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How to Correct Your Military Records: A Primer

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Have you ever wanted to remove derogatory material from your official military record, request a medal you earned but were never awarded, or ask for a different discharge characterization of service or reenlistment code? If so, there is good news!  Each service branch maintains a Board for Correction of Military/Naval Records (BCMR/BCNR) devoted to correcting errors or injustices in a service member’s official military file.

MJA has helped active duty service members and veterans successfully petition the BCNR/BCMRs for relief in a variety of cases including titling appeals, administrative reprimand removals, discharge upgrades, and even removing records of nonjudicial punishment under Article 15, UCMJ. If there is an error or injustice in your military service records that warrants removal, contact us today for your free consultation.

What are the BCMRs?

The BCMRs, established pursuant to 10 U.S.C. 1552, consider applications properly before them for the purpose of determining the existence of an error or an injustice, and to make appropriate recommendations to the Service Secretaries. The BCMRs, unlike the Discharge Review Boards (DRBs) for each service, may review discharges awarded by a general court-martial.

Other types of cases reviewed by the BCMRS include, but are not limited to: requests for physical disability retirement; the cancellation of a physical disability discharge, and substituting, in lieu thereof, retirement for disability; an increase in the percentage of physical disability; the removal of derogatory material from an official military record; the review of nonjudicial punishment; and the restoration of rank, grade, or rating. The BCMRS will also review the case of a service member who is in a Reserve component and who contends that their release from active duty should have been honorable, rather than general (under honorable conditions).

Veterans seeking a discharge upgrade who were separated from the military less than 15 years ago must first apply to the Discharge Review Board for their service branch.

Am I eligible to apply?

Current and former members of the United States military (including Reserve personnel) may apply to the BCMR for their respective service for a correction of an error or injustice in their official military record. If a former service member is deceased or incompetent, the member’s spouse, widow or widower, next of kin (parent, sibling, or child), or legal representative can apply for the service member.

What are the filing requirements?

Applications must be filed with the BCMRs within 3 years of the date of the discovery of the error or injustice. However, the boards are authorized to excuse the fact that the application was filed at a later date, if the finds it to be in the interest of justice to consider the application. The BCMRs may deny an application without a hearing, if it determines that there is insufficient evidence to indicate the existence of probable material error or injustice to the applicant. An application will not be considered by the BCMRs until the applicant has exhausted all other effective administrative remedies afforded by existing law or regulations, and such other legal remedies as the board shall determine are practical and appropriately available to the applicant.

How do I apply?

To apply, applicants must submit a completed DD149 form containing the veteran’s personal information, requested correction, justification for the request, and date and time when the alleged error or injustice was discovered, among other information. Applicants may attach as evidence documents in support of their application.

The burden of proof to show either an error or injustice rests with the applicant. Absent evidence to the contrary, the BCMRs will presume that the military record was appropriate and in compliance with service regulations. Applicants can request a personal appearance before the Boards, but are not entitled to a hearing.

Who reviews my case?

The BCMRs are composed of at least three-member panels of civilian employees appointed to by the Service Secretaries. The BCMR of the Coast Guard consists of civilians within the U.S. Department of Homeland Security. Panels review cases on a first come, first served basis.

How long does it take?

The BCMRs collectively process ten of thousands of applications a year. As a result, an applicant should expect to wait as long as 18 months before the board considers their case. This wait can, however, vary between the service branches.

What is liberal consideration?

On September 3, 2014, the Secretary of Defense issued a memorandum providing guidance to the BCNR/BCMRs as it considers petitions brought by veterans claiming Post Traumatic Stress Disorder (PTSD) with other than honorable conditions (OTH) discharge. This includes a comprehensive review of all materials and evidence provided by the applicant.

This policy was issued to make the application process easier for veterans seeking redress and assists the Boards in reaching fair and consistent results in these cases. The guidance also mandates liberal waivers of time limits, ensures timely consideration of petitions, and allows for increased involvement of medical personnel in Board determinations.

On 25 August 2017, the DOD issued clarifying guidance to the Military Discharge Review Boards expanding liberal consideration “when the application for relief is based in whole or in part on matters relating to any mental health conditions, including PTSD, TBI, sexual assault, or sexual harassment.”

Under this new guidance, evidence of a qualifying condition “may come from sources other than a veteran’s service record, such as mental health counseling centers, and may include “changes in behavior” or “inability of the individual to conform their behavior to the expectations of a military environment.” Conditions or experiences that may reasonably have existed at the time of discharge will be liberally considered as excusing or mitigating the discharge.”

In discharge upgrade cases, liberal consideration applies when the board is considering for critical questions: (1) Did the veteran have a condition or experience that may excuse or mitigate the discharge?; (2) Did that condition exist/experience occur during military service?; (3) Does that condition or experience actually excuse or mitigate the discharge?; and (4) Does that condition or experience outweigh the discharge?

Liberal consideration, if applied, does not mean that the service member will automatically receive the requested relief but will be a consideration in the BCNR/BCMR’s analysis.

Is it actually possible to correct my records?

Yes! While getting a military review board to grant relief is not easy, it is possible with a lot of hard work and the right facts. MJA has helped active duty service members and veterans successfully petition the BCNR/BCMRs for relief in a variety of cases including titling appeals, administrative reprimand removals, discharge upgrades, and even removing records of nonjudicial punishment under Article 15, UCMJ. Examples of successful past cases include: 

  • Board for Correction of Naval Records (BCNR). A Chief Petty Officer in the United States Navy was titled and indexed by the Naval Criminal Investigative Service (NCIS) during an investigation for a violation of Article 120, UCMJ. Despite substantial and overwhelming evidence showing that the Sailor did not commit the offense, NCIS refused to remove the titling determination. MJA appealed the decision to the BCNR, which determined that credible information did not exist to title the Sailor and that the titling was a “significant injustice.” The BCNR granted the Sailor full relief and recommended that NCIS expunge his name as a titled and indexed subject from the NCIC and DCII criminal history databases.
  • Army Board for Correction of Military Records. A Private First Class (E-3) in the United States Army was titled and indexed by the Army Criminal Investigation Division (CID) for assault consummated by battery after a domestic incident with her spouse. The Soldier was never taken to court-martial or nonjudicial punishment and was later honorably discharged. Despite these facts, the Soldier remained titled and later learned that she was disqualified from working in the healthcare field due to the titling action. After USACID refused to remove the titling entry, MJA appealed the decision to the ABCMR. The Army Board determined that the Soldier was the victim of domestic physical abuse and should not have been titled. The ABCMR granted the Soldier full relief and recommended that all Department of the Army records concerning the Soldier be corrected by removing her name from the title block of the law enforcement report. 
  • Board for Correction of Naval Records (BCNR). A Gunnery Sergeant (E-7) in the United States Marine Corps was awarded Nonjudicial Punishment (NJP) and issued a 6105 Counseling after being arrested for operating a motor vehicle under the influence of alcohol. MJA appealed the punishment on the basis that the Commanding Officer who imposed NJP failed to comply with JAGINST 5800.7F. The BCNR determined the NJP and counseling entry were invalid and removed them from the Marine’s OMPF. The BCNR further directed that a fitness report referring to the NJP be redacted to exclude any reference of the punishment. 
MJA Can Help

MJA has helped active duty service members and veterans successfully petition the BCNR/BCMRs for relief in a variety of cases including titling appeals, administrative reprimand removals, discharge upgrades, and even removing records of nonjudicial punishment under Article 15, UCMJ. If there is an error or injustice in your military service records that warrants removal, contact us today for your free consultation.

The post How to Correct Your Military Records: A Primer appeared first on Military Justice Attorneys.

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