Liberal Consideration for Victims of Military Sexual Trauma
Not all discharge decisions are inherently final. 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)
MJA has proudly helped veterans successfully upgrade their discharge characterization of service. Contact our military defense lawyers now to learn more.
Sexual Assault and Sexual Harassment
On August 25, 2017, the Department of Defense issued clarifying guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding requests by veterans for a discharge upgrade due to mental health conditions (including PTSD and TBI), sexual assault, or sexual harassment.
Requests for discharge relief typically involve four questions:
- Did the veteran have a condition or experience that may excuse or mitigate the discharge?
- Did that condition exist/experience occur during military service?
- Does that condition or experience actually excuse or mitigate the discharge?
- Does that condition or experience outweigh the discharge?
The new guidance explained that “liberal consideration” would be given to veterans petitioning for discharge relief when the application for relief was based in whole or in part on sexual assault or sexual harassment.
Supporting Evidence
Evidence supporting an incident of sexual assault/harassment could come from the veteran’s service record or from outside sources like “law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, physicians, pregnancy tests, tests for sexually transmitted diseases, and statements from family members, friends, roommates, co-workers, fellow servicemembers, or clergy.”
“Evidence may also include changes in behavior; requests for transfer to another military duty assignment; deterioration in work performance; inability of the individual to conform their behavior to the expectations of a military environment; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; unexplained economic or social behavior changes; relationship issues; or sexual dysfunction.”
Discharge Review Boards are not required to find that a crime of sexual assault or an incident of sexual harassment occurred in order to grant liberal consideration to a veteran that the experience happened during military service, was aggravated by military service, or that it excuses or mitigates the discharge.
How Can Sexual Assault or Harassment Impact a Service Member's Discharge Status?
Experiencing sexual assault or harassment can lead to mental health challenges, such as PTSD or depression, which may impact a service member's behavior and performance. Unfortunately, some service members facing these issues have historically received punitive or less-than-honorable discharges rather than receiving appropriate support or treatment. Reviews of these cases help identify whether the discharge was affected by a lack of understanding or support for trauma-related behavior, potentially leading to a discharge upgrade upon review.
Are There Specific Policies or Protections in Place for DRBs to Consider Sexual Assault and Harassment Cases?
Yes, in recent years, the military has updated policies to ensure DRBs take a trauma-informed approach when reviewing cases involving sexual assault or harassment. This includes special consideration of mental health conditions resulting from trauma, such as PTSD, and guidance to give additional weight to evidence of how such experiences affected service and conduct. These protections are part of an effort to correct historical injustices and provide fairer outcomes for those impacted by sexual misconduct during their service.
What is the Process for Appealing a DRB Decision if a Request for Discharge Upgrade Related to Sexual Misconduct is Denied?
If a DRB denies a discharge upgrade request, a service member can appeal to the Board for Correction of Military Records (BCMR), which has broader authority to consider additional evidence or new circumstances, such as mental health impacts from sexual assault or harassment. The BCMR allows applicants to present further evidence and documentation, and this board can make corrections beyond what DRBs are authorized to change, offering another avenue for justice and record correction.
Contact us Today
Our Military Justice Attorneys are experienced in representing veterans before Discharge Review Boards and understand how to gather and persuasively present the best evidence for your case. Call us today for your consultation.
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"NOT GUILTY"
Fort Cavazos, Texas. Army Staff Sergeant Acquitted of Murder at General Court-Martial After Deadly Shooting Incident in Texas.
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"NOT GUILTY" "NOT GUILTY"
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"NO BASIS"
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"NOT GUILTY" Fort Cavazos, Texas
Fort Hood, Texas. Army Private Second Class (E-2) Acquitted of Rape and Sexual Assault Charges After Week-Long Trial.
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"NOT GUILTY" Parris Island, South Carolina
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"NOT GUILTY" "NOT GUILTY"
Kings Bay, Georgia. Navy Master-at-Arms Found Not Guilty of Unholstering Firearm and Pointing it at Another Sailor.
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"NOT GUILTY" "NOT GUILTY"
Spangdahlem Air Base, Germany. Senior Airman (E-4) Accused of Rape and Abusive Sexual Contact Acquitted by Military Judge.