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I was wondering if it was possible to get my DD214 character

changed from misconduct and honorable...
I was wondering if it was possible to get my DD214 character changed from misconduct and honorable instead of under honorable conditions. I was discharged 09/09/1999
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Answered in 30 minutes by:
12/13/2014
Allen M., Esq.
Category: Military Law
Satisfied Customers: 19,342
Experience: Lawyer and current JAG officer.
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Hello, my name is ***** ***** I look forward to assisting you today. I bring nearly 20 years of experience in various legal disciplines, including JAG.
It is legally possible, but not simple. You have exceeded the 15 year discharge upgrade board time frame, so that hurts your case.
To use the DD Form 293 board, you have to start within 15 years of your discharge date.
You still have open to you the DD Form 149 board, however, there are problems with that.
First, they apply a three year rule, meaning that you have to apply for a change to your record (it is the records corrections board) within 3 years of discovering the issue that you are filing about. Now, they can and do waive that requirement, but it is a potential obstacle. You've known about your discharge for 15 years so they may choose not to allow the appeal to them, but they can choose to if your argument is strong enough.
This brings us to the second issue with the military records corrections board. Upgrading a discharge is not something that is supposed to happen. It was not ever legally contemplated that after a certain amount of time, people would be eligible for or entitled to an upgrade. This is, unfortunately, different than what many people are told when they leave the service. So, positive life changes and the passage of time aren't legally relevant. How the discharge may be effecting you now, in terms of lost benefits and opportunities is also not legally part of the equation. Discharges are upgraded in one of two circumstance.
1. If you can show that the discharge you received was given in error. What this means is that you have to prove that you were supposed to receive a certain discharge status, but there was a mistake. So, a person that was being discharged for a mental disorder should only be able to get an Honorable. Giving less than that raises a major question about an error. Another example is my own discharge, where I left early for college (a 5-16) and the number was put down incorrectly for a personality disorder separation (5-17) and nearly kept me from returning to the service. That's an error. A general discharge (which is what you appear to have gotten) is available for a misconduct separation, so that's not a legal error. In fact, it's the better disposition of the possible characterizations, one of them being Other than Honorable.
2. An injustice. Here you have to prove that the basis for your discharge was false or that there was severely unfair treatment, based on some personal bias or illegal form of discrimination which led to unnecessarily harsh treatment. Seeing that you got a General discharge, the better of the two possible outcomes in a misconduct separation, it's not possible to show overly harsh punishment here. You have to attack the actual basis for the separation itself, with some proof that you didn't commit the alleged offense/offenses.
Allen M., Esq.
Category: Military Law
Satisfied Customers: 19,342
Experience: Lawyer and current JAG officer.
Verified
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Customer reply replied 2 years ago

This is unfortunate, I am probably a couple months to a year to late, thank you for your time.

No problem. Take care. I do wish I could have given a more favorable answer.
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Allen M., Esq.
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