MILITARY PERSONNEL LAW BLOG
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.
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