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I was Discharged for Not Taking the COVID-19 Shot: What Now?

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So, you stuck to your guns and refused to get the jab? When everyone else caved to pressure from peers and their command, you stood strong and refused to compromise your convictions. And the military rewarded your courage by discharging you from the service for misconduct and, most likely, with a less than fully honorable discharge. What now?

Fortunately, not all discharge decisions are final. Each service branch has a Discharge Review Board (DRB) and Board for Correction of Military Records (BCMR) established to correct errors and remove injustices from the official military records of service members. These boards can upgrade and correct a veteran’s characterization of service, reenlistment code, and narrative reason for separation, among other things.

MJA has successfully helped veterans upgrade their discharge characterizations of service and has battled the military’s unlawful COVID-19 policies from the beginning. Contact our military defense lawyers now to learn more.

UNJUST SEPARATIONS

Thousands of service men and women across the military branches have been administratively discharged for refusing to take the COVID-19 vaccine. Many of these veterans had sincerely held religious beliefs against the vaccine and submitted religious accommodation requests but were discharged before federal courts stepped in to protect them against separation. Those veterans were unjustly separated in violation of their due process and constitutional rights. In order to restore those rights, veterans must seek relief from federal court or one of the military’s administrative review boards.  

DISCHARGE REVIEW BOARDS

For veterans simply seeking to upgrade their characterization of service or change the reason they were discharge, the discharge review boards provide a great option.

Pursuant to federal law, each military branch maintains a Discharge Review Board (DRB) which meets regularly to review submissions and hear oral arguments in favor of applicants. Veterans seeking a discharge upgrade may, within 15 years from their military discharge, petition one of the following DRBs:

  • Air Force Discharge Review Board (AFDRB)
  • Army Discharge Review Board (ADRB)
  • Coast Guard Discharge Review Board (CGDRB)
  • Naval Discharge Review Board (NDRB)

The DRBs are authorized to reconsider discharges not ordered by sentence of a general court-martial and non-medical in nature; upgrade characterizations of service; issue re-enlistment codes; and restore rank as a matter of propriety and/or equity and fairness.

One of the biggest advantages of the DRB is that an applicant has the right to request a personal appearance in front of the board. The veteran can represent himself at the personal appearance or be represented by counsel.

BOARDS FOR CORRECTION OF MILITARY RECORDS

Another option for veterans seeking relief is the Boards for Correction of Military/Naval Records. Each service branch has a Board for Correction of Military Records established to correct errors and remove injustices from the official military records of service members. Such records may include, but are not limited to, records regarding discharges, reenlistment codes, disciplinary matters, performance evaluations, selection for promotion, advancement, retirement, dates of service, disability ratings, medals, and various bonuses and benefits. The BCMRs include:

  • Air Force Board for Correction of Military Records (AFBCMR)
  • Army Board for Correction of Military Records (ABCMR)
  • Board for Correction of Military Records of the Coast Guard (BCMR)
  • Board for Correction of Naval Records (BCNR)

Current and former members of the United States military (including Reserve personnel) may apply for a correction of an error or removal of an injustice in their official military record. If a former service member is deceased or incompetent, the member’s spouse, next of kin (parent, sibling, or child), or legal representative can apply for the service member. Applicants must first exhaust available administrative avenues of relief before applying to a BCMR.

DISCHARGE APPEAL REVIEW BOARD

If neither the DRB nor BCMR/BCNR provide relief, veterans may be eligible to petition the Department of Defense’s Discharge Appeal Review Board (DARB). The DARB, created in 2021, provides final review of discharge or dismissal characterization upgrade requests when petitioners have exhausted all available administrative remedies. The DARB is the highest administrative level of review for a discharge upgrade request. 

To be eligible, the service member must have been separated on or after December 20, 2019, and has exhausted all available appeals with their service DRB and BCMR/BCNR. The requirement to “exhaust all available appeals” simply means that the petitioner has already requested and been denied relief from their service DRB and BCMR/BCNR before applying to the DARB. The DARB may review both voluntary or involuntary discharges based on:

Enlisted:

  • Expiration of service obligation
  • Change in service obligations
  • Weight control failure
  • Convenience of the Government
  • Disability
  • Defective enlistments and induction
  • Unsatisfactory reserve participation
  • Secretarial plenary authority
  • Entry-level conduct/performance
  • Unsatisfactory performance
  • Military Department reasons
  • Misconduct
  • Separation in lieu of court-martial
  • Security
  • Drug abuse rehabilitation failure
  • Alcohol abuse rehabilitation failure

Officer:

  • Substandard performance of duty
  • Misconduct or moral or professional dereliction
  • Retention not clearly consistent with national security interests;
  • Sentence by court-martial
  • Dropping from the rolls

If the DARB recommends that the petitioner’s characterization of service be upgraded, this recommendation is sent to the Secretary of the Military Department concerned for final action. The Secretary of the Military Department makes the final decision.

CONTACT US TODAY

Not all discharge decisions are final. MJA has successfully helped veterans upgrade their discharge characterization of service and reason for separation and has battled the military’s unlawful COVID-19 policies from the beginning. Contact our military defense lawyers now to learn more.


**UPDATE – On 10 January 2023, the Secretary of Defense officially rescinded the COVID-19 vaccine for the U.S. military. Check out our January 2023 blog post to see how this affects active duty service members and former service members who were discharged for not taking the COVID-19 vaccine.

The post I was Discharged for Not Taking the COVID-19 Shot: What Now? appeared first on Military Justice Attorneys.

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