Hagel and Kurta Memos

Recently the Department of Defense (DOD) implemented rules to provide guidance to Discharge Review Boards (DRB) and Boards of Corrections of Military Records (BCMR) when addressing discharge upgrades for veterans who suffered with mental health issues while in the service.

These DOD Memos were put into effect to address the overwhelming number of veterans suffering with post-traumatic stress disorder (PTSD) and traumatic brain injuries (TBI). More specifically, the Memos target those veterans who were discharged because of behaviors that likely stemmed from symptoms of PTSD.

In 2014 the Hagel Memo was released making it easier for veterans suffering with PTSD or TBI to receive discharge upgrades. The Memo advised the Boards to give these veterans “liberal consideration” when reviewing their applications for discharge upgrades. In an attempt to provide more direct guidance, the Kurta Memo was released in 2017. This Memo clarified the Hagel Memo and expanded its application, in effect directing the Boards to give liberal consideration to veterans suffering with other mental health issues as well. The Kurta Memo also expands consideration to veterans who experienced assaults and sexual harassment while in the service.

How to Establish that the Memos Apply to Your Case

Veterans believing that their discharge was impacted because of their mental health must establish various elements in their application.

First, they must show that they previously or currently have a relevant mental health condition. PTSD can be difficult to establish because many veterans do not seek treatment for it when they are experiencing symptoms. Although an official diagnosis weighs heavily in favor of veterans, even evidence that the symptoms were present at the time of the discharge can be very helpful to their discharge upgrade claim.

Next, veterans need to establish that the mental health condition began during their service. In certain instances this can be difficult to prove because some veterans suffered with mental health issues prior to joining the service. However, this burden can be overcome if veterans can provide medical evidence that the mental health symptoms they experienced prior to the service are distinguishable from what they experienced during the service.

After overcoming those two burdens, veterans must be able to effectively explain how their mental health affected their discharge. This narrative is often the most compelling part of the application for a discharge upgrade. A veteran, his/her attorney, and medical provider should provide details about how the veteran’s behavior stemmed from symptoms of his/her mental health issues.

Finally, and maybe most importantly, veterans need to explain why their mental health condition should outweigh their discharge. Basically, veterans must show that their mental health condition explains their out-of-character behavior.

Discharge upgrade claims can be a complicated and daunting process; however, the new Memos have changed the landscape in which these cases are reviewed. An attorney can assist you in determining whether your case falls into the parameters of the Memos and potentially help you with your matter.

If you or someone you know is a veteran living in Philadelphia and experiencing homelessness with a benefits issue, you should contact the Homeless Advocacy Project at 215-523-9595 to discuss possible advice or representation.

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