There are a few critical steps to protect your rights while maximizing your chance of a good outcome in your upgrade and obtain VA benefits. There must be a link between PTSD or other condition and the reason for the bad discharge. For PTSD there must be a trauma or traumatic event(s), a diagnosis with supporting medical documentation, and a statement from the veteran. Supporting lay or professional statements may also be beneficial.
In a nutshell:
- Immediately file a claim for DVA disability benefits using VA Form 21-526.
- Immediately request your Personnel file including Service Medical Records using Form SF-180 which you send to the Records Center in St. Louis, not to the DVA. However, also request them from the DVA.
- After a full and careful review of your Personnel file and the medical files, and other post-service medical records and lay statements, file your application for discharge upgrade.
Step #1: Immediately apply for VA Disability Benefits
You do not necessarily have to first get an upgrade to gain VA disability benefits. This sounds odd perhaps but you can apply for VA Benefits prior to the discharge upgrade. Not only that, in the case of PTSD related discharges, there are very good grounds for doing so.
There is the possibility that you get approved for VA benefits without or prior to the discharge upgrade. However, the most important reason to apply for VA benefits right away is that the filing date sets your retroactive date. In the event that you get your upgrade or otherwise win your VA benefits claim, you are entitled to all retroactive benefits for payment purposes from the date of original application.
The retroactive benefits can be a large amount, particularly in cases like these which might go on for years.
There are many grounds for applying for VA benefits related to PTSD related discharges. These arise predominantly from Grounds for Applying Immediately for VA Benefits. They arise from 38 CFR 3.304 (d) and (f) and certain provisions of 38 CFR 3.12.
Step #2: Requesting Your Military Personnel File and Service Medical Records
This is a critical step which should be done concurrently with the filing of your VA disability claim. In fact, neither your VA claim nor your application for discharge upgrade has a chance without them.
To request your file, use VA form 21-4138, a statement form, asking for records under the Freedom of Information Act.
To be safe, request all USJAG files, notes, correspondence and other records related to your discharge.
Step #3: File for Discharge Upgrade
It should be noted that you can file your discharge upgrade and VA disability claim concurrently. However, once denied your upgrade, you have little chance of successfully upgrading your discharge. It is best to get it right the first time.
This means your application for upgrade should be fully supported by your Personnel file and your medical records the first time. Also, submit any pertinent post-service medical records as well as lay statements and documents that support your claim for an upgrade. Of course, these should also be submitted to the DVA. This will give you the best chance of success.
The discharge upgrade process is relatively complex. It is likely that you will need assistance to do this either through a military advocacy group or private attorney.