Jason Moy, A SENIOR ASSOCIATE AT THE FEDERAL PRACTICE GROUP, DISCUSSES WHEN TO PETITION OR NOT TO PETITION A DISCHARGE REVIEW BOARD
Posted By fedpractice || 25-Apr-2021
To Petition or Not to Petition a Discharge Review Board; the Reading Room has Answers
You may be wondering if it is worth the time or expense to try to petition a Discharge Review Board to upgrade your discharge, get a better characterization of service, improve your re-enlistment (RE) code, or change the narrative summary of your discharge. While you can find the basics on how to do this on the particular services discharge review board webpages (listed below), and can review the statutes, regulations, instructions, and orders about how the board works, even after reviewing all of this, do you know if it is practically worth it?
Thankfully, the service boards publish their results in Freedom of Information Act “Reading Rooms,” (also listed below) where you can also see the rationales these boards use in making their determinations. These reading rooms give you access to thousands of decisions made by the discharge review boards. The decisions go over basic facts, whether or not the individual was represented, what is the basis of the claim, the decision, and most importantly the board’s rationale.
The two board categories the boards can rely upon to grant relief are propriety (an error in fact, law, procedure, or policy) and equity (usually when current policies differ from the policy in place at the time of the decision). The discharge review boards attempt to solve similar problems in similar ways to avoid being considered “arbitrary and capricious,” a standard used by the U.S. Court of Federal Claims which may be petitioned to challenge a decision issued by one of the discharge review board. In other words, the boards do not want to decide a case in a particular way, and then decide a similar case in a completely different way because those decisions can be used in the U.S. Court of Federal Claims to show the board was acting arbitrarily. Notwithstanding this, every case is different, so it is important to really drill down into the facts of a particular case and decision. For example, many decisions discuss PTSD related to combat, but most Army boards have stated that “PTSD is not a likely cause of premeditated misconduct” and have denied relief when violent acts or drug use is at play. However, in similar cases, the board gave relief, even where violent acts or drug use existed because of the particulars that case presented.
What is important to know is that there are resources out there. The issue is the information overload with thousands of decisions at the click of your mouse. At the Federal Practice Group, our military attorneys review these decisions and have a database that helps us quickly identify which decisions may be best suited to assist you. Based on this, we can give you a good estimate, but no promises, about the potential of your case either at the board level or before the U.S. Court of Federal Claims. Through these decisions, it is apparent that hiring a lawyer for a discharge review board increases your chances of success, as we have better access to the information needed to present your case in the best light. That is why it is important to choose a firm, like the Federal Practice Group, that researches the board’s decisions and regularly handles these cases.
For additional information, see the following:
Navy (& Marine) Discharge Review Board: https://www.secnav.navy.mil/mra/CORB/Pages/NDRB/default.aspx
Army Discharge Review Board: https://arba.army.pentagon.mil/adrb-faq.html
Coast Guard Discharge Review Board: https://www.uscg.mil/Resources/legal/DRB/
Link to all reading rooms: https://boards.law.af.mil/index.htm
Navy & Marine: https://boards.law.af.mil/NAVY_DRB.htm
Air Force: https://boards.law.af.mil/AF_DRB.htm
Coast Guard: https://boards.law.af.mil/CG_DRB.htm (this page is empty but provides a point of contact)
By Jason Moy of the Federal Practice Group