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.