This toolkit is for people who served in the military, their families, and their advocates.
This toolkit will help you understand:
Your rights as a former service member with a Traumatic Brain Injury (TBI)
Who qualifies for a discharge status upgrade
The impact a discharge status upgrade can have
The process of applying for a discharge status upgrade
How to find help or legal representation
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Disability Rights New York (DRNY) advocates for the civil and legal rights of New Yorkers with disabilities. DRNY’s Protection and Advocacy for Individuals with Traumatic Brain Injury (PATBI) program provides assistance for people with acquired or traumatic brain injury.
PATBI provides the following services:
Legal assistance to help people with TBI live in the community
Help for people with TBI to get accommodations at work and school
Help for people with TBI to access healthcare, government benefits, and waiver program services
Advocacy to prevent abuse and neglect of people with TBI in facilities
Education for people with TBI about their rights to empower them to advocate for themselves
Direct advocacy to people with TBI who experience discrimination because of their TBI
A Traumatic Brain Injury is an injury to the brain from an outside force. Your head does not have to be physically hit to suffer a TBI, it can also be caused by things like whiplash or shock waves from explosives.
A TBI can cause many different symptoms, including:
Changes in mood or behavior
Loss of impulse control
Increased anger, anxiety, & aggression
Confusion and forgetfulness
Higher likelihood of using or misusing alcohol and drugs
Behaviors like disobeying orders, fighting, using drugs, or absent without official leave (AWOL) have been linked to symptoms of TBI. 1
If you think someone may have suffered a TBI and was not diagnosed, it is important they seek medical attention. Tests like a Magnetic Resonance Imaging (MRI) can sometimes find evidence of a TBI long after they have happened.
1 A. Tateno et al., Clinical Correlates of Aggressive Behavior After Traumatic Brain Injury, J. Neuropsychiatry & Clinical Neurosciences, May 2003; L.M. James et al., Risk-Taking Behaviors and Impulsivity Among Veterans With and Without PTSD and Mild TBI, Military Medicine, April 2014.
Most former service members are discharged from service. Their discharge is accompanied by a DD-214 form, which lists important information- including the characterization, or “type,” of discharge. The type of discharge a Veteran receives can determine what benefits that Veteran is eligible for. Certain discharge types often bar Veterans from services and benefits; these are known as “bad paper” discharges.
However, you have the right to request a discharge status upgrade from the Department of Defense (DOD).
Honorable: The highest and most common discharge status. Most service members receive honorable discharges.
Under Honorable Conditions (General): Given to service members who served faithfully despite some minor disciplinary issues.
Other than Honorable: Administrative dismissal, involving patterns of misconduct or a more serious infraction.
Bad Conduct: Punitive discharge based on serious offense, e.g. DUI, AWOL, drunk while on duty.
Dishonorable: Serious offenses involving prison time, the worst discharge category.
If you received a discharge that is considered “less than” honorable, you may not be able to qualify for certain services and benefits that Veterans with an Honorable Discharge status are eligible to receive.
T
& F I
Common causes for TBI in service members include blast exposure from improvised explosive devices (IEDs), suicide bombers, land mines, mortar rounds and rocket-propelled grenades.
Service members can get TBIs from non-combat situations as well, including training accidents, car or motorcycle crashes, and sports injuries.
U R E S
Mild TBI, including severe concussions, account for 83% of TBIs in service members.
> 413,858
Between the year 2000 and 2019, more than 413,858 U.S. service members sustained a TBI.
40,378
Between 2000 and 2019, 40,378 service members received a moderate TBI, and 9,389 received severe or penetrating TBIs.
32,834
In 2011, 32,834 service members were diagnosed with a TBI, amounting to the highest recorded cases in a single year.
18,949
In 2018, 18,949 service members were diagnosed with a TBI.
Today, there are as many as 159,000 veterans with TBI living in New York State. 159,000
The Veterans Administration and New York State Division of Veterans Affairs provide a lot of assistance to Veterans.
You can find more information about these benefits here: https://veterans.ny.gov/.
Healthcare, mental health counseling, and nursing home care.
Veteran home loans, property tax exemptions, and housing programs.
Service-connected monthly income, need-based pension benefits, income tax exemptions, and other types of financial assistance.
Help with paying for college or trade school, certification programs.
Help finding a job, preferential hiring and promotion programs.
Direct access to Veterans Service Officers, Vet Centers, and other assistance.
Former service members with a discharge status that is considered “less than” honorable may find it difficult or impossible to access benefits, including VA medical and mental healthcare, Veterans’ housing programs, and Veterans’ treatment courts and diversion courts.
An upgrade can change your characterization of service, the reason listed for your discharge, and your re-enlistment code. It can also change a discharge to medical retirement or remove items like a negative performance evaluation or psychological evaluation. Veterans with a “less than” honorable discharge are more at risk than Veterans with a honorable or general discharge for suicide, homelessness, incarceration, and substance use disorders.
A discharge status upgrade can increase your access to necessary Veterans’ services, programs, and financial assistance.
Veterans Crisis Line (dial 988 and press 1)
You have the right to ask the Department of Defense (DOD) to reconsider your discharge status. You can apply to your service branch’s Discharge Review Board (DRB) or Board for Correction of Records (BCR) to ask the DOD to upgrade your discharge status.
You will be given liberal consideration if your request for relief is based on one of the following:
brain injury (TBI)
Mental health conditions, including post-traumatic stress disorder (PTSD)
Being the victim/survivor of sexual assault or sexual harassment
“Liberal consideration” means that the board must consider all of your evidence, including testimony from family and friends, rather than only looking at your medical records.
It also means that the board considers your TBI symptoms as “mitigating factors” for your discharge status, rather than willful misconduct. A mitigating factor is a reason for why something you did was not entirely your fault, or why you should not be judged as hashly as someone who did the same thing without the mitigating factor.
The DOD review boards will consider your TBI disability when you apply for a discharge status upgrade.
1 Did you have a condition or experience that may excuse or mitigate the discharge?
2 Did the condition exist or the experience occur during your military service?
3 Does the condition or experience actually excuse or mitigate the discharge?
4 Does the condition or experience outweigh the discharge?
You do not need to show a diagnosis from a doctor to have your TBI taken into consideration by the review board, although a medical diagnosis and documentation will help. You can present your own story and share testimony from your friends and family about your TBI and how it has impacted your behavior to support your appeal.
If there was some evidence that you were suffering from PTSD, TBI, or sexual assault when you were discharged from service and the military did not conduct a pre-discharge examination, you may be able to argue that your discharge was improper or in error for that reason.
You will have a hearing after you file for a discharge status upgrade appeal. It may take several months after your hearing for the review board to make a decision.
Step-by-step instructions for making an appeal based on your own specific situation can be found by answering the questions on the U.S. Department of Veterans Affairs (VA) website, found here: https://www.va.gov/dischargeupgrade-instructions/
Discharge Review Board (DRB):
Can only change a discharge, not a general court martial
Can usually change the “narrative reason” for discharge in your DD Form 214
15-year deadline from discharge
Apply using form DD-293
Need to show evidence that the military made an error by asking:
Did the DOD follow their own rules? (Impropriety)
Did the DOD assign you a fair characterization of discharge based on the totality of your service? (Inequity)
Board for Correction of Military/ Naval Records (BCR):
Can change anything on your discharge documents
3-year deadline – but they can hear any case if it is “in the interest of justice.”
Apply using form DD-149
Need to show evidence of “error or injustice”
• Military Discharge Paperwork (DD-214 or equivalent) and accompanying separation packet.
• Any documents about your administrative separation proceedings.
• Your Service Treatment Records.
• Your Official Military Personnel File.
• Your Completed Department of Defense application (DD-293 or DD-149).
• A list of each issue that you want the Board to review.
• A personal statement describing why your discharge status is unjust and why an upgrade is necessary to fix that injustice. It is preferred that this statement is typed and notarized.
• Any supporting letters from people who can sincerely vouch for your “good conduct and character,” including fellow military members that you served with, family members, teachers, members of the clergy, close friends, employers, mental health providers, etc.
• Any medals, commendations, and decorations you earned during your military service.
• Any post-military conduct that could be helpful, such as: evidence of steady employment, community service, police reports with few or no citations, marriage license, birth certificates of children, credit reports with good scores, awards earned from your place of employment or from civic organizations, etc.
• Documentation from any prior appeals to a Discharge Review Board or Board for Corrections, including any evidence previously submitted and any written decision(s) received from the Board.
• IF alcohol and/or substance abuse led to your less-thanhonorable discharge, you can provide evidence demonstrating your rehabilitation and your current sobriety.
• IF your disability symptoms caused the behavior that led directly to your less-than-honorable discharge, provide:
o Documents about your disability diagnosis and its symptoms;
o Evidence that your disability originated or worsened during your military service;
o A signed explanation from you about how the disability led to your discharge.
• If applicable, an award letter from the United States Department of Veterans Affairs verifying that you have a service-connected rating for your disability rating.
Created by Congress in the Fiscal Year 2020 National Defense Authorization Act, this new level of appeal is open to any military members whose date of discharge is on or after December 20, 2019. This is the highest level of appeal and can only be used after you have tried all available options at the DRB and/ or the BCM/NR. The decision made by DARB is final, there are no appeals or reconsiderations of DARB’s decision.
You must apply for a DARB review within 365 days (1 year) of the BCM/NR decision. If your request is filed more than one year after the decision, the DARB may deny your request for being untimely.
The DARB does not investigate or allow personal appearances, they will only review your case file from your previous petition for a discharge upgrade made to the DRB and BCM/NR. DARB also does not consider new evidence; if you want to submit new evidence you should instead ask the BCM/NR about a reconsideration.
Because DARB does not consider new evidence, the application also requires the least amount of effort. The only thing the DARB asks for is your:
• personal information:
o full name when you served, and current name if it is different now
o date of discharge
o military branch you served in
o mailing address
o phone number
o email address
• the BCM/NR docket or case number for your petition
• a copy of the denial or partial upgrade letter to your request with the BCM/NR
You can find more information about applying here: https://afrba-portal.cce.af.mil/#board-info/darb/navbar
New York is the first state in the nation to offer Veterans free access to a Discharge Upgrade Advisory Board. The Advisory Board is made up of seven attorneys. They can provide an advisory opinion on your discharge upgrade that is non-binding.
If the board rules in your favor, their advisory opinion can be strong evidence to include in your appeal to the Discharge Review Board or the Board for Corrections. Because The Advisory Board’s decision is non-binding, if they do not decide in your favor, it will not hurt your ability to make your appeal to the Discharge Review Board or the Board for Corrections. They may also be able to point out what evidence you should try to find and add to your official appeal.
You can submit a package of evidence to the Discharge Upgrade Advisory Board by mailing your documents to:
New York State Discharge Upgrade Advisory Board
New York State Department of Veterans’ Services 2 Empire State Plaza, Floor 17 Albany, NY 12223
You can also submit a CD of any electronic copies of your evidence to the same address.
A Character of Discharge Review or Character of Service Determination (CSD) can allow you to access VA benefits even with a discharge that is not honorable. It is a quicker process than the discharge upgrade, but it will not change your official discharge paperwork. You can ask for a VA review while you are waiting on your discharge appeal.
For this review, you must show that your discharge was connected to any of these:
Mental health conditions, including post-traumatic stress disorder (PTSD)
Traumatic brain injury (TBI)
Sexual assault or harassment during military service (identified as military sexual trauma or MST by the VA)
Sexual orientation (including under the Don’t Ask, Don’t Tell policy)
The review will begin when you apply for VA benefits. You should provide any supporting documents, like the ones you would provide for a discharge upgrade, to the VA.
Find more information about the VA Character of Discharge Upgrade process here: https://www.va.gov/discharge-upgrade-instructions/
Some mental health services may be available to you immediately without an upgrade or review if the services are for PTSD or other mental health problems linked to your service.
In 2019, New York State enacted the Restoration of Honor Act. Under this Act, you can apply to have your New York State veterans’ benefits restored if you received an Other-Than-Honorable Discharge or General Under Honorable Conditions Discharge due to:
Sexual orientation
Gender identity
Military sexual trauma
Traumatic brain injury
Post-traumatic stress disorder
This does not change your official discharge paperwork, it only affects your eligibility for specific New York State benefits for Veterans and their families.
The New York State Department of Veteran Services (DVS) will help you in obtaining your complete Official Military Personnel File for review.
An initial decision regarding your New York State benefits is provided within ninety (90) days.
See the following pages in this toolkit for more information on applying for New York State Veterans’ benefits or read more about the Restoration of Honor Act here:
https://veterans.ny.gov/content/restoration-honor-act
Blind Annuity Program
Extra credits on civil service exams
55-c eligibility
Transfer rights if a civil service position is abolished
Use of the Temporary Hiring Program for post-9/11 Veterans
Entrepreneurial assistance programs
Parking fee exemptions for SUNY and CUNY students
State Teachers Retirement System military service credit buyback
Veterans Tuition Award
Regents Award
Scholarship for Children with Spina Bifida of Vietnam Veterans
Operation Recognition
Voter registration rights for a Veteran deployed during registration period
Gold Star Parent Annuity
Supplemental Burial Allowance
Eligibility for Interment in a state
Veterans cemetery
Indigent Burial Reimbursement Program
NYS Service-Disabled Veteran-Owned Business Certification
Cold War Certificate
Silver Rose Certificate
State Commission of Correction membership
Discounted hunting, fishing, and trapping licenses
Waiver of fees for notarizing documents
Peddlers’ License preference
Property leasing exceptions & preferences for Veterans service organizations
Restoration of insurance broker licenses
Leaves of absence on Veterans Day, Memorial Day, & Independence Day
State Veterans home eligibility
Nursing License Exam exemptions
Public Housing admissions
Veterans real property tax exemptions
Veterans Aid provided by county welfare districts
Specialty license plates for Veterans
Distinguishing mark for Veterans on driver’s license and on non-driver’s ID cards
You can apply now for restoration of your New York veterans’ benefits. To apply, you will need:
1 Restoration of State Veterans Benefits Application: https://veterans. ny.gov/system/files/documents/2023/03/roh_packet_feb2023.pdf
2
3
Complete Official Military Personnel File
Personal statement (signed) describing precisely why your assigned character of service was unjust and why an upgrade is appropriate.
IF your disability symptoms caused the behavior that led directly to your less-than-honorable discharge, provide:
• Documents about your disability diagnosis and its symptoms;
• Evidence that your disability originated or worsened during your military service;
• A signed explanation from you about how the disability led to your discharge;
• If applicable, an award letter from the United States Department of Veterans Affairs verifying that you have a service-connected reason for your disability.
You can mail your application to:
New York State Division of Veterans’ Services
ATTN: Appellate Unit
2 Empire State Plaza, 17th Floor
Albany, NY 12223
Or email it to: inclusion@veterans.ny.gov
Comparing the different processes for accessing benefits after receiving a “less than” honorable discharge:
Comparing the different processes for accessing benefits after receiving a less-than-honorable discharge:
You can represent yourself at any of the appeals hearings or review boards –but it helps to be represented by an attorney or advocate. Organizations in New York State that provide free advocacy for DOD review board hearings include:
DISABILITY RIGHTS NEW YORK
STATEWIDE
Phone: (518) 432-7861
Toll Free: (800) 993-8982
Fax: (518) 427-6561
Email: mail@DRNY.org
BETTY AND MICHAEL D. WOHL VETERANS LEGAL CLINIC
SYRACUSE AREA
Phone: (315) 443-4582
ROBERT W. ENTENMANN VETERANS LAW CLINIC
LONG ISLAND
Phone: (516) 463-5988
URBAN JUSTICE CENTER VETERAN ADVOCACY PROJECT
NEW YORK CITY
Phone: (646) 602-5600
NEW YORK COUNTY LAWYERS ASSOCIATION VETERANS DISCHARGE UPGRADE PROJECT
NEW YORK CITY
Phone: (212) 267-6646, ext. 217
THE VETERANS CONSORTIUM DISCHARGE UPGRADE PROGRAM
STATEWIDE/NATIONWIDE
Phone: (202) 733-3324
NEW YORK VETERANS BENEFITS ADVISORS
STATEWIDE
Phone: 1-888-838-7697
This toolkit was produced thanks to a generous grant from The New York Bar Foundation.
DRNY is supported at taxpayer expense by the U.S. Department of Health & Human Services; The Administration for Community Living; Center for Mental Health Services; Substance Abuse & Mental Health Services Administration; U.S. Department of Education; Rehabilitation Services Administration; and, the Social Security Administration. This document does not represent the views, positions or policies of, or the endorsements, by any of these federal agencies.