July 22, 2022 | Written By Patricia Theodorou
There are two avenues for a veteran, or even a current member of the military, to go down if they wish to request a correction to their military record (or to request a change in their discharge).
The Discharge Review Board (DRB) has the authority to upgrade discharges. The Board of Corrections for Military Records (BCMR) has a different mission. Their mission is to make decisions as to whether to correct service members' military records. However, they can also upgrade a discharge.
You need to submit to the BCMR for your specific branch of service. Each branch has their own BCMR. BCMR is the last administrative review for your branch of service. Think of them as the “Supreme Court” for administrative review. The Board is comprised of civilians who are appointed and are authorized to act to remedy errors or to remove injustices in military records.
Keep in mind that it is not a “given” that your branch’s BCMR will change your records, simply because you ask them to. Because of this, it is advisable to consult with an attorney before you apply for a change. This is even more important when you consider that once an application is sent to BCMR if it gets rejected, you will not get a second bite of the apple. They will not reconsider their decision unless there is “newly discovered relevant evidence that was not considered in the first application”.
Another reason an attorney consult may be advisable is because anything you submit in your application to BCMR becomes part of your permanent military record.
Among the things that BCMR can approve (and correct) are:
There are limitations to what BCMR can change or correct. BCMR cannot overturn a conviction obtained via a general court-martial.
As stated above- BCMR can review a negative decision made by DRB. Once denied by DRB, taking that denial to BCMR would thus be your next logical move.
Your timeframe to apply to BCMR is very different than DRB. You have three years from the time the “error” or “injustice” was discovered or reasonably could have been discovered.
If you are outside that three-year period, the Board’s does have discretion to waive the three-year limitation and still hear a case. But that is certainly not a given. They will only make that decision in your favor if they are convinced that it will serve justice to go forward with a review of your application. Thus, you will have to set forth in your application sufficient reasons why despite missing the deadline, it would be in the interests of justice for the Board to consider the application. What is the best way to ensure you meet those interests of justice threshold? Show that your case has merit.
You, or your attorney should be fully familiar with the application process in your branch of service before you initiate this process. For you to apply to BCMR, you must fill out DD Form 149 (Application for Correction of Military Record). This form and requirement are uniform to all branches of service. DD Form 149 can easily be obtained online. Once completed, it must be mailed to the proper BCMR for your branch of service.
There is simply not enough room on DD Form 149 to make an impactful statement, so you can, and should attach a separate statement to the form. There is a limit of twenty-five pages for this statement so be clear and concise in your explanation as to what happened and why it is either an “error” or an “injustice.” An attorney can help you with what will be most beneficial in that limited statement.
If you hire an attorney, the attorney’s name must be written on DD Form 149, in item seven. The attorney will then need to get approved by the executive director of the Board. Your attorney can, and should, write a letter as well and attach it to your application.
Also, attach your full military records to your application. This should include positive performance reviews, all medals achieved, and all awards received. Similarly, you should attach your full medical and dental records, if they are applicable.
Letters of recommendation are something else you should seriously consider attaching to your application. These can come from any member of the service. These letters may also come from civilians who you have worked with since leaving the service. Letters can even include friends and family members or your religious advisor.
Procedurally What is Needed in Order to get BCMR to Consider Your Application
There are certain requirements that must be met before the Board will take up your claim. First, you need to have exhausted all other administrative remedies available, prior to applying to them. The Board will return your application if this has not been done.
Second, your application must be within the proper timeframe- within three years from discovery of the error or injustice (or from when it should have been discovered).
Third, you must submit a properly filled out DD Form 149 to the proper board.
After accepting your application for review, BCMR is within their rights to seek an advisory opinion from OPR. These advisory opinions are not binding but are certainly considered. They become part of your permanent record.
If the Board does seek out an advisory opinion, you are entitled to see that opinion and to respond to that opinion if it is negative. They will afford you thirty days in which to submit this response.
BCMR will correct military records only in extremely specific instances. They will do so if the military records contain an “error” or an "injustice.”
When you submit your application, you should be specific about what the claimed “error” or “injustice” is. You must provide sufficient evidence of a probable material “error’ or “injustice”. Remember that the Board is not an investigatory body. That is why it is important for you to submit all the evidence that you wish the Board to consider. They will not look beyond what you submit to them.
Similarly, do not just submit witness names to them. They will not contact witnesses. If you have relevant witness(es) then you need to submit a relevant and well-written statement from that witness(es).
In addition to evidence, you must present your arguments as to why you should be granted the relief that you are requesting. You must also say what you seek the records to reflect, versus what they currently say. This is again where it is helpful to have an attorney on your side.
The letters from former or current colleagues can address the “error” or “injustice” component as well. They can address the error or injustice as they see it.
You are entitled to request a hearing, but you are not entitled to receive a hearing. Suffice it to say, these are not usually granted so do not be surprised if you do not get one. If there is a hearing, you will be responsible for travel and all costs associated with it.
You may also request a personal appearance by checking that off on item six of DD Form 149. Again, the Board will determine if your personal appearance is necessary to decide your case. Personal appearances, like hearings, are not granted often so it is even more important to ensure that your application is complete on its face and tells your entire story.
Once your application has been submitted to BCMR they are required to process it in a “timely fashion”. They review all applications in the order that they come in and it can take up to18 months to get a decision. Obviously a more complex application will take longer than a simple one.
After the panel votes, they sign a record of proceeding which contains the reasons for their decision. The final decision then gets mailed to the applicant. If any relief was granted by the Board, the records will be corrected. Finance personnel will review the case to determine if there are any monetary consequences to that decision.
What happens if your application for correction of military records is denied by BCMR? That is the end of the line, as far as BCMR is concerned, unless there is newly discovered evidence not previously considered.
The final question is: Do you have any other remedy at that point? The answer is Yes. You can file a lawsuit in federal court.
Patricia Theodorou is a partner with Parlatore Law Group who brings over a quarter of a century of experience in litigation, having been a prosecutor in the Queens County District Attorney’s Office, the Nassau County District Attorney’s Office, and the Suffolk County District Attorney’s Office, in the state of New York during that time. Ms. Theodorou concentrates her practice on criminal, military, and white-collar litigation, as well as investigations and appellate work. She has substantial courtroom and trial experience with a strong record of success.
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