Legal Question in Military Law in Hawaii

Re: Filing Lawsuit to Upgrade Discharge Status or for Reinstatement

I do NOT know what other lawyers have advised you. While there are some very LIMITED exceptions that allow you to proceed directly into federal court, your factual scenario does not seem to be one of those cases because there is not an imminent emergency, etc.

There is however, a long-standing rule that requires - in your case - a former military member, seeking to contest BOTH his/her discharge and the type of discharge received, to 'EXHAUST ADMINISTRATIVE REMEDIES' before seeking relief in federal court. That rule clearly applies to Administrative Discharge cases. The reason for that rule is that by going through the process that Congress created, e.g., the DRB and BCMR, you have an opportunity to obtain the relief you are seeking without getting the federal courts involved.

If you do not do that and go straight to federal court, the first thing that will happen is that the government will move to dismiss your lawsuit because you didn't "exhaust your administrative remedies." So, don't waste the time [and frankly, the expense] of going that route first.

That having been said, getting administrative relief in your situation is something that while technically one can do for themselves, the reality is that the issues are so complex, that to have a decent chance of prevailing, you need the assistance of an EXPERIENCED military law attorney. Just because someone "used to be a JAG" does not necessarily qualify them, unless they have an active "military law" practice. In today's legal world, just like in medicine, most everyone concentrates in just a couple of areas of law and few do military law except on an occassional basis.

Good luck to you.

Don Rehkopf

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