Q. I received an other-than-honorable discharge years ago. I served in Vietnam and was diagnosed with post-traumatic stress disorder after I was discharged. Can I get my OTH upgraded?
A. There has been a sea change in how the military views post-traumatic brain disorders, affording many Vietnam veterans their best shot at upgrading less-than-honorable discharges prompted by factors related to this condition. Consequently, Boards for Correction of Military and Naval Records are now more attuned to applications from Vietnam veterans seeking discharge upgrades. Indeed, in 2014, former Defense Secretary Chuck Hagel issued guidance to the military records correction boards to give "[l]iberal consideration" to petitions from veterans seeking discharge upgrades whose service treatment records indicate symptoms of PTSD.
What's more, just because a Vietnam vet's service record doesn't mention PTSD, doesn't mean a correction board can ignore indications that such a condition existed at the time of discharge. The 2015 Defense Authorization Act directs that correction boards have a member who is a clinical psychologist or psychiatrist, or a physician "with special training on mental health disorders," when reviewing applications from vets who suffered from a mental health disorder while serving and are seeking to upgrade a discharge.
But just as a PTSD diagnosis can't automatically save a service member from a court-martial conviction, that diagnosis will not automatically compel a correction board to upgrade an adverse discharge. You still must prove that the adverse discharge resulted from an error or injustice.
In a 1999 case, the Board for Correction of Naval Records refused to change the "under honorable conditions" discharge of an applicant who had served in Vietnam in 1971 and was diagnosed with PTSD decades later. While serving, he had received five nonjudicial punishments and his conduct and proficiency averages were below requirements for a fully honorable separation. Veterans Affairs Department medical records also showed he had a long-term heroin addiction. The board concluded: "While PTSD and drug addiction may be considered mitigating factors, neither excuses misconduct."
In contrast, in a 2003 case, the Air Force Board for Correction of Military Records granted relief to an applicant who had received a bad-conduct discharge for submitting false travel vouchers with a total value of less than $900. The conviction came years after he had served as a medical photographer for air crashes in Vietnam. He was later hospitalized for PTSD, which was attributable to his former job.
The board noted that on top of a record showing he had served 17 years of generally excellent duty and had accepted responsibility for his misconduct, the stress created by his duties "was clearly mitigating." As such, the board recommended upgrading his discharge to general (under honorable conditions).
Vietnam veterans who have PTSD and are interested in receiving a discharge upgrade should consult with a military law attorney. An attorney can help establish to a BCMR or BCNR that the veteran's discharge was the product of an error or injustice that was connected to their PTSD.
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 email@example.com. The information in this column is not intended as legal advice.