From Hard Look To No Look Review

Written by Fall 2021 M-VETS Student Advisor Zach Kobokovich.

Introduction

Imagine you are suffering from severe anxiety while serving in the military.[1] You attempt to persevere and continue serving your country, but the mental struggle wears on you constantly and makes your day-to-day existence extremely challenging. As an ill-advised means of self-medicating, you turn to marijuana to calm your nerves and end up getting a minor citation for possession.[2] This one mistake causes a cascading chain of events leading to your immediate discharge from the military, increased difficulty in finding a job, and eventual homelessness.[3] But finally, the day has come for you to seek a discharge upgrade before a discharge review board (“DRB”). You can finally explain the extenuating circumstances which led to your misconduct, receive a characterization of service more commensurate with your otherwise strong record, and regain eligibility for certain benefits that might help you back on your feet. Yet, when the crucial day of decision arrives, you receive a two- or three-page ruling filled with boilerplate language denying your discharge upgrade with a dearth of genuine analysis.[4] And to make matters worse, due to the extreme deference that courts apply when reviewing the decisions of military administrative boards,[5] that rote analysis is all but final.

This scenario comes from a recent case before the Air Force DRB. Similar cases come before the various DRBs every day. Nearly every one receives the same minimalist treatment simply due to the volume of cases that the boards must handle. As a Student Advisor in M-VETS, I read countless decisions reciting the same barebones reasoning. For example, in the vast majority of cases dealing with drug misconduct in the Air Force, the decision will almost invariably recite that the Board “found no evidence to indicate the applicant was unaware of the Air Force policy of zero tolerance for illegal drug use” and that the “negative aspects of the applicant’s willful misconduct outweighed the positive aspects of his military service.”[6] With respect to any mental health issues bearing on the misconduct, the Board will usually state that there was “no conclusive indication that any mental health issues had a direct impact on the applicant’s misconduct or discharge”[7] without elaboration or any reference to the evidence consulted to reach that conclusion.

Perhaps this is all for the best. After all, the military review boards deal with a staggering number of cases each year.[8] If each case were to be dissected and analyzed in the level of detail presumably owed to those who have served our country, then the lengthy waiting times for a decision would be exacerbated even further.[9] On the whole, churning out perfunctory decisions in a reasonably timely manner may well be preferable in the long run. Another problem arises, however, when courts charged with reviewing the actions of military administrative boards treat these decisions as practically infallible. The United States Court of Appeals for the District of Columbia Circuit, for example, has announced a standard of review of military administrative action limited only to rectifying “perhaps only the most egregious decisions.”[10] That cannot be correct. Even if the analytically deficient decisions produced by the review boards must be accepted as a necessary evil to maintain a degree of efficiency, these decisions must be subject to a more searching level of judicial review due to their shortcomings. The balance that has been struck so far is well past due for reconsideration.

The Move to No Look Review of Military Administrative Actions

By design, judicial review of administrative action is naturally slanted in the government’s favor. As a general matter, courts may only set aside or remand for further consideration agency action which is arbitrary and capricious.[11] This is a narrow, deferential standard of review which seeks only to establish “a rational connection between the facts found and the choice made.”[12] That being said, the arbitrary and capricious standard is not toothless. In fact, as stressed by the Supreme Court in Motor Vehicle Mfrs. Ass’n v. State Farm, reviewing courts must examine whether the “agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.”[13]

Some courts have gone further. The D.C. Circuit, for example, pioneered the “hard look” doctrine of judicial review. Under this more stringent standard, the “function of the court is to assure that the agency has given reasoned consideration to all the material facts and issues.”[14] Even beyond that, the court must “intervene not merely in case of procedural inadequacies, or bypassing of the mandate in the legislative charter, but more broadly if the court becomes aware, especially from a combination of danger signals, that the agency has not really taken a ‘hard look’ at the salient problems, and has not genuinely engaged in reasoned decision-making.”[15] So long as the agency has taken a hard look at the material issues, however, its decision will be upheld even if it is of “less than ideal clarity.”[16]

In contrast, judicial review of military administrative decisions has become so deferential as to border on the non-existent. In Kreis v. Secretary of Air Force, the D.C. Circuit—the very same court that pioneered the hard look doctrine—found that reviewing courts may be limited to reaching only the most egregious abuses of discretion by the Boards for Correction of Military Records (“BCMRs”).[17] Kreis underpinned that conclusion by emphasizing the breadth of the statutory language, which authorizes the BCMRs to correct military records when they “consider[] it necessary to correct an error or remove an injustice.”[18] According to Kreis, this language suggests nearly unreviewable discretion because determining whether the BCMR improperly considered an action unnecessary to correct an error or injustice is very different from the BCMR being “required to act whenever a court determines that certain objective conditions are met, i.e., that there has been an error or injustice.”[19] Thus, Kreis imagined that there could well be situations where it would be unnecessary to act even in the face of “an undisputed error or to remove even a conceded injustice” such as where “an error upon which nothing turns by reason of mootness, lack of harm to the person in question, or inability by such correction to redress the harm claimed.”[20] With respect to these considerations, the BCMRs’ ad-hoc judgements would be essentially unassailable. And although this analysis is limited to the statutory mandate of the BCMRs, courts could certainly apply similar logic to the DRBs, which are instructed to “examine the propriety and equity of the applicant’s discharge and to effect changes, if necessary.”[21]

This state of affairs leaves veterans in an unenviable position when seeking a discharge upgrade. As previously mentioned, due to the massive volume of petitions they receive, the BCMRs and DRBs often issue rather cursory decisions that are filled with boilerplate language and devoid of in-depth analysis. Perhaps that is necessary for the sake of efficiency. Nonetheless, at least under the Kreis standard, the veteran is essentially bound to that decision unless he or she can demonstrate that it was egregiously arbitrary and capricious when seeking judicial review. That does not make a great deal of sense. To start, although Kreis imagines a few scenarios where action would not be necessary to correct an error or remove an injustice, it is difficult to conceive of such a situation in the discharge upgrade context. An unjust or incommensurate characterization of service cannot be moot or harmless because it perpetrates continuing harm on the veteran, who must deal with continuing stigma, increased difficulty in obtaining employment, and lack of access to certain benefits to which he or she may be entitled. That view also lines up with how the BCMRs and DRBs actually analyze these cases: by looking to whether an error or injustice (or impropriety or inequity in the case of the DRB) occurred, not whether the requested action is a necessary remedy.[22] Ultimately, the determination as to the existence of an error or injustice (or impropriety or inequity) is something that civilian courts can easily review without the need for extreme deference. A new way forward is likely needed.

Moving Forward: Save the Super Deference for When It is Needed

Although a poor fit with respect to discharge upgrades, Kreis super deference to the decisions of BCMRs may have a valid prudential basis when applied to basic personnel matters. After all, the BCMRs (though not the DRBs) handle a broad range of disputes including those relating to performance evaluations, pay and retirement benefits, discrimination, and promotions.[23] Kreis, in fact, centered on a negative Officer Effectiveness Report that had led to the claimant’s reprimand and reassignment.[24] That type of factual scenario raises a host of concerns, not because of the broad statutory grant of discretion discussed in Kreis, but because civilian courts would be entering dangerous waters by wading into the thicket of day-to-day oversight of military personnel management and discipline. As the Supreme Court discussed in Chappell v. Wallace, “[c]ivilian courts must, at the very least, hesitate long before entertaining a suit which asks the court to tamper with the established relationship between enlisted military personnel and their superior officers.”[25] If courts were to become a forum for internal grievances between active servicemembers and their superiors, the efficient functioning of the military could well be threatened. In this context, Kreis super deference is likely warranted and should limit review to only the most egregious decisions.

Discharge upgrades, however, are different and do not present the same risks of judicial micro-management. By definition, discharge upgrades, whether pursued before the BCMR or DRB, solely involve veterans who have already been separated from the military, usually years before they seek relief. In this way, they are no longer internal disputes. Nor do they involve the types of basic administrative, disciplinary, or pay-related disputes that are ill-suited to judicial review as in Kreis. Rather, discharge upgrades center around one crucial, final decision that has the potential to impact the veteran’s life for many years to come. In this context, extreme deference must give way and courts should engage in conventional arbitrary and capricious review. This standard, which is still quite deferential, best balances the need to respect military channels while also giving veterans a full opportunity to be heard considering the deficiencies of the BCMR and DRB review processes. At bottom, super deference is not needed with respect to discharge upgrades and should be applied only when truly necessary. It is time for veterans to have a fair shot when seeking judicial review of a poorly reasoned discharge upgrade decision.

Conclusion

Veterans are currently being shortchanged by the discharge upgrade system. Out of necessity, veterans face long wait times, inconsistent decisions, and cursory analysis before the DRBs and BCMRs. That is problematic enough and should not be compounded by a level of deference that is essentially impossible to overcome when seeking judicial review. Courts are perfectly capable of assessing the record, applying the relevant regulations, and holding the DRBs and BCMRs to the already-deferential arbitrary and capricious standard. For veterans to receive a fair shake, at least some bite must be restored to judicial review of discharge upgra

[1] Air Force Discharge Review Board, FD-2020-00749 (Mar. 17, 2021).

[2] Id.

[3] Id.

[4] Id.

[5] Kreis v. Sec’y of Air Force, 866 F.3d 1508, 1514-15 (D.C. Cir. 1989).

[6] Air Force Discharge Review Board, FD-2020-00749 (Mar. 17, 2021).

[7] Id.

[8] The Navy Board for Correction of Naval Records, for example, decided over 1000 cases in 2020. See CY2020, Navy Board for Correction of Naval Records, https://boards.law.af.mil/NAVY_BCNR_CY2020.htm (last visited Jan. 7, 2022).

[9] See Raymond J. Toney, Military Record Correction Boards and Their Judicial Review Program at 7, Texas State Bar Association, Jun. 11, 2010, https://www.texasbar.com/flashdrive/materials/military_law/militarylaw_toney_militaryrecord_finalarticle.pdf (estimating that the average wait time for a decision from the BCMR ranges from ten to eighteen months).

[10] Kreis, 866 F.3d at 1515.

[11] 5 U.S.C. § 706(2)(A).

[12] Motor Vehicles Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).

[13] Id.

[14] Greater Bos. Television Corp. v. F.C.C., 444 F.2d 841, 851 (D.C. Cir. 1970).

[15] Id.

[16] Id.

[17] Kreis, 866 F.3d at 1515.

[18] 10 U.S.C. § 1552(a).

[19] Kreis, 866 F.3d at 1514.

[20] Id.

[21] 32 C.F.R. § 865.120(a) (emphasis added).

[22] See, e.g., Air Force Discharge Review Board, FD-2020-00749 (Mar. 17, 2021).

[23] Toney, Military Record Correction Boards and Their Judicial Review Program at 3.

[24] Kreis, 866 F.3d at 1509.

[25] Chappell v. Wallace, 462 U.S. 296, 300 (1983).