When I scour Nexis, Court Listener, and PACER for relevant news to my profession, I occasionally find lawsuits involving former military members suing the Department of Defense and respective service branches for failing to correct a military record or upgrade a discharge (which as most of you know, a less than honorable discharge can have a detrimental effect on future employment, security clearances and benefits.) Almost all, except in unique circumstances, these lawsuits are unsuccessful and many are dismissed before going to trial. Like security clearance lawsuits, the courts do not want to encroach the separation of powers, specifically the Executive Branch.
Military Record Adjustments
So how successful are the administrative attempts at getting a military record corrected or a discharge upgraded? A look at the last few year’s statistics paint an uphill battle for the veteran, although that can be qualified by the amount of cases that seem to get filed that are without merit. Without getting too deep into the scope of review boards, the range of what is requested by the applicant varies widely, from getting a negative document removed, to asking for back pay for a wrongful termination, or upgrading the discharge in a separate review board. I also didn’t even mention the disability review process which has its own process.
Looking at various trends over the past couple of years, many of the discharges reviewed at the Air Force level based on refusal to take the Covid-19 vaccine were upgraded. The original reason stated for the discharge was usually Misconduct, the characterization was either under “Other than Honorable” or “General” and carried a negative reenlistment code. However, the review board used this blanket language in the decisions to upgrade and change:
“The DRB voted unanimously to approve the applicant’s request to upgrade his discharge characterization to “Honorable”, to change the discharge narrative reason to “Secretarial Authority”, and to change the reenlistment eligibility code to “2C” or “3K.”
As far as all review board claims, to include the Board for Correction of Military Records (BCMR) claims, these are the statistics available to the public for the first part of the past year.
These stats are broken down by the type of review board, the branch of service, and the success (or lack thereof) of each type of case. Mental Health claims were far more successful in getting relief granted in the Army and Navy than the Air Force, but also vastly more in number filed. The same is true with sexual assault claims adjudicated. Other categories of relief granted were lumped together and the Air Force was actually more favorable to the applicant in their decision. Interestingly, the Army BCMR had 24 claims submitted based on WWII service.
There seems to be a huge backlog in getting many of all service cases published over the past three years, so I could not pick out specific ones of interest in some of the above categories.
What this means for Service Members
What does this mean for the reader? If you feel like you have been wronged, investigate, but do your homework as to scouring the past review board decisions for cases similar to yours, before shelling out a bunch of money to an attorney or getting your hopes up for something that will probably be unsuccessful. For links to the various boards start here: https://boards.law.af.mil/. It will take patience because there seems to be little in the way of searching by topic options.
