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Discharge Review Boards

Discharge Review Boards[1]

Review of a service member's discharge or dismissal is governed by the federal statute found at 10 U.S.C. § 1553. Pursuant to that statute, the Secretary of each service is directed to consult with the Secretary of Veterans Affairs and to establish a board of review, consisting of five members, to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member, or, if the service member is deceased, his surviving spouse, next of kin, or legal representative.

A motion or request for review must be made within 15 years after the date of the discharge or dismissal. With respect to a discharge or dismissal adjudged by a court-martial case tried or reviewed under chapter 47 of this title (or under the Uniform Code of Military Justice), action under this provision may extend only to a change in the discharge or dismissal or issuance of a new discharge for purposes of clemency.

A board established under this statute may, subject to review by the Secretary concerned, change a discharge or dismissal, or issue a new discharge, to reflect its findings.

A review by a board established under 10 U.S.C. § 1553 shall be based on the records of the armed forces concerned and such other evidence as may be presented to the board. A witness may present evidence to the board in person or by affidavit. A person who requests a review under this section may appear before the board in person or by counsel or an accredited representative of an organization recognized by the Secretary of Veterans Affairs.

Pursuant to Department of Defense (DoD) Instruction 1332.28., applications shall be submitted to the appropriate Discharge Review Board (DRB) on DD Form 293, “Application for the Review of Discharge from the Armed Forces of the United States,” or computer-generated equivalent, with such other statements, affidavits, or documentation as desired. A motion or request for review must be made within 15 years after the date of discharge.

An applicant may request a change in the character or reason for discharge (or both). The DRB shall change the reason for discharge if such a change is warranted.

An applicant may request a specific change in character of discharge. A request for review from an applicant without an Honorable Discharge will be treated as a request for a change to an Honorable Discharge unless the applicant requests a specific change to another character of discharge.

Discharge Review Standards. The objective of a discharge review is to examine the propriety and equity of the applicant's discharge. The standards of review and the underlying factors that aid in determining whether the standards are met shall be historically consistent with criteria for determining honorable service. No factors shall be established that require automatic change or denial of a change in discharge. In each case, the DRB or the Secretary of the Military Department concerned shall give full, fair, and impartial considerations to all applicable factors before reaching a decision. An applicant may not receive a less favorable discharge than issued at the time of separation. This does not preclude correction of clerical errors.

The primary function of the DRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case-by-case basis. The DRB is not bound by prior decisions in its review of subsequent cases because no two cases present the same issues of equity.

An issue of equity includes any issue submitted by the applicant that is addressed to the discretionary authority of the DRB. An issue of propriety is a matter that involves a determination whether a discharge should be changed because of an error in the discharge pertaining to a regulation, statute, constitutional provision, or other source of law (including a matter that requires determining if the action by military authorities was arbitrary, capricious, or an abuse of discretion). The context of the regulation or a description of the procedures allegedly violated normally must be set forth in order to inform the DRB adequately of the basis for the applicant's position.

Propriety. A discharge shall be deemed proper unless, in the course of discharge review, it is determined that an error of fact, law, procedure, or discretion exists associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made); or a change in policy by the Military Service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.

When a record associated with the discharge at the time of issuance involves a matter in which the primary responsibility for corrective action rests with another organization (for example, another board, agency, or court), the DRB shall recognize an error only to the extent that the error has been corrected by the organization with primary responsibility for correcting the record.

Equity. A discharge shall be deemed to be equitable unless, in a discharge review, it is determined that the policies and procedures under which the applicant was discharged differ in material respects from those currently applicable on a Service-wide basis to discharges of the type under consideration, provided that: (1) current policies or procedures represent a substantial enhancement of the rights afforded a respondent in such proceedings; and (2) there is substantial doubt that the applicant would have received the same discharge if relevant current policies and procedures had been available to the applicant at the time of the discharge proceedings under consideration.

A discharge shall be deemed to be equitable unless, in a discharge review, it is determined that at the time of issuance, the discharge was inconsistent with standards of

discipline in the Military Service of which the applicant was a member, or that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the DRB viewed in conjunction with the factors listed in this paragraph and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.

Areas of consideration include, but are not limited to quality of service, as evidenced by factors such as:

service history, including date of enlistment, period of enlistment, highest rank achieved, conduct or efficiency ratings (numerical or narrative); awards and decorations;

letters of commendation or reprimand; combat service; wounds received in action; records of promotions and demotions; level of responsibility at which the applicant served; other acts of merit that may not have resulted in a formal recognition through an award or commendation; length of service during the service period that is the subject of the discharge review; prior military service and type of discharge received or 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; convictions by court-martial; records of nonjudicial punishment; convictions by civil authorities while a member was in military service, reflected in the discharge proceedings or otherwise noted in Military Service records;

records of periods of unauthorized absence; records relating to a discharge instead of court-martial.

Another area of consideration includes the capability to serve, as evidenced by factors such as age, educational level, and aptitude scores. Consideration may also be given to whether the individual met normal military standards of acceptability for military service and similar indicators of an individual's ability to serve satisfactorily, as well as ability to adjust to military service. Family and personal problems may also be considered, including matters in extenuation or mitigation of the reason for discharge that may have affected the applicant's ability to serve satisfactorily.

The applicant is encouraged, but not required, to identify an issue as pertaining to the propriety or the equity of the discharge. This will assist the DRB in assessing the issue. Applicants are not required to cite prior decisions as the basis for a change in discharge. If the applicant wishes to bring to the DRB's attention a prior decision as background or illustrative material, the citation must be placed in a brief or other supporting document.

Conduct of Reviews.

Members. As designated by the Secretary concerned, the DRB and its panels, if any, shall consist of five members. One member of the DRB shall be designated as the DRB President and may serve as a presiding officer. Other members may be designated to serve as presiding officers for DRB panels under regulations prescribed by the Secretary concerned.

Locations. Reviews by a DRB shall be conducted in the NCR and such other locations as designated by the Secretary concerned.

Types of Review. An applicant, upon request, is entitled to a records review and a hearing. A records review includes a review of the application, available Service

records, and additional documents (if any) submitted by the applicant. A hearing involves an appearance before the DRB by the applicant and the applicant's counsel or representative, if so designated. If the applicant elects and receives a hearing first, the applicant is no longer eligible for a records review.

Applicant's Expenses. Unless otherwise specified by law or regulation, expenses incurred by the applicant, witnesses, counsel or representative shall not be paid by the Department of Defense.

Reconsideration. A discharge review shall not be subject to reconsideration except:

(1) When the only previous consideration of the case was on the motion of the DRB;

(2) When the original discharge review did not involve a hearing and a hearing is now desired, and applicant has not otherwise failed to appear or respond;

(3) When changes in discharge policy are announced after an earlier review of an applicant's discharge, and the new policy is made expressly retroactive;

(4) When the DRB determines that policies and procedures under which the applicant was discharged differ in material respects from policies and procedures

currently applicable on a Service-wide basis to discharges of the type under consideration, provided that such changes in policies or procedures represent a substantial enhancement of the rights afforded a respondent in such proceedings; or

(5) On the basis of presentation of new, substantial, relevant evidence not available to the applicant at the time of the original review. The decision on whether evidence offered by an applicant in support of a request for reconsideration is in fact new, substantial, relevant, and was not available to the applicant during the original review shall be based on a comparison of such evidence with the evidence considered in the previous discharge review. The request for reconsideration shall be granted if this comparison shows that the evidence submitted would have had a probable effect on matters concerning the propriety or equity of the discharge.

Availability of Records and Documents. Before applying for discharge review, potential applicants or their designated representatives should obtain copies of their military personnel records by submitting a General Services Administration Standard Form 180, “Request Pertaining to

Military Records,” to the appropriate address indicated on the form. Once the application for discharge review (DD Form 293) is submitted, an applicant's military records are

forwarded to the DRB where they cannot be reproduced.

The DRB may obtain additional evidence relevant to the discharge under consideration beyond the contents of the official military records or evidence submitted by the applicant, if a review of available evidence suggests that it would be incomplete without the additional information, or when the applicant presents testimony or documents requiring additional information to evaluate properly. Such information shall be made available to the applicant, upon request, with appropriate modifications regarding classified material.

In any case heard on request of an applicant, the DRB shall provide the applicant, at a reasonable time before initiating the decision process, a notice of the availability of all regulations and documents to be considered in the discharge review, except for documents in the official personnel or medical records and any documents submitted by the applicant. The DRB shall notify the applicant of the right to examine such documents or to be provided with copies of the documents upon request; of the date by which such requests must be received; and of the opportunity to respond within a reasonable period of time to be set by the DRB.

Regulations of a Military Service may be obtained at many installations under the jurisdiction of the Military Service concerned or by writing to the following address:

National Technical Information Service

5285 Port Royal Road (Reading Room)

Springfield, VA 22161

Hearings. The individual's right to privacy shall be recognized at all hearings (including hearing examinations). Accordingly, presence at hearings of individuals shall be limited to persons authorized by the Secretary concerned or expressly requested by the applicant, subject to reasonable limitations based on available space. If, in the opinion of the presiding officer, the presence of other individuals could be prejudicial to the interests of the applicant or the Government, hearings may be closed to all but required participants.

Evidence and Testimony. The DRB may consider any evidence obtained in accordance with the DoD Instruction. Formal rules of evidence shall not be applied in DRB proceedings.

The presiding officer shall rule on matters of procedure and shall ensure that reasonable bounds of relevancy and materiality are maintained in the taking of evidence and presentation of witnesses. Applicants undergoing hearings shall be permitted to make sworn or unsworn statements or to introduce witnesses, documents, or other information on their behalf, at no expense to the Department of Defense.

Applicants may also make oral or written arguments personally or through counsel or representatives. Applicants and witnesses presenting sworn statements may be questioned by the DRB. All testimony shall be taken under oath or affirmation unless the applicant specifically requests to make an unsworn statement. If an applicant or witness makes an unsworn statement, the DRB may not ask questions unless such questions are agreed upon.

Presumption of Regularity. There is a presumption of regularity in the conduct of governmental affairs. This presumption shall be applied in any review unless there is substantial credible evidence to rebut the presumption.

Decision Process. The DRB or the DRB panel, as appropriate, shall meet in plenary session to review discharges and exercise its discretion on a case-by-case basis in applying the standards set forth in the DoD Instruction. The presiding officer is responsible for the conduct of the discharge review. The presiding officer shall convene, recess, and adjourn the DRB panel, as appropriate, and shall maintain an atmosphere of dignity and decorum at all times. Each DRB member shall act under oath or affirmation requiring careful, objective consideration of the application. DRB members are responsible for eliciting all facts necessary for a full and fair hearing. They shall consider all information presented by the applicant. In addition, the DRB shall consider available military service and health records, other records that may be in the files of the Military Service concerned and relevant to the issues before the DRB, and any other evidence obtained in accordance with the DoD Instruction.

When a DRB determines an applicant's discharge was improper, the DRB shall determine which reason for discharge should have been assigned based upon the facts and circumstances before the discharge authority, including the Service regulations governing reasons for discharge at the time the applicant was discharged. Unless it is also determined that the discharge was inequitable, the provisions as to characterization in the regulation under which the applicant should have been discharged will be considered in determining whether further relief is warranted.

When the DRB determines that an applicant's discharge was inequitable, any change shall be based on the evaluation of the applicant's overall record of service and relevant regulations of the applicant's Military Service.

Voting shall be conducted in closed session, a majority of the five members' votes constituting the DRB decision. Voting procedures shall be prescribed by the Secretary of the Military Department concerned. Details of closed session deliberations of a DRB are privileged information and shall not be divulged. There is no requirement for a statement of minority views in the event of a split vote. The minority, however, may submit a brief statement of its views under procedures established by the Secretary concerned.

DRBs may request advisory opinions from staff officers of their Military Service. These opinions are advisory in nature and are not binding on the DRB in its decision-making process. The preliminary determinations shall be made upon majority vote of the DRB concerned on an expedited basis. Such determination shall be based upon the standards set forth in the DoD Instruction. The DRB shall: (1) address items submitted as issues by the applicant; (2) address decisional issues; and (3) prepare a decisional document.

Recommendation of the DRB President. The President of the DRB may forward cases for consideration by the Secretarial Reviewing Authority (SRA) under rules established by the Secretary concerned. The DRB President is not required to submit a recommendation for cases forwarded to the SRA. If the DRB President makes a recommendation based on the character of or reason for discharge, the recommendation shall contain the DRB President's views on whether there should be a change in the character of or reason for discharge (or both). If the DRB President recommends such a change, the particular change to be made shall be specified.

Secretarial Reviewing Authority (SRA). The SRA is the Secretary concerned or the official to whom Secretary's discharge review authority has been delegated. Prior to the final notification of a decision, the SRA may review any specific case in which the SRA has an interest, or in which the DRB President believes is of significant interest to the SRA.

The Decisional Document. A decisional document shall be prepared for each review. At a minimum, this document shall contain:

(1) The circumstances and character of the applicant's service as extracted from available service records, including health records, and information provided by other Government authorities or the applicant, such as, but not limited to:

(a) Information concerning the discharge at issue in the review, including:

(1) Date (YYYYMMDD) of discharge.

(2) Character of discharge.

(3) Reason for discharge.

(4) The specific regulatory authority under which the discharge was issued.

(5) Date (YYYYMMDD) of enlistment.

(6) Period of enlistment.

(7) Age at enlistment.

(8) Length of service.

(9) Periods of unauthorized absence.

(10) Conduct and efficiency ratings (numerical or narrative).

(11) Highest rank achieved.

(12) Awards and decorations.

(13) Educational level.

(14) Aptitude test scores.

(15) Incidents of punishment pursuant to Article 15, Uniform Code of Military Justice (including nature and date (YYYYMMDD) of offense or punishment).

(16) Convictions by court-martial.

(17) Prior military service and type of discharge received.

(2) A list of the type of documents submitted by or on behalf of the applicant (including a written brief, letters of recommendation, affidavits concerning the circumstances of the discharge, or other documentary evidence), if any.

(3) A statement as to whether the applicant testified, and a list of the type of witnesses, if any, who testified on behalf of the applicant.

(4) A notation whether the application pertained to the character of discharge, the reason for discharge, or both.

(5) The DRB's conclusions on whether the character of or reason for discharge should be changed and the specific changes to be made, if any.

(6) A list of the items submitted as issues on DD Form 293 or expressly incorporated therein and any other issues submitted by the applicant.

(7) The response to the items submitted as issues by the applicant.

(8) A list of decisional issues and a discussion of such issues under the appropriate guidance.

(9) Minority views, if any, when authorized under rules of the Military Services concerned.

(10) The recommendation of the DRB President when required.

(11) The addendum of the SRA when required.

(12) Advisory opinions (including those containing factual information), when such opinions have been relied upon for final decision or have been accepted as a basis

for rejecting any of the applicant's issues. Such advisory opinions or relevant portions not fully set forth in the discussion of decisional issues or otherwise in response to items submitted as issues by the application shall be incorporated by reference. A copy of opinions incorporated by reference shall be appended to the decision and included in the record of proceedings.

(13) A record of the voting, including the number of votes for the DRB's decision and the number of votes in the minority, if any, along with the DRB members' names (last name, first initial and middle initial) and votes. The copy provided to the applicant may substitute a statement that the names and votes shall be available at the applicant's request.

(14) An authentication of the document by an appropriate official.

Record of DRB Proceeding. When the DRB proceedings have been concluded, a record shall be prepared. Records may include written records, electromagnetic records, videotape recordings, or a combination thereof. At a minimum, the record shall include the following:

(1) The application for review;

(2) A record of the testimony in verbatim, summarized, or recorded form at the option of the DRB concerned;

(3) Documentary evidence or copies thereof, considered by the DRB other than the Military Service record;

(4) Briefs and arguments submitted by or on behalf of the applicant;

(5) Advisory opinions considered by the DRB, if any;

(6) The findings, conclusions, and reasons developed by the DRB;

(7) Notification of the DRB's decision to the cognizant custodian of the applicant's records, or reference to the notification document;

(8) Minority reports, if any; and

(9) A copy of the decisional document.

[1] Sources of Information include 10 U.S.C. §1553 and Department of Defense (DoD) Instruction 1332.28.

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