Department of Defense Memoranda Guiding Discharge Review Boards
This article provides important information for veterans with less-than-honorable discharges and their advocates on key guidance for upgrading their discharge based on in-service mental health conditions or experiences. This article focuses particularly on post-traumatic stress disorder (PTSD ), traumatic brain injury (TBI), military sexual trauma (MST ), and related conditions. In short, there have been many recent favorable changes that make it more likely for veterans to receive a discharge upgrade, even if they were denied one in the past.
In the early years of the wars in Afghanistan and Iraq, the military community did not understand the full impact that PTSD , TBI, or MST could have on the lives of veterans. As the wars progressed, however, these conditions and experiences became better understood. The Department of Defense (DoD) responded to this new knowledge by issuing a series of memoranda. These memoranda stated that PTSD , TBI, MST , and related conditions could contribute to in-service misconduct, which in turn can lead to a less-than-honorable discharge from the service.
Congress has also enacted several statutes in recent years mandating more careful and generous treatment of discharge upgrade applications based on PTSD , TBI, or MST . Together, these new laws and DoD memoranda have increased the likelihood that veterans who experienced PTSD , TBI, MST , or similar conditions will have their less-than-honorable discharges upgraded. Three of these memoranda are particularly important for veterans applying for a discharge upgrade who are diagnosed with, show symptoms of, or are affected by, PTSD , TBI, MST , or other behavioral health conditions. Another memorandum applies to all veterans seeking an upgrade based on injustice or unfairness.
Known as the Hagel, Kurta, Wilkie, and Carson memoranda, these documents direct that veterans who satisfy certain conditions receive “liberal consideration” from Discharge Review Boards (DRBs) and Boards for Correction of Military/Naval Records (BCM/NRs). Among other things, liberal consideration requires that Boards determine whether PTSD , TBI, MST , or other mental health conditions mitigate and outweigh misconduct when reviewing a discharge upgrade application.
A veteran who might meet the conditions in these memoranda should include relevant evidence along with their discharge upgrade application. Veterans who provide relevant evidence will make it easier for a Board to grant their application.
The Sept. 2014 Hagel Memorandum requires that Boards give “liberal consideration” to applications by veterans that document one or more symptoms of PTSD or related conditions. Special consideration is given to Department of Veterans Affairs determinations related to these conditions, especially when they connect events from a veteran’s military service to these symptoms. The memo describes several ways in which veterans can document evidence of PTSD or related conditions. Though service treatment records that contain diagnoses or symptoms of PTSD or related conditions are very relevant, the Hagel Memorandum provides more examples of relevant evidence. For example, diagnoses or records from non-VA civilian doctors can be relevant evidence. Moreover, Boards must consider any other evidence submitted by a veteran that suggests the veteran was affected by a mental health condition in service. Any evidence that connects a mental health condition to in-service misconduct is also very relevant, according to this Memo.
The Aug. 2017 Kurta Memorandum greatly expands on the Hagel Memorandum and clarifies how discharge upgrade applications that document PTSD
, TBI, MST
, or other mental health conditions should be reviewed by the Boards. The Kurta Memorandum specifically emphasizes that the invisible wounds left by these injuries are often hard for Boards to understand and the reality of these wounds can often be overlooked. The Kurta Memorandum therefore lists certain events or markers that might indicate that a veteran was experiencing a mental health condition, even if they were not diagnosed or acknowledged during their service. The Kurta Memorandum sets out four questions with accompanying comments that DRBs and BCM/NRs should use to guide their review in these cases.
We also encourage you to read StatesideLegal’s more in-depth page here discussing the Kurta Memorandum.
The July 2018 Wilkie Memorandum emphasizes the importance of granting discharges to ensure fundamental fairness and directs the Boards to consider both clemency and rehabilitation in their decision-making process. It lists many factors that Boards should consider when determining whether to upgrade a veteran’s discharge status is in the interest of fundamental fairness. This Memorandum requires Boards to consider many factors, such as the applicant’s candor, whether the applicant accepts responsibility for their misconduct, character references, and the applicant’s conduct after their discharge. The Wilkie Memo emphasizes the value of rehabilitation over accomplishment. It also recognizes that a veteran’s service does not have to be flawless to be considered Honorable.
The Feb. 2016 Carson Memorandum allows veterans with certain mental health conditions to apply to BCM/NRs, but not DRBs, no matter how long ago they were discharged. It also allows veterans whose applications were previously denied by the Board to apply again and have their application benefit from the Hagel Memorandum (as well as other new memos). When veterans reapply, the Board is required to make an entirely new decision and not consider any past rejection when reviewing the new application.
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Published Nov. 2020