Written by Spring 2023 M-VETS Student Advisor Connor Brantley.
Background
On December 20, 2019, President Donald Trump signed the National Defense Authorization Act for Fiscal Year 2020 (NDAA) into law. As part of the Act, Congress created a new remedy for DOD Service members separated on or after December 20, 2019 seeking an appeal of their discharge characterization and who have exhausted all available appeals with the appropriate Service Discharge Review Board (DRB) and Board for Correction of Military/Naval Records (BCM/NR).[1] On April 7, 2021, the DOD announced the creation of the Discharge Appeal Review Board (DARB) which would fulfil the function as prescribed by the 2020 NDAA. [3] Decisions issued by the DARB are final, though non-binding. [4] If the DARB recommends that the petitioner’s service characterization be upgraded, the Secretary of the Military Department of the separated service member must approve it. [5] Conversely, if the DARB does not recommend an upgrade, there is no possibility for further administrative appeal or reconsideration of recommendations by the DARB. [6]
One of the key differences between the recently established DARB and other appeal options for petitioners is that the DARB operates independently of the military services and sits at the Office of the Secretary of Defense level, even though it is administered by the Air Force.[7] Furthermore, the DARB is a strict document review board and will only consider records from the BCM/NR case file of the petitioner. A petitioner may not submit new evidence to the DARB unless they submit a reconsideration request to their BCM/NR and receive a decision.[8]
DARB’s Purpose & Congressional Intent
While the DoD has marketed the DARB as “another opportunity” for veterans, it may not be clear to some why Congress has decided to establish another “cog” in the military bureaucracy. [9] It is impossible to pinpoint exact congressional intent, but DARB Chair Phyllis Joyner has provided insight. Joyner stated that the “possibility of different outcomes, as each service has its own regulations for discharge…and some may emphasize certain factors over others,” is a key factor in the DARB’s existence. [10] After all, a February 2023 report issued by the Government Accountability Office found that while separation boards of the military services generally align with DoD policy, disparities do exist—specifically reviewing the Air Force. [11] Joyner also pointed to the disparity in the decision process, saying “the combination of service culture, command discretion, and service characterization being determined by boards or courts composed of different service members leads to individualized outcomes, which may, at times, create unintended disparity.” [12]
DARB’s Current Effectiveness
Due to the DARB’s newness, there is not a great deal of data available on its effectiveness. At present, there is no publicly available data on DARB-issued recommendations and petitioner success rate. Although the DARB is intended to provide service members with a final chance to appeal their discharges, it is still unclear how effective it will be in achieving this goal.
For the DARB to be successful in its goal of serving as a neutral document review board, it must first be transparent and accessible. Anyone with experience attempting to locate DRB records knows the challenging research process associated with the publicly available reading rooms. Often, case law can be difficult to find and read. The DARB should make its recommendations publicly available in a searchable reading room and should allow potential petitioners and the public to sift through its data by date, keyword, and other fields to make it easier to locate.
Furthermore, the DARB should strive for expediency in its review process. Although a petitioner deserves the most thorough review possible, delays and the overall length of time between the time a petitioner submits a DRB petition and the time it takes to receive a response can be quite burdensome and may discourage potential petitioners with strong claims from seeking a review of their discharge. By serving as a strict document review panel, the DARB has the opportunity to more efficiently review cases and provide petitioners with the answers they have likely spent a significant amount of time belaboring over.
While the DARB provides veterans wishing to appeal their discharge a glimmer of hope, a significant more amount of data is needed to determine just how much of an impact its introduction will be and in order to be valuable to veterans, it must abide by principles of fairness, transparency, and expediency.
[1] S.1790 – National Defense Authorization Act for Fiscal Year 2020.
[2] Id.
[3] 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/.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] United States Department of Defense, Review Board Gives Vets Another Chance to Upgrade Discharge Characterization, https://www.defense.gov/News/News-Stories/Article/Article/3045028/review-board-gives-vets-another-chance-to-upgrade-discharge-characterization/.
[10] Id.
[11] United States Government Accountability Office, Administrative Separation Boards: Air Force Should Clarify Member Qualifications, https://www.gao.gov/assets/gao-23-105780.pdf.
[12] United States Department of Defense, Review Board Gives Vets Another Chance to Upgrade Discharge Characterization, https://www.defense.gov/News/News-Stories/Article/Article/3045028/review-board-gives-vets-another-chance-to-upgrade-discharge-characterization/.