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Military Law

Upgrading Your Military Discharge

Upgrading Your Military Discharge

Ninety percent of Florida’s 1.6 million veterans received an “Honorable Discharge” when they left the military. That means that thousands of Florida veterans received an unfavorable discharge, a mark that can adversely affect their eligibility to obtain certain veteran’s benefits and civilian employment.

DD-214 Form

This is the most important document that a veteran receives upon discharge. Among other things, this form contains the classification of the discharge and the reason for it. The VA requires applicants for benefits to provide this form. Employers often request to see the DD-214 of job applicants. Therefore, veterans seek to change negative information on the DD-214.

Types of Discharges

The military characterizes discharges as either “administrative” or “punitive.” Administrative discharges are specifically classified as (1) Honorable, (2) General or (3) Under Other Than Honorable Conditions (formerly known as “Undesirable Discharge”).

More serious than administrative discharges, punitive discharges are classified as (1) Bad Conduct, (2) Dishonorable or (3) Dismissal.

A veteran’s discharge could be for reasons unrelated to misconduct, such as a medical disability based on a diagnosis that is incorrect, disputed or unfairly stigmatizing (i.e., personality disorder). In such a case, a veteran may want that prejudicial reference removed from their DD-214.  

Review Boards

You must apply to the Discharge Review Board (DRB) of the military branch in which you served if you wish to (1) upgrade an unfavorable administrative discharge, (2) upgrade a “Bad Conduct” discharge issued by a special court-martial or (3) change the reason for the discharge.

However, you must apply to the Board for Correction of Military Records (BCMR) if (1) you were discharged more than 15 years ago, (2) you received a punitive discharge issued by general courts-martial, (3) you wish to change your discharge to or from a disability or retirement discharge or (4) a DRB has already denied your application for an upgrade. Furthermore, you must apply within 3 years after discovering the error or injustice, unless the BCMR decides that it’s in the interest of justice to waive the 3-year time limit.    

Standard of Review

DRBs will upgrade an administrative discharge only on the grounds of “equity” or “propriety.” A discharge is “inequitable,” or unfair, if:

  1. the applicant wouldn’t have received the same discharge under current standards;
  2. the applicant’s discharge was not consistent with disciplinary standards at the time of the discharge; or  
  3. proper recognition was not given to the applicant’s good record, awards and decorations.   

A discharge is “improper” if the military (1) committed an error of fact, law, procedure or discretion or (2) issued a policy that retroactively applies to the discharge.

Note that DRBs and BCMRs will upgrade punitive discharges only on the grounds of “clemency,” or mercy.  

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You bear the difficult burden of convincing the review board that a discharge upgrade is warranted. The convoluted and confusing review process makes that burden even harder to overcome. However, having an informed advocate on your side can significantly increase your likelihood of success. Jeff Lieser is an experienced military law attorney and U.S. Army Reserve Judge Advocate. As your counsel, he will thoughtfully prepare your application, synthesize the facts and the law and help you present a compelling case.

Categories
Military Law

Florida Court Rules TSGLI Benefits Are Not Marital Property

Congressionally created at the height of the Iraqi war, Traumatic Servicemembers’ Group Life Insurance (TSGLI) is a rider to Servicemembers’ Group Life Insurance (SGLI), a life insurance policy available to all military members. TSGLI covers medical expenses incurred by military members who have suffered a traumatic injury on or off-duty and whether located CONUS or OCONUS. Payments range from $25,000 to $100,000 depending on the severity of the injury.

Off-Duty Traumatic Injury

Traumatic Servicemembers' Group Life InsuranceIn a recent case this law firm handled, a married couple was involved in a serious vehicular accident. The husband, a Soldier, suffered a traumatic brain injury and was deemed entitled to TSGLI benefits. The husband requires around-the-clock medical treatment, while the wife suffered significantly less serious injuries.

TSGLI Not Marital Property

The wife filed for divorce after the accident. Lieser Skaff Alexander represented the husband. The wife listed $100,000.00 in TSGLI benefits as a contingent marital asset on her financial affidavit. She wanted half of that amount should the husband receive it. The Tampa Circuit Court Judge denied her claim, ruling in a case of first impression that TSGLI benefits are not part of the marital estate and, therefore, not subject to equitable distribution.

Husband Sole Beneficiary of TSGLI

Citing Ridgway v. Ridgway, 454 U.S. 46 (1981), the trial court determined it was federally pre-empted from interfering with this federal benefit. The court also held that the wife would be entitled to such benefits only if her husband died and she was listed as the SGLI beneficiary. Under federal law, the only time someone other than the military member can receive TSGLI benefits is if he or she survives seven full days after the traumatic injury, but then dies before all of the TSGLI benefits are paid. Under such circumstances, the balance of the TSGLI benefits is paid to the beneficiaries listed on the SGLI policy. Therefore, under the facts of this case, the court determined that, pre-emption aside, the wife was still not entitled to any portion of the husband’s future TSGLI benefits.

Tampa TSGLI Attorneys

As legal counsel for the husband in this case, the military divorce attorneys at Lieser Skaff Alexander were thrilled to have obtained this important result for this deserving client and any servicemembers in the future who are faced with this issue. Our goal is to help all our clients, including military members, protect their rights and secure their future.

For a copy of the court’s ruling, please contact attorney, Jeff Lieser.