DoD Discharge Appeal Review Board, 94603-94613 [2024-27268]
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Federal Register / Vol. 89, No. 230 / Friday, November 29, 2024 / Rules and Regulations
established to contain aircraft ascending
via the Area Navigation (RNAV) (Global
Positioning System [GPS]) RWY 32
missed approach procedure until
reaching 1,200 feet AGL.
The Colusa Class E airspace beginning
at 1,200 feet above the surface is
redundant and should be removed.
Finally, the FAA proposes
administrative modifications to the
airport’s legal description to update the
geographic coordinates located in the
text header to match the FAA’s
database.
Interim final rule; request for
comments.
ACTION:
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
DEPARTMENT OF DEFENSE
32 CFR Part 73
This interim final rule
implements Section 523 of the National
Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2020, which requires
the DoD to provide Service members
and their authorized representatives
with one final review of requests for an
upgrade in the characterization of a
discharge or dismissal. This rule
establishes the Discharge Appeal
Review Board (DARB) as the DoD
authority responsible for considering
such requests after all other
administrative remedies have been
exhausted. This rule also details the
procedures for a petitioner and their
authorized representatives to request
this final review, the standards the
DARB will apply when considering a
petitioner’s request, and the procedures
the Military Departments will follow
after the DARB adjudicates the request.
The purpose of DARB review is to
ensure uniform standards of review are
met for requests for upgrades of a
discharge or dismissal regardless of the
petitioner’s service affiliation.
DATES: This interim final rule is
effective November 29, 2024. Comments
must be received by January 28, 2025.
ADDRESSES: You may submit comments,
identified by docket number and/or
Regulation Identifier Number (RIN)
number and title, by any of the
following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Department of Defense, Office
of the Assistant to the Secretary of
Defense for Privacy, Civil Liberties, and
Transparency, Regulatory Directorate,
4800 Mark Center Drive, Attn: Mailbox
24, Suite 05F16, Alexandria, VA 22350–
1700.
Instructions: All submissions received
must include the agency name and
docket number or RIN for this Federal
Register document. The general policy
for comments and other submissions
from members of the public is to make
these submissions publicly available at
https://www.regulations.gov as they are
received without change, including any
personal identifiers or contact
information.
1. The authority citation for 14 CFR
part 71 continues to read as follows:
[Docket ID: DoD–2022–OS–0105]
FOR FURTHER INFORMATION CONTACT:
Authority: 49 U.S.C. 106(f), 106(g); 40103,
40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR,
1959–1963 Comp., p. 389.
DoD Discharge Appeal Review Board
Regulatory Notices and Analyses
The FAA has determined that this
proposed regulation only involves an
established body of technical
regulations for which frequent and
routine amendments are necessary to
keep them operationally current. It,
therefore: (1) is not a ‘‘significant
regulatory action’’ under Executive
Order 12866; (2) is not a ‘‘significant
rule’’ under DOT Regulatory Policies
and Procedures (44 FR 11034; February
26, 1979); and (3) does not warrant
preparation of a regulatory evaluation as
the anticipated impact is so minimal.
Since this is a routine matter that will
only affect air traffic procedures and air
navigation, it is certified that this
proposed rule, when promulgated, will
not have a significant economic impact
on a substantial number of small entities
under the criteria of the Regulatory
Flexibility Act.
Environmental Review
This proposal will be subject to an
environmental analysis in accordance
with FAA Order 1050.1F,
‘‘Environmental Impacts: Policies and
Procedures,’’ prior to any FAA final
regulatory action.
The Proposed Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends 14 CFR part 71 as follows:
■
§ 71.1
2. The incorporation by reference in
14 CFR 71.1 of FAA Order JO 7400.11J,
■
16:28 Nov 27, 2024
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AWP CA E5 Colusa, CA [Amended]
Colusa County Airport, CA
(Lat. 39°10´44′N, long. 121°59´36′W)
That airspace extending upward from 700
feet above the surface within 6.6-mile radius
of the airport, within 1.5 miles either side of
the 193° bearing extending from the 6.6-mile
radius to 12 miles south of the airport, and
within 1.8 miles either side of the 331°
bearing extending from the 6.6-mile radius to
6.8 miles northwest of the airport.
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Issued in Des Moines, Washington, on
November 21, 2024.
B.G. Chew,
Group Manager, Operations Support Group,
Western Service Center.
[FR Doc. 2024–27837 Filed 11–27–24; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 738, 740, 742 and 774
[Docket No. 241113–0293]
RIN 0694–AJ63
Correction
In rule document 2024–27648,
appearing on pages 93164–93169, in the
issue of Tuesday, November 26, 2024,
make the following correction:
On page 93164, in the third column,
in the DATES section, in the first and
second lines ‘‘November 25, 2024,’’
should read ‘‘December 26, 2024,’’
[FR Doc. C1–2024–27648 Filed 11–27–24; 8:45 am]
BILLING CODE 0099–10–D
Office of the Secretary
RIN 0790–AL57
Office of the Under Secretary of
Defense for Personnel and Readiness
(OUSD(P&R)), Department of Defense
(DoD).
AGENCY:
[Amended]
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Paragraph 6005 Class E Airspace Areas
Extending Upward From 700 Feet or More
Above the Surface of the Earth.
Implementation of Additional Controls
on Pakistan
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
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Airspace Designations and Reporting
Points, dated July 31, 2024, and
effective September 15, 2024, is
amended as follows:
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SUMMARY:
Ms.
Margarete Ashmore, Office of Legal
Policy, 703–697–3387.
SUPPLEMENTARY INFORMATION:
A. Background
At the time of discharge or dismissal
from the Armed Forces (Air Force,
Army, Coast Guard, Navy, Marine
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Corps, and Space Force), each Service
member is issued a DD 214 titled
‘‘Certificate of Release or Discharge from
Active Duty.’’ 1 It can include the
following information about the Service
member and his or her period of active
military service:
• Date and place of entry into active
duty
• Home address at the time of entry
• Mailing address after separation
• Military service length
• Duty stations and assignments
• Rank and MOS (military occupational
specialty)
• Decorations, medals, badges,
citations, and campaign ribbons
• Military education
• Separation information (type,
character of service, authority,
separation and reentry codes, and
reason for separation)
This separation document is used to
verify the Service member’s period of
active service. The reasons surrounding
a Service member’s discharge or
dismissal, noted by a separate code, as
well as a narrative, and the resulting
characterization of service (e.g.
honorable, general (under honorable
conditions), other than honorable, badconduct, dishonorable) may impact the
Service member’s eligibility for certain
Federal and State provided veteran
benefits and could affect his or her
employment opportunities following
separation. For example, a DD 214
generally is needed to qualify for the
following:
• Department of Veterans Affairs (VA)
guaranteed home loans
• VA education benefits
• Veterans’ Preference for civilian
employment
• VA Health Care Enrollment
• VA Disability claims
• Social Security benefits
• VA and Department of Labor (DOL)
homeless veteran programs
• Federally provided flags and veteran
burial benefits
• Certain veteran and military service
organizations memberships
The Department of Veterans Affairs
uses the DD 214 to determine if the
Service member is eligible for the GI
Bill, a VA home loan, health care
eligibility, and disability benefits. The
DOL uses it to determine eligibility for
certain unemployment compensation
and reemployment rights. The surviving
spouse or dependents of a military
veteran also need this form to apply for
Federal and State provided burial and
1 Information on how to request a Service
member’s military service records (including a DD
214) is available at https://www.va.gov/records/getmilitary-service-records/.
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memorial benefits (i.e., funeral services,
headstones, presidential memorial
certificates, and burial flags).
Currently, each Military Department,
operating through the Military
Departments’ Discharge Review Boards
(DRBs) and Boards for Correction of
Military/Naval Records (BCM/NRs) have
the authority to upgrade a Service
member’s characterization of service
and to correct the Service member’s
military record.2 Service members
seeking a change in their discharge may,
within 15 years of the date of their
discharge (except for a discharge or
dismissal by general courts-martial),
apply to their respective Military
Department’s DRB: 3
• Air Force Discharge Review Board
• Army Discharge Review Board
• Coast Guard Discharge Review Board
• Naval Discharge Review Board
The DRBs may upgrade a Service
member’s discharge when appropriate
based on improprieties or inequities in
the discharge.4 Service members seeking
a correction to their military records
that were discharged more than 15 years
ago, including Service members who
were discharged or dismissed by general
courts-martial, may make their request
directly to their respective Military
Department’s BCMR/NR 5:
• Air Force Board for Correction of
Military Records
• Army Board for Correction of Military
Records
• Coast Guard Board for Correction of
Military Records
• Board for Correction of Naval Records
The BCM/NRs are empowered,
subject to certain constitutional,
statutory, and regulatory limitations, to
change a Service member’s military
record ‘‘to correct an error or remove an
injustice.’’ 6 Changes to a Service
member’s discharge or dismissal as a
result of a request to the Military
Departments’ DRBs and BCM/NRs may
include an upgrade to the character of
service, a change to separation and
reentry codes, and changes to the
narrative reason for separation as
reflected on the Service member’s DD
214.
2 See
10 U.S.C. 1553; see 10 U.S.C. 1552.
10 U.S.C. 1553.
4 32 CFR 70, Part 70—Discharge Review Board
(DRB) Procedures and Standards is available at
https://www.ecfr.gov/current/title-32/subtitle-A/
chapter-I/subchapter-D/part-70.
5 10 U.S.C. 1552; 32 CFR 865 Subpart A (Air
Force BCMR), 32 CFR 581.3 (Army BCMR), 33 CFR
52 (Coast Guard BCMR), and 32 CFR 723 (Navy
BCMR).
6 10 U.S.C. 1552(a)(1).
3 See
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B. Previous Regulatory History and
Requirements of the 2020 NDAA
By statute, the DRBs and BCM/NRs
are required to review a Service
member’s discharge or dismissal
upgrade or correction to their military
records request based upon combatrelated or military sexual trauma (MST)related post-traumatic stress disorder
(PTSD) or traumatic brain injury (TBI)
‘‘with liberal consideration’’ to the
Service member that the combat-related
or MST-related PTSD or TBI potentially
contributed to the circumstances
resulting in the discharge or dismissal
or to its characterization.7 The term
‘‘liberal consideration’’ is not statutorily
defined, but the DoD has provided the
Military Departments an analytical
framework for reviewing such cases.8
Although the DRBs and BCM/NRs have
some discretion on how to apply this
analytical framework, the policies,
procedures, and standards for the
review of a discharge or dismissal must
be uniform and consistent across the
military services.9
In a September 2018 House Armed
Services Committee hearing, House
committee members expressed concerns
that the DRBs and BCM/NRs were not
providing appropriate upgrades to
Service member’s discharges or
dismissals or military record corrections
for applicants who presented evidence
of a service-connected PTSD, a TBI, or
being sexually assaulted while in the
military.10 House committee members
were also concerned that the DRBs and
BCM/NRs were inconsistently applying
‘‘liberal consideration’’ and that the
discharge or dismissal upgrade rate for
these cases was different across all the
military services.11
7 See 10 U.S.C. 1552(h)(2)(B), see 10 U.S.C.
1553(d)(3)(A)(ii)).
8 The DoD has issued policy guidance related to
the application of liberal consideration in DoD
memoranda: Secretary of Defense Memorandum, 3
September 2014, titled ‘‘Supplemental Guidance to
Military Boards for Correction of Military/Naval
Records Considering Discharge Upgrade Requests
by Veterans Claiming Post Traumatic Stress
Disorder (PTSD)’’ (‘‘Hagel Memo’’); Under Secretary
of Defense Memorandum, 25 August 2017, titled
‘‘Clarifying Guidance to Military Discharge Review
Boards and Boards for Correction of Military/Naval
Records Considering Requests by Veterans for
Modification of their Discharge Due to Mental
Health Conditions, Sexual Assault, or Sexual
Harassment’’ (‘‘Kurta Memo’’).
9 See 32 CFR 70.1.
10 Update on Military Review Board Agencies,
Hearing Before the Subcomm. on Military Personnel
of the H. Comm. on Armed Services, 115th Cong.
(2018), https://www.congress.gov/event/115thcongress/house-event/LC64219/text?s=1&r=326.
11 Update on Military Review Board Agencies,
Hearing Before the Subcomm. on Military Personnel
of the H. Comm. on Armed Services, 115th Cong.
(2018), https://www.congress.gov/event/115thcongress/house-event/LC64219/text?s=1&r=326.
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To provide increased oversight and to
ensure that the DRBs and BCM/NRs
uniformly and consistently apply DoD
policies related to the review of a
Service member’s discharge or
dismissal, Congress passed section 523
of the FY 2020 NDAA, as codified at 10
U.S.C. 1553a on December 20, 2019.
This allows for a new level of review for
petitioners (or their authorized
representatives), with certain
limitations, to seek ‘‘an upgrade in the
characterization of a discharge or
dismissal.’’ 12
This ‘‘final review’’ is independent
from the reviews conducted by the
Military Departments’ DRBs and BCM/
NRs.13 Section 523 amended 10 U.S.C.
1553 to include ‘‘a request for an
upgrade to the characterization of a
discharge or dismissal’’ that was
declined ‘‘may be considered under
section 1552 or section 1553a of this
title, as applicable.’’ 14 Similarly, 10
U.S.C. 1552 was also amended to
include ‘‘a request for an upgrade to the
characterization of a discharge or
dismissal’’ that was declined ‘‘may be
considered under section 1553a of this
title.’’ 15
The DoD has the authority to design
and implement the process to conduct
a ‘‘final review of a request for an
upgrade in the characterization of a
discharge or dismissal.’’ 16 Congress
directed the Secretary of Defense to ‘‘use
existing organizations, boards,
processes, and personnel of the
Department of Defense’’ to the
‘‘maximum extent practicable’’ when
establishing this process and it set
January 1, 2021, as the deadline for the
implementation.17 The Secretary of
Defense is also required to publish
annual reports regarding the DoD’s new
final review process, to include the
number of requests considered, the
upgrades granted or declined to the
characterization of a discharge or
dismissal, and the associated reports
must be accessible to the public.18
Upon the request of a petitioner who
has exhausted all available
administrative remedies under 10 U.S.C.
1552 and 1553, the Secretary of Defense
must review the findings and decisions
of the Military Department’s DRB and
BCM/NR and make a recommendation
to the Secretary of the Military
Department concerned for final action.19
12 10
U.S.C. 1553a(c)(1).
U.S.C. 1553a(a).
14 10 U.S.C. 1553(b)(2).
15 10 U.S.C. 1552(a)(4)(B).
16 10 U.S.C. 1553a(a).
17 Public Law 116–92, section 523(c).
18 Id. The annual reports can be accessed at
https://boards.law.af.mil/OSD_DARB.htm.
19 See 10 U.S.C. 1553a(b).
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The term ‘‘final review of a request for
an upgrade in the characterization of a
discharge or dismissal’’ was also
defined as ‘‘a request by a petitioner for
an upgrade to the characterization of a
discharge or dismissal’’ that was
exhausted but not granted by his or her
Military Department’s BCM/NR.20 A
‘‘petitioner’’ means ‘‘a member or
former member of the armed forces (or
if the member or former member is
dead, the surviving spouse, next of kin,
or legal representative of the member or
former member).’’ 21
C. Progress Since the 2020 NDAA
Section 523 directed ‘‘[t]he Secretary
of Defense shall implement section
1553a . . . not later than January 1,
2021.’’ 22 To accommodate the timeline
set by Congress, the DoD designated the
Physical Disability Board of Review
(PDBR), an entity established as part of
the NDAA for FY 2008 to reassess the
accuracy and fairness of the combined
disability ratings assigned Service
members who were discharged as unfit
for continued military service between
September 11, 2001, and December 31,
2009, to assume responsibility while its
statutory mission was concluding and
later take over the duties for this new
review process under this rule. The DoD
also established policies for
implementing internal requirements
while beginning work on this rule. The
DoD issued two internal Deputy
Secretary of Defense (DepSecDef)
Memoranda 23 and one Directive-Type
Memorandum (DTM),24 to provide the
process and procedures for conducting
a final review. This rulemaking is the
final step in establishing the DARB.
D. Process for Petitioning the DARB
It should be noted per statute that the
DARB is strictly a document review
board.25 Any new evidence a petitioner
wishes to introduce must first be
reviewed and a determination made by
the respective Military Department’s
DRB and BCM/NR.26 After reviewing a
20 10
U.S.C. 1553a(c)(1).
U.S.C. 1553a(c)(2).
22 Public Law 116–92, section 523.
23 The first DoD Memorandum, ‘‘Department of
Defense Implementation of Section 523 of the
National Defense Authorization Act for Fiscal Year
2020,’’ published January 29, 2021, was updated on
May 17, 2022, by DoD Memorandum, ‘‘Update to
Department of Defense Appeal Review Board
Procedures.’’ These DoD Memoranda can be
accessed at https://afrba-portal.cce.af.mil/#boardinfo/darb/navbar.
24 The Directive-Type Memorandum (‘‘DTM’’),
‘‘DoD Discharge Appeal Review Board,’’ published
May 5, 2023, and is available on the DoD Directives
Division website and can be accessed at https://
www.esd.whs.mil/Directives/Recent-Publications/.
25 See 10 U.S.C. 1553a(b).
26 10 U.S.C. 1553a(b), (c).
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Service member’s case file records, the
DARB may make a recommendation to
upgrade the characterization of
discharge or dismissal based on their de
novo review.27 If the DARB
recommends an upgrade, this
recommendation will be sent to the
Secretary of the Military Department
concerned for final action.28
In most cases, the current or former
Service member petitions the DARB for
an upgrade to the characterization of his
or her discharge or dismissal. If the
Service member is deceased or
incapacitated, the surviving spouse,
next of kin, or legal representative may
apply for a final review on the Service
member’s behalf.29 Petitioners are
eligible for a DARB review when all four
criteria below are met:
• The Service member’s date of
discharge or dismissal was on or after
December 20, 2019; 30
• The Service member received a less
than honorable characterization of
service; 31
• The petitioner has exhausted all
remedies available at the respective
Military Departments’ DRB and BCM/
NR; 32 and
• The petitioner’s request for an
upgrade in the characterization of a
discharge or dismissal was denied or it
was only partially granted at their
respective Military Department’s BCM/
NR.33
Petitioners can request a DARB
discharge review by sending a written
request by email to saf.mr.darb@
us.af.mil or by mail to Air Force Review
Boards Agency, SAF/MRBD (DARB),
3351 Celmers Lane, Joint Base Andrews,
MD 20762–6435. To learn more about
DARB and the process for petitioning
for a final discharge review, visit the Air
Force Review Board Agency website
located at https://afrbaportal.cce.af.mil/#board-info/darb/
navbar.
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27 10
U.S.C. 1553a; Public Law 116–92, section
523.
28 10
U.S.C. 1553a(b)(2).
U.S.C. 1553a(c)(2).
30 See 10 U.S.C. 1553a; see Public Law 116–92,
section 523; see also DTM, ‘‘DoD Discharge Appeal
Review Board,’’ published May 5, 2023, and is
available on the DoD Directives Division website
and can be accessed at https://www.esd.whs.mil/
Directives/Recent-Publications/. If this portion of
the rule is held to be invalid by a court, the
remainder of the rule should be considered
severable and not affected by such determination.
31 See 10 U.S.C. 1553a(c)(1).
32 10 U.S.C. 1553a(c)(1)(B).
33 See 10 U.S.C. 1553a(c)(1).
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II. Expected Impact of This Interim
Rule
A. Baseline
If requesting a discharge upgrade
within 15 years of the date of discharge
(except discharges by general courtsmartial), the Service member must first
apply to their respective Military
Department’s DRB to review their
discharge and the resulting
characterization of service.34 A Service
member who is not satisfied with the
DRB’s findings and decision regarding
their request may also seek relief from
their respective Military Department’s
BCMR/NR.35 Service members who
were discharged more than 15 years
ago 36 and Service members requesting
an upgrade of their dismissal or
discharge by general courts-martial
should seek review of their discharge or
dismissal directly to their respective
Military Department’s BCMR/NR.37
Between October 1, 2016, and
September 30, 2021, approximately
23,176 individuals requested an
upgrade to the characterization of a
discharge or dismissal at their Military
Department’s BCM/NR.38 Of the 23,176
upgrade requests, the BCM/NRs fully
granted 15% of their requests for an
upgrade to the characterization of their
discharge or dismissal on average.39
Military Department BCM/NRs are
currently the highest level of
administrative review for the review of
a discharge or dismissal, and their
decisions constitute final agency action
on a request for an upgrade to the
characterization of a discharge or
dismissal. As this is a new
congressionally mandated additional
review, there is no pre-established
baseline cost of comparison for this rule.
B. Policy
DoD’s solution is to use existing DoD
board personnel who are familiar with
34 See
32 CFR 70; see 10 U.S.C. 1553.
U.S.C. 1552.
36 There is a three-year deadline to apply to a
BCM/NR from the date of the discovery of an
alleged error or injustice, but the time limit can be
waived in the ‘‘interest of justice.’’ 10 U.S.C.
1552(b).
37 10 U.S.C. 1553.
38 The Navy’s data was included in this number
but its case tracking systems for data was based on
an in-house database that was inconsistent before
mid-2019, and as a result, it is reasonable to assume
that the total numbers may be higher.
39 If an applicant received a partial upgrade at the
BCM/NR, this data would not be included in the
15% unless the applicant requested and received a
partial upgrade at the BCM/NR. Additionally, the
Army could not provide the total number of
applicants who received the upgrade requested
without a case-by-case review, and as a result, it
was not included when determining the average
percent of upgrades granted by the military
departments.
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established review processes to conduct
a final review of a request for an
upgrade in the characterization of a
discharge or dismissal—PDBR, as
provided under 10 U.S.C. 1554a. The
OUSD(P&R) which is responsible for
overseeing the Military Department’s
DRBs and BCM/NRs also oversees the
PDBR. This solution was chosen
because it provides petitioners with a
fair and equitable review and it meets
Congress’ direction for establishing and
implementing a process using existing
DoD ‘‘organizations, boards, processes,
and personnel’’ to the ‘‘maximum extent
practicable.’’ 40 By using existing PDBR
personnel, similar processes, and
infrastructure to conduct a similar
discharge review, it is the most costeffective approach, based on the
analysis in this section.
Congress directed the establishment
of the PDBR in 2008 to review a Service
member’s request for an upgrade in the
disability rating of their medical
discharge.41 The PDBR requires at least
three members to conduct the review.
Service members who were separated
from the Armed Forces, who received a
disability rating of 20 percent or less,
and were found not eligible for
retirement, could request a review of
their disability rating under the process.
The PDBR reviews the Service member’s
medical records and the Military
Department’s disability determination
and makes a recommendation to the
Secretary of the Military Department
concerned on whether to upgrade the
disability rating. The PDBR was created
to review Service member’s medical
discharges between a set period, ending
on December 31, 2009, and the PDBR
will cease operating on October 1, 2024.
Because PDBR personnel are familiar
with discharge upgrades from the
Military Departments, including Service
member medical issues and the related
benefits available, the personnel would
be able to quickly take on this new
congressionally mandated discharge
review. The PDBR caseload is
dwindling and any remaining cases or
requests for a disability upgrade review
received after October 1, 2024, will be
transferred to their respective Military
Department BCM/NRs, so the existing
PDBR personnel, processes to conduct
comparable reviews, and infrastructure
would be fully utilized in the intake of
requests and conducting the final
reviews. A three-member panel also
ensures that a petitioner has a fair
process that will allow an opportunity
for a thorough and thoughtful review of
40 Public
41 Public
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the Military Department’s findings and
decisions.
1. Estimated Final Review Requests
Pursuant to 10 U.S.C. 1553a, any
Service member who has been
discharged or dismissed with a less than
honorable discharge characterization,42
whose request for an upgrade in the
characterization of their discharge or
dismissal was denied or only partially
granted by their respective Military
Department BCM/NR, and who
exhausted all available remedies with
their respective Military Department’s
DRB and BCM/NR, may petition the
DARB for a final review. Because
section 116–92 of the FY 2020 NDAA
and 10 U.S.C. 1553a became effective on
December 20, 2019, the DARB requires
that the Service member was discharged
or dismissed on or after December 20,
2019, to be eligible for this additional
review. The eligibility date aligns with
the language in section 523 of the
NDAA for FY 2020 and allows for faster
action while also affording finality to
prior, and potentially long-resolved,
Military Departments’ decisions on
requests for upgrades, which would in
turn permit earlier intervention by a
civilian court. Additionally, it provides
for clear eligibility determinations by
establishing an explicit date-certain
timeframe for eligibility.
As of June 30, 2022, there were
approximately 63,294 former ActiveDuty Service members who had been
discharged or dismissed on or after
December 20, 2019 and received a less
than honorable discharge
characterization.43 Petitioners however
are not eligible for a DARB final review
until they fully exhaust all their
administrative remedies at their
respective Military Department’s DRB
and BCM/NR.
The time to fully exhaust their
administrative remedies varies
significantly based on the complexity of
their case, the military service involved,
and whether they request a
documentary record review or a
personal appearance hearing. Based on
internal records, the DoD anticipates it
will take at least 18 months from their
42 A less than honorable discharge
characterization includes dismissals, a general,
other than honorable, uncharacterized, badconduct, and dishonorable discharges.
43 Active-Duty Service members include members
of the Army, Navy, Marine Corps, Coast Guard, Air
Force, and Space Force. Additionally, while
Reserve Service members may be eligible for a final
review, Active-Duty Service member data were
used here because they primarily petition the DRBs
and BCM/NRs, and they are more likely to qualify
for Veterans Benefits if their discharge
characterization is upgraded as they meet the
length-of-service criteria needed for veteran status
(38 U.S.C. 5303A(b); 38 CFR 3.12a(a)(1)).
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date of discharge or dismissal to fully
exhaust their available remedies at their
Military Department’s DRB and BCM/
NR but it could take much longer than
this. Individuals who have requested an
upgrade to a discharge or dismissal and
are not satisfied with their result at their
Military Department’s BCM/NR may
then consider petitioning the DARB for
a final review. The DARB requires a
petitioner to request a final review
within 12 months of receipt of their
BCM/NR decision. Thus, it will take a
minimum of 18 to 30 months from the
date of a discharge or dismissal for the
DARB to receive a petitioner’s final
review request.44
Based on the BCM/NR data analyzed
previously in the baseline,
approximately 23,176 individuals
requested an upgrade to the
characterization of a discharge or
dismissal at the Military Department’s
BCM/NRs over a five-year period, which
equates to 4,635 requests a year.
Assuming the BCM/NR will fully grant
15% of these requests to fully upgrade
the characterization of discharge or
dismissal, this results in an estimated
3,940 petitioners a year who will be
eligible for a final review. Because the
process for a petitioner to request a final
review is straight-forward and some
petitioners may not be interested in a
further appeal as they may have
received partial relief and be satisfied
with that result, the DoD assumes that
75% of these eligible petitioners a year
will petition for a final review. As a
result, we estimate that the DARB will
receive 2,955 final review requests a
year.
2. Costs of Policy
In determining whether to petition the
DARB for a final review, we estimate
that it would take a petitioner up to 2
hours to view case file records and the
BCM/NR decision to decide whether to
request a final review, and an additional
5 to 30 minutes on average to submit a
request for a final review. Assuming 2.5
hours in total at the median hourly rate
of $24.95 based on data from the Bureau
of Labor Statistics (BLS),45 the cost of
this activity is $62.38. While
representation by an attorney is not
necessary, a Service member may
decide to consult with an attorney when
determining whether to request a final
review. Because the DARB conducts
only a record review and a Service
member may already have an attorney
who represented them in their DRB and
BCM/NR proceedings, any consultation
with the same attorney for the purposes
of conducting this additional DoD
review will be minimal.
The cost to a petitioner or an
authorized representative for submitting
94607
a request for a final review itself will
vary based on whether the request is
submitted electronically or by mail. The
DARB is not authorized to accept new
information in support of a petitioner’s
request for a final review, so the
resulting cost to the petitioner may only
be minimal printing, scanning,
photocopying, and postage. The DARB
encourages electronic submission of
requests for final reviews by email as
the processing will be faster and such a
request will be at no cost to the
petitioner. If a petitioner elects to mail
a request, a basic letter requesting a final
review and any supplementary evidence
of a relationship to a Service member,
if required, would cost the petitioner
$0.55 in postage. A petitioner
submitting a request by mail will likely
choose to use certified mail, requiring
additional postage of $3.75, and may
add a return receipt, that is an
additional $3.05 for a mail receipt or
$1.85 for an electronic return receipt.
After a petitioner submits a request for
a final review, the DARB will download
the relevant case file records from the
BCM/NR and this request to transfer
records will be at no cost to the
petitioner. As a result, we estimate the
total cost to a petitioner to request a
final review would be $6.24 to $69.35,
as shown in Table 1.
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TABLE 1—ESTIMATED PUBLIC COST FOR DARB REVIEW
Activity
Hours
Rate
Total cost
Review case ..............................................................
Submit petition ...........................................................
Additional cost to submit petition via mail .................
0 to 2.00
0.08 to 0.50
........................
$24.95 ........................................................................
$24.95 ........................................................................
Postage at $0.55 .......................................................
Certified Mail at $3.75 ...............................................
Mail Return Receipt at $3.05 ....................................
Electronic Return Receipt at $1.85 ...........................
$0–$49.90
$6.24 to $12.48
$0.55
$3.75
$3.05
$1.85
Total Cost ...........................................................
........................
....................................................................................
$6.24 to $69.73
Next, we estimate the costs associated
with the intake, review, and processing
of a final review request, which is
illustrated in Table 2. Once the DARB
receives a final review request, it is
anticipated that it will take
approximately 4 hours of time for intake
procedures such as data entry for case
creation, verifying BCM/NR case
information, receiving case file records,
bookmarking key documents in the
record, sending acknowledgement
letters to petitioners, and assigning the
case to a three-member panel. Assuming
a GS–11 at the step 5 salary rate of
$84,941 based on the 2022 Washington
DC, locality pay table, which is
equivalent to an effective rate of $81.40
(hourly rate of $40.70 plus benefits at
100%), the cost for this case
management activity per final review
request is $325.60 (effective rate of
$81.40 multiplied by 4 hours of work).
While the complexity of a case will
vary and significantly change the time
of review, we estimate that
approximately 30 hours in total would
be spent by board members reviewing
the case file records, voting, and
drafting a recommendation on whether
to upgrade the characterization of the
discharge or dismissal. Assuming a GS–
14 at the step 8 salary rate of $155,687
based on the 2022 Washington DC
locality pay table, which is equivalent to
an effective rate of $149.20 (hourly rate
of $74.60 plus benefits at 100%), the
cost for the review of a petitioner’s
request is $4,476.00.
Additionally, if a petitioner’s case
involves a mental health issue, a
military or civilian healthcare provider
44 In fiscal year 2022, the DoD received 4 requests
for a final review under this process, but none of
the petitioners were eligible for a final review. The
petitioners were not eligible because they were
seeking an upgrade to a discharge or dismissal that
was issued before December 20, 2019, or they failed
to first exhaust their administrative remedies at
their respective Military Department’s DRB and
BCM/NR.
45 According to the Bureau of Labor Statistics, the
median weekly earnings for full-time wage and
salary workers in 2021 was $998.00, for an hourly
rate based on a 40-hour workweek of $24.95.
(https://www/bls.gov/cps/cpsaat39.htm.)
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will review the case file records to
determine if an advisory opinion was
required and included by the BCM/NR.
We anticipate this medical review will
take about 1 hour on average. Assuming
a GP–15 at the step 5 salary rate of
$147,942 based on the 2022 General
request is $141.78. Based on data from
January 2022–March 2022, 41% of the
cases before the DRBs and BCM/NRs
involved Mental Health claims (https://
boards.law.af.mil/stats_CY2022.htm).
Schedule base pay table with the
additional $20,000 General Medical
Officer incentive pay incorporated,
which is equivalent to an effective rate
of $141.78 (hourly rate of $70.89 plus
benefits at 100%)), the cost for this case
management activity per final review
TABLE 2—ESTIMATED GOVERNMENT SUB-PROCESS COST
Review process
Work hours
Intake ...................................................................................
Board Review .......................................................................
Medical Review ....................................................................
Based on the anticipated 2,955 final
review requests a year,46 assuming 41%
of these petitions will involve Mental
Employee
grade
4
30
1
Number of
employees
Effective rate
GS–11(5)
GS–14(8)
GP–15(5)
$81.40
149.20
141.78
Health claims necessitating a military or
civilian healthcare provider review and
59% will not, we estimate the total
Cost per
process
1
3
1
$325.60
4,476.00
141.78
annual costs for processing and
reviewing these requests to be
$14,360,565, as shown in Table 3.
TABLE 3—ESTIMATED TOTAL GOVERNMENT COST
Percent
petitions
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Review process
Cases
Process cost
Total cost
Intake and Board Review ................................................................................
Intake, Board Review, and Medical Review ....................................................
59
41
1,743
1,212
$4,801.60
4,943.38
$8,369,188.8
5,991,376.56
Total Cost .................................................................................................
........................
........................
........................
14,360,565
C. Policy Alternative #1
The DoD considered using personnel
from the BCM/NRs to conduct the final
reviews, as these personnel would be
fully trained on the review process for
a request for an upgrade to the
characterization of a discharge or
dismissal, but it concluded that this was
not the most equitable solution. The
BCM/NRs apply military service
specific policies in their reviews of
discharges or dismissals. While it may
be possible to use personnel from each
of the BCM/NRs for a consolidated
military service review board to conduct
these final reviews, utilizing the same
personnel who would be reviewing the
findings and decisions of the BCM/NRs
may present a conflict of interest as
these personnel may have an interest in
interpreting a DoD policy based on the
culture of their military service.
Congress also explicitly provided in 10
U.S.C. 1553a that a petitioner must have
fully exhausted all remedies available at
their respective Military Department’s
DRB and BCM/NR before they are
eligible for a final review, which
indicates that congress intended the
final review process to be separate and
distinct from the existing DRB and
BCM/NR review processes.
This also may not be the most costeffective approach because, unlike the
PDBR mission, the BCM/NRs caseload is
not expected to diminish. If the BCM/
NRs took on this congressionally
mandated additional review, it would
add the estimated cost of $14,455,783
per year to their budget and may create
inefficiencies due to the increase in
workload.
Accordingly, the DoD concluded that
a distinct board focused on applying
DoD-level policies was a better policy
alternative, as it could ensure the review
of a request for an upgrade to the
characterization of a discharge or
dismissal was consistent with both
military service specific policies and
DoD policies. The PDBR is a more costeffective approach because of its
dwindling cases, existing infrastructure
and resources, and experience
conducting military reviews.
46 These are the total number of petitions, prior
to any analysis of the merits of the claims, or
determination of whether the petitioner properly
applied for a final review.
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D. Policy Alternative #2
The DoD also considered using
another existing DoD review board to
conduct the final reviews, the Defense
Office of Hearings and Appeals (DOHA),
but it concluded that it would not be a
cost-effective approach. The DOHA
holds due process hearings and appeals
of security clearance cases. Contractor
employees who are applying for or
seeking to retain their security
clearances can request a hearing, and it
PO 00000
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will be held and decided before a DOHA
Administrative Judge.
Although DOHA’s review is different
from the review of a request for an
upgrade in the characterization of a
discharge or dismissal, it was
considered as a policy alternative
because its board was familiar with
applying DoD-level policies and
standards of review. The DoD ultimately
decided that the PDBR was a better
policy alternative than the DOHA
because it would take a significant
amount of time to train existing DOHA
personnel on the review process for a
request for an upgrade to the
characterization of a discharge or
dismissal. It would also require
additional personnel, new processes,
and infrastructure for the DOHA to
conduct these reviews in addition to its
security clearance reviews.
II. Regulatory Compliance Analysis
Interim Final Rule Justification
As discussed in the SUPPLEMENTARY
INFORMATION section, the DoD is issuing
this rule as an interim final rule because
it is a procedural rule that relates to
‘‘agency organization, procedure, or
practice’’ within the meaning of 5 U.S.C.
553(b)(A). As such, this rule is exempt
from the prior notice and comment and
delayed effective date (see 5 U.S.C.
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553(d)) requirements. Additionally,
pursuant to 5 U.S.C. 553(b)(B) and
(d)(3), there is also good cause to issue
this interim final rule and make it
immediately effective because delay for
notice and comment would be
impracticable and unnecessary, and
delay in effectiveness is not needed in
this circumstance.
Congress’ statutory direction and
intent was for the DoD to establish and
implement a process to conduct a final
review of a request for an upgrade in the
characterization of a discharge or
dismissal. This rule merely concerns the
DoD’s procedures and practice for
conducting a final review and directs
how those requests should be
submitted. To comply with
congressional requirements, DoD is
issuing this rule to establish the DARB
as the administrative body to conduct a
final review of a petitioner’s request for
an upgrade in the characterization of a
discharge or dismissal. The DARB does
not change the substantive standards
applicable to requests for an upgrade.
The DARB simply reviews the Military
Department’s decisions to ensure
uniform discharge review standards are
applied, regardless of the Service
member’s service affiliation in its
review, and it may facilitate an upgrade
to the discharge or dismissal
characterization.
A Service member’s discharge or
dismissal characterization may have a
significant impact on their personal,
financial, and professional future (and
by extension, upon their families).
Entitlement to educational benefits
under the G.I. Bill, for instance, is
limited to Service members who
separated from active duty with an
honorable characterization of service
(even separation under general (under
honorable conditions) does not qualify).
Service members who separate under
other than honorable conditions (OTH)
are not automatically eligible for VA
disability compensation, access to VA
home loans, or medical care at VA
facilities.’’ 47
Additionally, many employers request
the discharge characterization from
individuals who list military service on
their resume and may be reluctant to
hire individuals who were discharged
with a less than honorable
characterization of service. Finally,
spouses and dependents of Service
members may also be impacted by this
rule because they may be eligible for
additional benefits based on the Service
member’s characterization of service.
The consequences of delaying an
upgrade in the characterization of
service can therefore be hugely
significant to former Service members
and their families. The need to avoid
delay in establishing final-review
procedures that may result in an
upgrade is reflected in Congress’
directive that the Department establish
a final review process not later than
January 1, 2021. Between the statutory
deadline and the issuance of this rule,
the DoD established the policies and
procedures for conducting a final rule
and its process was provided in a DTM,
‘‘DoD Discharge Appeal Review Board,’’
which was available to the public in
May 2023.48 The DARB is currently
operating pursuant to that issued
memoranda. The DoD has considered
the necessity for immediate
implementation against providing
affected parties more time for notice and
comment on this rule and concluded
that, because the rule continues an
existing policy and only changes the
procedures within the Departments, it is
in the best interest of affected Service
members and their families to comply
with Congress’s direction to act
expeditiously. Moreover, because the
rule provides for continuity with
existing policy, time is not needed for
parties to plan or adjust their behavior,
and there is good cause to implement
the rule now, without waiting for a
delayed effective date.
47 Service members who are discharged under
other than honorable conditions may apply to the
VA for consideration of these benefits and the VA
makes this eligibility determination on a factspecific basis.
48 The DTM, ‘‘DoD Discharge Appeal Review
Board,’’ published May 5, 2023, is available on the
DoD Directives Division website and can be
accessed at https://www.esd.whs.mil/Directives/
Recent-Publications/.
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A. Executive Order 12866, ‘‘Regulatory
Planning and Review,’’ as Amended by
Executive Order 14094, ‘‘Modernizing
Regulatory Review’’ and Executive
Order 13563, ‘‘Improving Regulation
and Regulatory Review’’
Executive Order 12866, as affirmed by
Executive Order 13563 and amended by
14094 (88 FR 21879, April 11, 2023),
directs agencies to assess all costs,
benefits and available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health, safety
effects, distributive impacts, and
equity). These Executive Orders
emphasize the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. This rule
has been designated significant, under
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94609
section 3(f) of Executive Order 12866, as
amended by Executive Order 14094.
B. Congressional Review Act (5 U.S.C.
801 et seq.)
Pursuant to subtitle E of the Small
Business Regulatory Enforcement
Fairness Act of 1996, also known as the
Congressional Review Act, the Office of
Information and Regulatory Affairs has
determined that this rule does not meet
the criteria set forth in 5 U.S.C. 804(2).
C. Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. 601)
The USD(P&R) certified that this rule
is not subject to the Regulatory
Flexibility Act (5 U.S.C. 601) because it
would not, if promulgated, have a
significant economic impact on a
substantial number of small entities.
Therefore, the Regulatory Flexibility
Act, as amended, does not require us to
prepare a regulatory flexibility analysis.
D. Sec. 202, Public Law 104–4,
‘‘Unfunded Mandates Reform Act’’
Section 202 of the Unfunded
Mandates Reform Act of 1995 (2 U.S.C.
1532) requires agencies to assess
anticipated costs and benefits before
issuing any rule whose mandates
require spending in any 1 year of $100
million in 1995 dollars, updated
annually for inflation. This rule will not
mandate any requirements for State,
local, or Tribal governments, and will
not affect private sector costs.
E. Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Chapter 35)
While there are no new information
collection requirements associated with
this rule, two existing collections under
the Paperwork Reduction Act are
already in use. The DoD does not
believe rule changes the data elements,
cost, or burden associated with these
collections as the DARB is not
authorized to accept new information in
support of a petitioner’s request for a
final review. There is no standardized
format for requesting a DARB discharge
review.
• The DARB will review BCM/NR
case file records which may include
DRB case file records. This is associated
with DD 149 titled ‘‘Application for
Correction of Military Record Under the
Provisions of Title 10, U.S. Code,
Section 1552,’’ OMB Control Number.
0704–0003.49
• The DRBs have an active collection
associated with DD 293 titled
‘‘Application for the Review of
49 Information regarding this collection—
including all supporting materials—can be accessed
at www.reginfo.gov and providing either the title or
number of the collection.
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Discharge From the Armed Forces of
The United States,’’ OMB Control
Number. 0704–0004.50
The DoD has Privacy Act System of
Records Notices (SORNs) associated
with these collections are as follows:
Army (https://dpcld.defense.gov/Privacy/
SORNsIndex/DOD-wide-SORNArticle-View/Article/569931/a0015185-sfmr.aspx)
Navy and Marine Corps (https://
dpcld.defense.gov/Privacy/
SORNsIndex/DOD-wide-SORNArticle-View/Article/570411/
nm01000-1/)
Air Force (https://dpcld.defense.gov/
Privacy/SORNsIndex/DOD-wideSORN-Article-View/Article/569833/
f036-safcb-a/)
Defense Finance and Accounting
Service (https://dpcld.defense.gov/
Privacy/SORNsIndex/DOD-wideSORN-Article-View/Article/570192/
t7340b/)
Coast Guard (https://www.gpo.gov/
fdsys/pkg/FR-2013-10-02/html/201323991.htm)
Official Military Personnel Files:
Army (https://dpcld.defense.gov/Privacy/
SORNsIndex/DOD-wide-SORNArticle-View/Article/570054/a0600-8104-ahrc.aspx)
Navy (https://dpcld.defense.gov/Privacy/
SORNsIndex/DOD-wide-SORNArticle-View/Article/570310/n010703/)
Marine Corps (https://dpcld.defense.gov/
Privacy/SORNsIndex/DOD-wideSORN-Article-View/Article/570626/
m01070-6/)
Air Force (https://dpcld.defense.gov/
Privacy/SORNsIndex/DODComponent-Article-View/Article/
569821/f036-af-pc-c/)
Coast Guard (https://www.gpo.gov/fdsys/
pkg/FR-2011-10-28/html/201127881.htm)
F. Executive Order 13132, ‘‘Federalism’’
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Executive Order 13132 establishes
certain requirements that an agency
must meet when it promulgates a rule
that imposes substantial direct
requirement costs on State and local
governments, preempts State law, or
otherwise has federalism implications.
This rule will not have a substantial
effect on State and local governments.
G. Executive Order 13175,
‘‘Consultation and Coordination With
Indian Tribal Governments’’
50 See www.reginfo.gov to access the most current
version of this information collection—including all
supporting documentation.
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List of Subjects in 32 CFR Part 73
Administrative practice and
procedure, Military personnel, Veterans,
Health professions.
■ Accordingly, 32 CFR part 73 is added
to read as follows:
PART 73—DOD DISCHARGE APPEAL
REVIEW BOARD (DARB)
Sec.
73.1
73.2
73.3
73.4
73.5
73.6
73.7
73.8
Purpose.
Definitions.
Membership and designation.
Responsibilities.
Application procedures.
Review procedures and standards.
Final action.
Annual reporting requirements.
Authority: 10 U.S.C. 1553a.
§ 73.1
Purpose.
(a) This part establishes the DARB as
the administrative body to conduct a
final review of a petitioner’s request for
an upgrade in the characterization of a
discharge or dismissal, pursuant to 10
U.S.C. 1553a. This part also provides
the procedures for Service members (or
their representatives) to request a final
review, the standards that the DARB
will apply when it reviews a petitioner’s
request, and the procedures following
the DARB’s recommended disposition
of a request.
(b) The DARB ensures that DoD-level
policies, procedures, and standards
related to the review of discharges and
dismissals are uniformly and
consistently applied across the military
services. Reporting of the number of
upgrades granted or denied pursuant to
this final review process will also be
made available for public inspection
through the DoD Reading Room
available at https://boards.law.af.mil.
The term ‘‘Military Department’’ as used
here in this part includes the Coast
Guard. The terms, ‘‘Military Services,’’
and ‘‘Armed Forces,’’ refers to the
Army, Navy, Marine Corps, Coast
Guard, Air Force, and Space Force.
§ 73.2
Executive Order 13175 establishes
certain requirements that an agency
VerDate Sep<11>2014
must meet when it promulgates a rule
that imposes substantial direct
compliance costs on one or more Indian
Tribes, preempts Tribal law, or effects
the distribution of power and
responsibilities between the Federal
Government and Indian Tribes. This
rule will not have a substantial effect on
Indian Tribal governments.
Definitions.
Case file records. All records that
members of the BCM/NR have access to,
not limited to what the BCM/NR analyst
presents to the DARB. These records
necessarily include the record of
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proceedings, exhibits, and findings and
decisions of both the BCM/NR and DRB.
Characterization of a discharge or
dismissal. The characterization of a
discharge or dismissal is a
determination reflecting a Service
member’s conduct and performance of
duty while in military service during a
specific period of military service.
Administrative discharges can be
characterized as honorable, general
(under honorable conditions), other
than honorable conditions, or can be
described as uncharacterized (as in an
entry-level separation). If a discharge is
adjudged at a court-martial, the assigned
characterization may be a bad-conduct
discharge, or dishonorable discharge, or
a dismissal. The term characterization of
a discharge or dismissal is also referred
to as a ‘‘character of discharge’’ or
‘‘character of service.’’
Characterization of less than
honorable. A characterization that is
less than honorable includes a general
under honorable conditions, other than
honorable conditions, uncharacterized,
bad-conduct discharge, dishonorable
discharge, or a dismissal.
DARB member. A person authorized
to review a DARB request and make a
recommendation to the DARB president
on whether the petitioner’s request for
an upgrade to the characterization of a
discharge or dismissal should be
granted, partially granted, or denied.
Discharge Appeal Review Board
(DARB). An administrative board
constituted by the Secretary of Defense
and vested with the authority to
conduct a final review of a request for
an upgrade in the characterization of a
discharge or dismissal under the
provisions of 10 U.S.C. 1553a.
Exhausted all remedies available.
Petitioner requested an upgrade in the
characterization of a discharge or
dismissal and presented all evidence
and arguments in support of their
request to their respective Military
Department’s DRB and BCM/NR,
including any materials not previously
presented or considered by the board in
making such determination when
requesting reconsideration by the
Military Department BCM/NR.
Final review. The process by which a
petitioner’s request for an upgrade to the
characterization of a discharge or
dismissal that was not granted at the
respective Military Department’s DRB
and BCM/NR after the petitioner
exhausted all remedies available to the
petitioner is evaluated.
New information. Material not
previously presented to, or considered
by, the appropriate Military
Department’s BCM/NR.
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Petitioner. A member or former
member of the Armed Forces whose
request for an upgrade to the
characterization of a discharge or
dismissal was not granted by the
relevant Military Department’s DRB and
BCM/NR. If the member or former
member is deceased or legally
incompetent, the term ‘‘petitioner’’
includes the surviving spouse, next-ofkin, or legal representative who is acting
on behalf of the member or former
member. The term ‘‘petitioner’’ also
includes a member or former member of
the Armed Forces’ counsel.
Preponderance of the evidence. A
standard of proof, evidence which as a
whole shows that the fact sought to be
proved is more probable than not.
Record review. A review of the
Service member’s case file records.
Service member. A member or former
member of the Armed Forces.
§ 73.3
Membership and designation.
The DARB is set up independently
from the Military Departments’ DRBs
and BCM/NRs. The DARB is comprised
of civilian government employees and
consists of a President, Deputy Director,
and at least three members for each
panel. The DARB President and Deputy
Director are appointed as inferior
officers by the Secretary of Defense. The
Secretary of the Air Force (SECAF), as
the designated lead agent for the DARB,
appoints DARB members and assigns
them to a panel(s).
khammond on DSK9W7S144PROD with RULES
§ 73.4
Responsibilities.
(a) The USD(P&R) is responsible for
directing the implementation of the
DARB and serves as the Principal Staff
Assistant with oversight of the DARB
process, policies, procedures, and
standards for the final review of a
request for an upgrade in the
characterization of a discharge or
dismissal under 10 U.S.C. 1553a. The
USD(P&R) must:
(1) Ensure that petitioners are
afforded an opportunity to request a
final review of their requests for an
upgrade to the characterization of a
discharge or dismissals consistent with
10 U.S.C. 1553a;
(2) Ensure that Secretary of Defense
appoints the DARB President and DARB
Deputy Director as inferior officers;
(3) Review and approve any DARB or
DARB-related policies or procedures
that the Secretaries of the Military
Departments or the DARB President
develops before implementation of such
policies or procedures;
(4) Resolve all issues concerning the
DARB that cannot be resolved between
the DARB President and the Secretaries
of the Military Departments; and
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(5) Modify or supplement this part as
necessary.
(b) The Secretaries of the Military
Departments have the authority to
approve, partially approve, or
disapprove a DARB’s recommendation
to upgrade or partially upgrade a
petitioner’s characterization of a
discharge or dismissal. The Secretary of
the Military Department’s decision is
the final agency action. If an upgrade or
partial upgrade is approved, the
Secretary of the Military Department is
responsible for ensuring that all
necessary administrative actions are
taken to effect the change, including
issuance of a new or corrected DD 214.
(c) SECAF is responsible for the
formation, operation, and management
of the DARB. The SECAF must:
(1) Appoint DARB members to a
panels and assign cases to ensure
reviews are conducted in an impartial
manner;
(2) Appoint other staff as necessary
for intake procedures;
(3) Respond to all inquiries from
private individuals, organizations, or
public officials about DARB matters.
When the specific Military Service can
be identified, refer such correspondence
to the appropriate Secretary of the
Military Department; and
(4) Ensure the timely online
publication of annual reports as
required by section 523 of the FY 2020
NDAA, Public Law 116–92.
(d) The DARB President is responsible
for administrating and overseeing the
DARB. The DARB President may
delegate their authority to the Deputy
Director of the DARB, but no further
delegation is authorized. The DARB
President shall:
(1) Review a DARB panel’s
recommendation and provide the final
adjudication of the DARB
recommendation regarding a petitioner’s
request for an upgrade to the
characterization of a discharge or
dismissal.
(2) Develop policy, procedures, and
evaluation standards for the DARB,
subject to review and approval by the
SECAF and the USD(P&R) before
implementation of such policy,
procedures, and evaluation standards.
(e) The DARB Deputy Director is
responsible for managing the DARB’s
day-to-day operations.
(f) A DARB panel considers a
petitioner’s final review request
properly brought before it, is
responsible for performing a record
review, applying DoD policies and
standards, and if appropriate will make
a recommendation to the DARB
President on whether a petitioner’s
request for an upgrade to the
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94611
characterization of a discharge or
dismissal should be granted, partially
granted, or denied.
§ 73.5
Application procedures.
(a) Who is eligible for a final review?
To be eligible for a final review, the
following criteria must be met:
(1) The Service member’s date of
discharge or dismissal was on or after
December 20, 2019;
(2) Service member received a less
than honorable characterization of
service at the time of discharge or
dismissal;
(3) All remedies available have been
exhausted at the respective Military
Department’s DRB and BCM/NR; and
(4) The request for an upgrade in the
characterization of a discharge or
dismissal was denied or it was only
partially granted at the respective
Military Department’s BCM/NR.
(b) Who may request a final review?
(1) In most cases, the petitioner is the
Service member, and the final review
relates to their military service records.
(2) If the Service member is deceased
or legally incompetent and incapable of
acting on their own behalf, a spouse,
next of kin, or legal representative may
be able to act on behalf of the Service
member.
(c) When can a petitioner request a
final review? (1) Petitioners must first
exhaust all available remedies at their
respective Military Department’s DRB
and BCM/NR before requesting a final
review. The DARB will return an
unexhausted request to the petitioner
without considering it.
(2) After exhausting their
administrative remedies, Petitioners
must request a final review within 365
calendar days after the date of receipt of
their respective Military Department’s
BCM/NR decision. The DARB may deny
an untimely request.
(d) How does a petitioner make a final
review request? (1) A request must be
made in writing, but the completion of
a DoD form is not required to request a
final review. An email or letter
requesting a final review is sufficient to
make a request. Sample templates to
request a final review can be accessed
at https://afrba-portal.cce.af.mil/
#application-submission-darb.
(2) The contents of a request must
include the following:
(i) the petitioner’s name, address,
telephone number, and email address;
(ii) the Service member’s name if
represented by counsel or a
representative; and
(iii) the BCM/NR docket number to
assist the DARB in obtaining records
from the respective Military
Department’s BCM/NR. If this
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information is not provided, the DARB
may return the request without
considering it.
(3) Additional documentation may be
needed in support of a request for
review by the DARB. If requesting a
final review on behalf of a Service
member, proof of status or relationship
documents are required and must be
enclosed or attached to a request for a
final review. Proof of status or
relationship documentation may
include a death certificate, marriage
license, divorce decree, birth certificate,
notarized power of attorney, and court
appointment of conservatorship or
guardianship. The DARB will return the
request to the petitioner without
considering it when a proper
relationship to a Service member has
not been shown.
(4) If there is new information in
support of a request to upgrade the
characterization of a discharge or
dismissal, the DARB cannot review it. If
the petitioner has new information, the
petitioner must first seek
reconsideration from the appropriate
Military Department’s BCM/NR to
exhaust all remedies available.
(e) Where do petitioners send a final
review request? Petitioners may submit
a request for a final review by mail or
email. Requests by email are preferred
and should be sent to the following
address: saf.mr.darb@us.af.mil.
Requests by mail should be sent to the
following address: Air Force Review
Boards Agency, SAF/MRBD (DARB),
3351 Celmers Lane, Joint Base Andrews,
MD 20762–6435.
(f) How do petitioners withdraw a
final review request? Petitioners may
withdraw a request for a final review in
writing at any time before the DARB
panel’s scheduled review.
khammond on DSK9W7S144PROD with RULES
§ 73.6
Review procedures and standards.
(a) Intake of final review requests. (1)
Before conducting a final review, DARB
personnel will review submitted
requests to ensure eligibility for a final
review.
(2) DARB personnel will provide
notification to the petitioner to confirm
receipt of the final review request. If it
is determined that the petitioner is
ineligible for a final review, DARB
personnel will also notify the petitioner
in writing of the reason(s) their request
did not qualify for a final review.
(3) Once a case intake is complete,
DARB personnel will access or request
case file records from the respective
Military Department’s BCM/NR and
assign a DARB panel to consider the
final review request.
(4) If it is determined that a
petitioner’s case involves the
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16:28 Nov 27, 2024
Jkt 265001
adjudication of a Mental Health
condition, a military or civilian health
care provider will review the case file
records to determine if a medical
advisory opinion is required and
missing. If the case file is missing a
medical advisory opinion or other
pertinent information the case will be
returned the Military Department’s
BCM/NR for reconsideration or a
document request.
(b) Consideration of final review
requests—(1) Scope of review. The
DARB’s review is limited to the case file
records related to a petitioner’s request
for an upgrade in the characterization of
a discharge or dismissal. The DARB is
not authorized to review or address new
information provided by a petitioner in
support of a request for an upgrade in
the characterization of a discharge or
dismissal.
(2) Standard of review. In considering
a petitioner’s request for an upgrade in
the characterization of a discharge or
dismissal, the DARB will review the
Military Department’s BCM/NR decision
de novo. The DARB independently
reviews the case file records, applies
DoD discharge review polices and
standards and applicable Military
Service policies, and recommends an
upgrade, if appropriate. This new
review occurs without giving any
deference to the Military Department’s
BCM/NR findings and decision.
(3) DARB panel adjudication. The
DARB panel will consider the
petitioner’s request and case file
records, examine pertinent DoD and
Military Service regulations and
policies, discuss the case and issues,
and vote to determine whether a
petitioner’s request for an upgrade in
the characterization of a discharge or
dismissal should be granted, partially
granted, or denied.
(4) DARB panel recommendation. A
majority vote constitutes the
recommended action of the DARB
panel. The DARB panel will provide a
written recommendation including the
number of votes and any minority votes
and their reason(s) for their
recommendation. The written
recommendation must provide a basis
for their decision to deny a request to
upgrade, to partially upgrade, or to fully
upgrade the characterization of a
discharge or dismissal. The DARB
panel’s written recommendation will be
submitted to the DARB President.
(5) Review of the DARB panel’s
recommendation and the
recommendation of the DARB. The
DARB President reviews the DARB
panel’s written recommendation and
makes the recommendation for the
DARB. The DARB President will submit
PO 00000
Frm 00014
Fmt 4700
Sfmt 4700
the DARB’s written recommended
action to the SECAF.
(i) If the DARB President approves the
DARB panel’s recommendation, the
recommendation will constitute the
recommended action of the DARB.
(ii) If the DARB President disagrees
with the DARB panel’s
recommendation, the DARB President
will provide a new recommendation.
This new recommendation will be in
writing and will include the change to
be made and the reasons for rejecting
the recommendation of the DARB panel.
(6) Discretionary review of the DARB’s
recommended action. The DARB
President’s actions are subject to
discretionary review by the SECAF.
(i) The DARB’s recommended action
will be the final recommended action
unless the SECAF exercises their
discretionary review authority within 30
calendar days after the DARB President
submits the recommendation to the
SECAF.
(ii) If the SECAF chooses to exercise
their discretionary review authority to
review the DARB’s recommended action
within 30 calendar days, and the SECAF
changes the DARB’s recommended
action, the SECAF will provide a
written recommendation with
supporting reasons and the new
recommendation will constitute the
final recommended action.
(iii) The SECAF may delegate, in
writing, its discretionary authority to act
on DARB recommendations to a
Presidentially appointed, Senateconfirmed (PAS) official but further redelegation is not authorized.
(c) Reconsideration at the BCM/NR. If
it is unclear from the DARB’s review
whether the appropriate Military
Department BCM/NR considered
relevant evidence when it denied the
requested discharge or dismissal
upgrade, the DARB may return a case
directly to the BCM/NR for
reconsideration. If the Military
Department BCM/NR concerned accepts
the case for reconsideration, the
petitioner will be notified in writing.
§ 73.7
Final action.
(a) The Secretary of the Military
Department concerned will approve or
disapprove the DARB’s recommended
action to upgrade or partially upgrade
the characterization of a discharge or
dismissal within 90 calendar days. The
Secretary of the Military Department
must approve the DARB’s recommended
action unless the Secretary finds that
the recommendation is not supported by
the preponderance of the evidence.
(b) If the DARB recommends to deny
an upgrade to the characterization of a
discharge or dismissal and upholds the
E:\FR\FM\29NOR1.SGM
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Federal Register / Vol. 89, No. 230 / Friday, November 29, 2024 / Rules and Regulations
Military Department’s BCM/NR
decision, the DARB will notify the
petitioner in writing of its final
decision. If the DARB recommends to
upgrade or partially upgrade the
characterization of a discharge or
dismissal, the Secretary of the Military
Department concerned will notify the
petitioner in writing of its final
decision.
(1) If the Secretary of the Military
Department approves the DARB
recommendation, the petitioner will be
notified of the approved change and any
change to the characterization of a
discharge or dismissal will be effective
as of the date of discharge.
(2) If the Secretary of the Military
Department disapproves the DARB
recommendation, the Secretary
concerned must provide the petitioner a
written explanation detailing its
rationale for disapproving the DARB’s
recommendation.
(c) The Secretaries of the Military
Departments may delegate, in writing,
the authority to act on DARB
recommendations to a PAS official but
further re-delegation is not authorized.
(d) The Secretary’s or designee’s
action will be the final action. The
petitioner has no right to a further
review or to appeal this decision.
khammond on DSK9W7S144PROD with RULES
§ 73.8
Annual reporting requirements.
(a) The DARB President will submit
draft reports to OUSD(P&R) by the 1st of
October for the preceding FY (October
1st through September 30th). The first
report will be published on October 1,
2022, and the report will contain the
DARB data for FY 2022.
(b) The reporting period will be
inclusive from the first through the last
days of each reporting period.
(c) The report will contain the
following information:
(1) The number of requests received;
(2) The number of requests rejected
for failure to meet eligibility criteria for
a final review;
(3) The number of requests
considered;
(4) The number of requests returned
to the BCM/NRs for reconsideration;
(5) The number of recommendations
to upgrade the characterization of a
discharge or dismissal granted by the
Secretaries of the Military Departments
pursuant to the DARB, to include the
most common reasons for such
upgrades; and
(6) The number of recommendations
to upgrade the characterization of a
discharge or dismissal declined by the
Secretaries of the Military Departments
pursuant to the DARB, to include the
most common reasons for such
declinations.
VerDate Sep<11>2014
16:28 Nov 27, 2024
Jkt 265001
(d) The annual reports will be
published on a publicly accessible DoD
website; the reports can be accessed at
https://boards.law.af.mil/OSD_
DARB.htm.
Dated: November 18, 2024.
Patricia L. Toppings,
OSD Federal Register Liaison Officer,
Department of Defense.
[FR Doc. 2024–27268 Filed 11–27–24; 8:45 am]
BILLING CODE 6001–FR–P
LIBRARY OF CONGRESS
Copyright Royalty Board
37 CFR Part 381
[Docket No. 24–CRB–0009–PBR (2023–
2027) COLA (2025)]
Cost of Living Adjustment to Public
Broadcasters Compulsory License
Royalty Rate
Copyright Royalty Board,
Library of Congress.
ACTION: Final rule; cost of living
adjustment.
AGENCY:
The Copyright Royalty Judges
announce a cost of living adjustment
(COLA) to the royalty rate that
noncommercial radio stations at certain
colleges, universities, and other
educational institutions that are not
affiliated with National Public Radio
must pay for the use in 2025 of
published nondramatic musical
compositions in the SESAC Performing
Rights, LLC (SESAC) and Global Music
Rights, LLC (GMR) repertories pursuant
to the statutory license under the
Copyright Act for noncommercial
broadcasting.
SUMMARY:
DATES:
Effective date: November 29, 2024.
Applicability dates: These rates are
applicable to the period January 1, 2025,
through December 31, 2025.
FOR FURTHER INFORMATION CONTACT:
Anita Brown, CRB Program Assistant,
(202) 707–7658, crb@loc.gov.
SUPPLEMENTARY INFORMATION: Section
118 of the Copyright Act, title 17 of the
United States Code, creates a statutory
license for the use of published
nondramatic musical works and
published pictorial, graphic, and
sculptural works in connection with
noncommercial broadcasting.
On June 28, 2023, the Copyright
Royalty Judges (Judges) adopted final
regulations governing the rates and
terms of copyright royalty payments
under section 118 of the Copyright Act
for the license period 2023–2027. See 88
PO 00000
Frm 00015
Fmt 4700
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94613
FR 41827. Pursuant to these regulations,
on or before December 1 of each year,
the Judges shall publish in the Federal
Register notice of the change in the cost
of living and a revised schedule of the
rates codified at § 381.5(c)(3) and (4)
relating to compositions in the repertory
of SESAC and GMR. The adjustment,
fixed to the nearest dollar, shall be the
greater of (1) the change in the cost of
living as determined by the Consumer
Price Index (all consumers, all items)
(‘‘CPI–U’’) ‘‘during the period from the
most recent index published prior to the
previous notice to the most recent index
published prior to December 1 of that
year’’ or (2) 1.5%. 37 CFR 381.10.
The change in the cost of living as
determined by the CPI–U during the
period from the most recent index
published prior to the previous notice,
i.e., before December 1, 2023, to the
most recent index published before
December 1, 2024, is 2.6%.1 In
accordance with 37 CFR 381.10(b), the
Judges announce that the COLA for
calendar year 2025 shall be 2.6%.
Application of the 2.6% COLA to the
2024 rates for the performance of
published nondramatic musical
compositions in the repertory of SESAC
and GMR—$194 per station—results in
an adjusted rate of $199 per station,
rounded to the nearest dollar.
List of Subjects in 37 CFR Part 381
Copyright, Music, Radio, Rates,
Television.
Final Regulations
In consideration of the foregoing, the
Copyright Royalty Judges amend part
381 of title 37 of the Code of Federal
Regulations as follows:
PART 381—USE OF CERTAIN
COPYRIGHTED WORKS IN
CONNECTION WITH
NONCOMMERCIAL EDUCATIONAL
BROADCASTING
1. The authority citation for part 381
continues to read as follows:
■
Authority: 17 U.S.C. 118, 801(b)(1) and
803.
2. Section 381.5 is amended by
revising paragraphs (c)(3)(iii) and
(c)(4)(iii) as follows:
■
§ 381.5 Performance of musical
compositions by public broadcasting
entities licensed to colleges and
universities.
*
*
*
(c) * * *
(3) * * *
*
*
1 On November 13, 2024, the Bureau of Labor
Statistics announced that the CPI–U increased 2.6%
over the last 12 months.
E:\FR\FM\29NOR1.SGM
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]]>Agencies
[Federal Register Volume 89, Number 230 (Friday, November 29, 2024)]
[Rules and Regulations]
[Pages 94603-94613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27268]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 73
[Docket ID: DoD-2022-OS-0105]
RIN 0790-AL57
DoD Discharge Appeal Review Board
AGENCY: Office of the Under Secretary of Defense for Personnel and
Readiness (OUSD(P&R)), Department of Defense (DoD).
ACTION: Interim final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim final rule implements Section 523 of the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2020,
which requires the DoD to provide Service members and their authorized
representatives with one final review of requests for an upgrade in the
characterization of a discharge or dismissal. This rule establishes the
Discharge Appeal Review Board (DARB) as the DoD authority responsible
for considering such requests after all other administrative remedies
have been exhausted. This rule also details the procedures for a
petitioner and their authorized representatives to request this final
review, the standards the DARB will apply when considering a
petitioner's request, and the procedures the Military Departments will
follow after the DARB adjudicates the request. The purpose of DARB
review is to ensure uniform standards of review are met for requests
for upgrades of a discharge or dismissal regardless of the petitioner's
service affiliation.
DATES: This interim final rule is effective November 29, 2024. Comments
must be received by January 28, 2025.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulation Identifier Number (RIN) number and title, by any of the
following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Department of Defense, Office of the Assistant to
the Secretary of Defense for Privacy, Civil Liberties, and
Transparency, Regulatory Directorate, 4800 Mark Center Drive, Attn:
Mailbox 24, Suite 05F16, Alexandria, VA 22350-1700.
Instructions: All submissions received must include the agency name
and docket number or RIN for this Federal Register document. The
general policy for comments and other submissions from members of the
public is to make these submissions publicly available at https://www.regulations.gov as they are received without change, including any
personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Ms. Margarete Ashmore, Office of Legal
Policy, 703-697-3387.
SUPPLEMENTARY INFORMATION:
A. Background
At the time of discharge or dismissal from the Armed Forces (Air
Force, Army, Coast Guard, Navy, Marine
[[Page 94604]]
Corps, and Space Force), each Service member is issued a DD 214 titled
``Certificate of Release or Discharge from Active Duty.'' \1\ It can
include the following information about the Service member and his or
her period of active military service:
---------------------------------------------------------------------------
\1\ Information on how to request a Service member's military
service records (including a DD 214) is available at https://www.va.gov/records/get-military-service-records/.
Date and place of entry into active duty
Home address at the time of entry
Mailing address after separation
Military service length
Duty stations and assignments
Rank and MOS (military occupational specialty)
Decorations, medals, badges, citations, and campaign ribbons
Military education
Separation information (type, character of service, authority,
separation and reentry codes, and reason for separation)
This separation document is used to verify the Service member's
period of active service. The reasons surrounding a Service member's
discharge or dismissal, noted by a separate code, as well as a
narrative, and the resulting characterization of service (e.g.
honorable, general (under honorable conditions), other than honorable,
bad-conduct, dishonorable) may impact the Service member's eligibility
for certain Federal and State provided veteran benefits and could
affect his or her employment opportunities following separation. For
example, a DD 214 generally is needed to qualify for the following:
Department of Veterans Affairs (VA) guaranteed home loans
VA education benefits
Veterans' Preference for civilian employment
VA Health Care Enrollment
VA Disability claims
Social Security benefits
VA and Department of Labor (DOL) homeless veteran programs
Federally provided flags and veteran burial benefits
Certain veteran and military service organizations memberships
The Department of Veterans Affairs uses the DD 214 to determine if
the Service member is eligible for the GI Bill, a VA home loan, health
care eligibility, and disability benefits. The DOL uses it to determine
eligibility for certain unemployment compensation and reemployment
rights. The surviving spouse or dependents of a military veteran also
need this form to apply for Federal and State provided burial and
memorial benefits (i.e., funeral services, headstones, presidential
memorial certificates, and burial flags).
Currently, each Military Department, operating through the Military
Departments' Discharge Review Boards (DRBs) and Boards for Correction
of Military/Naval Records (BCM/NRs) have the authority to upgrade a
Service member's characterization of service and to correct the Service
member's military record.\2\ Service members seeking a change in their
discharge may, within 15 years of the date of their discharge (except
for a discharge or dismissal by general courts-martial), apply to their
respective Military Department's DRB: \3\
---------------------------------------------------------------------------
\2\ See 10 U.S.C. 1553; see 10 U.S.C. 1552.
\3\ See 10 U.S.C. 1553.
---------------------------------------------------------------------------
Air Force Discharge Review Board
Army Discharge Review Board
Coast Guard Discharge Review Board
Naval Discharge Review Board
The DRBs may upgrade a Service member's discharge when appropriate
based on improprieties or inequities in the discharge.\4\ Service
members seeking a correction to their military records that were
discharged more than 15 years ago, including Service members who were
discharged or dismissed by general courts-martial, may make their
request directly to their respective Military Department's BCMR/NR \5\:
---------------------------------------------------------------------------
\4\ 32 CFR 70, Part 70--Discharge Review Board (DRB) Procedures
and Standards is available at https://www.ecfr.gov/current/title-32/subtitle-A/chapter-I/subchapter-D/part-70.
\5\ 10 U.S.C. 1552; 32 CFR 865 Subpart A (Air Force BCMR), 32
CFR 581.3 (Army BCMR), 33 CFR 52 (Coast Guard BCMR), and 32 CFR 723
(Navy BCMR).
Air Force Board for Correction of Military Records
Army Board for Correction of Military Records
Coast Guard Board for Correction of Military Records
Board for Correction of Naval Records
The BCM/NRs are empowered, subject to certain constitutional,
statutory, and regulatory limitations, to change a Service member's
military record ``to correct an error or remove an injustice.'' \6\
Changes to a Service member's discharge or dismissal as a result of a
request to the Military Departments' DRBs and BCM/NRs may include an
upgrade to the character of service, a change to separation and reentry
codes, and changes to the narrative reason for separation as reflected
on the Service member's DD 214.
---------------------------------------------------------------------------
\6\ 10 U.S.C. 1552(a)(1).
---------------------------------------------------------------------------
B. Previous Regulatory History and Requirements of the 2020 NDAA
By statute, the DRBs and BCM/NRs are required to review a Service
member's discharge or dismissal upgrade or correction to their military
records request based upon combat-related or military sexual trauma
(MST)-related post-traumatic stress disorder (PTSD) or traumatic brain
injury (TBI) ``with liberal consideration'' to the Service member that
the combat-related or MST-related PTSD or TBI potentially contributed
to the circumstances resulting in the discharge or dismissal or to its
characterization.\7\ The term ``liberal consideration'' is not
statutorily defined, but the DoD has provided the Military Departments
an analytical framework for reviewing such cases.\8\ Although the DRBs
and BCM/NRs have some discretion on how to apply this analytical
framework, the policies, procedures, and standards for the review of a
discharge or dismissal must be uniform and consistent across the
military services.\9\
---------------------------------------------------------------------------
\7\ See 10 U.S.C. 1552(h)(2)(B), see 10 U.S.C.
1553(d)(3)(A)(ii)).
\8\ The DoD has issued policy guidance related to the
application of liberal consideration in DoD memoranda: Secretary of
Defense Memorandum, 3 September 2014, titled ``Supplemental Guidance
to Military Boards for Correction of Military/Naval Records
Considering Discharge Upgrade Requests by Veterans Claiming Post
Traumatic Stress Disorder (PTSD)'' (``Hagel Memo''); Under Secretary
of Defense Memorandum, 25 August 2017, titled ``Clarifying Guidance
to Military Discharge Review Boards and Boards for Correction of
Military/Naval Records Considering Requests by Veterans for
Modification of their Discharge Due to Mental Health Conditions,
Sexual Assault, or Sexual Harassment'' (``Kurta Memo'').
\9\ See 32 CFR 70.1.
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In a September 2018 House Armed Services Committee hearing, House
committee members expressed concerns that the DRBs and BCM/NRs were not
providing appropriate upgrades to Service member's discharges or
dismissals or military record corrections for applicants who presented
evidence of a service-connected PTSD, a TBI, or being sexually
assaulted while in the military.\10\ House committee members were also
concerned that the DRBs and BCM/NRs were inconsistently applying
``liberal consideration'' and that the discharge or dismissal upgrade
rate for these cases was different across all the military
services.\11\
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\10\ Update on Military Review Board Agencies, Hearing Before
the Subcomm. on Military Personnel of the H. Comm. on Armed
Services, 115th Cong. (2018), https://www.congress.gov/event/115th-congress/house-event/LC64219/text?s=1&r=326.
\11\ Update on Military Review Board Agencies, Hearing Before
the Subcomm. on Military Personnel of the H. Comm. on Armed
Services, 115th Cong. (2018), https://www.congress.gov/event/115th-congress/house-event/LC64219/text?s=1&r=326.
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[[Page 94605]]
To provide increased oversight and to ensure that the DRBs and BCM/
NRs uniformly and consistently apply DoD policies related to the review
of a Service member's discharge or dismissal, Congress passed section
523 of the FY 2020 NDAA, as codified at 10 U.S.C. 1553a on December 20,
2019. This allows for a new level of review for petitioners (or their
authorized representatives), with certain limitations, to seek ``an
upgrade in the characterization of a discharge or dismissal.'' \12\
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\12\ 10 U.S.C. 1553a(c)(1).
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This ``final review'' is independent from the reviews conducted by
the Military Departments' DRBs and BCM/NRs.\13\ Section 523 amended 10
U.S.C. 1553 to include ``a request for an upgrade to the
characterization of a discharge or dismissal'' that was declined ``may
be considered under section 1552 or section 1553a of this title, as
applicable.'' \14\ Similarly, 10 U.S.C. 1552 was also amended to
include ``a request for an upgrade to the characterization of a
discharge or dismissal'' that was declined ``may be considered under
section 1553a of this title.'' \15\
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\13\ 10 U.S.C. 1553a(a).
\14\ 10 U.S.C. 1553(b)(2).
\15\ 10 U.S.C. 1552(a)(4)(B).
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The DoD has the authority to design and implement the process to
conduct a ``final review of a request for an upgrade in the
characterization of a discharge or dismissal.'' \16\ Congress directed
the Secretary of Defense to ``use existing organizations, boards,
processes, and personnel of the Department of Defense'' to the
``maximum extent practicable'' when establishing this process and it
set January 1, 2021, as the deadline for the implementation.\17\ The
Secretary of Defense is also required to publish annual reports
regarding the DoD's new final review process, to include the number of
requests considered, the upgrades granted or declined to the
characterization of a discharge or dismissal, and the associated
reports must be accessible to the public.\18\
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\16\ 10 U.S.C. 1553a(a).
\17\ Public Law 116-92, section 523(c).
\18\ Id. The annual reports can be accessed at https://boards.law.af.mil/OSD_DARB.htm.
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Upon the request of a petitioner who has exhausted all available
administrative remedies under 10 U.S.C. 1552 and 1553, the Secretary of
Defense must review the findings and decisions of the Military
Department's DRB and BCM/NR and make a recommendation to the Secretary
of the Military Department concerned for final action.\19\ The term
``final review of a request for an upgrade in the characterization of a
discharge or dismissal'' was also defined as ``a request by a
petitioner for an upgrade to the characterization of a discharge or
dismissal'' that was exhausted but not granted by his or her Military
Department's BCM/NR.\20\ A ``petitioner'' means ``a member or former
member of the armed forces (or if the member or former member is dead,
the surviving spouse, next of kin, or legal representative of the
member or former member).'' \21\
---------------------------------------------------------------------------
\19\ See 10 U.S.C. 1553a(b).
\20\ 10 U.S.C. 1553a(c)(1).
\21\ 10 U.S.C. 1553a(c)(2).
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C. Progress Since the 2020 NDAA
Section 523 directed ``[t]he Secretary of Defense shall implement
section 1553a . . . not later than January 1, 2021.'' \22\ To
accommodate the timeline set by Congress, the DoD designated the
Physical Disability Board of Review (PDBR), an entity established as
part of the NDAA for FY 2008 to reassess the accuracy and fairness of
the combined disability ratings assigned Service members who were
discharged as unfit for continued military service between September
11, 2001, and December 31, 2009, to assume responsibility while its
statutory mission was concluding and later take over the duties for
this new review process under this rule. The DoD also established
policies for implementing internal requirements while beginning work on
this rule. The DoD issued two internal Deputy Secretary of Defense
(DepSecDef) Memoranda \23\ and one Directive-Type Memorandum (DTM),\24\
to provide the process and procedures for conducting a final review.
This rulemaking is the final step in establishing the DARB.
---------------------------------------------------------------------------
\22\ Public Law 116-92, section 523.
\23\ The first DoD Memorandum, ``Department of Defense
Implementation of Section 523 of the National Defense Authorization
Act for Fiscal Year 2020,'' published January 29, 2021, was updated
on May 17, 2022, by DoD Memorandum, ``Update to Department of
Defense Appeal Review Board Procedures.'' These DoD Memoranda can be
accessed at https://afrba-portal.cce.af.mil/#board-info/darb/navbar.
\24\ The Directive-Type Memorandum (``DTM''), ``DoD Discharge
Appeal Review Board,'' published May 5, 2023, and is available on
the DoD Directives Division website and can be accessed at https://www.esd.whs.mil/Directives/Recent-Publications/.
---------------------------------------------------------------------------
D. Process for Petitioning the DARB
It should be noted per statute that the DARB is strictly a document
review board.\25\ Any new evidence a petitioner wishes to introduce
must first be reviewed and a determination made by the respective
Military Department's DRB and BCM/NR.\26\ After reviewing a Service
member's case file records, the DARB may make a recommendation to
upgrade the characterization of discharge or dismissal based on their
de novo review.\27\ If the DARB recommends an upgrade, this
recommendation will be sent to the Secretary of the Military Department
concerned for final action.\28\
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\25\ See 10 U.S.C. 1553a(b).
\26\ 10 U.S.C. 1553a(b), (c).
\27\ 10 U.S.C. 1553a; Public Law 116-92, section 523.
\28\ 10 U.S.C. 1553a(b)(2).
---------------------------------------------------------------------------
In most cases, the current or former Service member petitions the
DARB for an upgrade to the characterization of his or her discharge or
dismissal. If the Service member is deceased or incapacitated, the
surviving spouse, next of kin, or legal representative may apply for a
final review on the Service member's behalf.\29\ Petitioners are
eligible for a DARB review when all four criteria below are met:
---------------------------------------------------------------------------
\29\ 10 U.S.C. 1553a(c)(2).
---------------------------------------------------------------------------
The Service member's date of discharge or dismissal was on
or after December 20, 2019; \30\
---------------------------------------------------------------------------
\30\ See 10 U.S.C. 1553a; see Public Law 116-92, section 523;
see also DTM, ``DoD Discharge Appeal Review Board,'' published May
5, 2023, and is available on the DoD Directives Division website and
can be accessed at https://www.esd.whs.mil/Directives/Recent-Publications/. If this portion of the rule is held to be invalid by
a court, the remainder of the rule should be considered severable
and not affected by such determination.
---------------------------------------------------------------------------
The Service member received a less than honorable
characterization of service; \31\
---------------------------------------------------------------------------
\31\ See 10 U.S.C. 1553a(c)(1).
---------------------------------------------------------------------------
The petitioner has exhausted all remedies available at the
respective Military Departments' DRB and BCM/NR; \32\ and
---------------------------------------------------------------------------
\32\ 10 U.S.C. 1553a(c)(1)(B).
---------------------------------------------------------------------------
The petitioner's request for an upgrade in the
characterization of a discharge or dismissal was denied or it was only
partially granted at their respective Military Department's BCM/NR.\33\
---------------------------------------------------------------------------
\33\ See 10 U.S.C. 1553a(c)(1).
---------------------------------------------------------------------------
Petitioners can request a DARB discharge review by sending a
written request by email to [email protected] or by mail to Air
Force Review Boards Agency, SAF/MRBD (DARB), 3351 Celmers Lane, Joint
Base Andrews, MD 20762-6435. To learn more about DARB and the process
for petitioning for a final discharge review, visit the Air Force
Review Board Agency website located at https://afrba-portal.cce.af.mil/#board-info/darb/navbar.
[[Page 94606]]
II. Expected Impact of This Interim Rule
A. Baseline
If requesting a discharge upgrade within 15 years of the date of
discharge (except discharges by general courts-martial), the Service
member must first apply to their respective Military Department's DRB
to review their discharge and the resulting characterization of
service.\34\ A Service member who is not satisfied with the DRB's
findings and decision regarding their request may also seek relief from
their respective Military Department's BCMR/NR.\35\ Service members who
were discharged more than 15 years ago \36\ and Service members
requesting an upgrade of their dismissal or discharge by general
courts-martial should seek review of their discharge or dismissal
directly to their respective Military Department's BCMR/NR.\37\
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\34\ See 32 CFR 70; see 10 U.S.C. 1553.
\35\ 10 U.S.C. 1552.
\36\ There is a three-year deadline to apply to a BCM/NR from
the date of the discovery of an alleged error or injustice, but the
time limit can be waived in the ``interest of justice.'' 10 U.S.C.
1552(b).
\37\ 10 U.S.C. 1553.
---------------------------------------------------------------------------
Between October 1, 2016, and September 30, 2021, approximately
23,176 individuals requested an upgrade to the characterization of a
discharge or dismissal at their Military Department's BCM/NR.\38\ Of
the 23,176 upgrade requests, the BCM/NRs fully granted 15% of their
requests for an upgrade to the characterization of their discharge or
dismissal on average.\39\
---------------------------------------------------------------------------
\38\ The Navy's data was included in this number but its case
tracking systems for data was based on an in-house database that was
inconsistent before mid-2019, and as a result, it is reasonable to
assume that the total numbers may be higher.
\39\ If an applicant received a partial upgrade at the BCM/NR,
this data would not be included in the 15% unless the applicant
requested and received a partial upgrade at the BCM/NR.
Additionally, the Army could not provide the total number of
applicants who received the upgrade requested without a case-by-case
review, and as a result, it was not included when determining the
average percent of upgrades granted by the military departments.
---------------------------------------------------------------------------
Military Department BCM/NRs are currently the highest level of
administrative review for the review of a discharge or dismissal, and
their decisions constitute final agency action on a request for an
upgrade to the characterization of a discharge or dismissal. As this is
a new congressionally mandated additional review, there is no pre-
established baseline cost of comparison for this rule.
B. Policy
DoD's solution is to use existing DoD board personnel who are
familiar with established review processes to conduct a final review of
a request for an upgrade in the characterization of a discharge or
dismissal--PDBR, as provided under 10 U.S.C. 1554a. The OUSD(P&R) which
is responsible for overseeing the Military Department's DRBs and BCM/
NRs also oversees the PDBR. This solution was chosen because it
provides petitioners with a fair and equitable review and it meets
Congress' direction for establishing and implementing a process using
existing DoD ``organizations, boards, processes, and personnel'' to the
``maximum extent practicable.'' \40\ By using existing PDBR personnel,
similar processes, and infrastructure to conduct a similar discharge
review, it is the most cost-effective approach, based on the analysis
in this section.
---------------------------------------------------------------------------
\40\ Public Law 116-92, section 523.
---------------------------------------------------------------------------
Congress directed the establishment of the PDBR in 2008 to review a
Service member's request for an upgrade in the disability rating of
their medical discharge.\41\ The PDBR requires at least three members
to conduct the review. Service members who were separated from the
Armed Forces, who received a disability rating of 20 percent or less,
and were found not eligible for retirement, could request a review of
their disability rating under the process. The PDBR reviews the Service
member's medical records and the Military Department's disability
determination and makes a recommendation to the Secretary of the
Military Department concerned on whether to upgrade the disability
rating. The PDBR was created to review Service member's medical
discharges between a set period, ending on December 31, 2009, and the
PDBR will cease operating on October 1, 2024.
---------------------------------------------------------------------------
\41\ Public Law 110-181; 10 U.S.C. 1554a.
---------------------------------------------------------------------------
Because PDBR personnel are familiar with discharge upgrades from
the Military Departments, including Service member medical issues and
the related benefits available, the personnel would be able to quickly
take on this new congressionally mandated discharge review. The PDBR
caseload is dwindling and any remaining cases or requests for a
disability upgrade review received after October 1, 2024, will be
transferred to their respective Military Department BCM/NRs, so the
existing PDBR personnel, processes to conduct comparable reviews, and
infrastructure would be fully utilized in the intake of requests and
conducting the final reviews. A three-member panel also ensures that a
petitioner has a fair process that will allow an opportunity for a
thorough and thoughtful review of the Military Department's findings
and decisions.
1. Estimated Final Review Requests
Pursuant to 10 U.S.C. 1553a, any Service member who has been
discharged or dismissed with a less than honorable discharge
characterization,\42\ whose request for an upgrade in the
characterization of their discharge or dismissal was denied or only
partially granted by their respective Military Department BCM/NR, and
who exhausted all available remedies with their respective Military
Department's DRB and BCM/NR, may petition the DARB for a final review.
Because section 116-92 of the FY 2020 NDAA and 10 U.S.C. 1553a became
effective on December 20, 2019, the DARB requires that the Service
member was discharged or dismissed on or after December 20, 2019, to be
eligible for this additional review. The eligibility date aligns with
the language in section 523 of the NDAA for FY 2020 and allows for
faster action while also affording finality to prior, and potentially
long-resolved, Military Departments' decisions on requests for
upgrades, which would in turn permit earlier intervention by a civilian
court. Additionally, it provides for clear eligibility determinations
by establishing an explicit date-certain timeframe for eligibility.
---------------------------------------------------------------------------
\42\ A less than honorable discharge characterization includes
dismissals, a general, other than honorable, uncharacterized, bad-
conduct, and dishonorable discharges.
---------------------------------------------------------------------------
As of June 30, 2022, there were approximately 63,294 former Active-
Duty Service members who had been discharged or dismissed on or after
December 20, 2019 and received a less than honorable discharge
characterization.\43\ Petitioners however are not eligible for a DARB
final review until they fully exhaust all their administrative remedies
at their respective Military Department's DRB and BCM/NR.
---------------------------------------------------------------------------
\43\ Active-Duty Service members include members of the Army,
Navy, Marine Corps, Coast Guard, Air Force, and Space Force.
Additionally, while Reserve Service members may be eligible for a
final review, Active-Duty Service member data were used here because
they primarily petition the DRBs and BCM/NRs, and they are more
likely to qualify for Veterans Benefits if their discharge
characterization is upgraded as they meet the length-of-service
criteria needed for veteran status (38 U.S.C. 5303A(b); 38 CFR
3.12a(a)(1)).
---------------------------------------------------------------------------
The time to fully exhaust their administrative remedies varies
significantly based on the complexity of their case, the military
service involved, and whether they request a documentary record review
or a personal appearance hearing. Based on internal records, the DoD
anticipates it will take at least 18 months from their
[[Page 94607]]
date of discharge or dismissal to fully exhaust their available
remedies at their Military Department's DRB and BCM/NR but it could
take much longer than this. Individuals who have requested an upgrade
to a discharge or dismissal and are not satisfied with their result at
their Military Department's BCM/NR may then consider petitioning the
DARB for a final review. The DARB requires a petitioner to request a
final review within 12 months of receipt of their BCM/NR decision.
Thus, it will take a minimum of 18 to 30 months from the date of a
discharge or dismissal for the DARB to receive a petitioner's final
review request.\44\
---------------------------------------------------------------------------
\44\ In fiscal year 2022, the DoD received 4 requests for a
final review under this process, but none of the petitioners were
eligible for a final review. The petitioners were not eligible
because they were seeking an upgrade to a discharge or dismissal
that was issued before December 20, 2019, or they failed to first
exhaust their administrative remedies at their respective Military
Department's DRB and BCM/NR.
---------------------------------------------------------------------------
Based on the BCM/NR data analyzed previously in the baseline,
approximately 23,176 individuals requested an upgrade to the
characterization of a discharge or dismissal at the Military
Department's BCM/NRs over a five-year period, which equates to 4,635
requests a year. Assuming the BCM/NR will fully grant 15% of these
requests to fully upgrade the characterization of discharge or
dismissal, this results in an estimated 3,940 petitioners a year who
will be eligible for a final review. Because the process for a
petitioner to request a final review is straight-forward and some
petitioners may not be interested in a further appeal as they may have
received partial relief and be satisfied with that result, the DoD
assumes that 75% of these eligible petitioners a year will petition for
a final review. As a result, we estimate that the DARB will receive
2,955 final review requests a year.
2. Costs of Policy
In determining whether to petition the DARB for a final review, we
estimate that it would take a petitioner up to 2 hours to view case
file records and the BCM/NR decision to decide whether to request a
final review, and an additional 5 to 30 minutes on average to submit a
request for a final review. Assuming 2.5 hours in total at the median
hourly rate of $24.95 based on data from the Bureau of Labor Statistics
(BLS),\45\ the cost of this activity is $62.38. While representation by
an attorney is not necessary, a Service member may decide to consult
with an attorney when determining whether to request a final review.
Because the DARB conducts only a record review and a Service member may
already have an attorney who represented them in their DRB and BCM/NR
proceedings, any consultation with the same attorney for the purposes
of conducting this additional DoD review will be minimal.
---------------------------------------------------------------------------
\45\ According to the Bureau of Labor Statistics, the median
weekly earnings for full-time wage and salary workers in 2021 was
$998.00, for an hourly rate based on a 40-hour workweek of $24.95.
(https://www/bls.gov/cps/cpsaat39.htm.)
---------------------------------------------------------------------------
The cost to a petitioner or an authorized representative for
submitting a request for a final review itself will vary based on
whether the request is submitted electronically or by mail. The DARB is
not authorized to accept new information in support of a petitioner's
request for a final review, so the resulting cost to the petitioner may
only be minimal printing, scanning, photocopying, and postage. The DARB
encourages electronic submission of requests for final reviews by email
as the processing will be faster and such a request will be at no cost
to the petitioner. If a petitioner elects to mail a request, a basic
letter requesting a final review and any supplementary evidence of a
relationship to a Service member, if required, would cost the
petitioner $0.55 in postage. A petitioner submitting a request by mail
will likely choose to use certified mail, requiring additional postage
of $3.75, and may add a return receipt, that is an additional $3.05 for
a mail receipt or $1.85 for an electronic return receipt. After a
petitioner submits a request for a final review, the DARB will download
the relevant case file records from the BCM/NR and this request to
transfer records will be at no cost to the petitioner. As a result, we
estimate the total cost to a petitioner to request a final review would
be $6.24 to $69.35, as shown in Table 1.
Table 1--Estimated Public Cost for DARB Review
----------------------------------------------------------------------------------------------------------------
Activity Hours Rate Total cost
----------------------------------------------------------------------------------------------------------------
Review case................................. 0 to 2.00 $24.95......................... $0-$49.90
Submit petition............................. 0.08 to 0.50 $24.95......................... $6.24 to $12.48
Additional cost to submit petition via mail. .............. Postage at $0.55............... $0.55
Certified Mail at $3.75........ $3.75
Mail Return Receipt at $3.05... $3.05
Electronic Return Receipt at $1.85
$1.85.
------------------
Total Cost.............................. .............. ............................... $6.24 to $69.73
----------------------------------------------------------------------------------------------------------------
Next, we estimate the costs associated with the intake, review, and
processing of a final review request, which is illustrated in Table 2.
Once the DARB receives a final review request, it is anticipated that
it will take approximately 4 hours of time for intake procedures such
as data entry for case creation, verifying BCM/NR case information,
receiving case file records, bookmarking key documents in the record,
sending acknowledgement letters to petitioners, and assigning the case
to a three-member panel. Assuming a GS-11 at the step 5 salary rate of
$84,941 based on the 2022 Washington DC, locality pay table, which is
equivalent to an effective rate of $81.40 (hourly rate of $40.70 plus
benefits at 100%), the cost for this case management activity per final
review request is $325.60 (effective rate of $81.40 multiplied by 4
hours of work).
While the complexity of a case will vary and significantly change
the time of review, we estimate that approximately 30 hours in total
would be spent by board members reviewing the case file records,
voting, and drafting a recommendation on whether to upgrade the
characterization of the discharge or dismissal. Assuming a GS-14 at the
step 8 salary rate of $155,687 based on the 2022 Washington DC locality
pay table, which is equivalent to an effective rate of $149.20 (hourly
rate of $74.60 plus benefits at 100%), the cost for the review of a
petitioner's request is $4,476.00.
Additionally, if a petitioner's case involves a mental health
issue, a military or civilian healthcare provider
[[Page 94608]]
will review the case file records to determine if an advisory opinion
was required and included by the BCM/NR. We anticipate this medical
review will take about 1 hour on average. Assuming a GP-15 at the step
5 salary rate of $147,942 based on the 2022 General Schedule base pay
table with the additional $20,000 General Medical Officer incentive pay
incorporated, which is equivalent to an effective rate of $141.78
(hourly rate of $70.89 plus benefits at 100%)), the cost for this case
management activity per final review request is $141.78. Based on data
from January 2022-March 2022, 41% of the cases before the DRBs and BCM/
NRs involved Mental Health claims (https://boards.law.af.mil/stats_CY2022.htm).
Table 2--Estimated Government Sub-Process Cost
----------------------------------------------------------------------------------------------------------------
Number of Cost per
Review process Work hours Employee grade Effective rate employees process
----------------------------------------------------------------------------------------------------------------
Intake.......................... 4 GS-11(5) $81.40 1 $325.60
Board Review.................... 30 GS-14(8) 149.20 3 4,476.00
Medical Review.................. 1 GP-15(5) 141.78 1 141.78
----------------------------------------------------------------------------------------------------------------
Based on the anticipated 2,955 final review requests a year,\46\
assuming 41% of these petitions will involve Mental Health claims
necessitating a military or civilian healthcare provider review and 59%
will not, we estimate the total annual costs for processing and
reviewing these requests to be $14,360,565, as shown in Table 3.
---------------------------------------------------------------------------
\46\ These are the total number of petitions, prior to any
analysis of the merits of the claims, or determination of whether
the petitioner properly applied for a final review.
Table 3--Estimated Total Government Cost
----------------------------------------------------------------------------------------------------------------
Percent
Review process petitions Cases Process cost Total cost
----------------------------------------------------------------------------------------------------------------
Intake and Board Review......................... 59 1,743 $4,801.60 $8,369,188.8
Intake, Board Review, and Medical Review........ 41 1,212 4,943.38 5,991,376.56
---------------------------------------------------------------
Total Cost.................................. .............. .............. .............. 14,360,565
----------------------------------------------------------------------------------------------------------------
C. Policy Alternative #1
The DoD considered using personnel from the BCM/NRs to conduct the
final reviews, as these personnel would be fully trained on the review
process for a request for an upgrade to the characterization of a
discharge or dismissal, but it concluded that this was not the most
equitable solution. The BCM/NRs apply military service specific
policies in their reviews of discharges or dismissals. While it may be
possible to use personnel from each of the BCM/NRs for a consolidated
military service review board to conduct these final reviews, utilizing
the same personnel who would be reviewing the findings and decisions of
the BCM/NRs may present a conflict of interest as these personnel may
have an interest in interpreting a DoD policy based on the culture of
their military service. Congress also explicitly provided in 10 U.S.C.
1553a that a petitioner must have fully exhausted all remedies
available at their respective Military Department's DRB and BCM/NR
before they are eligible for a final review, which indicates that
congress intended the final review process to be separate and distinct
from the existing DRB and BCM/NR review processes.
This also may not be the most cost-effective approach because,
unlike the PDBR mission, the BCM/NRs caseload is not expected to
diminish. If the BCM/NRs took on this congressionally mandated
additional review, it would add the estimated cost of $14,455,783 per
year to their budget and may create inefficiencies due to the increase
in workload.
Accordingly, the DoD concluded that a distinct board focused on
applying DoD-level policies was a better policy alternative, as it
could ensure the review of a request for an upgrade to the
characterization of a discharge or dismissal was consistent with both
military service specific policies and DoD policies. The PDBR is a more
cost-effective approach because of its dwindling cases, existing
infrastructure and resources, and experience conducting military
reviews.
D. Policy Alternative #2
The DoD also considered using another existing DoD review board to
conduct the final reviews, the Defense Office of Hearings and Appeals
(DOHA), but it concluded that it would not be a cost-effective
approach. The DOHA holds due process hearings and appeals of security
clearance cases. Contractor employees who are applying for or seeking
to retain their security clearances can request a hearing, and it will
be held and decided before a DOHA Administrative Judge.
Although DOHA's review is different from the review of a request
for an upgrade in the characterization of a discharge or dismissal, it
was considered as a policy alternative because its board was familiar
with applying DoD-level policies and standards of review. The DoD
ultimately decided that the PDBR was a better policy alternative than
the DOHA because it would take a significant amount of time to train
existing DOHA personnel on the review process for a request for an
upgrade to the characterization of a discharge or dismissal. It would
also require additional personnel, new processes, and infrastructure
for the DOHA to conduct these reviews in addition to its security
clearance reviews.
II. Regulatory Compliance Analysis
Interim Final Rule Justification
As discussed in the SUPPLEMENTARY INFORMATION section, the DoD is
issuing this rule as an interim final rule because it is a procedural
rule that relates to ``agency organization, procedure, or practice''
within the meaning of 5 U.S.C. 553(b)(A). As such, this rule is exempt
from the prior notice and comment and delayed effective date (see 5
U.S.C.
[[Page 94609]]
553(d)) requirements. Additionally, pursuant to 5 U.S.C. 553(b)(B) and
(d)(3), there is also good cause to issue this interim final rule and
make it immediately effective because delay for notice and comment
would be impracticable and unnecessary, and delay in effectiveness is
not needed in this circumstance.
Congress' statutory direction and intent was for the DoD to
establish and implement a process to conduct a final review of a
request for an upgrade in the characterization of a discharge or
dismissal. This rule merely concerns the DoD's procedures and practice
for conducting a final review and directs how those requests should be
submitted. To comply with congressional requirements, DoD is issuing
this rule to establish the DARB as the administrative body to conduct a
final review of a petitioner's request for an upgrade in the
characterization of a discharge or dismissal. The DARB does not change
the substantive standards applicable to requests for an upgrade. The
DARB simply reviews the Military Department's decisions to ensure
uniform discharge review standards are applied, regardless of the
Service member's service affiliation in its review, and it may
facilitate an upgrade to the discharge or dismissal characterization.
A Service member's discharge or dismissal characterization may have
a significant impact on their personal, financial, and professional
future (and by extension, upon their families). Entitlement to
educational benefits under the G.I. Bill, for instance, is limited to
Service members who separated from active duty with an honorable
characterization of service (even separation under general (under
honorable conditions) does not qualify). Service members who separate
under other than honorable conditions (OTH) are not automatically
eligible for VA disability compensation, access to VA home loans, or
medical care at VA facilities.'' \47\
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\47\ Service members who are discharged under other than
honorable conditions may apply to the VA for consideration of these
benefits and the VA makes this eligibility determination on a fact-
specific basis.
---------------------------------------------------------------------------
Additionally, many employers request the discharge characterization
from individuals who list military service on their resume and may be
reluctant to hire individuals who were discharged with a less than
honorable characterization of service. Finally, spouses and dependents
of Service members may also be impacted by this rule because they may
be eligible for additional benefits based on the Service member's
characterization of service.
The consequences of delaying an upgrade in the characterization of
service can therefore be hugely significant to former Service members
and their families. The need to avoid delay in establishing final-
review procedures that may result in an upgrade is reflected in
Congress' directive that the Department establish a final review
process not later than January 1, 2021. Between the statutory deadline
and the issuance of this rule, the DoD established the policies and
procedures for conducting a final rule and its process was provided in
a DTM, ``DoD Discharge Appeal Review Board,'' which was available to
the public in May 2023.\48\ The DARB is currently operating pursuant to
that issued memoranda. The DoD has considered the necessity for
immediate implementation against providing affected parties more time
for notice and comment on this rule and concluded that, because the
rule continues an existing policy and only changes the procedures
within the Departments, it is in the best interest of affected Service
members and their families to comply with Congress's direction to act
expeditiously. Moreover, because the rule provides for continuity with
existing policy, time is not needed for parties to plan or adjust their
behavior, and there is good cause to implement the rule now, without
waiting for a delayed effective date.
---------------------------------------------------------------------------
\48\ The DTM, ``DoD Discharge Appeal Review Board,'' published
May 5, 2023, is available on the DoD Directives Division website and
can be accessed at https://www.esd.whs.mil/Directives/Recent-Publications/.
---------------------------------------------------------------------------
A. Executive Order 12866, ``Regulatory Planning and Review,'' as
Amended by Executive Order 14094, ``Modernizing Regulatory Review'' and
Executive Order 13563, ``Improving Regulation and Regulatory Review''
Executive Order 12866, as affirmed by Executive Order 13563 and
amended by 14094 (88 FR 21879, April 11, 2023), directs agencies to
assess all costs, benefits and available regulatory alternatives and,
if regulation is necessary, to select regulatory approaches that
maximize net benefits (including potential economic, environmental,
public health, safety effects, distributive impacts, and equity). These
Executive Orders emphasize the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated significant, under section
3(f) of Executive Order 12866, as amended by Executive Order 14094.
B. Congressional Review Act (5 U.S.C. 801 et seq.)
Pursuant to subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996, also known as the Congressional Review Act, the
Office of Information and Regulatory Affairs has determined that this
rule does not meet the criteria set forth in 5 U.S.C. 804(2).
C. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
The USD(P&R) certified that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities. Therefore, the Regulatory Flexibility Act, as
amended, does not require us to prepare a regulatory flexibility
analysis.
D. Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
Section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1532) requires agencies to assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any 1 year of $100
million in 1995 dollars, updated annually for inflation. This rule will
not mandate any requirements for State, local, or Tribal governments,
and will not affect private sector costs.
E. Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter
35)
While there are no new information collection requirements
associated with this rule, two existing collections under the Paperwork
Reduction Act are already in use. The DoD does not believe rule changes
the data elements, cost, or burden associated with these collections as
the DARB is not authorized to accept new information in support of a
petitioner's request for a final review. There is no standardized
format for requesting a DARB discharge review.
The DARB will review BCM/NR case file records which may
include DRB case file records. This is associated with DD 149 titled
``Application for Correction of Military Record Under the Provisions of
Title 10, U.S. Code, Section 1552,'' OMB Control Number. 0704-0003.\49\
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\49\ Information regarding this collection--including all
supporting materials--can be accessed at www.reginfo.gov and
providing either the title or number of the collection.
---------------------------------------------------------------------------
The DRBs have an active collection associated with DD 293
titled ``Application for the Review of
[[Page 94610]]
Discharge From the Armed Forces of The United States,'' OMB Control
Number. 0704-0004.\50\
---------------------------------------------------------------------------
\50\ See www.reginfo.gov to access the most current version of
this information collection--including all supporting documentation.
---------------------------------------------------------------------------
The DoD has Privacy Act System of Records Notices (SORNs)
associated with these collections are as follows:
Army (https://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/569931/a0015-185-sfmr.aspx)
Navy and Marine Corps (https://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570411/nm01000-1/)
Air Force (https://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/569833/f036-safcb-a/)
Defense Finance and Accounting Service (https://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570192/t7340b/)
Coast Guard (https://www.gpo.gov/fdsys/pkg/FR-2013-10-02/html/2013-23991.htm)
Official Military Personnel Files:
Army (https://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570054/a0600-8-104-ahrc.aspx)
Navy (https://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570310/n01070-3/)
Marine Corps (https://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570626/m01070-6/)
Air Force (https://dpcld.defense.gov/Privacy/SORNsIndex/DOD-Component-Article-View/Article/569821/f036-af-pc-c/)
Coast Guard (https://www.gpo.gov/fdsys/pkg/FR-2011-10-28/html/2011-27881.htm)
F. Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a rule that imposes substantial
direct requirement costs on State and local governments, preempts State
law, or otherwise has federalism implications. This rule will not have
a substantial effect on State and local governments.
G. Executive Order 13175, ``Consultation and Coordination With Indian
Tribal Governments''
Executive Order 13175 establishes certain requirements that an
agency must meet when it promulgates a rule that imposes substantial
direct compliance costs on one or more Indian Tribes, preempts Tribal
law, or effects the distribution of power and responsibilities between
the Federal Government and Indian Tribes. This rule will not have a
substantial effect on Indian Tribal governments.
List of Subjects in 32 CFR Part 73
Administrative practice and procedure, Military personnel,
Veterans, Health professions.
0
Accordingly, 32 CFR part 73 is added to read as follows:
PART 73--DOD DISCHARGE APPEAL REVIEW BOARD (DARB)
Sec.
73.1 Purpose.
73.2 Definitions.
73.3 Membership and designation.
73.4 Responsibilities.
73.5 Application procedures.
73.6 Review procedures and standards.
73.7 Final action.
73.8 Annual reporting requirements.
Authority: 10 U.S.C. 1553a.
Sec. 73.1 Purpose.
(a) This part establishes the DARB as the administrative body to
conduct a final review of a petitioner's request for an upgrade in the
characterization of a discharge or dismissal, pursuant to 10 U.S.C.
1553a. This part also provides the procedures for Service members (or
their representatives) to request a final review, the standards that
the DARB will apply when it reviews a petitioner's request, and the
procedures following the DARB's recommended disposition of a request.
(b) The DARB ensures that DoD-level policies, procedures, and
standards related to the review of discharges and dismissals are
uniformly and consistently applied across the military services.
Reporting of the number of upgrades granted or denied pursuant to this
final review process will also be made available for public inspection
through the DoD Reading Room available at https://boards.law.af.mil.
The term ``Military Department'' as used here in this part includes the
Coast Guard. The terms, ``Military Services,'' and ``Armed Forces,''
refers to the Army, Navy, Marine Corps, Coast Guard, Air Force, and
Space Force.
Sec. 73.2 Definitions.
Case file records. All records that members of the BCM/NR have
access to, not limited to what the BCM/NR analyst presents to the DARB.
These records necessarily include the record of proceedings, exhibits,
and findings and decisions of both the BCM/NR and DRB.
Characterization of a discharge or dismissal. The characterization
of a discharge or dismissal is a determination reflecting a Service
member's conduct and performance of duty while in military service
during a specific period of military service. Administrative discharges
can be characterized as honorable, general (under honorable
conditions), other than honorable conditions, or can be described as
uncharacterized (as in an entry-level separation). If a discharge is
adjudged at a court-martial, the assigned characterization may be a
bad-conduct discharge, or dishonorable discharge, or a dismissal. The
term characterization of a discharge or dismissal is also referred to
as a ``character of discharge'' or ``character of service.''
Characterization of less than honorable. A characterization that is
less than honorable includes a general under honorable conditions,
other than honorable conditions, uncharacterized, bad-conduct
discharge, dishonorable discharge, or a dismissal.
DARB member. A person authorized to review a DARB request and make
a recommendation to the DARB president on whether the petitioner's
request for an upgrade to the characterization of a discharge or
dismissal should be granted, partially granted, or denied.
Discharge Appeal Review Board (DARB). An administrative board
constituted by the Secretary of Defense and vested with the authority
to conduct a final review of a request for an upgrade in the
characterization of a discharge or dismissal under the provisions of 10
U.S.C. 1553a.
Exhausted all remedies available. Petitioner requested an upgrade
in the characterization of a discharge or dismissal and presented all
evidence and arguments in support of their request to their respective
Military Department's DRB and BCM/NR, including any materials not
previously presented or considered by the board in making such
determination when requesting reconsideration by the Military
Department BCM/NR.
Final review. The process by which a petitioner's request for an
upgrade to the characterization of a discharge or dismissal that was
not granted at the respective Military Department's DRB and BCM/NR
after the petitioner exhausted all remedies available to the petitioner
is evaluated.
New information. Material not previously presented to, or
considered by, the appropriate Military Department's BCM/NR.
[[Page 94611]]
Petitioner. A member or former member of the Armed Forces whose
request for an upgrade to the characterization of a discharge or
dismissal was not granted by the relevant Military Department's DRB and
BCM/NR. If the member or former member is deceased or legally
incompetent, the term ``petitioner'' includes the surviving spouse,
next-of-kin, or legal representative who is acting on behalf of the
member or former member. The term ``petitioner'' also includes a member
or former member of the Armed Forces' counsel.
Preponderance of the evidence. A standard of proof, evidence which
as a whole shows that the fact sought to be proved is more probable
than not.
Record review. A review of the Service member's case file records.
Service member. A member or former member of the Armed Forces.
Sec. 73.3 Membership and designation.
The DARB is set up independently from the Military Departments'
DRBs and BCM/NRs. The DARB is comprised of civilian government
employees and consists of a President, Deputy Director, and at least
three members for each panel. The DARB President and Deputy Director
are appointed as inferior officers by the Secretary of Defense. The
Secretary of the Air Force (SECAF), as the designated lead agent for
the DARB, appoints DARB members and assigns them to a panel(s).
Sec. 73.4 Responsibilities.
(a) The USD(P&R) is responsible for directing the implementation of
the DARB and serves as the Principal Staff Assistant with oversight of
the DARB process, policies, procedures, and standards for the final
review of a request for an upgrade in the characterization of a
discharge or dismissal under 10 U.S.C. 1553a. The USD(P&R) must:
(1) Ensure that petitioners are afforded an opportunity to request
a final review of their requests for an upgrade to the characterization
of a discharge or dismissals consistent with 10 U.S.C. 1553a;
(2) Ensure that Secretary of Defense appoints the DARB President
and DARB Deputy Director as inferior officers;
(3) Review and approve any DARB or DARB-related policies or
procedures that the Secretaries of the Military Departments or the DARB
President develops before implementation of such policies or
procedures;
(4) Resolve all issues concerning the DARB that cannot be resolved
between the DARB President and the Secretaries of the Military
Departments; and
(5) Modify or supplement this part as necessary.
(b) The Secretaries of the Military Departments have the authority
to approve, partially approve, or disapprove a DARB's recommendation to
upgrade or partially upgrade a petitioner's characterization of a
discharge or dismissal. The Secretary of the Military Department's
decision is the final agency action. If an upgrade or partial upgrade
is approved, the Secretary of the Military Department is responsible
for ensuring that all necessary administrative actions are taken to
effect the change, including issuance of a new or corrected DD 214.
(c) SECAF is responsible for the formation, operation, and
management of the DARB. The SECAF must:
(1) Appoint DARB members to a panels and assign cases to ensure
reviews are conducted in an impartial manner;
(2) Appoint other staff as necessary for intake procedures;
(3) Respond to all inquiries from private individuals,
organizations, or public officials about DARB matters. When the
specific Military Service can be identified, refer such correspondence
to the appropriate Secretary of the Military Department; and
(4) Ensure the timely online publication of annual reports as
required by section 523 of the FY 2020 NDAA, Public Law 116-92.
(d) The DARB President is responsible for administrating and
overseeing the DARB. The DARB President may delegate their authority to
the Deputy Director of the DARB, but no further delegation is
authorized. The DARB President shall:
(1) Review a DARB panel's recommendation and provide the final
adjudication of the DARB recommendation regarding a petitioner's
request for an upgrade to the characterization of a discharge or
dismissal.
(2) Develop policy, procedures, and evaluation standards for the
DARB, subject to review and approval by the SECAF and the USD(P&R)
before implementation of such policy, procedures, and evaluation
standards.
(e) The DARB Deputy Director is responsible for managing the DARB's
day-to-day operations.
(f) A DARB panel considers a petitioner's final review request
properly brought before it, is responsible for performing a record
review, applying DoD policies and standards, and if appropriate will
make a recommendation to the DARB President on whether a petitioner's
request for an upgrade to the characterization of a discharge or
dismissal should be granted, partially granted, or denied.
Sec. 73.5 Application procedures.
(a) Who is eligible for a final review? To be eligible for a final
review, the following criteria must be met:
(1) The Service member's date of discharge or dismissal was on or
after December 20, 2019;
(2) Service member received a less than honorable characterization
of service at the time of discharge or dismissal;
(3) All remedies available have been exhausted at the respective
Military Department's DRB and BCM/NR; and
(4) The request for an upgrade in the characterization of a
discharge or dismissal was denied or it was only partially granted at
the respective Military Department's BCM/NR.
(b) Who may request a final review? (1) In most cases, the
petitioner is the Service member, and the final review relates to their
military service records.
(2) If the Service member is deceased or legally incompetent and
incapable of acting on their own behalf, a spouse, next of kin, or
legal representative may be able to act on behalf of the Service
member.
(c) When can a petitioner request a final review? (1) Petitioners
must first exhaust all available remedies at their respective Military
Department's DRB and BCM/NR before requesting a final review. The DARB
will return an unexhausted request to the petitioner without
considering it.
(2) After exhausting their administrative remedies, Petitioners
must request a final review within 365 calendar days after the date of
receipt of their respective Military Department's BCM/NR decision. The
DARB may deny an untimely request.
(d) How does a petitioner make a final review request? (1) A
request must be made in writing, but the completion of a DoD form is
not required to request a final review. An email or letter requesting a
final review is sufficient to make a request. Sample templates to
request a final review can be accessed at https://afrba-portal.cce.af.mil/#application-submission-darb.
(2) The contents of a request must include the following:
(i) the petitioner's name, address, telephone number, and email
address;
(ii) the Service member's name if represented by counsel or a
representative; and
(iii) the BCM/NR docket number to assist the DARB in obtaining
records from the respective Military Department's BCM/NR. If this
[[Page 94612]]
information is not provided, the DARB may return the request without
considering it.
(3) Additional documentation may be needed in support of a request
for review by the DARB. If requesting a final review on behalf of a
Service member, proof of status or relationship documents are required
and must be enclosed or attached to a request for a final review. Proof
of status or relationship documentation may include a death
certificate, marriage license, divorce decree, birth certificate,
notarized power of attorney, and court appointment of conservatorship
or guardianship. The DARB will return the request to the petitioner
without considering it when a proper relationship to a Service member
has not been shown.
(4) If there is new information in support of a request to upgrade
the characterization of a discharge or dismissal, the DARB cannot
review it. If the petitioner has new information, the petitioner must
first seek reconsideration from the appropriate Military Department's
BCM/NR to exhaust all remedies available.
(e) Where do petitioners send a final review request? Petitioners
may submit a request for a final review by mail or email. Requests by
email are preferred and should be sent to the following address:
[email protected]. Requests by mail should be sent to the following
address: Air Force Review Boards Agency, SAF/MRBD (DARB), 3351 Celmers
Lane, Joint Base Andrews, MD 20762-6435.
(f) How do petitioners withdraw a final review request? Petitioners
may withdraw a request for a final review in writing at any time before
the DARB panel's scheduled review.
Sec. 73.6 Review procedures and standards.
(a) Intake of final review requests. (1) Before conducting a final
review, DARB personnel will review submitted requests to ensure
eligibility for a final review.
(2) DARB personnel will provide notification to the petitioner to
confirm receipt of the final review request. If it is determined that
the petitioner is ineligible for a final review, DARB personnel will
also notify the petitioner in writing of the reason(s) their request
did not qualify for a final review.
(3) Once a case intake is complete, DARB personnel will access or
request case file records from the respective Military Department's
BCM/NR and assign a DARB panel to consider the final review request.
(4) If it is determined that a petitioner's case involves the
adjudication of a Mental Health condition, a military or civilian
health care provider will review the case file records to determine if
a medical advisory opinion is required and missing. If the case file is
missing a medical advisory opinion or other pertinent information the
case will be returned the Military Department's BCM/NR for
reconsideration or a document request.
(b) Consideration of final review requests--(1) Scope of review.
The DARB's review is limited to the case file records related to a
petitioner's request for an upgrade in the characterization of a
discharge or dismissal. The DARB is not authorized to review or address
new information provided by a petitioner in support of a request for an
upgrade in the characterization of a discharge or dismissal.
(2) Standard of review. In considering a petitioner's request for
an upgrade in the characterization of a discharge or dismissal, the
DARB will review the Military Department's BCM/NR decision de novo. The
DARB independently reviews the case file records, applies DoD discharge
review polices and standards and applicable Military Service policies,
and recommends an upgrade, if appropriate. This new review occurs
without giving any deference to the Military Department's BCM/NR
findings and decision.
(3) DARB panel adjudication. The DARB panel will consider the
petitioner's request and case file records, examine pertinent DoD and
Military Service regulations and policies, discuss the case and issues,
and vote to determine whether a petitioner's request for an upgrade in
the characterization of a discharge or dismissal should be granted,
partially granted, or denied.
(4) DARB panel recommendation. A majority vote constitutes the
recommended action of the DARB panel. The DARB panel will provide a
written recommendation including the number of votes and any minority
votes and their reason(s) for their recommendation. The written
recommendation must provide a basis for their decision to deny a
request to upgrade, to partially upgrade, or to fully upgrade the
characterization of a discharge or dismissal. The DARB panel's written
recommendation will be submitted to the DARB President.
(5) Review of the DARB panel's recommendation and the
recommendation of the DARB. The DARB President reviews the DARB panel's
written recommendation and makes the recommendation for the DARB. The
DARB President will submit the DARB's written recommended action to the
SECAF.
(i) If the DARB President approves the DARB panel's recommendation,
the recommendation will constitute the recommended action of the DARB.
(ii) If the DARB President disagrees with the DARB panel's
recommendation, the DARB President will provide a new recommendation.
This new recommendation will be in writing and will include the change
to be made and the reasons for rejecting the recommendation of the DARB
panel.
(6) Discretionary review of the DARB's recommended action. The DARB
President's actions are subject to discretionary review by the SECAF.
(i) The DARB's recommended action will be the final recommended
action unless the SECAF exercises their discretionary review authority
within 30 calendar days after the DARB President submits the
recommendation to the SECAF.
(ii) If the SECAF chooses to exercise their discretionary review
authority to review the DARB's recommended action within 30 calendar
days, and the SECAF changes the DARB's recommended action, the SECAF
will provide a written recommendation with supporting reasons and the
new recommendation will constitute the final recommended action.
(iii) The SECAF may delegate, in writing, its discretionary
authority to act on DARB recommendations to a Presidentially appointed,
Senate-confirmed (PAS) official but further re-delegation is not
authorized.
(c) Reconsideration at the BCM/NR. If it is unclear from the DARB's
review whether the appropriate Military Department BCM/NR considered
relevant evidence when it denied the requested discharge or dismissal
upgrade, the DARB may return a case directly to the BCM/NR for
reconsideration. If the Military Department BCM/NR concerned accepts
the case for reconsideration, the petitioner will be notified in
writing.
Sec. 73.7 Final action.
(a) The Secretary of the Military Department concerned will approve
or disapprove the DARB's recommended action to upgrade or partially
upgrade the characterization of a discharge or dismissal within 90
calendar days. The Secretary of the Military Department must approve
the DARB's recommended action unless the Secretary finds that the
recommendation is not supported by the preponderance of the evidence.
(b) If the DARB recommends to deny an upgrade to the
characterization of a discharge or dismissal and upholds the
[[Page 94613]]
Military Department's BCM/NR decision, the DARB will notify the
petitioner in writing of its final decision. If the DARB recommends to
upgrade or partially upgrade the characterization of a discharge or
dismissal, the Secretary of the Military Department concerned will
notify the petitioner in writing of its final decision.
(1) If the Secretary of the Military Department approves the DARB
recommendation, the petitioner will be notified of the approved change
and any change to the characterization of a discharge or dismissal will
be effective as of the date of discharge.
(2) If the Secretary of the Military Department disapproves the
DARB recommendation, the Secretary concerned must provide the
petitioner a written explanation detailing its rationale for
disapproving the DARB's recommendation.
(c) The Secretaries of the Military Departments may delegate, in
writing, the authority to act on DARB recommendations to a PAS official
but further re-delegation is not authorized.
(d) The Secretary's or designee's action will be the final action.
The petitioner has no right to a further review or to appeal this
decision.
Sec. 73.8 Annual reporting requirements.
(a) The DARB President will submit draft reports to OUSD(P&R) by
the 1st of October for the preceding FY (October 1st through September
30th). The first report will be published on October 1, 2022, and the
report will contain the DARB data for FY 2022.
(b) The reporting period will be inclusive from the first through
the last days of each reporting period.
(c) The report will contain the following information:
(1) The number of requests received;
(2) The number of requests rejected for failure to meet eligibility
criteria for a final review;
(3) The number of requests considered;
(4) The number of requests returned to the BCM/NRs for
reconsideration;
(5) The number of recommendations to upgrade the characterization
of a discharge or dismissal granted by the Secretaries of the Military
Departments pursuant to the DARB, to include the most common reasons
for such upgrades; and
(6) The number of recommendations to upgrade the characterization
of a discharge or dismissal declined by the Secretaries of the Military
Departments pursuant to the DARB, to include the most common reasons
for such declinations.
(d) The annual reports will be published on a publicly accessible
DoD website; the reports can be accessed at https://boards.law.af.mil/OSD_DARB.htm.
Dated: November 18, 2024.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2024-27268 Filed 11-27-24; 8:45 am]
BILLING CODE 6001-FR-P
