By Jay Petersen, CILS Sacramento Office Senior Staff Attorney

CILS Sacramento is launching a new project, The Military Discharge Upgrade Project (MDUP), to help Native veterans with less than honorable military discharge histories improve their discharge classification.  Successful discharge upgrades usually qualify veterans for most or all the benefits otherwise unavailable to them. The MDUP will allow qualifying vets to restore access to medical coverage, pensions, home loans, and educational opportunities.

MDUP is an outgrowth of CILS’ expungement project, Native American Record Clearing (NARC), initiated in the northern Sacramento Valley that now assists Native people statewide clear their conviction records. Both projects offer tremendous benefits to qualifying Natives especially by expanding opportunities for employment and easing successful re-integration into their communities.

Native people have played an important role in the United States military having one of the highest representations of all races in the armed forces. California is home to more than 52,600 Native veterans, more than any other state. Women represent twelve percent of this total number. (Native women serve at a 33% higher rate than women of any other race).

Service, honor, and sacrifice are key elements in Native culture. Less than honorable discharges can stigmatize Native veterans and make their re-entry into their communities even more difficult. About 10% of veterans separate from the military with less than an honorable discharge. While we do not have access to statistics confirming the number of Native veterans with less-than-honorable discharges, we estimate that the percentage of discharges among Native veterans likely exceeds this 10% rate.

When veterans separate from military service (i.e., is discharged), they are assigned a discharge rating based on their work performance. The discharge rating affects veterans’ access to life-long medical care, disability compensation benefits, educational benefits, home loans, and pensions. Discharge ratings can also affect veteran post-service employment prospects. Much like criminal convictions, less than honorable discharges can be used to arbitrarily screen out applications for otherwise qualified job applicants.

Veterans with less than honorable discharges are seven times more likely to be homeless. Substance abuse disorders are diagnosed in nearly half of less than honorably discharged Native veterans. This percentage is almost double the rate found among all discharged veterans.

The Discharge Process 

When a veteran believes a discharge rating does not fairly reflect their service performance, the veteran can seek a discharge upgrade.  There can be time limits within which upgrades must be requested.  But veterans should not assume that because many years have passed since their separation from the military that they cannot upgrade their discharge rating.

A veteran can seek a discharge upgrade in two ways:

  • Most commonly, veterans can upgrade their discharge status through the Discharge Review Board (DRB) that is part of their military service branch. Veterans must apply to the DRB for a discharge upgrade within fifteen years of their service. Upgrade applications can be based on legal and factual errors that occurred during the discharge process and policy changes that apply retroactively. Applications can also be based on equitable grounds that show the discharge was inconsistent with disciplinary standards at the time or that the same discharge decision would not be reached today under current policies and procedures. Veterans with a court-martial history are ineligible for a discharge upgrade through a DRB.
  • Veterans with a court-martial history can apply for a discharge upgrade through their service branch’s Board for Correction of Military Records (BCMR). This upgrade process is similar to a clemency petition. A BCMR can also decide some cases beyond the fifteen-year time limit governing the DRB.

 CILS Services in the Military Discharge Upgrade Project

The upgrade process can take anywhere from several months to two years to complete.  Unfavorable upgrade decisions can be challenged in federal court. Under this Project, CILS attorneys and outreach staff will help Native veterans navigate all aspects of the upgrade process by evaluating the merits of a discharge upgrade effort, helping to select an upgrade path, providing self-help guidance materials, and, where appropriate, by providing direct representation through the upgrade process. To qualify for our free legal services Project, the veterans must be low income but can earn up to 200% of the federal poverty guidelines.

MDUP is a statewide project that will combine outreach efforts with those of our newly funded and expanded criminal record clearing project. We will also target homeless and women’s shelters, veterans’ outreach projects, health centers, residential treatment programs, and re-entry programs throughout the state. CILS has secured pro bono commitments from the San Francisco and Palo Alto offices of a major private law firm to assist with direct veteran representation. We also hope to secure additional funding for a full-time attorney through a law school social venture project fund.

For additional information about the MDUP and the expanded NARC project, please contact Jay Petersen in the CILS Sacramento Office at 916-978-0960 and 800-829-0284.