Q. I received a bad-conduct discharge 20 years ago. I have since stayed out of trouble and have become very involved in my community. Would that be enough to get my discharge upgraded?
A. Good post-service conduct indeed can help tip the scales at a Discharge Review Board or a Board for Correction of Military or Naval Records weighing a discharge upgrade request.
But it usually takes more than a clean criminal record, steady employment or volunteerism. At a basic level, your application must show that your separation characterization was erroneous or unjust. Evidence of good post-service conduct is more like the "icing on the cake."
If you want to highlight your good post-service conduct in a discharge upgrade application, it's crucial to go beyond simply saying you've been an upstanding citizen.
Just as you'd want to include documentation of, and testimony on, your noteworthy service prior to separation, you'd want to do the same for your post-service conduct. The only difference is that the documents and testimony might come from community leaders rather than commanders.
In a 1999 case, the Air Force BCMR stopped short of granting relief to an applicant who got an other-than-honorable discharge, despite his assertions of good post-service conduct. Though the applicant's lawyer noted that he had become a "solid" community citizen, the record contained no evidence to support that.
As such, the BCMR said: "We are unable to conclude that he has overcome the behavioral traits which caused the discharge." The board did say, however, that it would reconsider the case if the applicant submitted such evidence.
Sometimes, good post-service conduct simply isn't enough to overcome the seriousness of an offense. In a 2000 case, the Air Force BCMR voted to deny an applicant's request to upgrade a bad-conduct discharge received in 1954 after his conviction at special court-martial for escaping confinement.
The board acknowledged evidence showing that the applicant "has been a responsible individual and good citizen since his separation," but a majority of the board declined to grant relief, given "the seriousness of the misconduct" that originally led to his court-martial and discharge.
But the board's executive director disagreed; he believed a discharge upgrade was merited on the basis of clemency, especially in light of the applicant's post-separation service in the U.S. Merchant Marines and how it "appears that the applicant has been a responsible citizen and productive member of society."
The applicant's discharge was upgraded to general (under honorable conditions).
Mathew B. Tully is a veteran of the wars in Iraq and Afghanistan and founding partner of Tully Rinckey PLLC (www.fedattorney.com). Email questions to askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.
