Discharge review board background
The discharge review boards were created in the wake of World War II. There was an influx of service members exiting the service with undesirable discharges. Their only recourse was the federal courts. The strain on the courts helped drive Congress to create Discharge Review Boards under 10 U.S.C. 1553.
The DRB will not review discharges resulting from the sentence of a general court-martial. Those cases must be submitted to the Board for Correction of Military Records under 10 U.S.C. 1552. We use a similar process for preparing those cases.
Generally, the boards review the propriety and equity of an applicant's discharge. Propriety is basically a question as to whether or not the military followed the proper regulations in processing your discharge. If there are irregularities in your discharge, a legal consult is definitely advisable. The question of equity is simply a question of fairness. Your post-service conduct can play a role in examining whether your characterization of service was appropriate.
There is a 15-year statute of limitations because Congress wanted to give people an opportunity to make amends for anything they may have done in service. Docket Number ND97-01164. Sometimes the board members need to be reminded that we want people to have their discharges upgraded where they have been good citizens.
ordering records for a discharge review board
One of the first steps we take in reviewing a case is to assist you in obtaining your military records. Once we have your records, we conduct a full review of your service records. We may also want examine your medical records if relevant. Our firm is unique to other military law firms because we handle a substantial number of medical cases. So we have a solid understanding of the medicine, psychology, and disability system.
discharge review board consideration of propriety and equity
Discharges are presumed proper unless there is an error of fact, law, procedure, or discretion that exists associated with the discharge at the time of issuance. (DoDI 1332.28 E.4.2.1). The firm is surgical in our search for errors of fact, law, procedure, or discretion.
Under DODI 1332.28 E4.3.3. Equity, a discharge is equitable unless relief is warranted based upon consideration of Applicant’s service record and other evidence submitted to the review board. Quality of service is evidenced by factors like Applicant’s service history, awards and decorations, disciplinary actions, level of responsibility, acts of merit, post-service conduct, and other mitigating factors. Among the many factors this board considers for the assessment of the quality of service is “outstanding post-service conduct that may provide a basis for a more thorough understanding of the performance of the applicant during the period of service that is the subject of the discharge review.” See DODI 1332.28, E126.96.36.199.10.
When we are looking at equitable factors and post-service conduct, the Department of Defense Instruction clearly spells out the factors that the boards consider. DoDI 1332.28 E.4.3.
The factors include:
-Service history, date of enlistment, period of enlistment, highest rank achieved, conduct or efficiency ratings;
-Awards and decorations;
-Letters of commendation OR reprimand;
-Combat service and wounds received in action;
-Promotions or demotions;
-Level of responsibility;
-Other acts of merit;
-Length of service subject to review;
-Prior military service and discharges;
-Convictions by courts-martial;
-Records of NJP;
-Periods of unauthorized absence;
-Discharges in lieu of court-martial;
-Age, educational level, and aptitude scores;
-Family and personal problems in extenuation and mitigation;
-Arbitrary or capricious action by the commander; and,
On 3 September 2014, the Secretary of Defense directed the Service Discharge Review Boards (DRBs) and Service Boards for Correction of Military/Naval Records (BCM/NRs) to carefully consider revised PTSD criteria, detailed medical considerations, and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of applicant's service.
In PTSD and medical related cases, you can expect a physician, psychiatrist, or psychologist to be on the board. Our experience is that there is usually a forensic psychiatrist on the board. It definitely helps to have an attorney on your side that can speak the language and discuss the issues that a doctor will be interested. This is especially true if there was a substance abuse issue related to your discharge.
In a PTSD case, the board will be asking the following questions:
-is it reasonable to determine that PTSD or PTSD-related conditions existed at the time of discharge?
-does the applicant's record contain documentation of the occurrence of a traumatic event during the period in service?
-does the applicant's military record contain documentation of a diagnosis of PTSD or PTSD-related symptoms?
-did the applicant provide documentation of a diagnosis of PTSD or PTSD-related symptoms rendered by a competent mental health professional representing a civilian healthcare provider?
-was the applicant's condition determined to be incurred ruing or aggravated by military service?
-do mitigating factors exist in the applicant's case?
-did the applicant have a history of misconduct prior to the occurrence of the traumatic event?
-was the applicant's misconduct premeditated?
-how serious was the misconduct?"
Questions sure to be asked at the drb personal appearance
The Army Discharge Review Board will nearly always ask variations of the following questions:
-Why do you want your discharge upgraded?
-How has your discharge affected you?
-Why should we upgrade your discharge?
There are also other specific issues that certain members of the board may show an interest in. For instance, the Navy and Marine Corps Discharge Review Board often has very specific lines of questioning in cases where the service member waived his or her right to the board in exchange for an other than honorable discharge. It will certainly help for you to be ready for those questions.
Each of the boards for the different branches also conducts the hearings in slightly different ways that can influence how you may decide to present your case.
We are one of the most experienced firms in the country representing service members before the various Discharge Review Boards.
There is significant value in consulting with an attorney that practices before the discharge review boards frequently. The membership of the boards can change with regularity. The personalities on the board can dictate the questions that they tend to ask.
All Blog Articles
Discharge Review Boards
8 November 2016 - Latest Intel from the Army Discharge Review Board
24 August 2016 - New Navy Guidelines for Processing Disability Cases
8 June 2016 - SECNAV Announces New Policy for PTSD and TBI Cases
14 March 2016 - ABCMR Insights in PTSD and TBI Cases
8 March 2016 - The Naval Discharge Review Board
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