BOARDS FOR THE CORRECTION OF MILITARY RECORDS (BCMR) BLOG
ABCMR Grants Application Challenging Decision by Army CID To Change a ROI From “Unfounded” to “Founded.”
A disgruntled subordinate falsely accused our client of a serious UCMJ offense. CID was notified and the client was promptly “titled” for the allegation after having been lied to by the CID agent. The client’s command investigated and found no evidence to support the allegation. The Army declined to prosecute because of insufficient evidence. The case was closed with no adverse or punitive actions taken.
Well, not exactly. Two years later the officer petitioned CID to remove his name from the subject block of the ROI. CID denied his petition and, without informing him, issued a Supplemental Final ROI changing the allegation from “unfounded” to “founded.” Which is to say, CID concluded there was sufficient evidence to show the client committed the offense. It’s a non-judicial finding of guilt. According to AR 195-2, the “founding” of an allegation is:
"A determination made by law enforcement, in conjunction with the appropriate prosecution or legal representative, that a criminal offense has been committed. The determination that a founded offense exists is a decision independent of any judicial/court finding opinion or disciplinary action taken or not taken."
CID apparently didn’t think it was important enough to tell client, who, four years later, learned about CID’s action only when his well-earned promotion to colonel was delayed and he was referred to a Promotion Review Board. In the process, he learned CID did not even retain or consider several exculpatory witness statements he submitted during the original CID investigation and did not bother to interview those and other reasonably available witnesses.
We raised four claims in the petition to the ABCMR: (1) there was insufficient evidence to support the decision to title; (2) CID engaged in misconduct by using deception to secure the client’s waiver of his rights to silence and legal counsel during interrogation; (3) AR 195-2 did not authorize CID to change the ROI from unfounded to founded; and (4) CID’s decision to do so without notice to the client and an opportunity to respond violated his Fifth Amendment right to due process of law.
The ABCMR denied the petition but failed to address three of the four arguments raised, a very common practice with the ABCMR. We followed up with a memo informing the ABCMR that its conduct was unlawful and ultimately secured partial relief, clearing the client for promotion to colonel.
The level of disrespect toward the client exhibited by CID in this case is appalling and apparently common. If in this case CID believed it had the liberty to respond to a titling amendment request by changing a final ROI to reflect guilt without notice to the affected member, it likely has done so in others.
The Air Force Board for the Correction of Military Records (AFBCMR) has now granted two applications from USAFR officers we represented based on the improper use of sanctuary waivers and MPA active duty tours. In both cases the USAF approved the AFBCMR recommendations that the client’s record be corrected to show that they were not released from active duty orders, but continued to service until retirement eligibility. The decisions require the USAF to credit the officers with very substantial periods of active duty service, with full pay and allowances. Both became eligible to receive Regular USAF retirements, rather than reserve retirements. We thank the AFBCMR for recognizing the legal errors and correcting them.
In both of our cases, the USAFR was trying to “beat the system” and avoid the constraints on the use of reserve officers established by 10 U.S.C. Section 12686. What happened was this: The USAF placed the officers on active duty orders in excess of 179 days and required sanctuary waivers. Well, 10 U.S.C. Section 12686 permitted sanctuary waivers only for orders of less than 180 days. The USAF also amended the active duty orders in both of our cases, authorizing additional active duty service, and requiring additional sanctuary waivers.
The earlier case, AFBCMR No. BC-2011-05004, determined that “The applicant served on active duty orders for two periods longer than 180 days each. Accepting four consecutive six-month waivers from him to cover these periods was inconsistent with the provisions of AFI 36-2131 in effect at the time. ... Further, the applicant’s consecutive waivers were not associated with specific orders to active duty or specific amendments to such orders. ... Thus, the Air Force obtained the benefit of the applicant’s active duty for a period in excess of 179 days after the applicant had entered sanctuary. The government should not profit from those circumstances.” The very recent decision, AFBCMR No. BC-2013-04052, concluded similarly.
Dupes v. McHugh: Army Settles Lawsuit Challenging ABCMR's Denial of Application of Two-Time Purple Heart Recipient
A short-lived lawsuit in the U.S. District Court for the District of Columbia, Dupes v. McHugh, Case No. 15-cv-01047, concerned a denial by the Army Board for the Correction of Military Records (ABCMR) of the plaintiff’s application for reconsideration because it was filed one day beyond the one-year limitation period for applications for reconsideration. The Army promptly settled the suit, agreeing to require the ABCMR to consider Mr. Dupes’ application and issue a decision on the merits.
According to the lawsuit, Mr. Dupes served in Vietnam from May 1969 to February 1971. He was twice wounded in combat by gunfire, mortar fire, and grenade. The Army awarded him the Silver Star, two Bronze Star medals, two Purple Heart medals, and the Combat Infantryman Badge. He suffers from serious medical conditions as a result, including PTSD and TBI.
Mr. Dupes first applied to the ABCMR in 2010, seeking disability retirement benefits. He alleged that he was improperly denied Army disability evaluation system processing and was entitled to disability retirement. The ABCMR denied his application on July 26, 2011. The ABCMR informed Mr. Dupes that he could request reconsideration within one year, if he presented new evidence.
Mr. Dupes' various combat-related medical conditions worsened during the year following the ABCMR’s denial of his application. The lawsuit asserted that he “struggled psychologically to being assembling new evidence to submit for BCMR reconsideration. … As the July 2012 deadline approached Dupes completed his application. However, prior to filing, he mentally and physically collapsed – suffering a severe episode of incapacitating PTSD symptoms and TBI disabling migraines. After Mr. Dupes recovered, he submitted his application, dated July 27, 2012,” to the ABCMR.
By letter dated August 10, 2012, the ABCMR informed Mr. Dupes that it received his “letter and compact disc” and that the ABCMR would “determine the merits” of his request. A second letter, dated August 23, 2012, acknowledged receipt of his submission, dated July 27, 2012, and assigned a case number. A third letter, dated October 17, 2012, informed Mr. Dupes that the “staff of the ABCMR reviewed your request for reconsideration and determined that [it] was not received within one year of the ABCMR’s original decision. As a result, your request for reconsideration does not meet the criteria outlined above, and we are returning your application without further action.”
Mr. Dupes cited the Supreme Court’s 2011 decision in Henderson v. Shinseki, 562 U.S. 428, in which the Court ruled that the 120-day limitation period for veterans to appeal a benefits decision to the U.S. Court of Appeals for Veterans Claims was not jurisdictional, and therefore was subject to equitable tolling. Mr. Dupes appears to have been prepared to assert that Congress intended the ABCMR to operate as an informal, non-adversarial, remedial tribunal, like the VA, and therefore its one-year limitation rule is subject to equitable tolling. The argument seems compelling, at least at first glance.
In support of his position, Mr. Dupes also reminded the Court and the Army of the 1972 decision of the U.S. Court of Appeals for the D.C. Circuit in Robinson v. Resor, 469 F.2d 947 (D.C. Cir. 1972): "We hold that the relation of the Government to its soldiers, both as to substantive decisions on their status and the procedures used to arrive at those decisions, must be 'if not paternal at least avuncular.' Substantial fairness, rather than nitpicking compliance with precise regulations, must guide the Army’s actions. The Army must not be allowed to reach, step by technical step, a result which, viewed in its entirety, constitutes an overwhelming leap into the arbitrary and inequitable."
More compelling circumstances than those of Mr. Dupes for waiving a non-statutory limitation period in the interests of justice are hard to imagine. The Army created and imposed the one-year limitation period on applicants, without compulsion from Congress, and the Army could (and should) have quietly waived it. The Board’s treatment of Mr. Dupes speaks volumes about the mindset of ABCMR staff and board members. Clearly they do not feel any duty to assist or show compassion toward applicants, not even those seriously wounded in combat. Mr. Dupes was poised to challenge all that. It may be unfortunate for others that he was unable to.
The Army Settles Lawsuit Challenging The ABCMR’s Retroactive Application Of Its 1-Year Reconsideration Rule
In Adamski v. McHugh, Case No. 14-cv-0094, the U.S. District Court for the District of Columbia confronted a challenge to the Army Board for the Correction of Military Record’s application of its one-year limitation rule for petitions for reconsideration of prior decisions. Since 2006, when the one-year rule was enacted, the ABCMR has applied the rule retrospectively, without regard to the date of the original application. While precise figures are unavailable, the ABCMR likely has done so in thousands of applications.
Mr. Adamski claimed that the ABCMR exceeded its legal authority by retroactively applying the rule to his 2011 application for reconsideration of the board’s 1989 denial of his original application. He also claimed that the ABCMR acted unlawfully by allowing staff members to deny Mr. Adamski’s 2011 application without referring the matter to a panel of actual ABCMR members. Both ABCMR practices appear commonplace.
The ABCMR had informed Mr. Adamski in 1989 that the board would reconsider his application if he presented “newly discovered relevant evidence not previously considered by the Board.” The ABCMR obviously did not inform him of a one-year limitation because it did not exist.
Mr. Adamski contended that the ABCMR “summarily refused Adamski’s request to reconsider its 1989 decision. The [ABCMR] applied its new 2006 one-year reconsideration rule, in his case, to retroactively revoke a right to reconsideration upon ‘new evidence’….” He informed the Court of the general prohibition on retroactive rules that extinguish existing legal claims, as occurred in his case, and argued that the ABCMR’s retroactive application of the one-year rule exceeded the Board’s legal authority (it was “ultra vires”).
The Army filed a motion to dismiss the lawsuit based in part on the six-year statute of limitations for judicial review of ABCMR decisions (28 U.S.C. Section 2401(a)). The Army argued that the six-year limitation period ran from the date of Adamski’s 1989 decision. The Army also offered a “fallback” position, that Adamski was actually challenging the decision of the Army in 2006 to impose the one-year reconsideration rule. In that case, his claim expired in 2012.
The Court readily disposed of the Army’s argument that Mr. Adamski’s claim was barred by the six-year statute of limitations, noting: "The bottom line is this: a lawsuit filed in 2014 that challenges agency conduct that occurred in 2011 falls well within the six-year statute of limitations period, and Defendant’s contention that 28 U.S.C. § 2401(a) bars Adamski’s claim is meritless."
Turning to Mr. Adamski’s “ultra vires” claim, the Court concluded that “prudential exhaustion requirements may apply here,” a defense not raised by the Army. The Court directed the parties to engage in discovery concerning the availability of an administrative process within the Army to contest its application of the one-year rule to Mr. Adamski’s case. “In this Court’s preliminary review, requiring Adamski to bring to the Board or the Secretary his argument that the ABCMT acted outside its authority … seems likely to serve the underlying purposes of administrative exhaustion….”
That, of course, meant Mr. Adamski would have to return to the ABCMR to have the ABCMR decide whether it had acted unlawfully in the first place, since the ABCMR is the Secretary of the Army for record correction purposes. To the Army’s credit, it entered into a Joint Stipulation of Settlement and Dismissal with Mr. Adamski, the Army agreeing that the ABCMR “will provide Plaintiff a decision on the merits of his request within one hundred eighty (180) days of receipt of Plaintiff’s request.” The Army further stipulated that “no member that participated in Plaintiff’s first consideration will take part in his reconsideration.”
As mentioned above, the ABCMR routinely applies the one-year limitation retroactively. In a number of cases that I am aware of, challenges to the Board’s retroactive application of the rule have resulted in the Board considering the merits of the applications. It is appalling, however, that the ABCMR continues to retroactively extinguish claims in a manner contrary to binding Supreme Court precedent. The day should come soon when applicants will gain the benefit of a federal court decision striking down the ABCMR’s underhanded practice.
The Air Force Fails To Shut-Down “Reverse Discrimination” Claims Arising From Unconstitutional Promotion Board Instructions
In Gilbert v. James, 2015 U.S. Dist. LEXIS 126174 (September 22, 2015), the U.S. District Court for the District of Columbia denied a motion by the defendant, the U.S. Air Force (USAF), to dismiss claims brought by 11 plaintiffs asserting that the Air Force Board for the Correction of Military Records (AFBCMR) unlawfully rejected the plaintiffs’ petitions as untimely under 10 U.S.C. Section 1552(b). While the outcome of the decision should be commended, the parties’ arguments and the decision in Gilbert are quite odd, as detailed below. Before addressing those oddities, a brief review of the facts is in order.
The plaintiffs had served as commissioned officers on active duty in the USAF. Each was considered for promotion between January 1990 and June 1998, during which period the USAF instructed promotion boards to consider the race and gender of promotion candidates, preferentially selecting female and minority candidates for promotion. The U.S. Court of Appeals for the Federal Circuit, in Berkley v. United States, 287 F.3d 1076, 1087 (Fed Cir. 2002), found similar USAF instructions to a “reduction in force” board to require strict scrutiny because they were gender and racial classifications.
Subsequent to Berkley, the AFBCMR acknowledged the unconstitutionality of the preferential promotion board instructions and in numerous cases granted appropriate relief to applicants, which typically involved promotion reconsideration by a special selection board pursuant to 10 U.S.C. Section 628. That is the relief each Gilbert plaintiff sought before the AFBCMR.
The AFBCMR denied the Gilbert plaintiffs’ applications as untimely because they purportedly were filed outside the three-year limitation period. The AFBCMR also denied the applications on the grounds that (1) there was no adequate remedy; (2) congressionally mandated case processing times permitted the board to deny claims as untimely; and (3) the plaintiff’s failed to exercise due diligence and discover the error years ago.
At first glance, Gilbert presented a straightforward APA claim of whether the plaintiffs filed their applications within three-years of discovering the error, as they claimed they did. Yet that is not how the court treated the matter, nor is it how the USAF framed and argued it. The USAF’s motion to dismiss argued that the plaintiffs sought “judicial review of the AFBCMR’s finding that the interests of justice do no dictate waiver of the three-year limitations period barring their claims.” The plaintiffs refuted that assertion, stating, “[t]his is not what Plaintiffs are seeking. They are seeking judicial review of the AFBCMR’s decision not to grant the SSB.”
The USAF’s mischaracterization of the plaintiffs’ argument, whether intentional or not, appears to have had its intended effect. The Court proceeded on the basis that the “plaintiffs do not dispute either that the three-year limitation period applies to their applications or that they failed to file their applications within the limitations period.” Yet that is not correct.
The plaintiffs made very clear in their complaint that “[i]n fact every Plaintiff here filed a DD Form 149 seeking relief within three years of actually discovering the wrong.” They also asserted in their “Claim for Relief” that the AFBCMR erred by “declaring that plaintiffs failed to engage in due diligence in discovering the constitutional injustice where no such proof exists and where multiple others similarly situated were not declared untimely due to a lack of due diligence.” And nowhere in their responsive brief did the plaintiffs admit that their applications were untimely.
The Court soundly and correctly rejected the USAF’s argument that judicial review of a waiver determination was unavailable under 10 U.S.C. Section 628, the special selection board statute. Section 628(g)(1)(A) states: “A court of the United States may review a determination by the Secretary of a military department under subsection (a)(1) or (b)(1) not to convene a special selection board in the case of any person.” The USAF’s argument was that section 628(g)(1)(A) did not authorize judicial review of AFBCMR refusals to waive its three-year limitations period. Rather, it authorized judicial review only of special selection board denials made on the merits.
Rejecting the USAF’s position, the Court concluded, “[t]hus, by authorizing judicial review of non-decisions by the Secretary, this section plainly contemplates judicial review beyond the limited scope urged by the defendant of only Secretarial decisions “on the merits” of whether the criteria for administrative error under § 628(a)(1) or for material unfairness under § 628(b)(1) are met.” The Court further noted that “the defendant has presented no authority from case law, legislative history or in express statutory text—and the Court can discern no such authority—to suggest that Congress intended a targeted exclusion from judicial review of waiver determinations when adopting § 628(g).”
The USAF thus had a clear tactical motive to mischaracterize the plaintiffs’ claim—drive the matter into the realm of section 628, which offered a slim chance of shutting the claims down altogether. Otherwise, the USAF would have faced a severely uphill battle to show that the AFBCMR decision was not arbitrary and capricious. As the plaintiffs astutely pointed out, the AFBCMR had granted relief “to a claimant (BS 2011-01859) whose [application] was filed after Plaintiff White (BC 2011-01943), whose request for relief was denied on the basis that his [application] was not timely filed.” The AFBCMR had simply determined that it had seen enough of the “reverse discrimination” applications, arbitrarily established a cut-off, and then advanced various specious arguments to justify its arbitrariness.
Perhaps the most poignant message of Gilbert to pro se plaintiffs and lawyers alike is: a defendant’s mischaracterization of the plaintiff’s claims must be singled-out and thoroughly dismantled. Otherwise, a plaintiff incurs the risk of a judicial decision based on a claim the plaintiff did not make.
Haselwander v. McHugh: The D.C. Circuit Restores Fairness to Its Review of the Boards for the Correction of Military Records
Since the 1989 decision of the U.S. Court of Appeals for the District of Columbia Circuit in Kreis v. Secretary of the Air Force, in which the court held that the already deferential standard of review of the Administrative Procedure Act (“APA”) wasn’t deferential enough for decisions of the Boards for the Correction of Military Records (BCMR), plaintiffs contemplating a judicial challenge to such decisions have had to seriously ponder whether “the game is worth the candle.” The D.C. Circuit employed the gambler metaphor in concluding that the broad congressional grant of discretion to the military secretaries in correcting military records, found at 10 U.S.C. § 1552, required the courts to apply an “unusually deferential” standard of APA review to BCMR decisions. The consequence of its decision, the court noted, was that “[p]erhaps only the most egregious decisions may be prevented under such a deferential standard of review.”
Twenty-five years on, Kreis has been widely applied, with arguably disastrous consequences for military personnel and veterans seeking judicial examination of BCMR decisions. The APA’s inaptly named “arbitrary and capricious” standard (which formulation dispenses with the determinations of whether the matter at bar is “unsupported by substantial evidence” and/or “otherwise not in accordance with law”) already afforded ample deference to military decisions. With Kreis added to it, the courts merely need to engage in a connect-the-dots exercise of finding a “rational connection between the facts found and the choice made,” not an onerous task. As one expert has noted, the unusual deference accorded it means “the military typically has little to fear from the federal courts.” A recent decision of the D.C. Circuit, Haselwander v. McHugh, may change that, if only slightly.
While the panel decision obviously does not overrule Kreis, it does spell out a three-step process of review that helps restore considerations of fairness and justice to what has arguably become a review process largely unconcerned with those matters. The first two steps explained by the court are familiar and uncontroversial: The court owes the district court no particular deference and reviews BCMR decisions de novo, and the court must set aside BCMR decisions not supported by “reasoned decisionmaking.”
It is the final step that offers plaintiffs and appellants a glimmer of hope. Reaching for assistance to the U.S. Claims Court, the predecessor to the U.S. Court of Federal Claims and the Federal Circuit, the D.C. Circuit in Haselwander approvingly quoted Yee v. United States, 512 F.2d 1383, 1387 (Ct. Cl. 1975)(“when a correction board fails to correct an injustice clearly presented in the record before it, it is acting in violation of its statutory mandate.”), and Caddington v. United States, 178 F. Supp. 604, 607 (Ct. Cl. 1959) (“We feel that the Secretary and his boards have an abiding moral sanction to determine, insofar as possible, the true nature of an alleged injustice and to take steps to grant thorough and fitting relief.”). “Applying these principles to the case at hand,” the D.C. Circuit concluded that the Army Board for the Correction of Military Records (“ABCMR”) “failed to fulfill its statutory mandate and that the denial of Haselwander’s application was arbitrary and capricious.”
The facts of the case are illuminating. Mr. Haselwander was serving in Vietnam when an enemy rocket exploded near his tent and injured him. He was taken to an aid station where he was bandaged and photographed. While he was being medically tended, he learned that some of his dogs (he served with the 49th Infantry Scout Dog Platoon) had also been injured in the attack and he immediately left to assist them. He flew with one of the wounded dogs to a veterinary hospital. The medical staff that treated Mr. Haselwander apparently did not complete his paperwork. The Army did not award him the Purple Heart for his wounds.
Mr. Haselwander first applied to the ABCMR in 2007. He requested that his records be corrected to show that he was awarded the Purple Heart. He supplied photographs of himself in bandages taken on the day of the attack and identified witnesses to the attack, one of whom did receive the Purple Heart. The ABCMR denied his application, stating, “there is no available evidence of record to show that the applicant was treated for a wound that was sustained as the result of enemy action.”
Mr. Haselwander applied a second time, providing additional evidence in the form of letters from fellow soldiers who were eyewitnesses to the rocket attack, to Mr. Haselwander’s wounds, and to his medical treatment. He also provided a “Daily Staff Journal” of June 6, 1966 that noted the rocket attack and the human and canine casualties of the attack. The journal entry did not identify the victims by name. The ABCMR again denied his application. According to the Board, “the available evidence is not sufficiently substantiating to show that the applicant was wounded as the result of hostile action, that he received medical treatment for any such wound, and that such medical treatment was made a matter of official record.”
In 2010, Mr. Haselwander sought review of the ABCMR decisions in the U.S. District Court for the District of Columbia. The error alleged by Haselwander was the failure of the Army to record his injuries and medical treatment. He contended the ABCMR’s decision not to correct his records and award him a Purple Heart was arbitrary, capricious, and unsupported by substantial evidence. Rejecting Mr. Haselwander’s claim, the District Court noted: "… it is patently clear from the record that the ABCMR’s decision to deny a recommendation of correction with regard to plaintiff’s military record was properly based on the lack of substantiating medical records, as required by the strict regulatory criteria for award of the Purple Heart."
Applying the “unusually deferential” standard of review initiated by Kreis, the District Court concluded, “Because the record clearly shows that the ABCMR examined the relevant data and articulated a satisfactory explanation for its action, including a rational connection between the facts found and the choice made,” the ABCMR decision was not unlawful. By the District Court’s reasoning, because the medical staff treating Mr. Haselwander failed to complete paperwork for his injuries (seemingly because Mr. Haselwander left medical treatment to assist the wounded dogs), no official medical records of his injuries existed, and because no medical records of his injuries existed, Mr. Haselwander was not entitled to the Purple Heart. The District Court was technically correct: If there is no medical record, and there was none, the criteria for awarding the Purple Heart are not met. The District Court evinced no concern that the Army might have erred by failing to complete a medical record that would have entitled Mr. Haselwander to the Purple Heart, or that the purpose of the ABCMR is to remedy such errors.
Reversing the District Court, the D.C. Circuit found that the ABCMR “misapprehends its powers and duties as a record correction body when it denies an application because the applicant’s records are incomplete. The void in Haselwander’s medical records is the very error that he seeks to have corrected….” The ABCMR decision, the court concluded, “defies reason and is devoid of any evidentiary support,“ and is “patently unfair,” “myopic,” and “unworthy of any deference.” A starker contrast with the view of the District Court is hard to imagine.
Haselwander illustrates well the blunt instrument that the “unusually deferential” standard of review so often is. Having no concern for the fairness of a decision rendered pursuant to a statute that arguably has fairness as its raison d'être, Kreis is ill conceived, notwithstanding the logic and precedent on which it is based. A judicial filter so course that only the “most egregious” military decisions are prevented, while “merely egregious” ones get a pass, is repugnant to the principle of co-equal government, not to mention justice. And courts should not have to choose between following the letter of Kreis and ignoring the remedial spirit of 10 U.S.C. § 1552. Haselwander points in the right direction.
*This article is also published at Jurist.org.
Senators Boxer, Wyden, and Markey, have introduced much-needed legislation, the “Legal Justice For Servicemembers Act,” to overhaul protections for military whistleblowers, including victims of sexual harassment and assault, who frequently suffer reprisals for exposing fraud, waste, and abuse within the armed forces. Common forms of reprisal include career-ending reprimands and performance evaluations. The bill also seeks to reform the key mechanism through which victims of reprisal may seek redress—the boards for the correction of military records (BCMRs), which I address here. I will address the proposed changes to whistleblower protections in a subsequent article.
The title of “records correction boards” fails to convey the scope and seriousness of the boards’ enterprise. Congress created the BCMR system in 1947 to rid itself of the burden of private members’ bills addressing military injustices and erroneous records. The boards are, as the Army has stated, the "Supreme Court" for military personnel law disputes. Each military department has a BCMR, as well as the Department of Homeland Security, which adjudicates claims from members of the Coast Guard.
The BCMRs are described as "unique adjudicative mechanisms unlike traditional civil, criminal, or administrative courts." They are poorly understood and infrequently discussed, yet their importance to service members and veterans is inestimable. The BCMRs have decided tens of thousands of applications from military personnel and veterans alleging errors and injustices in their military records. Applications range from simple matters such as incorrect service dates or rates of pay to highly complex ones entailing the failure to diagnose and treat physical and psychiatric conditions, allegations of discrimination in all its varieties, and the military’s failure to obey statutes and regulations, as well as claims of reprisal.
The BCMRs are also the primary source of potential redress for service members who have pursued other avenues of relief such as complaints to commanders, the inspectors general, military equal opportunity organizations, and a variety of subordinate military boards. At stake in many instances are careers, reputations, promotions, retirements, and large sums of money. For most applicants the BCMRs are the final resort, as few pursue judicial review of adverse decisions.
The exceptional importance of the BCMRs is not matched to the procedures they employ to adjudicate applications. In response to constituent complaints about the BCMRs, Congress directed the Department of Defense in 1996 to report on their procedures. The report raised several red flags concerning board procedures and made corresponding recommendations for change, which were largely ignored. Beginning in 2009, Freedom of Information Act requests to the BCMRs further exposed a system devoid of procedural fairness and one that is structurally rigged against applicants. While the BCMRs are statutory boards, Congress apparently has never held an oversight hearing concerning their operation.
Key findings from the 1996 DoD Report and FOIA requests (on file with the author) include: (1) BCMR members serve voluntarily on a part-time basis in addition to their full-time employment with the given military department; (2) BCMR members receive little meaningful training prior to or during their board service; (3) BCMR members are not required to, and typically do not, review actual application materials; (4) BCMR staff prepare recommended decisions which voting members almost invariably accept; (5) on average Army and Navy BCMR members spend less than five minutes on each application; and (6) personal appearance hearings are a rarity.
Most disturbing, however, are the measures taken by the staff of the Army, Navy, and Coast Guard BCMRs to keep applicants and their submissions away from actual voting members. Only the Air Force requires its members to review applications in advance of decisional meetings. As the Navy has noted:
Generally the Board members do not prepare in any way for the applications that they will be called upon to decide during their regularly scheduled meetings. Simply put they do not see or have any knowledge of the cases they will decide before they meet.
That approach, shared by the Army and Coast Guard BCMRs, results in the complete dependence by BCMR members on the staff who prepare and present applications. Without personally reviewing all applications, BCMR members cannot know if staff members have accurately and fairly presented the facts and law of a case. And they often do not. In the case of the Navy BCMR, staff also can serve as voting board members, and often do.
An information sheet obtained from the Army BCMR through FOIA purports to prepare new members for their first board meeting, explaining:
There are usually about 90 cases divided into three stacks by potential decision – Grant, Partial Grant, and Deny. Many Board members choose to review the grant cases first as [a] method for getting warmed up. ... Cases range in sizes from 5-10 pages up to a wrapped bundle with several folders of 30-40 pages each. In the beginning, take a few minutes to review the case. As you become familiar with cases you will know exactly where you need to begin reviewing.
The Board members then are instructed to initial their vote on each case. “It is the Chair’s responsibility to review each case for the two board member’s vote initials, initial the Chair’s final vote and sign each case to complete the process.” This strongly indicates that the three board members do not convene in a traditional sense, discuss each case, vote on the case just discussed, and then move to the next. Rather, each member goes through the stack of cases initialing his or her decisions. According to the Army: “If you come across a decision on a case that you may not agree with, you can do two things. The first is to bring up the case and summarize the point of disagreement orally to the other two Board members, or tell the Chair of the Board that you believe the case needs further review and discussion and either it hand it to the Chairman or put it aside where it won’t be mixed in with the other cases.” Board member discussion of a case thus is called for only where a member disagrees with a recommended decision of the staff.
Many applications to the BCMRs raise issues of credibility, which in other adjudicative contexts are resolved through witness testimony. While Congress authorizes the BCMRs to hold personal appearance hearings, and applicants frequently request them, the BCMRs rarely do, even where highly material facts are disputed. The Navy BCMR has not held a hearing in over 20 years. The Army held one hearing in a span of four years, while deciding over 36,000 applications during the same period.
Once decided, the BCMRs consign their decisions to a dysfunctional website (circa 1995 in design and construction) that only the most patient researchers will find beneficial. Such cavalier treatment of past decisions is consistent with the BCMRs’ belief that they are not bound by precedent, though federal courts state otherwise. The BCMRs all report that they do not consult past decisions or maintain a catalogue of past decisions for staff and member reference. As the reader can readily discern, the BCMRs are the “wild west” of legal practice.
If enacted, the Legal Justice For Servicemembers Act would do much to remedy the grave problems plaguing the BCMRs. The legislation would require full-time service of BCMR members, with each panel hearing being presided over by an administrative judge. BCMR membership would be limited to a period of five years. The BCMRs would be obligated to assist applicants in obtaining relevant military records and to transmit such records to applicants. The legislation also would require meaningful training for BCMR members.
The legislation also remedies the failure of the BCMRs to hold personal appearance hearings by directing the boards to “hold an evidentiary hearing on a claim that presents a genuine issue of material fact, if requested by an applicant.” Concerning the BCMRs’ treatment of its own decisions, the legislation would require the boards to characterize their decisions as precedential or non-precedential and would permit applicant’s to cite and rely on specific precedential decisions.
BCMR decisions are subject to judicial review, albeit under an “unusually deferential” standard of review. The legislation would remove the basis for that standard by limiting the discretion available to the military secretaries in deciding whether or not to implement a BCMR decision, and by mandating review under the standards of the Administrative Procedure Act.
To be sure, the BCMRs and their staffs are not to be wholly blamed for the disgraceful state of BCMR affairs. They do not control their budgets and levels of staffing. The number of applications received by the BCMRs, especially the Army and Navy, is daunting and has grown steadily. It is unsurprising that efficiencies are sought. While the Legal Justice For Servicemembers Act is no panacea for the multitude of ills plaguing the BCMR process, it is a bold step in the right direction. Congress should hold hearings on the BCMRs at its earliest convenience and give the bill its fullest consideration.
* This article is also published at:
The wars in Iraq and Afghanistan saw the participation of more than 2 million American servicemembers. Over 6,500 died and more than 50,000 were wounded. Those statistics do not include the tens of thousands more who suffer from Post-traumatic Stress Disorder (PTSD), a disorder characterized by behavior changes, sometimes extreme. Common manifestations of the condition include aggression, impulsivity, hyper-vigilance, and substance abuse. The VA estimates that up to 18% of Iraq and Afghanistan veterans suffer from PTSD. The American Journal of Public Health reported findings that 39% of returning veterans abuse alcohol. Many, undoubtedly, if not most, are self-medicating, a recipe for disaster. Alcohol abuse is strongly correlated with criminal conduct.
Studies indicate that more than 100,000 veterans have been discharged from the military since 2001 with highly prejudicial service characterizations of "Under Other Than Honorable Conditions" (OTH), typically for "commission of a serious offense" or a "pattern of misconduct" while in uniform. It is unknown how many of those veterans suffer from PTSD or whether the condition influenced the behavior that resulted in their discharge. Scientific studies and anecdotal evidence, however, demonstrate a strong correlation between untreated or undertreated PTSD and misconduct discharges.
The cost to veterans of an OTH discharge is exceptionally high. Those who received an OTH discharge are generally barred from receiving VA benefits such medical care and disability compensation, and lose access to generous benefits under the G.I. Bill and other federal law provisions. An OTH discharge also can be a serious barrier to meaningful employment.
The Army now acknowledges that misconduct may be the product of psychiatric injury. As noted in Army Field Manual 6-22.5, “Combat and Operational Stress Control Manual for Leaders and Soldiers: ”Although war affects all Soldiers, most make a successful transition home after combat duty. Some Soldiers, however, experience persistent symptoms such as sleep disturbance, hypervigilance, detachment, anger, or risky behaviors such as alcohol misuse or aggression. These problems can seriously affect their military duty and Family functioning if not addressed early.
A 2012 report of the Army, “Army 2020: Generating Health and Discipline in the Force Ahead of the Strategic Reset,” recognizes that: "One of the most important lessons the Army has learned is that many health and disciplinary issues, ranging from post traumatic stress (PTS) to illicit drug use to suicide, are interrelated. To view Soldier misconduct in isolation, for example, fails to capture the real likelihood that the misconduct was related to an untreated physical or behavioral health condition, such as increased aggression associated with PTSD or depression."
Special “veterans courts,” a growing response to crimes committed by veterans suffering from PTSD and its correlates, such as alcohol and drug abuse, also recognize the role the condition plays in criminal conduct and seek alternatives to simple incarceration for veterans. The programs seem to be working.
Such recognition, however, has not reached the military administrative boards authorized to change veterans’ discharge characterizations. There are two such boards—the Discharge Review Boards (DRBs) and the Boards for the Correction of Military Records (BCMRs)—within each branch of the military. Veterans who received OTH discharges typically apply first to the DRBs, and if no relief is received, as most often is the case, then to the BCNRs. The authority of both boards to grant relief is very broad. Although Congress granted the boards wide discretion to rewrite an applicant’s military history, in practice they exercise that discretion sparingly.
A recent article in the Yale Law Journal noted that the Army BCMR had approved only 2 of 145 discharge upgrade applications from Vietnam veterans with PTSD. The article further noted the disingenuous approach of the Army BCMR in denying those applications: the veterans presented no evidence that they were diagnosed with PTSD prior to their discharge. Yet the Army BCMR is fully aware that PTSD was not established as a psychiatric diagnosis until 1980, nearly eight years after the withdrawal of U.S. combat troops from Vietnam.
The present author’s own review, part of a comprehensive study presently underway, of Army DRB applications from Iraq and Afghanistan-era veterans claiming PTSD is producing similar findings. For this article, thirty-four applications from the years 2009-2013 were selected from more than 300. All of involved discharges for misconduct. Acknowledgement by the Army DRB of the actual diagnosis of PTSD, typically by the VA, was the sole criteria for selection. Applications were excluded in which veterans asserted a PTSD diagnosis, but apparently provided no supporting evidence.
Of the thirty-four applications reviewed, the Army DRB did not grant a single application based on PTSD. The language of the Board in case number AR20090008585 is representative of its approach to PTSD claims: “this medical condition did not overcome the reason for discharge and characterization of service granted and  the Applicant fully understood the difference between right and wrong when he committed the misconduct that caused the unit commander to initiate the separation action.” In AR20110021138, the Board concluded, “just because the applicant suffers from PTSD does not mean he didn’t know the difference between right and wrong or that he did not have control over his behavior.” Similarly, in AR20130009988, the Board concluded, “[i]t appears the applicant’s chain of command determined that although he was suffering from PTSD, he knew the difference between what was right and what was wrong as indicated by the mental status evaluation. Further, there are many Soldiers with the same condition that completed their service successfully.”
The Board granted five of the thirty-four decisions reviewed. Four were granted due to procedural errors in the discharge process, and one was based on the length of the applicant’s honorable service. In no case did the Board acknowledge that PTSD contributed to the misconduct that resulted in discharge.
In effect, the Army DRB is applying the evidentiary standard of the defense of insanity. The federal version of that standard, found at 18 U.S. Code Section 17(a), requires a defendant to prove by clear and convincing evidence that he, “as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts.” Yet 10 U.S. Code Section 1553 and Army Regulation 15-180, which govern the DRB, do not create such a high standard, which is utterly inconsistent with the remedial nature of the Army DRB.
The unwillingness of the Army DRB to accept a causal relationship between PTSD and misconduct underscores the need for a better remedy. While bills in various forms have been introduced in Congress addressing PTSD, none has brought relief to the veterans with PTSD who received OTH discharges. The most effective solution resides with the Commander-in-Chief who by executive order may instruct the military secretaries to receive and grant all applications from veterans with OTH discharges for misconduct who prove service-connected PTSD. In many instances, proof will come from the VA, and in others, from private psychiatrists and psychologists. Presidents have used Executive Orders to implement the amnesty granted by President Gerald Ford to Vietnam-era draft evaders (Exec. Order 11967) and to desegregate the Armed Forces (Exec. Order 8802).
Opponents of such a measure would argue that granting honorable discharges to veterans who engaged in misconduct would diminish the value of honorable discharges generally. Yet the argument evades the very point made by the Army: the real likelihood that the misconduct resulted from PTSD, whether or not it was diagnosed during military service. And it avoids the compelling argument that soldiers sent into battle should be given the benefit of the doubt afterward, if not shown a good measure of compassion. The Army DRB clearly is unwilling to do so, so the Commander-in-Chief should.
 Ch. 3, Para. 3-61. Available at: https://rdl.train.army.mil/catalog/view/100.ATSC/AF18AF6D-7DFB-4CA4-BE78-8D0A5FEDF993-1274316004566/6-22.5/toc.htm#toc
 At p. 4. Available at http://usarmy.vo.llnwd.net/e2/c/downloads/235822.pdf
 Army DRB decisions are available at: http://boards.law.af.mil/ARMY_DRB.htm
A recent decision of the USMC Performance Evaluation Review Board (PERB), which reviews petitions seeking the removal of FITREPS, agreed with our client that he was under no legal duty to self-report a 2007 civilian DUI conviction. The client revealed the DUI in 2013 during a "Moment of Truth" session held at the beginning of a prestigious school. He received an adverse FITREP for failure to self-report the DUI in 2007 and was removed from the school.
We argued to the PERB that the Fifth Amendment to the U.S. Constitution, which says, “No person ... shall be compelled in any criminal case to be a witness against himself,” protected the Marine against any provision compelling self-disclosure of involvement in a civilian criminal matter. We relied on the decisions of the Navy-Marine Corps Court of Criminal Appeals and U.S. Court of Appeals for the Armed Forces in Serianne. The Navy and PERB agreed, and the FITREP was voided and removed. The question of whether current Navy regulation requiring self-reporting of criminal offenses is constitutional is now before the U.S. Court of Appeals for the Armed Forces as United States v. Castillo. A discussion of the pending appeal, United States v. Castillo, is available here:
Practice Note: The Board For Correction Of Naval Records And 10 U.S.C. § 1556 (Ex Parte Communications Prohibited)
I recently received a response to a FOIA request to the Secretary of the Navy for all records pertaining to a client’s SSB. The client had petitioned the BCNR, which approved the client’s application to void a FITREP and other records and receive a SSB. The released documents contain various communications between staff of the BCNR and Navy Personnel Command. Among those communications were three requests for advisory opinions.
In at least one instance the BCNR submitted various questions seeking clarification of factual matters that already were part of the official record. The BCNR also specifically asked whether Naval Personnel Command “recommended correcting the record” and supported the client’s request to “be reinstated to active status in the Navy” retroactive to a specific date. Various other “non-administrative” matters were discussed.
At no point in time was the client provided with the advisory opinion requests or the Navy’s responses. Fortunately, the BCNR decided in the client’s favor and the SSB was convened. Perhaps the BCNR thought it didn’t need to provide us the documents since relief was granted. Nevertheless, it seems clear that the BCNR was in violation of the prohibition on ex parte communications at 10 U.S.C. § 1556, which provides:
(a) In General.— The Secretary of each military department shall ensure that an applicant seeking corrective action by the Army Review Boards Agency, the Air Force Review Boards Agency, or the Board for Correction of Naval Records, as the case may be, is provided a copy of all correspondence and communications (including summaries of verbal communications) to or from the agency or board, or a member of the staff of the agency or board, with an entity or person outside the agency or board that pertain directly to the applicant’s case or have a material effect on the applicant’s case.
(b) Exceptions.— Subsection (a) does not apply to the following:
(1) Classified information.
(2) Information the release of which is otherwise prohibited by law or regulation.
(3) Any record previously provided to the applicant or known to be possessed by the applicant.
(4) Any correspondence that is purely administrative in nature.
(5) Any military record that is (or may be) provided to the applicant by the Secretary of the military department or other source.
It is understandable that BCNR staff need to communicate with Navy organizations in processing applications. Yet unless the communications meet the criteria of 10 U.S.C. § 1556, they are to be disclosed to the applicant. In addition to the apparent violations of 10 U.S.C. § 1556, the documents also indicate fairly close collaboration between the BCNR and Navy Personnel Command. Again, in one communication, the BCNR is asking whether it should grant specific relief. This is further evidence, if any more were needed, of the board’s integration into the Navy and its lack of independence.
It would behoove practitioners and applicants to submit FOIA requests to the BCNR and the other relevant Navy organizations for all records generated and considered, and certainly in cases in which applications are denied.