block 7 of the DD Form 293.
c. Decide why your discharge should be upgraded and carefully explain it to the DRB. These reasons are your "issues." The package should be put into a format that is easily read by the Board members.
(1) Remember that for your discharge to be upgraded, your reason must be based on equity, propriety and/or clemency. (Court-martial clients can only be upgraded on the basis of clemency). What it boils down to is that your discharge was "unfair" for some reason or that you deserve to be granted relief or clemency through this process. Be sure you understand why you feel it was unfair. If you are not sure, don't count on the DRB figuring it out for you; chances are you will just be wasting your time.
(2) List each issue for the DRB's consideration in block 8 of the DD Form 293. Unless you specifically list the issue, the DRB does not have to address it in the decision of your case.
(3) See DoD Directive 1322.8 for further guidance.
d. Personal appearance (at your own expense).
(1) If you choose to make a personal appearance, you may make the appearance before the DRB at Washington DC or before one of the traveling panels. Depending on the number of requests for personal appearance in the various locations, the DRB will usually travel to the following cities: Atlanta, Chicago, San Antonio, Colorado Springs, Los Angeles or San Francisco, New York City and Tampa.
(2) Prepare yourself for the personal appearance by having a friend question you about your reasons for upgrade. The DRB will want to know why you got into trouble in the service. Explain it as best you can without trying to bad-mouth the service. (It's unlikely that such a tactic will win you favor with the military members of the DRB.) Dress conservatively; a business suit or equivalent is appropriate.
(3) Character witnesses can testify or observe your personal appearance but you will be responsible for the costs of their attendance.
9. How long does it take? Normally you will receive a letter from the DRB within a month telling you that your application has been received. If the DRB asks for any additional information, send it as quickly as possible. The DRB estimates that a records review decision will take 6-12 months, a personal appearance decision at Andrews AFB will take 6-12 months and a personal appearance before a regional traveling board will take about 18-24 months. (The difference between the personal appearance decisions is because boards are held twice per week at JB Andrews NAF as opposed to once a year at a regional location.) If you attended a personal appearance board, you should have a decision within 6 weeks after the hearing. If you did not request a personal hearing and you have not received a decision within 6 months, send a follow-up letter. Make sure to keep the DRB informed of your current address by sending any changes to AFDRB, 1535 Command Drive, EE Wing, 3rd Floor, JB Andrews NAF, MD 20762-7002 (include your SSN).
10. Chances of an Upgrade. Each decision is made on a case-by-case basis. Generally, support from supervisors and commanders at the time of discharge will greatly enhance your chances as will valiant attempts to correct problems during service (such as alcohol rehabilitation). In 1989, roughly 16% of applications to the DRB with personal appearances and roughly 6% without were upgraded. The assistance of counsel in preparing and presenting the request for upgrade seemed to improve applicants' chances. Upgrading punitive discharges is probably more difficult than upgrading administrative discharges, though each case will be judged on its own merits.
11. Appealing the DRB Decision. After you have exhausted your chances with the DRB, you may apply to the Air Force Board for Correction of Military Records (BCMR) using DD Form 149, Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552 and AFI 36-2607. See that section of this handout for further information.
(4) You can remain silent at the hearing, give sworn or unsworn testimony.
Applying to the Board of Corrections of Military Records
When appealing DRB decision or
if you have a BCD, DD or dismissal from a general court-martial
2. Form for Application. Use DD Form 149, Application for Correction of Military Record, along with other statements or documentation as needed. This form is available for downloading through the Corrections Board section of the Air Force Personnel Center homepage (located at http://www.afpc.af.mil/), through the DoD Electronic Reading Room (http://boards.law.af.mil/) or at most base MPFs.
3. Regulations that apply to this process. AFI 36-2603 (Air Force Board for Correction of Military Records) provides procedures for correcting military records due to injustice or error. AFPam 36-2607 is the Applicants' Guide to the Air Force Board for Correction of Military Records and provides information on how to apply to the BCMR. These regulations are attached to this handout. They can also be downloaded through the Corrections Board section of the Air Force Personnel Center homepage (http://www.afpc.af.mil/) or through Air Force E-Publishing (http://www.e-publishing.af.mil/).
4. How should I apply? Prior to applying to the BCMR, you must exhaust all other administrative remedies available to you. For all administrative discharges as well as special court-martial BCDs, this means applying to the DRB and being denied relief. Review the applicable regulations for guidance in completing your application and gathering supporting documentation. This page's section on applying to the DRB also has guidance that is equally applicable to applying to the BCMR. See the Air Force Personnel Center home page for detailed information on the process.
5. What happens after I apply? Once your application and all applicable records have been obtained, your application will be screened to determine if there is an administrative disposition possible without formal BCMR consideration. This involves sending the material to the office of primary responsibility (OPR). If the request cannot be resolved administratively by the OPR for that area, it will be sent to the BCMR. A copy of any advisory opinion prepared by the OPR that does not fully support the requested relief will be referred to you or your counsel for response (within 30 days, you can provide any new statements or documents relating to this opinion). Once your case is referred to the BCMR, it is almost always decided based on the evidence contained in the case file (your military records, an advisory opinion by the OPR, and statements, arguments and documents provided by you). In very rare cases, the BCMR may grant a personal appearance. The BCMR is not an investigative body and will not contact witnesses, nor will it release information about your application to outsiders, based on the Privacy Act.
6. How long will it take to get a decision after I apply? Administrative applications take about 3 months to complete. Cases involving formal BCMR consideration take an average of 12 months. Only you or your counsel will receive a copy of the record of proceedings, unless a correction is ordered and then the OPR will receive a copy in order to make necessary corrections.
1. When should I apply? The time limits for an application to the BCMR are different from the DRB. To apply to the BCMR, you must normally apply within 3 years after discovering the error or injustice to be corrected. Generally, this means within 3 years of your discharge. If you are applying more than three years after the discharge, explain why it is in the interests of justice that your application be considered. If you first applied to the DRB and the length of that process caused you to apply after the 3 year limit, explain in block 11b. of the DD Form 149 that "in the interest of justice" the BCMR should consider your case because you have diligently appealed your case before the DRB within the DRB time limits (a necessary first step before appealing to the BCMR in the case of administrative discharges or special court-martial BCDs).