Can You Sue the Military for Wrongful Discharge?

You cannot sue the military for wrongful discharge the way you would sue a private employer, but you can challenge the discharge through the service’s own review boards and, if those fail, file a lawsuit in federal court under the Tucker Act. Successful challenges commonly result in an upgraded discharge characterization, corrected records, and sometimes years of back pay. The path is administrative first, judicial second, and the characterization printed on your DD-214 is usually what the fight is really about, because it controls access to VA healthcare, the GI Bill, home loans, and disability compensation.

What Counts as a Wrongful Discharge

A discharge isn’t wrongful just because it felt unfair. The legal question is narrower: did the military break its own rules, rely on evidence that doesn’t actually support the reason given, or act for a reason the law forbids? You need to point to a specific regulation, policy, or legal standard that was violated.

The grounds that come up most often:

Procedural failures, such as denying you a board hearing you were entitled to or failing to notify you of your right to counsel.
Findings unsupported by the record — the evidence in your file does not actually support the stated reason for separation.
Discrimination based on race, religion, sex, sexual orientation, or another protected status rather than legitimate conduct or performance concerns.
Retaliation for a protected communication. Federal law prohibits unfavorable personnel actions against service members who report violations of law, gross mismanagement, waste, abuse of authority, or dangers to public safety to Congress, an Inspector General, or someone in the chain of command.¹
Failure to consider mental health — discharge for misconduct that was actually driven by PTSD, traumatic brain injury, or the effects of sexual assault or harassment, without evaluating whether those conditions contributed to the behavior.

Why You Can’t Just File a Regular Lawsuit

The federal government generally can’t be sued without its consent. Congress waived that immunity in part through the Federal Tort Claims Act, which allows suits over injuries caused by the negligent or wrongful acts of federal employees.² For service members, though, the Feres Doctrine from the 1950 Supreme Court decision in Feres v. United States bars suits against the government for injuries “incident to service.”³ The Court reasoned that Congress had created a separate military compensation system and hadn’t meant local tort law to govern the government’s relationship with its troops.⁴

Wrongful discharge takes a different route around that wall. A discharge challenge isn’t a personal injury claim; it’s a challenge to an administrative decision. The Tucker Act gives the U.S. Court of Federal Claims jurisdiction over monetary claims against the United States founded on the Constitution, federal statutes, or executive regulations — everything not sounding in tort.⁵ That statute is what makes wrongful discharge lawsuits possible despite Feres.

Start With the Military Review Boards

Nearly every successful discharge challenge starts inside the Department of Defense. The review boards handle the overwhelming majority of these cases, and many upgrades happen without a lawsuit ever being filed. The boards are technically a permissive remedy rather than a mandatory prerequisite for a Tucker Act suit, but most attorneys recommend going through them first. The boards can resolve the case on their own, and if they don’t, the record you build there is the record a federal court will later review. Arguments you didn’t raise before the board may be treated as waived in court.

Discharge Review Board

Each service branch runs a Discharge Review Board. You can apply if your discharge or dismissal happened within the past 15 years. The DRB can change your discharge characterization — for example, upgrading an Other Than Honorable to General — or issue a new discharge, but its authority is limited to characterization and narrative reason.⁶ You file using DD Form 293.⁷

If your discharge is older than 15 years, or if you received a Dishonorable discharge or a dismissal from a court-martial, the DRB can’t hear it. You go straight to the correction board.⁷

Board for Correction of Military Records

Each branch also has a Board for Correction of Military Records (the Navy and Marine Corps use the Board for Correction of Naval Records). These boards have broader authority than the DRB. They can correct any error or injustice in a military record, not just the discharge characterization.⁸ You file using DD Form 149.⁹

The filing deadline is three years from when you discover the error or injustice, though the board can excuse a late filing if it finds doing so is in the interest of justice.⁸ The correction boards are the highest level of administrative review, and the BCNR requires applicants to exhaust other available remedies first, including a DRB appeal when the DRB has jurisdiction.¹⁰

Plan for a long wait. BCMR cases commonly take 12 to 24 months, and complex cases involving advisory opinions or older records can run longer.

What a Strong Application Looks Like

A vague complaint about unfairness will go nowhere. The application needs to identify the specific regulation, policy, or legal standard the military violated, and tie your evidence to that argument. Complete service and medical records, performance evaluations from before the events leading to discharge, witness statements from service members with firsthand knowledge, and any mental health or VA treatment records relevant to your case all belong in the package, along with a detailed personal statement.

Liberal Consideration for PTSD, Sexual Trauma, and Mental Health

If your misconduct was connected to a mental health condition or to sexual assault or harassment, you have a tool that didn’t exist before 2014. The Department of Defense has issued guidance memos directing review boards to apply a “liberal consideration” standard to these cases, giving greater leniency and reducing the normal evidentiary burden.¹¹

The two key documents are the 2014 Hagel Memo, which first required a trauma-informed approach in PTSD-related cases, and the 2017 Kurta Memo, which expanded the standard to cover traumatic brain injury, military sexual trauma, and other mental health conditions whether diagnosed, undiagnosed, or misdiagnosed. Under the Kurta Memo, boards must recognize that it’s unreasonable to demand the same level of proof for conduct that happened years ago when these conditions were far less understood, and that mental health conditions inherently affect behavior in ways that may explain the misconduct behind a discharge.¹¹

If any of this applies to your case, flag it explicitly and cite the Kurta Memo by name in your application. Even unreported sexual assault or an undiagnosed condition can qualify for liberal consideration, and the board cannot demand evidence that would be unreasonable given the circumstances.¹¹

Taking It to Federal Court

If the correction board denies your case, or if you decide to bypass the boards, the lawsuit goes to federal court. The choice of court depends mostly on how much money is at stake.

The U.S. Court of Federal Claims handles monetary claims of any amount against the government under the Tucker Act, and it can award back pay, order restoration to a former position, place a service member in retirement status, and correct records.⁵ This is the practical choice for most wrongful discharge cases. U.S. District Courts can hear claims against the government too, but only up to $10,000,² which is usually too low once you factor in lost pay and allowances.

The judge won’t retry your case. The court reviews the administrative record and asks whether the board’s decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.¹² The judge won’t substitute their own judgment for the board’s; they look at whether the board ignored important evidence, misread a regulation, or reached a conclusion no reasonable decision-maker could have reached on the facts.

Watch the deadline. Any civil action against the United States must be filed within six years after the right of action first accrues.¹³ For a direct suit, the clock generally starts on the date of separation. If you went through the boards first, the interaction with that timeline depends on the specifics. Miss the deadline and your claim is barred no matter how strong it is.

What You Can Actually Get

The available remedies depend on where the challenge succeeds. At the board level, the common outcomes are an upgraded discharge characterization and a changed narrative reason on the DD-214, both of which can unlock VA benefits that were previously off limits. The correction boards can also remove adverse information from a record or add favorable entries that were improperly omitted.

In the Court of Federal Claims, the remedies expand to money. If the court finds you were wrongfully separated, it can award back pay and allowances for the period you should have remained in service, order restoration to your former position, place you in retirement status, and correct your records.⁵ Actual reinstatement to active duty is technically possible but rarely granted, because time has usually passed and the military has broad discretion over its personnel. For most veterans, the realistic best outcome is an upgraded discharge, corrected records, and back pay.

Paying for a Lawyer

Federal litigation against the government is expensive, but if you win you may not have to eat the whole cost. The Equal Access to Justice Act requires the government to pay a prevailing party’s reasonable attorney fees and expenses when the court finds the government’s position was not “substantially justified,” so long as your net worth was under $2 million when the case was filed.¹⁴

The base rate under the Act is $125 per hour, though courts can award higher rates for cost-of-living increases or specialized expertise, and the Act also covers expert witness fees and other litigation costs.¹⁴ The catch is that recovery depends on winning. Lose, or win against a government position the court finds was substantially justified, and you absorb your own costs.

1
Office of the Law Revision Counsel. 10 USC 1034 – Protected Communications; Prohibition of Retaliatory Personnel Actions
2
Office of the Law Revision Counsel. 28 USC 1346 – United States as Defendant
3
Justia U.S. Supreme Court Center. Feres v. United States
4
Legal Information Institute. Feres Doctrine
5
Office of the Law Revision Counsel. 28 USC 1491 – Claims Against United States Generally
6
Office of the Law Revision Counsel. 10 USC 1553 – Review of Discharge or Dismissal
7
Department of Defense. DD Form 293 – Application for the Review of Discharge from the Armed Forces of the United States
8
Office of the Law Revision Counsel. 10 USC 1552 – Correction of Military Records
9
Department of Defense. DD Form 149 – Application for Correction of Military Record Under the Provisions of Title 10 U.S. Code Section 1552
10
Board for Correction of Naval Records. Board for Correction of Naval Records FAQ
11
Military Review Boards. Kurta Memo Clarifying Guidance 08.25.2017
12
Office of the Law Revision Counsel. 5 USC 706 – Scope of Review
13
Office of the Law Revision Counsel. 28 USC 2401 – Time for Commencing Action Against United States
14
Office of the Law Revision Counsel. 28 USC 2412 – Costs and Fees