Ask the Lawyer: How to seek a discharge upgrade



By Mathew B. Tully - Special to Military Times

Lawyer Mathew B. Tully answers your questions.
Q. I received an other-than-honorable discharge and would like to know if I can ever upgrade it.

Any discharge other than honorable can affect your ability to receive full military benefits and can also reflect negatively on you in the eyes of potential employers. It can be an unpleasant way to return to civilian life, especially if you dispute the type of discharge you received.
To seek a discharge upgrade, you must apply to the appropriate Discharge Review Board. The application process begins by filling out a DD Form 293, Application for the Review of Discharge or Dismissal from the Armed Forces of the United States. You can find it by visiting www.vba.va.gov and typing “DD 293” in the search box.


The completed form and other documents should be submitted to the appropriate DRB of your service branch as listed at the end of the DD 293.
Once the DRB receives your information, it will determine whether your case merits an upgrade by reviewing the documents and, if necessary, conducting a hearing. The board will consider a number of factors, most importantly the details surrounding the discharge — but also your conduct, education, community service and employment since your discharge.
To receive a discharge upgrade, you must show the board why the discharge or characterization was inequitable or improper.
You would claim an inequitable discharge if it was not consistent with the policies of your service branch — if, for example, you were discharged for actions that do not typically result in a discharge, or if the discharge violated a regulation. This would apply, for example, if your service branch broke a law during its investigation of the conduct that led to your discharge.


Anyone who receives a general, entry-level/uncharacterized, or other-than-honorable discharge has up to 15 years to file an appeal with the DRB. After that, an appeal must be directed to the Board for Correction of Military Records of your service branch.
Bad-conduct discharges can only be upgraded through an act of clemency.
You also may be able to have your re-enlistment, or RE, code changed during this process should you ever want to re-enlist. While the DRB does not directly consider requests to change an RE code, it will typically change your RE code to correspond with your discharge type if your discharge is upgraded.


If you’re considering applying for a discharge upgrade, consult an attorney familiar with military justice who can review your options and help you document evidence before bringing your case to a DRB for appeal.
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Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC. E-mail questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

Okay, so I'm a bit confused. Suppose one DOES get their RE-4 changed to an RE-3 for whatever reason. How easy is it to get a waiver? I received an ELS with an RE-4 and a JFU from the Navy. I am wondering about trying to get mine changed to RE-3J, which means "failed entry level drug test, not drug dependent." My argument for the BCNR is that my RE code should have been listed as RE-3J instead of RE-4 to begin with, according to MILPERSMAN 1910-134 section 9. But, if I did that, would it even make a difference? I have researched this online, and there is absolutely nothing out there. I have also spoken with a recruiter, who told me that it DOES NOT matter, and that I still would not get back in. But, according to the Navy, RE-3J is a waiverable code. If anyone can help me, I would appreciate it!

Originally Posted by eternaldreemer

Okay, so I'm a bit confused. Suppose one DOES get their RE-4 changed to an RE-3 for whatever reason. How easy is it to get a waiver? I received an ELS with an RE-4 and a JFU from the Navy. I am wondering about trying to get mine changed to RE-3J, which means "failed entry level drug test, not drug dependent." My argument for the BCNR is that my RE code should have been listed as RE-3J instead of RE-4 to begin with, according to MILPERSMAN 1910-134 section 9. But, if I did that, would it even make a difference? I have researched this online, and there is absolutely nothing out there. I have also spoken with a recruiter, who told me that it DOES NOT matter, and that I still would not get back in. But, according to the Navy, RE-3J is a waiverable code. If anyone can help me, I would appreciate it!

You are negating recruitment and retention rates. Right now, we are still hovering around 105%. That means that waivers, while available, aren't going to be considered.

Just because something can be submitted does not mean that it will be considered.

So, yes, you can petition to have it changed. But no, you will not be considered for reenlistment even if it creates an eligibility to be.