Step 5: Make Your Case: The Written Statement

Make Your Case: The Written Application

Note: Submit your written statement at least a month before your hearing, if you have requested one. Submit 5 copies to a DRB and 3 copies to a BCMR. Include instructions that one copy should be given to each Board member.
 
Your written statement is where you should explain anything you think is wrong in your record and how you have changed if you have had issues with misconduct or discipline.
 
You do not need to fit your written statement in the small box on the form. Most applicants write their statement on a separate sheet of paper and write or type “see attached statement” on the form itself.

 

 

Legal Standards for an Upgrade

 
The Boards will be thinking about certain key words (quoted in bold below) while they look at your application. You do not need to have a lawyer’s help or use complicated arguments to get a discharge upgrade. However, it can be useful to know what the Board is looking for.
 

Discharge Review Board (DRB)

 
The DRBs review whether your discharge is “proper” and “equitable.” The board will consider each application on a case-by-case basis. The DRB makes certain legal assumptions that your application must show are false before they will grant you a discharge upgrade. You can directly challenge each assumption by saying, for example, “My discharge was improper” and then explaining why. The requirements for each are important to consider.
 
The Board will assume that your discharge was “proper” unless:
  • the military made an “error of fact, law, procedure, or discretion” in deciding your discharge, and there is “substantial doubt” that you would have gotten the same discharge if the military had not made the error.
    • The first part means that the military got something wrong with the facts or the reasoning behind your discharge. The second part means that there must be reason to believe, if the mistake had not been made, that you would have received a different discharge.
OR
  • there has been a change in policy that requires that you receive a different discharge.
    • This means that you should be able to point to a change in official policy since you were discharged. The new policy needs to apply retroactively (meaning it declares that even things that happened in the past should have followed this new policy).
The Board will assume that your discharge was “equitable” unless:
  • you were discharged because of policies that are different in important ways from the current policies, and
  • the current policies are better for veterans who are being discharged, and
  • there is “substantial doubt” that you would have received the same discharge under the new policies.
    • Is there some better policy in place and do you have reason to believe that policy would have helped you when you were discharged? An example of this might be the Kurta Memo (see page 6), which provides special consideration for servicemembers who show signs of Post-Tramautic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI). If you had a documented history of mental health problems or symptoms and were discharged despite those symptoms, you may be able to say that the discharge was “inequitable” under current policies.
 

Board for Correction of Military Records (BCMR)

 
BCMRs may correct any record when the fix is necessary to “correct an error or remove an injustice.” Each of these possibilities (“correct an error” or “remove an injustice”) allow the BCMR to grant your upgrade if they believe that your discharge was incorrect or unjust. What this means, exactly, depends on your specific circumstances. Some believe that these the BCMRs are looking for similar information as the DRBs, although the law does not define the words it uses.
 
You should note that discharges that were issued by a special or general court-martial may only be upgraded “for purposes of clemency” (meaning they can intentionally forgive a sentence). If you fall into this category, it is especially important to include information about good post-service conduct, including things like holding a stable job, volunteering in your community, and avoiding getting in trouble.
 
Like DRBs, BCMRs will assume that your original records are correct unless there is enough evidence to show that they should be changed.

 

 

Tailoring Your Written Statement to the Legal Standards

As explained above, the DRBs and the BCMRs use different legal standards to review your application. Based on which Board you’re applying to, you will want to use different key words (bolded below).
 

For a DRB (which reviews if a discharge is “proper” and “equitable”):

  • If you are arguing that your discharge was improper:
    • Be sure to write that your discharge was “improper.”
    • Mention any errors made in your discharge process. Explain why your discharge would have been different if these errors had not been made.
    • If a relevant military policy has changed since your discharge, mention it, and show why it would require a change to your discharge.
      • Note: To apply to your case, a new policy must say it applies retroactively (meaning it applies to past discharges).
 
Example
 
 
My Other-than-Honorable discharge was improper because [here, discuss mistakes made in your discharge. For example, if you believe the wrong law was applied to you or that your commanding officer described your behavior inaccurately, write that here]. I would have received a different discharge status if these errors had not been made. My discharge status should therefore be upgraded to [status you are requesting].
 
  • If you are arguing that your discharge was inequitable:
    • Be sure to write that your discharge was “inequitable.”
    • Identify how relevant military policy has changed since your discharge to give service members more rights.
    • Show that there is “substantial doubt” that your discharge would have been the same under the new policy.
 
Example
 
 
My General discharge was inequitable because I was discharged under [Name of Policy] policy, which has since changed. Because [explain why the new policy would have given you a different discharge status], there is substantial doubt that my discharge would have been the same under this policy. My discharge status should therefore be upgraded to [status you are requesting].
 
 
Note that you can argue that your discharge was both improper and inequitable; you don’t have to choose one or the other. If you do argue both, be sure to separate the two topics and still use both the word “improper” and the word “equitable”; this way, the Board has to respond to both claims.
 

For a BCMR (which corrects “errors” and removes “injustices”):

  • If you are arguing that errors were made in your discharge process:
    • Be sure to write that your discharge process involved “errors.”
    • Explain the errors made in your discharge process.
    • Show why the outcome would have been different had no errors been made.
 
Example
 
 

My General discharge involved error because [here, discuss the mistakes made in your discharge, like if the wrong law was applied or your commanding officer described your behavior inaccurately]. I would have received a different discharge status if these errors had not been made. My discharge status should therefore be upgraded to [status you are requesting].

 
If you are arguing that your discharge has resulted in injustice:
  • Be sure to write that your discharge has resulted in “injustice.”
  • Explain the injustice that your discharge status has caused you and how it has affected your life.
  • If a relevant military policy has changed since your discharge to give service members more rights, mention that new policy.
  • Show that there is “substantial doubt” that your discharge would have been the same under the new policy.
 
Example
 
 
My Other-than-Honorable discharge has resulted in injustice. [Here, discuss the injustice and how it has affected your life, like if you were turned down for a job because of your discharge status]. Furthermore, [New Policy Name] policy has been enacted since I was discharged. Because [explain why the new policy would have given you a different discharge status], there is substantial doubt I would have received the same discharge status under this new policy. My discharge status should therefore be upgraded to [the status you are requesting].
 
Note that you can argue that your discharge BOTH involved error AND has resulted in injustice; you don’t have to choose one or the other. If you argue both, be sure to separate the two topics and still use both the word “error” and the word “injustice”; this way, the Board has to respond to both claims.
 
Regardless of whether you are claiming that there has been an error or injustice or both, be sure to include a lot of information showing your good behavior since your discharge. For example, you can include information about your education, work history, or involvement in the community, or any other parts of your life. Were you promoted at your job? Have you started a family? Good behavior can take many forms—look at the parts of your life that give you pride and write about them or have others write about them. Try to tell the Board how your good behavior shows that your discharge does not represent you as a person.

 

 

Note for veterans with mental health problems, post-traumatic stress disorder, or traumatic brain injury

 

Besides a formal diagnosis, the review boards are also supposed to consider other evidence that you had problems with mental health when you were in the military. You can try to draw out these problems in your personal statement by pointing to times in your record that show possible struggles with mental health.
 
The next step is to connect these problems, diagnosed or not, to the events around your discharge. Use your personal statement to express why you believe your mental health problems, PTSD, or TBI, changed your behavior or caused you to not act normally. It may also be helpful to show that you have tried to get treatment for your PTSD, TBI, or other mental health problems. Telling the board how you have improved with proper treatment may help show that you would have received a better discharge if the military had recognized your situation and helped you. 
 
Remember that if you are arguing that your discharge was related to PTSD, the Board must ignore the deadline. So, you should also include the following language in your statement:
 
Example
 
 
The 3-year time limit for the Boards of Correction of Military Records should be waived in this case. According to the 2014 Hagel Memo ("Supplemental Guidance to Military BCMRs/BCNRs by Veterans Claiming PTSD") and the 2016 Carson Memo ("Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military BCMRs/BCNRs by Veterans Claiming PTSD or TBI"), the Board must ignore this time limit in cases involving PTSD.