Veterans suffering from Post Traumatic Stress Disorder (PTSD) and TBI (Traumatic Brain Injury) as a result of military service may be eligible to upgrade less than honorable discharges. Upgrading a military discharge can help Veterans open the door to obtaining important Veteran benefits, such as access to the GI Bill, VA disability compensation, and VA Healthcare. Veterans suffering from PTSD or TBI related to military service have a unique opportunity to apply to have their less than honorable discharges upgraded.
Recent Congressional Action on Discharge Upgrades
In December 2016, Congress passed a law, signed by President Barack Obama, that required military Discharge Review Boards (DRBs) to give “liberal consideration” to Veterans seeking a discharge upgrade as a result of PTSD or TBI incurred during service. Congress’s law, which was the culmination of years of progress of zealous advocacy pushing for reforms, applies to two main types of cases.
First, Veterans that deployed to overseas contingency operations may receive the “liberal consideration” for their discharge upgrade if “at any time after such deployment, was diagnosed by a physician, clinical psychologist or psychiatrist as experiencing post-traumatic stress disorder or traumatic brain injury as a consequence of that deployment.”
Additionally, the “liberal consideration” standard applies to Veterans applying for discharge upgrades based upon symptoms of PTSD or TBI that are related to combat or military sexual trauma.
Recent Executive Branch Action on Discharge Upgrades
Congress’s 2016 law has its roots in several important executive branch actions dating to at least 2014. In 2014, Secretary of Defense Chuck Hagel issued a memorandum to the military branches containing guidance for each of the branches of services to apply in discharge upgrade cases for Veterans that suffer PTSD as a result of military service. In 2016, the Department of Defense (DOD) issued a memorandum reiterating that the ordinary statute of limitations is waived in discharge upgrade cases based upon PTSD and “related conditions.”
Secretary Hagel’s 2014 memorandum was a significant first step in improving the services’ processing of discharge upgrade applications for affected Veterans. The 2014 Hagel Memo relaxed the evidentiary standards required to support a discharge upgrade application. The Hagel Memo explicitly states the Veteran’s PTSD diagnosis need not be in the Veteran’s military service records, especially for older Veterans that served prior to PTSD being recognized as a mental health condition in 1980.
Moreover, discharge review boards are required to give liberal consideration to determinations made by civilian doctors and by the Department of Veterans Affairs when conducting determinations of service. The BCMRs and DRBs are required to consider the evidence of PTSD to be a mitigating factor in whatever circumstances resulted in the issuance of an other than honorable discharge.
Moreover, the 2014 Hagel Memorandum “liberally waived” time limits for applying for discharge upgrades. The 2016 DOD memorandum also explicitly stated Veterans that previously applied for a discharge upgrade may re-apply to benefit from the liberalized guidance.
Discharge Upgrade Assistance for Veterans With PTSD and TBI
Veterans seeking a discharge upgrade based upon in-service PTSD, TBI, or related conditions should consult with an attorney to discuss the best options for upgrading their discharges. Even though there are usually strict deadlines for applying, the recent changes in the law may have opened the door to upgrading a Veteran’s less than honorable discharge. Information uncovered by the Freedom of Information Act has revealed a dramatic increase in success rates of Veterans applying to the discharge review board.
Veterans that apply for discharge upgrades based upon the effects of this new law can expect to have their case reviewed by a Discharge Review Board panel that contains at least one mental health specialist. It is important to ensure the best evidence is developed and submitted with a Veteran’s discharge upgrade application.
If you are a Veteran seeking a discharge upgrade based upon symptoms of PTSD or TBI, Veteran Esquire Legal Solutions, PLLC, stands ready to assist with your application, legal brief, or discharge upgrade appeal. Please contact a Veterans lawyer with Veteran Esquire Legal solutions to schedule a free consultation.