Discharge Upgrades and Record Correction After Court-Martial

What can change after a court-martial discharge depends on which court-martial imposed it. A discharge review board (DRB) can review a punitive discharge from a special court-martial, but only for clemency, and it cannot review a discharge or dismissal by sentence of a general court-martial at all. A Board for Correction of Military Records (BCMR or BCNR) can act on court-martial records only to reflect reviewing authorities’ actions or to grant clemency on the sentence; neither board can set aside a conviction. Overturning a conviction is the work of appellate courts and other judicial remedies, which have their own deadlines.

The two boards and their deadlines

	Discharge Review Board	Board for Correction of Military Records
Statute	10 U.S.C. § 1553	10 U.S.C. § 1552
Filing deadline	"within 15 years after the date of the discharge or dismissal" (no exception stated)	"within three years after discovering the error or injustice"; the board "may excuse a failure to file … if it finds it to be in the interest of justice"
Who may apply	The former member, or if deceased, the surviving spouse, next of kin, or legal representative	The claimant, heir, or legal representative (and the Secretary, for groups)
General authority	Change a discharge or dismissal, or issue a new discharge, subject to Secretary review	Correct "any military record" to "correct an error or remove an injustice"
Hearing	The applicant "may appear before the board in person or by counsel"	Decided under each board's procedures

Court-martial discharges: what each board can do

General court-martial. The DRB’s mandate excludes “a discharge or dismissal by sentence of a general court-martial” (§ 1553(a)). A dishonorable discharge, bad-conduct discharge, or dismissal adjudged by a general court-martial is outside DRB review entirely.

Special court-martial. A bad-conduct discharge from a special court-martial is within the DRB’s reach, but narrowly: for a discharge “adjudged by a court-martial,” DRB action “may extend only to a change in the discharge or dismissal or issuance of a new discharge for purposes of clemency” (§ 1553(a)). The board does not re-decide the case.

BCMR. For court-martial records, BCMR action “may extend only to” two things: “correction of a record to reflect actions taken by reviewing authorities under chapter 47 of this title”, and “action on the sentence of a court-martial for purposes of clemency” (§ 1552(f)(1), (2)). The BCMR can therefore, for example, record a reviewing court’s decision or grant clemency on the sentence, including the discharge, but it cannot find that the conviction was legally wrong and set it aside.

The Secretary. Separately, Article 74(b) provides: “The Secretary concerned may, for good cause, substitute an administrative form of discharge for a discharge or dismissal executed in accordance with the sentence of a court-martial” (10 U.S.C. § 874(b)).

Challenging the conviction itself

Because neither board can vacate a conviction, a claim that a conviction is legally wrong or rests on new evidence belongs in the judicial channels, each with its own deadline:

appeal to the Court of Criminal Appeals and the Court of Appeals for the Armed Forces, described in how the military appellate court system functions;
a petition for a new trial on the grounds of newly discovered evidence or fraud on the court, “within three years after the date of the entry of judgment” (Article 73);
extraordinary writs, such as coram nobis, described in extraordinary writs and remedies in the military justice system.

Sentence clemency and presidential pardon follow separate rules from both boards; the authority each official holds is set out in clemency, pardon, and commutation in military cases.

Both statutes contain a liberal-consideration rule. Where an application is based in whole or in part on post-traumatic stress disorder or traumatic brain injury related to combat or military sexual trauma (or the applicant was diagnosed after a contingency deployment), the board must review medical evidence from the VA or a civilian provider and review the case “with liberal consideration to the former member that post-traumatic stress disorder or traumatic brain injury potentially contributed to the circumstances resulting in the discharge or dismissal or to the original characterization” (§ 1553(d)(3); parallel language in § 1552). Section 1553 also requires a clinical psychologist, psychiatrist, or physician with relevant training on the board in specified PTSD, TBI, and mental-health cases (§ 1553(d)(1), (e)).

Liberal consideration does not enlarge either board’s jurisdiction: it applies within the limits of §§ 1552(f) and 1553(a) described above.

After a denial: the Secretary of Defense review

Since the FY2020 National Defense Authorization Act, 10 U.S.C. § 1553a requires the Secretary of Defense to establish a process for a “final review of a request for an upgrade in the characterization of a discharge or dismissal.” It is available to a petitioner whose request was not granted under §§ 1552 and 1553 and who, as the Secretary of Defense determines, “has exhausted all remedies” under those sections; the Secretary of Defense may then recommend an upgrade to the Secretary of the military department. A DRB declination may also be considered under § 1552 or § 1553a (§ 1553(b)(2)).

Money after a correction

If correcting a record results in an amount due, the Secretary “may pay” claims for lost pay, allowances, and other pecuniary benefits, or for “the repayment of a fine or forfeiture” (§ 1552(c)(1)).

VA benefits are a separate determination

The Department of Veterans Affairs decides eligibility for benefits on its own rules. A discharge or dismissal “by reason of the sentence of a general court-martial” is a statutory bar to VA benefits based on that period of service (38 U.S.C. § 5303(a)). The statute’s insanity exception applies if it is established to the VA’s satisfaction that the person “was insane” when the offense was committed (§ 5303(b)). A bad-conduct discharge from a special court-martial is not on that statutory list; the VA makes its own character-of-discharge determination for it. The wider effects of a conviction on benefits are covered in collateral consequences of a court-martial conviction.

Frequently Asked Questions

Can a board upgrade a dishonorable discharge from a general court-martial?
Not through the DRB, which is barred from reviewing it. The BCMR can act on the sentence for clemency purposes under § 1552(f)(2), and the Secretary concerned may substitute an administrative discharge for good cause under Article 74(b). Neither route sets aside the conviction.

Is there a deadline for the BCMR?
Yes. The statute requires filing within three years after discovering the error or injustice, and the board may excuse a late filing in the interest of justice (§ 1552(b)).

Sources

This article is general information about military law, not legal advice for any individual case.