Discharge Characterization: Why it Matters and How to Change it

by: Todd Tagami, SALSA Staff Attorney

Joseph Doe joined the Army right after he graduated high school. He was a transportation specialist who deployed to Iraq three times. During his time in Iraq, Sergeant Doe drove the dangerous route between Kuwait, Baghdad, and Taji. Joseph survived numerous improvised explosive devices, ambushes, and vehicle crashes, receiving numerous awards for his actions in combat and training.  Joe consistently received the highest marks on his evaluation reports and was trusted with the most difficult missions, then the war in Iraq ended.

Without the motivation that accompanies an impending deployment to combat, Joseph began to process everything he experienced in Iraq. It overwhelmed him but he kept it to himself. Afraid of being denied promotion, losing his security clearance, and possibly being separated from the Army, Joseph self-medicated with alcohol instead of seeking help. Sergeant Doe missed morning work call formation, his uniform and grooming were rarely in regulation, and his military bearing had fallen to the wayside. Eventually, after numerous administrative disciplinary actions and a positive drug test for marijuana, Joseph Doe was discharged from the Army. After eleven years of active duty service that included three combat tours, Joseph left with a Bad Conduct discharge for his “pattern of misconduct.”

Three years after his discharge, Joseph had fallen into a dangerous cycle of drugs, alcohol, and depression. Unemployed, homeless and hungry, Joe walked into the Audie Murphy Veterans Administration hospital ready to accept the help he desperately needed. However, due to the category of discharged Joe received, he was told he was NOT eligible for VA benefits and handed a single piece of paper with local community resources that may help Joseph, if they have the capacity and capability to address his needs.

The story of Joseph Doe is not a true story, however, it is story I saw time and time again during my 20-year Army career and a story I have consistently heard during my time at SALSA. Before 2018, veterans like Joseph had only one option to obtain the support and benefits desperately needed. They could apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for a discharge upgrade (DU). However, discharge upgrades are complex proceedings that are governed by Federal law, DoD policies and directives, military regulations, and specific board rules. Not only is this an incredibly difficult environment for a layperson to navigate, a discharge upgrade determination can take between one to three years depending on the complexity of the application.

A Character of Discharge (CoD) determination is often easier and faster to obtain for a Veteran than a discharge upgrade. A CoD application is very similar to a discharge upgrade application: both a DU and CoD require the same type of evidence; both use relatively the same defenses, terminology, and statutory arguments; and both open the door to VA benefits. However, a CoD can be used to obtain certain benefits for the Veteran while a DU is pending and may provide additional support for a DU application, if approved.

Three obstacles lie in the path of a Veteran seeking a CoD: (1) knowledge that the CoD process exists; (2) access to supporting documents; and (3) a VA accredited advocate who can effectively tell the Veteran’s story. At SALSA, we spread awareness of the CoD process throughout the San Antonio Veterans Community through outreach and education. Additionally, SALSA staff attorneys and St. Mary’s Law School Moody Fellows work with Veterans to obtain the military and health records necessary to build a strong CoD application. Unfortunately, the third obstacle remains. VA accreditation for an attorney is as simple as sending a Bar Certificate of Good Standing and a form to the VA Office of General Counsel. Once accreditation is granted, the attorney may advocate on the Veterans behalf in all VA matters.

Veteran representation may be a new area of law to many volunteers, but most CoDs rely on simple equity or culpability arguments based on mental health conditions, substance abuse, or military sexual trauma. Both CoDs and DUs have a much lower standard of evidence and procedure than civilian courts and are conducted by non-attorney board members. Once an attorney gains a working understanding of the terminology and procedures involved in a CoD or DU case, they will find the toughest part of these cases is waiting for the result. Veterans who need the most help in overcoming the challenges imposed during their service are consistently denied the assistance they desperately need. A few pieces of paper, a few hours, and a zealous advocate can change the entire course of their life. Please reach out to me at ToddT@sa-lsa.org for more information about the accreditation process.

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