Rule2024-27268
DoD Discharge Appeal Review Board
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 29, 2024
Effective
November 29, 2024
Issuing agencies
Defense Department
Abstract
This interim final rule implements Section 523 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2020, which requires the DoD to provide Service members and their authorized representatives with one final review of requests for an upgrade in the characterization of a discharge or dismissal. This rule establishes the Discharge Appeal Review Board (DARB) as the DoD authority responsible for considering such requests after all other administrative remedies have been exhausted. This rule also details the procedures for a petitioner and their authorized representatives to request this final review, the standards the DARB will apply when considering a petitioner's request, and the procedures the Military Departments will follow after the DARB adjudicates the request. The purpose of DARB review is to ensure uniform standards of review are met for requests for upgrades of a discharge or dismissal regardless of the petitioner's service affiliation.
Full Text
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<title>Federal Register, Volume 89 Issue 230 (Friday, November 29, 2024)</title>
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[Federal Register Volume 89, Number 230 (Friday, November 29, 2024)]
[Rules and Regulations]
[Pages 94603-94613]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-27268]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 73
[Docket ID: DoD-2022-OS-0105]
RIN 0790-AL57
DoD Discharge Appeal Review Board
AGENCY: Office of the Under Secretary of Defense for Personnel and
Readiness (OUSD(P&R)), Department of Defense (DoD).
ACTION: Interim final rule; request for comments.
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SUMMARY: This interim final rule implements Section 523 of the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2020,
which requires the DoD to provide Service members and their authorized
representatives with one final review of requests for an upgrade in the
characterization of a discharge or dismissal. This rule establishes the
Discharge Appeal Review Board (DARB) as the DoD authority responsible
for considering such requests after all other administrative remedies
have been exhausted. This rule also details the procedures for a
petitioner and their authorized representatives to request this final
review, the standards the DARB will apply when considering a
petitioner's request, and the procedures the Military Departments will
follow after the DARB adjudicates the request. The purpose of DARB
review is to ensure uniform standards of review are met for requests
for upgrades of a discharge or dismissal regardless of the petitioner's
service affiliation.
DATES: This interim final rule is effective November 29, 2024. Comments
must be received by January 28, 2025.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulation Identifier Number (RIN) number and title, by any of the
following methods:
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Mail: Department of Defense, Office of the Assistant to
the Secretary of Defense for Privacy, Civil Liberties, and
Transparency, Regulatory Directorate, 4800 Mark Center Drive, Attn:
Mailbox 24, Suite 05F16, Alexandria, VA 22350-1700.
Instructions: All submissions received must include the agency name
and docket number or RIN for this Federal Register document. The
general policy for comments and other submissions from members of the
public is to make these submissions publicly available at <a href="http://www.regulations.gov">http://www.regulations.gov</a> as they are received without change, including any
personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Ms. Margarete Ashmore, Office of Legal
Policy, 703-697-3387.
SUPPLEMENTARY INFORMATION:
A. Background
At the time of discharge or dismissal from the Armed Forces (Air
Force, Army, Coast Guard, Navy, Marine
[[Page 94604]]
Corps, and Space Force), each Service member is issued a DD 214 titled
``Certificate of Release or Discharge from Active Duty.'' \1\ It can
include the following information about the Service member and his or
her period of active military service:
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\1\ Information on how to request a Service member's military
service records (including a DD 214) is available at <a href="https://www.va.gov/records/get-military-service-records/">https://www.va.gov/records/get-military-service-records/</a>.
<bullet> Date and place of entry into active duty
<bullet> Home address at the time of entry
<bullet> Mailing address after separation
<bullet> Military service length
<bullet> Duty stations and assignments
<bullet> Rank and MOS (military occupational specialty)
<bullet> Decorations, medals, badges, citations, and campaign ribbons
<bullet> Military education
<bullet> Separation information (type, character of service, authority,
separation and reentry codes, and reason for separation)
This separation document is used to verify the Service member's
period of active service. The reasons surrounding a Service member's
discharge or dismissal, noted by a separate code, as well as a
narrative, and the resulting characterization of service (e.g.
honorable, general (under honorable conditions), other than honorable,
bad-conduct, dishonorable) may impact the Service member's eligibility
for certain Federal and State provided veteran benefits and could
affect his or her employment opportunities following separation. For
example, a DD 214 generally is needed to qualify for the following:
<bullet> Department of Veterans Affairs (VA) guaranteed home loans
<bullet> VA education benefits
<bullet> Veterans' Preference for civilian employment
<bullet> VA Health Care Enrollment
<bullet> VA Disability claims
<bullet> Social Security benefits
<bullet> VA and Department of Labor (DOL) homeless veteran programs
<bullet> Federally provided flags and veteran burial benefits
<bullet> Certain veteran and military service organizations memberships
The Department of Veterans Affairs uses the DD 214 to determine if
the Service member is eligible for the GI Bill, a VA home loan, health
care eligibility, and disability benefits. The DOL uses it to determine
eligibility for certain unemployment compensation and reemployment
rights. The surviving spouse or dependents of a military veteran also
need this form to apply for Federal and State provided burial and
memorial benefits (i.e., funeral services, headstones, presidential
memorial certificates, and burial flags).
Currently, each Military Department, operating through the Military
Departments' Discharge Review Boards (DRBs) and Boards for Correction
of Military/Naval Records (BCM/NRs) have the authority to upgrade a
Service member's characterization of service and to correct the Service
member's military record.\2\ Service members seeking a change in their
discharge may, within 15 years of the date of their discharge (except
for a discharge or dismissal by general courts-martial), apply to their
respective Military Department's DRB: \3\
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\2\ See 10 U.S.C. 1553; see 10 U.S.C. 1552.
\3\ See 10 U.S.C. 1553.
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<bullet> Air Force Discharge Review Board
<bullet> Army Discharge Review Board
<bullet> Coast Guard Discharge Review Board
<bullet> Naval Discharge Review Board
The DRBs may upgrade a Service member's discharge when appropriate
based on improprieties or inequities in the discharge.\4\ Service
members seeking a correction to their military records that were
discharged more than 15 years ago, including Service members who were
discharged or dismissed by general courts-martial, may make their
request directly to their respective Military Department's BCMR/NR \5\:
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\4\ 32 CFR 70, Part 70--Discharge Review Board (DRB) Procedures
and Standards is available at <a href="https://www.ecfr.gov/current/title-32/subtitle-A/chapter-I/subchapter-D/part-70">https://www.ecfr.gov/current/title-32/subtitle-A/chapter-I/subchapter-D/part-70</a>.
\5\ 10 U.S.C. 1552; 32 CFR 865 Subpart A (Air Force BCMR), 32
CFR 581.3 (Army BCMR), 33 CFR 52 (Coast Guard BCMR), and 32 CFR 723
(Navy BCMR).
<bullet> Air Force Board for Correction of Military Records
<bullet> Army Board for Correction of Military Records
<bullet> Coast Guard Board for Correction of Military Records
<bullet> Board for Correction of Naval Records
The BCM/NRs are empowered, subject to certain constitutional,
statutory, and regulatory limitations, to change a Service member's
military record ``to correct an error or remove an injustice.'' \6\
Changes to a Service member's discharge or dismissal as a result of a
request to the Military Departments' DRBs and BCM/NRs may include an
upgrade to the character of service, a change to separation and reentry
codes, and changes to the narrative reason for separation as reflected
on the Service member's DD 214.
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\6\ 10 U.S.C. 1552(a)(1).
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B. Previous Regulatory History and Requirements of the 2020 NDAA
By statute, the DRBs and BCM/NRs are required to review a Service
member's discharge or dismissal upgrade or correction to their military
records request based upon combat-related or military sexual trauma
(MST)-related post-traumatic stress disorder (PTSD) or traumatic brain
injury (TBI) ``with liberal consideration'' to the Service member that
the combat-related or MST-related PTSD or TBI potentially contributed
to the circumstances resulting in the discharge or dismissal or to its
characterization.\7\ The term ``liberal consideration'' is not
statutorily defined, but the DoD has provided the Military Departments
an analytical framework for reviewing such cases.\8\ Although the DRBs
and BCM/NRs have some discretion on how to apply this analytical
framework, the policies, procedures, and standards for the review of a
discharge or dismissal must be uniform and consistent across the
military services.\9\
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\7\ See 10 U.S.C. 1552(h)(2)(B), see 10 U.S.C.
1553(d)(3)(A)(ii)).
\8\ The DoD has issued policy guidance related to the
application of liberal consideration in DoD memoranda: Secretary of
Defense Memorandum, 3 September 2014, titled ``Supplemental Guidance
to Military Boards for Correction of Military/Naval Records
Considering Discharge Upgrade Requests by Veterans Claiming Post
Traumatic Stress Disorder (PTSD)'' (``Hagel Memo''); Under Secretary
of Defense Memorandum, 25 August 2017, titled ``Clarifying Guidance
to Military Discharge Review Boards and Boards for Correction of
Military/Naval Records Considering Requests by Veterans for
Modification of their Discharge Due to Mental Health Conditions,
Sexual Assault, or Sexual Harassment'' (``Kurta Memo'').
\9\ See 32 CFR 70.1.
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In a September 2018 House Armed Services Committee hearing, House
committee members expressed concerns that the DRBs and BCM/NRs were not
providing appropriate upgrades to Service member's discharges or
dismissals or military record corrections for applicants who presented
evidence of a service-connected PTSD, a TBI, or being sexually
assaulted while in the military.\10\ House committee members were also
concerned that the DRBs and BCM/NRs were inconsistently applying
``liberal consideration'' and that the discharge or dismissal upgrade
rate for these cases was different across all the military
services.\11\
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\10\ Update on Military Review Board Agencies, Hearing Before
the Subcomm. on Military Personnel of the H. Comm. on Armed
Services, 115th Cong. (2018), <a href="https://www.congress.gov/event/115th-congress/house-event/LC64219/text?s=1&r=326">https://www.congress.gov/event/115th-congress/house-event/LC64219/text?s=1&r=326</a>.
\11\ Update on Military Review Board Agencies, Hearing Before
the Subcomm. on Military Personnel of the H. Comm. on Armed
Services, 115th Cong. (2018), <a href="https://www.congress.gov/event/115th-congress/house-event/LC64219/text?s=1&r=326">https://www.congress.gov/event/115th-congress/house-event/LC64219/text?s=1&r=326</a>.
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[[Page 94605]]
To provide increased oversight and to ensure that the DRBs and BCM/
NRs uniformly and consistently apply DoD policies related to the review
of a Service member's discharge or dismissal, Congress passed section
523 of the FY 2020 NDAA, as codified at 10 U.S.C. 1553a on December 20,
2019. This allows for a new level of review for petitioners (or their
authorized representatives), with certain limitations, to seek ``an
upgrade in the characterization of a discharge or dismissal.'' \12\
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\12\ 10 U.S.C. 1553a(c)(1).
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This ``final review'' is independent from the reviews conducted by
the Military Departments' DRBs and BCM/NRs.\13\ Section 523 amended 10
U.S.C. 1553 to include ``a request for an upgrade to the
characterization of a discharge or dismissal'' that was declined ``may
be considered under section 1552 or section 1553a of this title, as
applicable.'' \14\ Similarly, 10 U.S.C. 1552 was also amended to
include ``a request for an upgrade to the characterization of a
discharge or dismissal'' that was declined ``may be considered under
section 1553a of this title.'' \15\
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\13\ 10 U.S.C. 1553a(a).
\14\ 10 U.S.C. 1553(b)(2).
\15\ 10 U.S.C. 1552(a)(4)(B).
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The DoD has the authority to design and implement the process to
conduct a ``final review of a request for an upgrade in the
characterization of a discharge or dismissal.'' \16\ Congress directed
the Secretary of Defense to ``use existing organizations, boards,
processes, and personnel of the Department of Defense'' to the
``maximum extent practicable'' when establishing this process and it
set January 1, 2021, as the deadline for the implementation.\17\ The
Secretary of Defense is also required to publish annual reports
regarding the DoD's new final review process, to include the number of
requests considered, the upgrades granted or declined to the
characterization of a discharge or dismissal, and the associated
reports must be accessible to the public.\18\
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\16\ 10 U.S.C. 1553a(a).
\17\ Public Law 116-92, section 523(c).
\18\ Id. The annual reports can be accessed at <a href="https://boards.law.af.mil/OSD_DARB.htm">https://boards.law.af.mil/OSD_DARB.htm</a>.
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Upon the request of a petitioner who has exhausted all available
administrative remedies under 10 U.S.C. 1552 and 1553, the Secretary of
Defense must review the findings and decisions of the Military
Department's DRB and BCM/NR and make a recommendation to the Secretary
of the Military Department concerned for final action.\19\ The term
``final review of a request for an upgrade in the characterization of a
discharge or dismissal'' was also defined as ``a request by a
petitioner for an upgrade to the characterization of a discharge or
dismissal'' that was exhausted but not granted by his or her Military
Department's BCM/NR.\20\ A ``petitioner'' means ``a member or former
member of the armed forces (or if the member or former member is dead,
the surviving spouse, next of kin, or legal representative of the
member or former member).'' \21\
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\19\ See 10 U.S.C. 1553a(b).
\20\ 10 U.S.C. 1553a(c)(1).
\21\ 10 U.S.C. 1553a(c)(2).
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C. Progress Since the 2020 NDAA
Section 523 directed ``[t]he Secretary of Defense shall implement
section 1553a . . . not later than January 1, 2021.'' \22\ To
accommodate the timeline set by Congress, the DoD designated the
Physical Disability Board of Review (PDBR), an entity established as
part of the NDAA for FY 2008 to reassess the accuracy and fairness of
the combined disability ratings assigned Service members who were
discharged as unfit for continued military service between September
11, 2001, and December 31, 2009, to assume responsibility while its
statutory mission was concluding and later take over the duties for
this new review process under this rule. The DoD also established
policies for implementing internal requirements while beginning work on
this rule. The DoD issued two internal Deputy Secretary of Defense
(DepSecDef) Memoranda \23\ and one Directive-Type Memorandum (DTM),\24\
to provide the process and procedures for conducting a final review.
This rulemaking is the final step in establishing the DARB.
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\22\ Public Law 116-92, section 523.
\23\ The first DoD Memorandum, ``Department of Defense
Implementation of Section 523 of the National Defense Authorization
Act for Fiscal Year 2020,'' published January 29, 2021, was updated
on May 17, 2022, by DoD Memorandum, ``Update to Department of
Defense Appeal Review Board Procedures.'' These DoD Memoranda can be
accessed at <a href="https://afrba-portal.cce.af.mil/#board-info/darb/navbar">https://afrba-portal.cce.af.mil/#board-info/darb/navbar</a>.
\24\ The Directive-Type Memorandum (``DTM''), ``DoD Discharge
Appeal Review Board,'' published May 5, 2023, and is available on
the DoD Directives Division website and can be accessed at <a href="https://www.esd.whs.mil/Directives/Recent-Publications/">https://www.esd.whs.mil/Directives/Recent-Publications/</a>.
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D. Process for Petitioning the DARB
It should be noted per statute that the DARB is strictly a document
review board.\25\ Any new evidence a petitioner wishes to introduce
must first be reviewed and a determination made by the respective
Military Department's DRB and BCM/NR.\26\ After reviewing a Service
member's case file records, the DARB may make a recommendation to
upgrade the characterization of discharge or dismissal based on their
de novo review.\27\ If the DARB recommends an upgrade, this
recommendation will be sent to the Secretary of the Military Department
concerned for final action.\28\
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\25\ See 10 U.S.C. 1553a(b).
\26\ 10 U.S.C. 1553a(b), (c).
\27\ 10 U.S.C. 1553a; Public Law 116-92, section 523.
\28\ 10 U.S.C. 1553a(b)(2).
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In most cases, the current or former Service member petitions the
DARB for an upgrade to the characterization of his or her discharge or
dismissal. If the Service member is deceased or incapacitated, the
surviving spouse, next of kin, or legal representative may apply for a
final review on the Service member's behalf.\29\ Petitioners are
eligible for a DARB review when all four criteria below are met:
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\29\ 10 U.S.C. 1553a(c)(2).
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<bullet> The Service member's date of discharge or dismissal was on
or after December 20, 2019; \30\
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\30\ See 10 U.S.C. 1553a; see Public Law 116-92, section 523;
see also DTM, ``DoD Discharge Appeal Review Board,'' published May
5, 2023, and is available on the DoD Directives Division website and
can be accessed at <a href="https://www.esd.whs.mil/Directives/Recent-Publications/">https://www.esd.whs.mil/Directives/Recent-Publications/</a>. If this portion of the rule is held to be invalid by
a court, the remainder of the rule should be considered severable
and not affected by such determination.
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<bullet> The Service member received a less than honorable
characterization of service; \31\
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\31\ See 10 U.S.C. 1553a(c)(1).
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<bullet> The petitioner has exhausted all remedies available at the
respective Military Departments' DRB and BCM/NR; \32\ and
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\32\ 10 U.S.C. 1553a(c)(1)(B).
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<bullet> The petitioner's request for an upgrade in the
characterization of a discharge or dismissal was denied or it was only
partially granted at their respective Military Department's BCM/NR.\33\
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\33\ See 10 U.S.C. 1553a(c)(1).
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Petitioners can request a DARB discharge review by sending a
written request by email to <a href="/cdn-cgi/l/email-protection#097a686f27647b276d687b6b497c7a27686f27646065"><span class="__cf_email__" data-cfemail="017260672f6c732f656073634174722f60672f6c686d">[email protected]</span></a> or by mail to Air
Force Review Boards Agency, SAF/MRBD (DARB), 3351 Celmers Lane, Joint
Base Andrews, MD 20762-6435. To learn more about DARB and the process
for petitioning for a final discharge review, visit the Air Force
Review Board Agency website located at <a href="https://afrba-portal.cce.af.mil/#board-info/darb/navbar">https://afrba-portal.cce.af.mil/#board-info/darb/navbar</a>.
[[Page 94606]]
II. Expected Impact of This Interim Rule
A. Baseline
If requesting a discharge upgrade within 15 years of the date of
discharge (except discharges by general courts-martial), the Service
member must first apply to their respective Military Department's DRB
to review their discharge and the resulting characterization of
service.\34\ A Service member who is not satisfied with the DRB's
findings and decision regarding their request may also seek relief from
their respective Military Department's BCMR/NR.\35\ Service members who
were discharged more than 15 years ago \36\ and Service members
requesting an upgrade of their dismissal or discharge by general
courts-martial should seek review of their discharge or dismissal
directly to their respective Military Department's BCMR/NR.\37\
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\34\ See 32 CFR 70; see 10 U.S.C. 1553.
\35\ 10 U.S.C. 1552.
\36\ There is a three-year deadline to apply to a BCM/NR from
the date of the discovery of an alleged error or injustice, but the
time limit can be waived in the ``interest of justice.'' 10 U.S.C.
1552(b).
\37\ 10 U.S.C. 1553.
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Between October 1, 2016, and September 30, 2021, approximately
23,176 individuals requested an upgrade to the characterization of a
discharge or dismissal at their Military Department's BCM/NR.\38\ Of
the 23,176 upgrade requests, the BCM/NRs fully granted 15% of their
requests for an upgrade to the characterization of their discharge or
dismissal on average.\39\
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\38\ The Navy's data was included in this number but its case
tracking systems for data was based on an in-house database that was
inconsistent before mid-2019, and as a result, it is reasonable to
assume that the total numbers may be higher.
\39\ If an applicant received a partial upgrade at the BCM/NR,
this data would not be included in the 15% unless the applicant
requested and received a partial upgrade at the BCM/NR.
Additionally, the Army could not provide the total number of
applicants who received the upgrade requested without a case-by-case
review, and as a result, it was not included when determining the
average percent of upgrades granted by the military departments.
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Military Department BCM/NRs are currently the highest level of
administrative review for the review of a discharge or dismissal, and
their decisions constitute final agency action on a request for an
upgrade to the characterization of a discharge or dismissal. As this is
a new congressionally mandated additional review, there is no pre-
established baseline cost of comparison for this rule.
B. Policy
DoD's solution is to use existing DoD board personnel who are
familiar with established review processes to conduct a final review of
a request for an upgrade in the characterization of a discharge or
dismissal--PDBR, as provided under 10 U.S.C. 1554a. The OUSD(P&R) which
is responsible for overseeing the Military Department's DRBs and BCM/
NRs also oversees the PDBR. This solution was chosen because it
provides petitioners with a fair and equitable review and it meets
Congress' direction for establishing and implementing a process using
existing DoD ``organizations, boards, processes, and personnel'' to the
``maximum extent practicable.'' \40\ By using existing PDBR personnel,
similar processes, and infrastructure to conduct a similar discharge
review, it is the most cost-effective approach, based on the analysis
in this section.
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\40\ Public Law 116-92, section 523.
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Congress directed the establishment of the PDBR in 2008 to review a
Service member's request for an upgrade in the disability rating of
their medical discharge.\41\ The PDBR requires at least three members
to conduct the review. Service members who were separated from the
Armed Forces, who received a disability rating of 20 percent or less,
and were found not eligible for retirement, could request a review of
their disability rating under the process. The PDBR reviews the Service
member's medical records and the Military Department's disability
determination and makes a recommendation to the Secretary of the
Military Department concerned on whether to upgrade the disability
rating. The PDBR was created to review Service member's medical
discharges between a set period, ending on December 31, 2009, and the
PDBR will cease operating on October 1, 2024.
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\41\ Public Law 110-181; 10 U.S.C. 1554a.
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Because PDBR personnel are familiar with discharge upgrades from
the Military Departments, including Service member medical issues and
the related benefits available, the personnel would be able to quickly
take on this new congressionally mandated discharge review. The PDBR
caseload is dwindling and any remaining cases or requests for a
disability upgrade review received after October 1, 2024, will be
transferred to their respective Military Department BCM/NRs, so the
existing PDBR personnel, processes to conduct comparable reviews, and
infrastructure would be fully utilized in the intake of requests and
conducting the final reviews. A three-member panel also ensures that a
petitioner has a fair process that will allow an opportunity for a
thorough and thoughtful review of the Military Department's findings
and decisions.
1. Estimated Final Review Requests
Pursuant to 10 U.S.C. 1553a, any Service member who has been
discharged or dismissed with a less than honorable discharge
characterization,\42\ whose request for an upgrade in the
characterization of their discharge or dismissal was denied or only
partially granted by their respective Military Department BCM/NR, and
who exhausted all available remedies with their respective Military
Department's DRB and BCM/NR, may petition the DARB for a final review.
Because section 116-92 of the FY 2020 NDAA and 10 U.S.C. 1553a became
effective on December 20, 2019, the DARB requires that the Service
member was discharged or dismissed on or after December 20, 2019, to be
eligible for this additional review. The eligibility date aligns with
the language in section 523 of the NDAA for FY 2020 and allows for
faster action while also affording finality to prior, and potentially
long-resolved, Military Departments' decisions on requests for
upgrades, which would in turn permit earlier intervention by a civilian
court. Additionally, it provides for clear eligibility determinations
by establishing an explicit date-certain timeframe for eligibility.
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\42\ A less than honorable discharge characterization includes
dismissals, a general, other than honorable, uncharacterized, bad-
conduct, and dishonorable discharges.
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As of June 30, 2022, there were approximately 63,294 former Active-
Duty Service members who had been discharged or dismissed on or after
December 20, 2019 and received a less than honorable discharge
characterization.\43\ Petitioners however are not eligible for a DARB
final review until they fully exhaust all their administrative remedies
at their respective Military Department's DRB and BCM/NR.
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\43\ Active-Duty Service members include members of the Army,
Navy, Marine Corps, Coast Guard, Air Force, and Space Force.
Additionally, while Reserve Service members may be eligible for a
final review, Active-Duty Service member data were used here because
they primarily petition the DRBs and BCM/NRs, and they are more
likely to qualify for Veterans Benefits if their discharge
characterization is upgraded as they meet the length-of-service
criteria needed for veteran status (38 U.S.C. 5303A(b); 38 CFR
3.12a(a)(1)).
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The time to fully exhaust their administrative remedies varies
significantly based on the complexity of their case, the military
service involved, and whether they request a documentary record review
or a personal appearance hearing. Based on internal records, the DoD
anticipates it will take at least 18 months from their
[[Page 94607]]
date of discharge or dismissal to fully exhaust their available
remedies at their Military Department's DRB and BCM/NR but it could
take much longer than this. Individuals who have requested an upgrade
to a discharge or dismissal and are not satisfied with their result at
their Military Department's BCM/NR may then consider petitioning the
DARB for a final review. The DARB requires a petitioner to request a
final review within 12 months of receipt of their BCM/NR decision.
Thus, it will take a minimum of 18 to 30 months from the date of a
discharge or dismissal for the DARB to receive a petitioner's final
review request.\44\
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\44\ In fiscal year 2022, the DoD received 4 requests for a
final review under this process, but none of the petitioners were
eligible for a final review. The petitioners were not eligible
because they were seeking an upgrade to a discharge or dismissal
that was issued before December 20, 2019, or they failed to first
exhaust their administrative remedies at their respective Military
Department's DRB and BCM/NR.
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Based on the BCM/NR data analyzed previously in the baseline,
approximately 23,176 individuals requested an upgrade to the
characterization of a discharge or dismissal at the Military
Department's BCM/NRs over a five-year period, which equates to 4,635
requests a year. Assuming the BCM/NR will fully grant 15% of these
requests to fully upgrade the characterization of discharge or
dismissal, this results in an estimated 3,940 petitioners a year who
will be eligible for a final review. Because the process for a
petitioner to request a final review is straight-forward and some
petitioners may not be interested in a further appeal as they may have
received partial relief and be satisfied with that result, the DoD
assumes that 75% of these eligible petitioners a year will petition for
a final review. As a result, we estimate that the DARB will receive
2,955 final review requests a year.
2. Costs of Policy
In determining whether to petition the DARB for a final review, we
estimate that it would take a petitioner up to 2 hours to view case
file records and the BCM/NR decision to decide whether to request a
final review, and an additional 5 to 30 minutes on average to submit a
request for a final review. Assuming 2.5 hours in total at the median
hourly rate of $24.95 based on data from the Bureau of Labor Statistics
(BLS),\45\ the cost of this activity is $62.38. While representation by
an attorney is not necessary, a Service member may decide to consult
with an attorney when determining whether to request a final review.
Because the DARB conducts only a record review and a Service member may
already have an attorney who represented them in their DRB and BCM/NR
proceedings, any consultation with the same attorney for the purposes
of conducting this additional DoD review will be minimal.
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\45\ According to the Bureau of Labor Statistics, the median
weekly earnings for full-time wage and salary workers in 2021 was
$998.00, for an hourly rate based on a 40-hour workweek of $24.95.
(http://www/<a href="http://bls.gov/cps/cpsaat39.htm">bls.gov/cps/cpsaat39.htm</a>.)
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The cost to a petitioner or an authorized representative for
submitting a request for a final review itself will vary based on
whether the request is submitted electronically or by mail. The DARB is
not authorized to accept new information in support of a petitioner's
request for a final review, so the resulting cost to the petitioner may
only be minimal printing, scanning, photocopying, and postage. The DARB
encourages electronic submission of requests for final reviews by email
as the processing will be faster and such a request will be at no cost
to the petitioner. If a petitioner elects to mail a request, a basic
letter requesting a final review and any supplementary evidence of a
relationship to a Service member, if required, would cost the
petitioner $0.55 in postage. A petitioner submitting a request by mail
will likely choose to use certified mail, requiring additional postage
of $3.75, and may add a return receipt, that is an additional $3.05 for
a mail receipt or $1.85 for an electronic return receipt. After a
petitioner submits a request for a final review, the DARB will download
the relevant case file records from the BCM/NR and this request to
transfer records will be at no cost to the petitioner. As a result, we
estimate the total cost to a petitioner to request a final review would
be $6.24 to $69.35, as shown in Table 1.
Table 1--Estimated Public Cost for DARB Review
----------------------------------------------------------------------------------------------------------------
Activity Hours Rate Total cost
----------------------------------------------------------------------------------------------------------------
Review case................................. 0 to 2.00 $24.95......................... $0-$49.90
Submit petition............................. 0.08 to 0.50 $24.95......................... $6.24 to $12.48
Additional cost to submit petition via mail. .............. Postage at $0.55............... $0.55
Certified Mail at $3.75........ $3.75
Mail Return Receipt at $3.05... $3.05
Electronic Return Receipt at $1.85
$1.85.
------------------
Total Cost.............................. .............. ............................... $6.24 to $69.73
----------------------------------------------------------------------------------------------------------------
Next, we estimate the costs associated with the intake, review, and
processing of a final review request, which is illustrated in Table 2.
Once the DARB receives a final review request, it is anticipated that
it will take approximately 4 hours of time for intake procedures such
as data entry for case creation, verifying BCM/NR case information,
receiving case file records, bookmarking key documents in the record,
sending acknowledgement letters to petitioners, and assigning the case
to a three-member panel. Assuming a GS-11 at the step 5 salary rate of
$84,941 based on the 2022 Washington DC, locality pay table, which is
equivalent to an effective rate of $81.40 (hourly rate of $40.70 plus
benefits at 100%), the cost for this case management activity per final
review request is $325.60 (effective rate of $81.40 multiplied by 4
hours of work).
While the complexity of a case will vary and significantly change
the time of review, we estimate that approximately 30 hours in total
would be spent by board members reviewing the case file records,
voting, and drafting a recommendation on whether to upgrade the
characterization of the discharge or dismissal. Assuming a GS-14 at the
step 8 salary rate of $155,687 based on the 2022 Washington DC locality
pay table, which is equivalent to an effective rate of $149.20 (hourly
rate of $74.60 plus benefits at 100%), the cost for the review of a
petitioner's request is $4,476.00.
Additionally, if a petitioner's case involves a mental health
issue, a military or civilian healthcare provider
[[Page 94608]]
will review the case file records to determine if an advisory opinion
was required and included by the BCM/NR. We anticipate this medical
review will take about 1 hour on average. Assuming a GP-15 at the step
5 salary rate of $147,942 based on the 2022 General Schedule base pay
table with the additional $20,000 General Medical Officer incentive pay
incorporated, which is equivalent to an effective rate of $141.78
(hourly rate of $70.89 plus benefits at 100%)), the cost for this case
management activity per final review request is $141.78. Based on data
from January 2022-March 2022, 41% of the cases before the DRBs and BCM/
NRs involved Mental Health claims (<a href="https://boards.law.af.mil/stats_CY2022.htm">https://boards.law.af.mil/stats_CY2022.htm</a>).
Table 2--Estimated Government Sub-Process Cost
----------------------------------------------------------------------------------------------------------------
Number of Cost per
Review process Work hours Employee grade Effective rate employees process
----------------------------------------------------------------------------------------------------------------
Intake.......................... 4 GS-11(5) $81.40 1 $325.60
Board Review.................... 30 GS-14(8) 149.20 3 4,476.00
Medical Review.................. 1 GP-15(5) 141.78 1 141.78
----------------------------------------------------------------------------------------------------------------
Based on the anticipated 2,955 final review requests a year,\46\
assuming 41% of these petitions will involve Mental Health claims
necessitating a military or civilian healthcare provider review and 59%
will not, we estimate the total annual costs for processing and
reviewing these requests to be $14,360,565, as shown in Table 3.
---------------------------------------------------------------------------
\46\ These are the total number of petitions, prior to any
analysis of the merits of the claims, or determination of whether
the petitioner properly applied for a final review.
Table 3--Estimated Total Government Cost
----------------------------------------------------------------------------------------------------------------
Percent
Review process petitions Cases Process cost Total cost
----------------------------------------------------------------------------------------------------------------
Intake and Board Review......................... 59 1,743 $4,801.60 $8,369,188.8
Intake, Board Review, and Medical Review........ 41 1,212 4,943.38 5,991,376.56
---------------------------------------------------------------
Total Cost.................................. .............. .............. .............. 14,360,565
----------------------------------------------------------------------------------------------------------------
C. Policy Alternative #1
The DoD considered using personnel from the BCM/NRs to conduct the
final reviews, as these personnel would be fully trained on the review
process for a request for an upgrade to the characterization of a
discharge or dismissal, but it concluded that this was not the most
equitable solution. The BCM/NRs apply military service specific
policies in their reviews of discharges or dismissals. While it may be
possible to use personnel from each of the BCM/NRs for a consolidated
military service review board to conduct these final reviews, utilizing
the same personnel who would be reviewing the findings and decisions of
the BCM/NRs may present a conflict of interest as these personnel may
have an interest in interpreting a DoD policy based on the culture of
their military service. Congress also explicitly provided in 10 U.S.C.
1553a that a petitioner must have fully exhausted all remedies
available at their respective Military Department's DRB and BCM/NR
before they are eligible for a final review, which indicates that
congress intended the final review process to be separate and distinct
from the existing DRB and BCM/NR review processes.
This also may not be the most cost-effective approach because,
unlike the PDBR mission, the BCM/NRs caseload is not expected to
diminish. If the BCM/NRs took on this congressionally mandated
additional review, it would add the estimated cost of $14,455,783 per
year to their budget and may create inefficiencies due to the increase
in workload.
Accordingly, the DoD concluded that a distinct board focused on
applying DoD-level policies was a better policy alternative, as it
could ensure the review of a request for an upgrade to the
characterization of a discharge or dismissal was consistent with both
military service specific policies and DoD policies. The PDBR is a more
cost-effective approach because of its dwindling cases, existing
infrastructure and resources, and experience conducting military
reviews.
D. Policy Alternative #2
The DoD also considered using another existing DoD review board to
conduct the final reviews, the Defense Office of Hearings and Appeals
(DOHA), but it concluded that it would not be a cost-effective
approach. The DOHA holds due process hearings and appeals of security
clearance cases. Contractor employees who are applying for or seeking
to retain their security clearances can request a hearing, and it will
be held and decided before a DOHA Administrative Judge.
Although DOHA's review is different from the review of a request
for an upgrade in the characterization of a discharge or dismissal, it
was considered as a policy alternative because its board was familiar
with applying DoD-level policies and standards of review. The DoD
ultimately decided that the PDBR was a better policy alternative than
the DOHA because it would take a significant amount of time to train
existing DOHA personnel on the review process for a request for an
upgrade to the characterization of a discharge or dismissal. It would
also require additional personnel, new processes, and infrastructure
for the DOHA to conduct these reviews in addition to its security
clearance reviews.
II. Regulatory Compliance Analysis
Interim Final Rule Justification
As discussed in the SUPPLEMENTARY INFORMATION section, the DoD is
issuing this rule as an interim final rule because it is a procedural
rule that relates to ``agency organization, procedure, or practice''
within the meaning of 5 U.S.C. 553(b)(A). As such, this rule is exempt
from the prior notice and comment and delayed effective date (see 5
U.S.C.
[[Page 94609]]
553(d)) requirements. Additionally, pursuant to 5 U.S.C. 553(b)(B) and
(d)(3), there is also good cause to issue this interim final rule and
make it immediately effective because delay for notice and comment
would be impracticable and unnecessary, and delay in effectiveness is
not needed in this circumstance.
Congress' statutory direction and intent was for the DoD to
establish and implement a process to conduct a final review of a
request for an upgrade in the characterization of a discharge or
dismissal. This rule merely concerns the DoD's procedures and practice
for conducting a final review and directs how those requests should be
submitted. To comply with congressional requirements, DoD is issuing
this rule to establish the DARB as the administrative body to conduct a
final review of a petitioner's request for an upgrade in the
characterization of a discharge or dismissal. The DARB does not change
the substantive standards applicable to requests for an upgrade. The
DARB simply reviews the Military Department's decisions to ensure
uniform discharge review standards are applied, regardless of the
Service member's service affiliation in its review, and it may
facilitate an upgrade to the discharge or dismissal characterization.
A Service member's discharge or dismissal characterization may have
a significant impact on their personal, financial, and professional
future (and by extension, upon their families). Entitlement to
educational benefits under the G.I. Bill, for instance, is limited to
Service members who separated from active duty with an honorable
characterization of service (even separation under general (under
honorable conditions) does not qualify). Service members who separate
under other than honorable conditions (OTH) are not automatically
eligible for VA disability compensation, access to VA home loans, or
medical care at VA facilities.'' \47\
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\47\ Service members who are discharged under other than
honorable conditions may apply to the VA for consideration of these
benefits and the VA makes this eligibility determination on a fact-
specific basis.
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Additionally, many employers request the discharge characterization
from individuals who list military service on their resume and may be
reluctant to hire individuals who were discharged with a less than
honorable characterization of service. Finally, spouses and dependents
of Service members may also be impacted by this rule because they may
be eligible for additional benefits based on the Service member's
characterization of service.
The consequences of delaying an upgrade in the characterization of
service can therefore be hugely significant to former Service members
and their families. The need to avoid delay in establishing final-
review procedures that may result in an upgrade is reflected in
Congress' directive that the Department establish a final review
process not later than January 1, 2021. Between the statutory deadline
and the issuance of this rule, the DoD established the policies and
procedures for conducting a final rule and its process was provided in
a DTM, ``DoD Discharge Appeal Review Board,'' which was available to
the public in May 2023.\48\ The DARB is currently operating pursuant to
that issued memoranda. The DoD has considered the necessity for
immediate implementation against providing affected parties more time
for notice and comment on this rule and concluded that, because the
rule continues an existing policy and only changes the procedures
within the Departments, it is in the best interest of affected Service
members and their families to comply with Congress's direction to act
expeditiously. Moreover, because the rule provides for continuity with
existing policy, time is not needed for parties to plan or adjust their
behavior, and there is good cause to implement the rule now, without
waiting for a delayed effective date.
---------------------------------------------------------------------------
\48\ The DTM, ``DoD Discharge Appeal Review Board,'' published
May 5, 2023, is available on the DoD Directives Division website and
can be accessed at <a href="https://www.esd.whs.mil/Directives/Recent-Publications/">https://www.esd.whs.mil/Directives/Recent-Publications/</a>.
---------------------------------------------------------------------------
A. Executive Order 12866, ``Regulatory Planning and Review,'' as
Amended by Executive Order 14094, ``Modernizing Regulatory Review'' and
Executive Order 13563, ``Improving Regulation and Regulatory Review''
Executive Order 12866, as affirmed by Executive Order 13563 and
amended by 14094 (88 FR 21879, April 11, 2023), directs agencies to
assess all costs, benefits and available regulatory alternatives and,
if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health, safety effects, distributive impacts, and equity). These
Executive Orders emphasize the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated significant, under section
3(f) of Executive Order 12866, as amended by Executive Order 14094.
B. Congressional Review Act (5 U.S.C. 801 et seq.)
Pursuant to subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996, also known as the Congressional Review Act, the
Office of Information and Regulatory Affairs has determined that this
rule does not meet the criteria set forth in 5 U.S.C. 804(2).
C. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
The USD(P&R) certified that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities. Therefore, the Regulatory Flexibility Act, as
amended, does not require us to prepare a regulatory flexibility
analysis.
D. Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
Section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1532) requires agencies to assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any 1 year of $100
million in 1995 dollars, updated annually for inflation. This rule will
not mandate any requirements for State, local, or Tribal governments,
and will not affect private sector costs.
E. Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter
35)
While there are no new information collection requirements
associated with this rule, two existing collections under the Paperwork
Reduction Act are already in use. The DoD does not believe rule changes
the data elements, cost, or burden associated with these collections as
the DARB is not authorized to accept new information in support of a
petitioner's request for a final review. There is no standardized
format for requesting a DARB discharge review.
<bullet> The DARB will review BCM/NR case file records which may
include DRB case file records. This is associated with DD 149 titled
``Application for Correction of Military Record Under the Provisions of
Title 10, U.S. Code, Section 1552,'' OMB Control Number. 0704-0003.\49\
---------------------------------------------------------------------------
\49\ Information regarding this collection--including all
supporting materials--can be accessed at <a href="http://www.reginfo.gov">www.reginfo.gov</a> and
providing either the title or number of the collection.
---------------------------------------------------------------------------
<bullet> The DRBs have an active collection associated with DD 293
titled ``Application for the Review of
[[Page 94610]]
Discharge From the Armed Forces of The United States,'' OMB Control
Number. 0704-0004.\50\
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\50\ See <a href="http://www.reginfo.gov">www.reginfo.gov</a> to access the most current version of
this information collection--including all supporting documentation.
---------------------------------------------------------------------------
The DoD has Privacy Act System of Records Notices (SORNs)
associated with these collections are as follows:
Army (<a href="http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/569931/a0015-185-sfmr.aspx">http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/569931/a0015-185-sfmr.aspx</a>)
Navy and Marine Corps (<a href="http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570411/nm01000-1/">http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570411/nm01000-1/</a>)
Air Force (<a href="https://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/569833/f036-safcb-a/">https://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/569833/f036-safcb-a/</a>)
Defense Finance and Accounting Service (<a href="http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570192/t7340b/">http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570192/t7340b/</a>)
Coast Guard (<a href="https://www.gpo.gov/fdsys/pkg/FR-2013-10-02/html/2013-23991.htm">https://www.gpo.gov/fdsys/pkg/FR-2013-10-02/html/2013-23991.htm</a>)
Official Military Personnel Files:
Army (<a href="http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570054/a0600-8-104-ahrc.aspx">http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570054/a0600-8-104-ahrc.aspx</a>)
Navy (<a href="http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570310/n01070-3/">http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570310/n01070-3/</a>)
Marine Corps (<a href="http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570626/m01070-6/">http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570626/m01070-6/</a>)
Air Force (<a href="http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-Component-Article-View/Article/569821/f036-af-pc-c/">http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-Component-Article-View/Article/569821/f036-af-pc-c/</a>)
Coast Guard (<a href="http://www.gpo.gov/fdsys/pkg/FR-2011-10-28/html/2011-27881.htm">http://www.gpo.gov/fdsys/pkg/FR-2011-10-28/html/2011-27881.htm</a>)
F. Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a rule that imposes substantial
direct requirement costs on State and local governments, preempts State
law, or otherwise has federalism implications. This rule will not have
a substantial effect on State and local governments.
G. Executive Order 13175, ``Consultation and Coordination With Indian
Tribal Governments''
Executive Order 13175 establishes certain requirements that an
agency must meet when it promulgates a rule that imposes substantial
direct compliance costs on one or more Indian Tribes, preempts Tribal
law, or effects the distribution of power and responsibilities between
the Federal Government and Indian Tribes. This rule will not have a
substantial effect on Indian Tribal governments.
List of Subjects in 32 CFR Part 73
Administrative practice and procedure, Military personnel,
Veterans, Health professions.
0
Accordingly, 32 CFR part 73 is added to read as follows:
PART 73--DOD DISCHARGE APPEAL REVIEW BOARD (DARB)
Sec.
73.1 Purpose.
73.2 Definitions.
73.3 Membership and designation.
73.4 Responsibilities.
73.5 Application procedures.
73.6 Review procedures and standards.
73.7 Final action.
73.8 Annual reporting requirements.
Authority: 10 U.S.C. 1553a.
Sec. 73.1 Purpose.
(a) This part establishes the DARB as the administrative body to
conduct a final review of a petitioner's request for an upgrade in the
characterization of a discharge or dismissal, pursuant to 10 U.S.C.
1553a. This part also provides the procedures for Service members (or
their representatives) to request a final review, the standards that
the DARB will apply when it reviews a petitioner's request, and the
procedures following the DARB's recommended disposition of a request.
(b) The DARB ensures that DoD-level policies, procedures, and
standards related to the review of discharges and dismissals are
uniformly and consistently applied across the military services.
Reporting of the number of upgrades granted or denied pursuant to this
final review process will also be made available for public inspection
through the DoD Reading Room available at <a href="https://boards.law.af.mil">https://boards.law.af.mil</a>.
The term ``Military Department'' as used here in this part includes the
Coast Guard. The terms, ``Military Services,'' and ``Armed Forces,''
refers to the Army, Navy, Marine Corps, Coast Guard, Air Force, and
Space Force.
Sec. 73.2 Definitions.
Case file records. All records that members of the BCM/NR have
access to, not limited to what the BCM/NR analyst presents to the DARB.
These records necessarily include the record of proceedings, exhibits,
and findings and decisions of both the BCM/NR and DRB.
Characterization of a discharge or dismissal. The characterization
of a discharge or dismissal is a determination reflecting a Service
member's conduct and performance of duty while in military service
during a specific period of military service. Administrative discharges
can be characterized as honorable, general (under honorable
conditions), other than honorable conditions, or can be described as
uncharacterized (as in an entry-level separation). If a discharge is
adjudged at a court-martial, the assigned characterization may be a
bad-conduct discharge, or dishonorable discharge, or a dismissal. The
term characterization of a discharge or dismissal is also referred to
as a ``character of discharge'' or ``character of service.''
Characterization of less than honorable. A characterization that is
less than honorable includes a general under honorable conditions,
other than honorable conditions, uncharacterized, bad-conduct
discharge, dishonorable discharge, or a dismissal.
DARB member. A person authorized to review a DARB request and make
a recommendation to the DARB president on whether the petitioner's
request for an upgrade to the characterization of a discharge or
dismissal should be granted, partially granted, or denied.
Discharge Appeal Review Board (DARB). An administrative board
constituted by the Secretary of Defense and vested with the authority
to conduct a final review of a request for an upgrade in the
characterization of a discharge or dismissal under the provisions of 10
U.S.C. 1553a.
Exhausted all remedies available. Petitioner requested an upgrade
in the characterization of a discharge or dismissal and presented all
evidence and arguments in support of their request to their respective
Military Department's DRB and BCM/NR, including any materials not
previously presented or considered by the board in making such
determination when requesting reconsideration by the Military
Department BCM/NR.
Final review. The process by which a petitioner's request for an
upgrade to the characterization of a discharge or dismissal that was
not granted at the respective Military Department's DRB and BCM/NR
after the petitioner exhausted all remedies available to the petitioner
is evaluated.
New information. Material not previously presented to, or
considered by, the appropriate Military Department's BCM/NR.
[[Page 94611]]
Petitioner. A member or former member of the Armed Forces whose
request for an upgrade to the characterization of a discharge or
dismissal was not granted by the relevant Military Department's DRB and
BCM/NR. If the member or former member is deceased or legally
incompetent, the term ``petitioner'' includes the surviving spouse,
next-of-kin, or legal representative who is acting on behalf of the
member or former member. The term ``petitioner'' also includes a member
or former member of the Armed Forces' counsel.
Preponderance of the evidence. A standard of proof, evidence which
as a whole shows that the fact sought to be proved is more probable
than not.
Record review. A review of the Service member's case file records.
Service member. A member or former member of the Armed Forces.
Sec. 73.3 Membership and designation.
The DARB is set up independently from the Military Departments'
DRBs and BCM/NRs. The DARB is comprised of civilian government
employees and consists of a President, Deputy Director, and at least
three members for each panel. The DARB President and Deputy Director
are appointed as inferior officers by the Secretary of Defense. The
Secretary of the Air Force (SECAF), as the designated lead agent for
the DARB, appoints DARB members and assigns them to a panel(s).
Sec. 73.4 Responsibilities.
(a) The USD(P&R) is responsible for directing the implementation of
the DARB and serves as the Principal Staff Assistant with oversight of
the DARB process, policies, procedures, and standards for the final
review of a request for an upgrade in the characterization of a
discharge or dismissal under 10 U.S.C. 1553a. The USD(P&R) must:
(1) Ensure that petitioners are afforded an opportunity to request
a final review of their requests for an upgrade to the characterization
of a discharge or dismissals consistent with 10 U.S.C. 1553a;
(2) Ensure that Secretary of Defense appoints the DARB President
and DARB Deputy Director as inferior officers;
(3) Review and approve any DARB or DARB-related policies or
procedures that the Secretaries of the Military Departments or the DARB
President develops before implementation of such policies or
procedures;
(4) Resolve all issues concerning the DARB that cannot be resolved
between the DARB President and the Secretaries of the Military
Departments; and
(5) Modify or supplement this part as necessary.
(b) The Secretaries of the Military Departments have the authority
to approve, partially approve, or disapprove a DARB's recommendation to
upgrade or partially upgrade a petitioner's characterization of a
discharge or dismissal. The Secretary of the Military Department's
decision is the final agency action. If an upgrade or partial upgrade
is approved, the Secretary of the Military Department is responsible
for ensuring that all necessary administrative actions are taken to
effect the change, including issuance of a new or corrected DD 214.
(c) SECAF is responsible for the formation, operation, and
management of the DARB. The SECAF must:
(1) Appoint DARB members to a panels and assign cases to ensure
reviews are conducted in an impartial manner;
(2) Appoint other staff as necessary for intake procedures;
(3) Respond to all inquiries from private individuals,
organizations, or public officials about DARB matters. When the
specific Military Service can be identified, refer such correspondence
to the appropriate Secretary of the Military Department; and
(4) Ensure the timely online publication of annual reports as
required by section 523 of the FY 2020 NDAA, Public Law 116-92.
(d) The DARB President is responsible for administrating and
overseeing the DARB. The DARB President may delegate their authority to
the Deputy Director of the DARB, but no further delegation is
authorized. The DARB President shall:
(1) Review a DARB panel's recommendation and provide the final
adjudication of the DARB recommendation regarding a petitioner's
request for an upgrade to the characterization of a discharge or
dismissal.
(2) Develop policy, procedures, and evaluation standards for the
DARB, subject to review and approval by the SECAF and the USD(P&R)
before implementation of such policy, procedures, and evaluation
standards.
(e) The DARB Deputy Director is responsible for managing the DARB's
day-to-day operations.
(f) A DARB panel considers a petitioner's final review request
properly brought before it, is responsible for performing a record
review, applying DoD policies and standards, and if appropriate will
make a recommendation to the DARB President on whether a petitioner's
request for an upgrade to the characterization of a discharge or
dismissal should be granted, partially granted, or denied.
Sec. 73.5 Application procedures.
(a) Who is eligible for a final review? To be eligible for a final
review, the following criteria must be met:
(1) The Service member's date of discharge or dismissal was on or
after December 20, 2019;
(2) Service member received a less than honorable characterization
of service at the time of discharge or dismissal;
(3) All remedies available have been exhausted at the respective
Military Department's DRB and BCM/NR; and
(4) The request for an upgrade in the characterization of a
discharge or dismissal was denied or it was only partially granted at
the respective Military Department's BCM/NR.
(b) Who may request a final review? (1) In most cases, the
petitioner is the Service member, and the final review relates to their
military service records.
(2) If the Service member is deceased or legally incompetent and
incapable of acting on their own behalf, a spouse, next of kin, or
legal representative may be able to act on behalf of the Service
member.
(c) When can a petitioner request a final review? (1) Petitioners
must first exhaust all available remedies at their respective Military
Department's DRB and BCM/NR before requesting a final review. The DARB
will return an unexhausted request to the petitioner without
considering it.
(2) After exhausting their administrative remedies, Petitioners
must request a final review within 365 calendar days after the date of
receipt of their respective Military Department's BCM/NR decision. The
DARB may deny an untimely request.
(d) How does a petitioner make a final review request? (1) A
request must be made in writing, but the completion of a DoD form is
not required to request a final review. An email or letter requesting a
final review is sufficient to make a request. Sample templates to
request a final review can be accessed at <a href="https://afrba-portal.cce.af.mil/#application-submission-darb">https://afrba-portal.cce.af.mil/#application-submission-darb</a>.
(2) The contents of a request must include the following:
(i) the petitioner's name, address, telephone number, and email
address;
(ii) the Service member's name if represented by counsel or a
representative; and
(iii) the BCM/NR docket number to assist the DARB in obtaining
records from the respective Military Department's BCM/NR. If this
[[Page 94612]]
information is not provided, the DARB may return the request without
considering it.
(3) Additional documentation may be needed in support of a request
for review by the DARB. If requesting a final review on behalf of a
Service member, proof of status or relationship documents are required
and must be enclosed or attached to a request for a final review. Proof
of status or relationship documentation may include a death
certificate, marriage license, divorce decree, birth certificate,
notarized power of attorney, and court appointment of conservatorship
or guardianship. The DARB will return the request to the petitioner
without considering it when a proper relationship to a Service member
has not been shown.
(4) If there is new information in support of a request to upgrade
the characterization of a discharge or dismissal, the DARB cannot
review it. If the petitioner has new information, the petitioner must
first seek reconsideration from the appropriate Military Department's
BCM/NR to exhaust all remedies available.
(e) Where do petitioners send a final review request? Petitioners
may submit a request for a final review by mail or email. Requests by
email are preferred and should be sent to the following address:
<a href="/cdn-cgi/l/email-protection#b8cbd9de96d5ca96dcd9cadaf8cdcb96d9de96d5d1d4"><span class="__cf_email__" data-cfemail="225143440c4f500c464350406257510c43440c4f4b4e">[email protected]</span></a>. Requests by mail should be sent to the following
address: Air Force Review Boards Agency, SAF/MRBD (DARB), 3351 Celmers
Lane, Joint Base Andrews, MD 20762-6435.
(f) How do petitioners withdraw a final review request? Petitioners
may withdraw a request for a final review in writing at any time before
the DARB panel's scheduled review.
Sec. 73.6 Review procedures and standards.
(a) Intake of final review requests. (1) Before conducting a final
review, DARB personnel will review submitted requests to ensure
eligibility for a final review.
(2) DARB personnel will provide notification to the petitioner to
confirm receipt of the final review request. If it is determined that
the petitioner is ineligible for a final review, DARB personnel will
also notify the petitioner in writing of the reason(s) their request
did not qualify for a final review.
(3) Once a case intake is complete, DARB personnel will access or
request case file records from the respective Military Department's
BCM/NR and assign a DARB panel to consider the final review request.
(4) If it is determined that a petitioner's case involves the
adjudication of a Mental Health condition, a military or civilian
health care provider will review the case file records to determine if
a medical advisory opinion is required and missing. If the case file is
missing a medical advisory opinion or other pertinent information the
case will be returned the Military Department's BCM/NR for
reconsideration or a document request.
(b) Consideration of final review requests--(1) Scope of review.
The DARB's review is limited to the case file records related to a
petitioner's request for an upgrade in the characterization of a
discharge or dismissal. The DARB is not authorized to review or address
new information provided by a petitioner in support of a request for an
upgrade in the characterization of a discharge or dismissal.
(2) Standard of review. In considering a petitioner's request for
an upgrade in the characterization of a discharge or dismissal, the
DARB will review the Military Department's BCM/NR decision de novo. The
DARB independently reviews the case file records, applies DoD discharge
review polices and standards and applicable Military Service policies,
and recommends an upgrade, if appropriate. This new review occurs
without giving any deference to the Military Department's BCM/NR
findings and decision.
(3) DARB panel adjudication. The DARB panel will consider the
petitioner's request and case file records, examine pertinent DoD and
Military Service regulations and policies, discuss the case and issues,
and vote to determine whether a petitioner's request for an upgrade in
the characterization of a discharge or dismissal should be granted,
partially granted, or denied.
(4) DARB panel recommendation. A majority vote constitutes the
recommended action of the DARB panel. The DARB panel will provide a
written recommendation including the number of votes and any minority
votes and their reason(s) for their recommendation. The written
recommendation must provide a basis for their decision to deny a
request to upgrade, to partially upgrade, or to fully upgrade the
characterization of a discharge or dismissal. The DARB panel's written
recommendation will be submitted to the DARB President.
(5) Review of the DARB panel's recommendation and the
recommendation of the DARB. The DARB President reviews the DARB panel's
written recommendation and makes the recommendation for the DARB. The
DARB President will submit the DARB's written recommended action to the
SECAF.
(i) If the DARB President approves the DARB panel's recommendation,
the recommendation will constitute the recommended action of the DARB.
(ii) If the DARB President disagrees with the DARB panel's
recommendation, the DARB President will provide a new recommendation.
This new recommendation will be in writing and will include the change
to be made and the reasons for rejecting the recommendation of the DARB
panel.
(6) Discretionary review of the DARB's recommended action. The DARB
President's actions are subject to discretionary review by the SECAF.
(i) The DARB's recommended action will be the final recommended
action unless the SECAF exercises their discretionary review authority
within 30 calendar days after the DARB President submits the
recommendation to the SECAF.
(ii) If the SECAF chooses to exercise their discretionary review
authority to review the DARB's recommended action within 30 calendar
days, and the SECAF changes the DARB's recommended action, the SECAF
will provide a written recommendation with supporting reasons and the
new recommendation will constitute the final recommended action.
(iii) The SECAF may delegate, in writing, its discretionary
authority to act on DARB recommendations to a Presidentially appointed,
Senate-confirmed (PAS) official but further re-delegation is not
authorized.
(c) Reconsideration at the BCM/NR. If it is unclear from the DARB's
review whether the appropriate Military Department BCM/NR considered
relevant evidence when it denied the requested discharge or dismissal
upgrade, the DARB may return a case directly to the BCM/NR for
reconsideration. If the Military Department BCM/NR concerned accepts
the case for reconsideration, the petitioner will be notified in
writing.
Sec. 73.7 Final action.
(a) The Secretary of the Military Department concerned will approve
or disapprove the DARB's recommended action to upgrade or partially
upgrade the characterization of a discharge or dismissal within 90
calendar days. The Secretary of the Military Department must approve
the DARB's recommended action unless the Secretary finds that the
recommendation is not supported by the preponderance of the evidence.
(b) If the DARB recommends to deny an upgrade to the
characterization of a discharge or dismissal and upholds the
[[Page 94613]]
Military Department's BCM/NR decision, the DARB will notify the
petitioner in writing of its final decision. If the DARB recommends to
upgrade or partially upgrade the characterization of a discharge or
dismissal, the Secretary of the Military Department concerned will
notify the petitioner in writing of its final decision.
(1) If the Secretary of the Military Department approves the DARB
recommendation, the petitioner will be notified of the approved change
and any change to the characterization of a discharge or dismissal will
be effective as of the date of discharge.
(2) If the Secretary of the Military Department disapproves the
DARB recommendation, the Secretary concerned must provide the
petitioner a written explanation detailing its rationale for
disapproving the DARB's recommendation.
(c) The Secretaries of the Military Departments may delegate, in
writing, the authority to act on DARB recommendations to a PAS official
but further re-delegation is not authorized.
(d) The Secretary's or designee's action will be the final action.
The petitioner has no right to a further review or to appeal this
decision.
Sec. 73.8 Annual reporting requirements.
(a) The DARB President will submit draft reports to OUSD(P&R) by
the 1st of October for the preceding FY (October 1st through September
30th). The first report will be published on October 1, 2022, and the
report will contain the DARB data for FY 2022.
(b) The reporting period will be inclusive from the first through
the last days of each reporting period.
(c) The report will contain the following information:
(1) The number of requests received;
(2) The number of requests rejected for failure to meet eligibility
criteria for a final review;
(3) The number of requests considered;
(4) The number of requests returned to the BCM/NRs for
reconsideration;
(5) The number of recommendations to upgrade the characterization
of a discharge or dismissal granted by the Secretaries of the Military
Departments pursuant to the DARB, to include the most common reasons
for such upgrades; and
(6) The number of recommendations to upgrade the characterization
of a discharge or dismissal declined by the Secretaries of the Military
Departments pursuant to the DARB, to include the most common reasons
for such declinations.
(d) The annual reports will be published on a publicly accessible
DoD website; the reports can be accessed at <a href="https://boards.law.af.mil/OSD_DARB.htm">https://boards.law.af.mil/OSD_DARB.htm</a>.
Dated: November 18, 2024.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2024-27268 Filed 11-27-24; 8:45 am]
BILLING CODE 6001-FR-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.