The Discharge Appeal Review Board: Another Opportunity for a Discharge Upgrade

By Spring 2021 M-VETS Student Advisor Anne Cotter

On April 7, 2021, the Department of Defense (“DoD”) announced that it had formed the Discharge Appeal Review Board (“DARB”).[1] The DoD established the DARB pursuant to 10 U.S.C. § 1553a to conduct a final review of a veteran’s request for a discharge upgrade. The DARB gives veterans, who were separated on or after December 20, 2019 and have exhausted all available appeals, a final opportunity to upgrade their discharges.[2]

Prior to applying to the DARB, eligible veterans must go through the standard discharge upgrade process. First, a veteran must apply to the Discharge Review Boards (“DRBs”) of his or her respective branch of service within fifteen years of discharge.[3] The DRBs have jurisdiction to review and modify discharge characterizations and narrative reasons if there is evidence of impropriety or inequity.[4] After filing a motion or request for review, a veteran has two options on how to proceed.[5] A veteran may request a record review, or the veteran may request a hearing where he or she may personally appear with or without counsel, or counsel may appear in the veteran’s place.[6] If a veteran selects a record review and the DRB denies the discharge upgrade, the veteran may request a personal appearance; however, the veteran may not request a record review after personally appearing.[7]

If a veteran is unsuccessful before the DRB, the veteran may appeal the decision to the Boards for Corrections of Military or Naval Records (“BCM/NRs”).[8] BCM/NRs have the authority to upgrade discharge characterizations and change any reason for a discharge on the basis of error or injustice.[9] A veteran appealing from a DRB must apply to the BCM/NR within three years of the DRB’s decision.[10] Additionally, a veteran who is outside the fifteen-year window to apply to the DRB may apply directly to the BCM/NR.[11] A veteran must apply to the BCM/NR within three years of discovering an error or injustice that caused his or her discharge.[12] The three-year window begins when the veteran has actual knowledge of the error or injustice.[13] The BCM/NR may waive the three-year time limit in the interest of justice.[14] Unlike the DRBs, the BCM/NRs rarely grant personal appearances. If the BCM/NR denies a veteran’s discharge upgrade, the veteran may submit a request for reconsideration. The Army BCMR has a one year time limit for reconsideration,[15] but other branches do not specify if there is a time limit.[16] Generally, if the veteran submits new evidence that was not previously reviewed by the BCM/NR, the BCM/NR will reconsider the decision.[17] If the BCM/NR declines to reconsider or denies the second claim, the veteran may appeal the decision in federal court under the Administrative Procedure Act within six years of the BCM/NR’s decision.[18]

Now, the DARB allows a veteran another administrative opportunity for review before filing in federal court. Additionally, a deceased or incapacitated veteran’s next of kin may appeal on behalf of the veteran before the DARB.[19] The DARB only reviews documents and there are no provisions for personal appearances.[20] The DARB also only reviews records previously reviewed by the BCM/NR, so a veteran looking to present new evidence must first request that the BCM/NR reconsider the veteran’s application and receive a decision from the BCM/NR before going to the DARB.[21] Lastly, the DARB may consider any request for review filed more than 365 days after the BCM/NR decision untimely and deny it on that basis.[22]

The Air Force is tasked with executing and operating the DARB process for all military branches.[23] The DARB has not issued any public decisions yet, but it presents a promising final opportunity for veterans unfairly discharged. This is especially true for veterans suffering from Post-Traumatic Stress Order (“PTSD”) or other conditions that may warrant special consideration before the DRBs and BCM/NRs. Specifically, the Hagel and Kurta Memos instruct DRBs and BCM/NRs to give “liberal consideration” to “veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD [Post-Traumatic Stress Disorder]; TBI [Traumatic Brain Injury]; sexual assault; or sexual harassment.”[24] Additionally, the Wilkie Memo emphasizes fundamental fairness and instructs the DRBs and BCM/NRs to consider numerous factors, including PTSD and other mental health conditions.[25] Thus, the additional guidance to DRBs and BCM/NRs provided in these memos may warrant granting a veteran’s request for a discharge upgrade. Veterans seeking relief now have another opportunity with the DARB for review of mitigating factors related to their discharge. While the DARB will not review any new evidence, the complexity of issues involved in some veterans’ discharge upgrade requests warrants additional consideration if denied by the BCM/NRs. Time will tell how the DARB benefits veterans, but it provides additional hope for veterans unfairly discharged and seeking relief.

[1] United States Department of Defense, DOD Announces New Discharge Appeal Review Board Option, https://www.defense.gov/Newsroom/Releases/Release/Article/2564345/dod-announces-new-discharge-appeal-review-board-option/.

[2] Id.

[3] 10 U.S.C § 1553(a).

[4] Id.

[5] 32 C.F.R. § 865.109(b).

[6] 32 C.F.R. § 865.109(k).

[7] Id.

[8] 10 U.S.C. § 1552.

[9] Id.

[10] Id.

[11] Id. at §§ 1553(a) & 1552.

[12] Id. at § 1552(b).

[13] See Ridgely v. Marsh, 866 F.2d 1526, 1529 (D.C. Cir. 1989).

[14] 10 U.S.C. § 1552(b).

[15] Army Review Boards Agency, Applicant’s Guide to Applying to the Army Board for Correction of 

Military Records 13 (2008), available at http://arba.army.pentagon.mil/abcmr-overview.cfm.

[16] See 32 C.F.R. § 723.9; Lipsman v. Secretary of the Army, 335 F, Supp.2d 48 (D.D.C. 2004); Board for Correction of Naval Records, Key Information for Applicantshttps://www.secnav.navy.mil.

[17] Id.

[18] 28 U.S.C. § 2401.

[19] 10 U.S.C. § 1553a.

[20] Id.

[21] Id.

[22] Air Force Review Boards Agency, Department of Defense (DoD) Discharge Appeal Review Board (DARB), https://afrba-portal.cce.af.mil/#board-info/darb/navbar.

[23] United States Department of Defense, supra note 1.

[24] Memorandum from Chuck Hagel, Sec’t of Def. to Secretaries of the Military Dep’ts, (Sept. 3, 2014), https://www.secnav.navy.mil/mra/bcnr/Documents/HagelMemo.prf; A.M. Kurta, Acting under Sec’y of Def. for Personnel and Readiness, to Secretaries of the Military Dep’ts, (Aug. 25, 2017), https://dod.defense.gov/Portals/1/Documents/pubs/Clarifying-Guidance-to-Military-Discharge-Review-Boards.pdf.

[25] Robert Wilkie, Memorandum for Secretaries of the Military Departments, (July 25, 2018), https://www.statesidelegal.org/sites/default/files/2018-07/Yale%20Page/Wilkie%20Memo.pdf.