Are you a veteran of one of the military branches who might be eligible for veterans’ benefits, but you don’t have an honorable discharge? It can be difficult to establish benefits such as service-connected compensation, but it’s not impossible.
Am I eligible for service-connected compensation?

To obtain service-connected compensation, you must meet three elements: (1) you have a current injury or illness; (2) you had an in-service occurrence or aggravation of that injury or illness; and (3) there is a nexus between the two previous elements or continuity of symptoms.

You might otherwise qualify for service-connected compensation if you currently suffer from medical conditions that are covered under one or more of the many available presumptions. Regardless of whether you meet the elements outlined above, you must also be recognized as a qualified veteran by the Department of Veterans Affairs.

Am I considered a veteran?

The definition of veteran can differentiate across agencies. An outsider might consider anyone who served in a branch of the U.S. military to be a veteran. The Department of Veterans Affairs only considers prior service members veterans, for the purpose of benefits, if they had a period of service that resulted in a form of honorable or under honorable conditions discharge. To be eligible for the more popular forms of VA benefits (education benefits and compensation), the prior service member must have received an honorable or general (under honorable conditions) discharge respectively.

What if I don’t have a period of honorable service?

If you are prior service member with no period of honorable service, you might still have options to establish benefits. There are two common approaches to this issue. First, you may apply to a military records corrections board asking that they upgrade your discharge classification. Second, you may apply with the Department of Veterans Affairs to request that they consider your discharge as something other than dishonorable for VA purposes only. In either case, you will need a thorough, well-written application to support your request.

Military corrections boards

There are multiple options available for requesting a discharge upgrade. If you were a National Guard member, you must start by applying to the State National Guard Adjutant General. If you were not a member of the National Guard or you were unable to obtain relief through the Adjutant General, you may move on to the Discharge Review Board for your branch of service. The Discharge Review Board will review your application and legal brief to determine whether there was an impropriety or inequity in your discharge.

You have 15 years from the date of discharge to seek relief at the Discharge Review Board, and you have the right to two levels of review: (1) records review; and (2) personal appearance if the record review is unsuccessful.

The next bite at the apple is an application to the Board for Correction of Military Records for your branch of service. This Board will review your application and legal brief to determine whether there was an error or injustice. You have three years from the discovery of the error or injustice to request relief at this board, but the board often waives the filing deadline in the interests of justice.

You can request a personal appearance, but the Boards for Correction of Military Records typically ignore this request. You have no right to appear before the board at this level. You may also go on to appeal these decisions at Federal Court.

Can the VA upgrade my discharge?

The Department of Veterans Affairs can upgrade a veteran’s classification of service for the purposes of the VA only. This is a route that many applicants and even their attorneys are unaware of. This can be a faster, more streamlined option. Much like an application to military corrections board, the prior service member must apply to the VA using the appropriate application and should include a legal brief.

The VA will consider whether the veteran’s service can be classified as less than honorable for VA purposes only. The VA will consider the character of the veteran and will want to see evidence of honorable service, combat service, and potential underlying causes of the misconduct. If the initial application is denied, the prior service member may request a hearing. The VA can provide a limited upgrade, which immediately allows the prior service member to obtain benefits that might previously have been denied.

If you believe you are eligible for service-connected compensation or other valuable benefits that are currently being denied, you should consider fighting the decision. In one recent case dating all the way back to the Korean War, I pursued both avenues above.

Despite decades of denials and inadequate representation elsewhere, I was able to swiftly get the VA to grant an upgrade for VA purposes, resulting in hundreds of thousands of dollars in backpay. We went on to obtain a discharge upgrade at the Army Board for Correction of Military Records as well.

You might have a less than honorable service now, but with some assistance from an experienced attorney or advocate, you might be able to unlock hundreds of thousands of dollars in benefits that were otherwise unavailable. Tully Rinckey attorneys understand that issues involving less than honorable discharges can be challenging, and they will handle your matter with the attention and tact it deserves. If you have additional questions about establishing benefits such as service-connected compensation, our team of attorneys is available to assist you today. Please call 8885294543 to schedule a consultation or schedule a consultation online.

As a Managing Partner at Tully Rinckey PLLC, Anthony Kuhn focuses much of his time on the representation of military personnel and members of the intelligence community. He has extensive experience assisting clients in navigating matters involving security clearance suspensions and revocations, appeals to the Discharge Review Boards and Boards for Correction of Military Records, UCMJ violations and non-judicial punishment, appeals for service-connection before the Department of Veterans Affairs, rebuttals to GOMORs and QMP selection notifications and requests for Special Selection Boards. He also serves as the Chair of the National Security Lawyers Association.