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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26344
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I have a General Discharge from the Navy 1970 fraudulent enlistment. I

Resolved Question:

I have a General Discharge from the Navy 1970 fraudulent enlistment.
I received all my VA Benefits and continue to use VA health.
I want to Join USAA for their products. USAA will not except General Discharge. 43 years ago USN. I've been a model citizen since my fraudulent enlistment days. Is it possible to upgrade to Honorable all these years later.
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

Sir, you ask a very common question. How can I change (upgrade) my discharge characterization. I get several calls each day from folks who would pay any amount of money to change theirs. And the vast majority of they I must turn away. Not that I do not want to work for money...I do. But in the vast majority of cases there is no reasonable expectation that the board of corrections would grant an upgrade

The standard to have a record changed is that there must be either

1. Clear error in the record.

or

2. The record entry is "unjust"

The first one is easy...and least common. If there is clear error in the record? Easy to correct. Example: say a person did their entire tour, and they discharged at the end of the contract, but a clerk who was generating the paperwork made a mistake and put the wrong discharge characterization on the form (dd214)

In such a case, if you can prove error, you can get the record upgraded.


The second is most common....and very tough to achieve. The service member must show "injustice". That the characterization is not fair. The board of corrections requires proof of the injustice. So, for example, say that three soldiers were caught up in misconduct. They all stole a small item from the post exchange. And say they all had similar records. For some reason the commander did not take kindly to one of the soldiers and gave him an OTH discharge and the other two honorable discharges. In such a case, the one who received the OTH would have a decent claim to have his upgraded at least to general.

In your case, if they discharged you for fraudulent enlistment with a general discharge, that would be the appropriate result. Or, at least, the most common result for identifying a member who enlists with fraud. So unless there is more to the story on why this was unjust to you, there is not a way to get that discharge changed

I am sorry to have to bear bad news


Please let me know if you have more questions...happy to assist if I can
Customer: replied 1 year ago.

Yes, it is bad news. Where does Model Citizen I've read about come in?


It was a group of us and I didn't have council. I just went along with the group on the General Discharge. Do you have any other examples "injustice"


It is very disappointing. 43 years ago


 


 

Expert:  P. Simmons replied 1 year ago.
Injustice is, as the name implies, unfairness.

As I mentioned, it is very tough to prove.

I have seen them grant for cases where the soldier or sailor could prove they did not get a fair result. Most commonly it is when they give an OTH but the board or hearing that must precede the OTH is flawed in some way. For example, the board will not allow the soldier to present evidence that is relevant, or the board allows in evidence that is not relevant.

The model citizen" is an urban myth.

If you look at the rules for the BCNR, you can see the rules at 32 C.F.R. PART 723. You can view them here

http://law.justia.com/cfr/title32/32-5.1.1.3.11.html#32:5.1.1.3.11.0.37.2

There is nothing in the rules that states the board is to consider "model citizenry". The standard is clear that the applicant must show error or injustice. And, more significant the rules require the board to give the government a "presumption of regularity"...so they presume the Navy got it right. You must overcome this presumption to have any chance of making your case.

Sir...I wish I had better news for you. You can certainly apply to upgrade. There is no cost. But if you are asking about the likelihood of success? What you describe there is not much of one. There is no requirement that the Navy provide a hearing or counsel prior to awarding a general discharge. So unless you can point to some other shortcoming (like, for example, they never told you before hand it was going to happen...it just happened and you had no notice to provide evidence)? I think you will not be able to overcome the presumption of regularity.





P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26344
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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