The law basically permits the Secretary of a military department to correct any military record when necessary to correct an error or remove an injustice. The Secretary acts through the review boards.
The statute of limitations is ordinarily three years; however, the boards have the power to waive the statute of limitations. The boards can also authorize monetary payments where appropriate.
If you have already filed and are contemplating retaining counsel for a request for reconsideration, a free consultation is highly advisable. Ordinarily, the statute of limitations for requests for reconsideration is one year. The boards often demand new argument or new evidence.
WHY YOU NEED EXPERIENCED LEGAL COUNSEL
Having experienced counsel can be extremely beneficial. The various boards receive thousands of applications a year. Some of the boards have significant backlogs that result in some cases taking over a year to resolve.
A Freedom of Information Act Request several years ago revealed that:
- Navy BCNR members devote an average of less than 2 minutes to deciding each application
- Army BCMR members devote an average of less than 4 minutes to deciding each application
- The boards do not require their members to actually review the evidence
- The boards sometimes rely on summarized written recommendations from staff members before they vote
- Board members do not necessarily undergo specialized or detailed training. They are not always experts in the law
The implication, of course, is that experienced counsel must be able to distill your facts and arguments into a concise and simple to understand argument for relief.
When contesting unfavorable information before the boards for correction of military records, it is also important to understand their relationship to the federal courts.
MILITARY REVIEW BOARDS ARE SUBJECT TO REVIEW
For informational purposes, military review boards – like all other federal agencies – are subject to review under the Administrative Procedure Act. The boards understand that the statute – 5 U.S.C. § 706 (2)(A) – permits reviewing courts to set aside agency actions, findings, and conclusions that are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
The difficulty is that courts are “unusually” deferential to the review boards because those boards are given expansive discretion in arriving at decisions. Courts are often reluctant to get involved in routine, day-to-day, administrative decisions. This is why experienced counsel is so important to the review board process.
It is also well-accepted that “government officials must follow their own regulations, even if they are not compelled to have them at all.” (See Bond v. US, 47 Fed. Cl. 641, 648 (2000). Experienced counsel with assist you contesting unfavorable information with perspective as to how courts will analyze the issues.
The law requires that the review board “provide an explanation that will enable the court to evaluate the agency’s rationale at the time of the decision.” Often, the boards are deficient in providing their rationale.
There are other common ways in which review boards are prone to make errors. For those reasons, our free consultation is advisable before applying to the boards for correction of military records.
Schedule your free initial consultation with our BCMR attorneys today by calling (888) 401-6214.
