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Correcting your official record

Q. What is the Board for Correction of Military Records?

A. Many service members have heard of the Board for Corrections of Military Records but have no clue about the important powers of the board or how to place a claim before it.

Each service calls its board something different. For the Army, it’s the Army Board for Correction of Military Records; for the Air Force, it’s the Board for the Correction of Military Records; and for the Navy and Marine Corps, it’s the Board for Correction of Naval Records.

In this column, I’d like to talk about the powers of the boards and how a service member can place a claim before the board.

The boards are the highest level of administrative review within the military services. The boards consider individual applications that are properly brought before them and, when appropriate, direct or recommend the correction of military records to remove an error or injustice.

With limited exceptions, all decisions by the boards are binding on all Army, Air Force and Department of Navy officials and other government agencies.

What powers do the boards have? The boards can upgrade a discharge, remove a letter of reprimand and change the narrative reason for a discharge.

For example, a board can upgrade an other-then-honorable discharge received in lieu of a court-martial. A board also can remove a negative evaluation in a member’s personnel file.

This is not an all-inclusive list, just several examples of the powers of these boards.

Active-duty soldiers and former members of the Regular Army, Navy and Air Force; the Army, Navy and Air Force Reserve; and Army and Air National Guard can apply for the correction of their records. If a former member is deceased or incompetent, the surviving spouse, next of kin or a legal representative may apply.

However, applications must include supporting documents such as a certified copy of a marriage license, death certificate or power of attorney, as appropriate.

There are some time limits for filing. An application must be filed within three years after an alleged error or injustice is discovered or reasonably should have been discovered. However, these boards have the authority to waive an untimely application in the interest of justice.

Once an application is filed, a board can take anywhere from six months to two years to make a ruling.

Applicants have the burden of proving an error or injustice by preponderance of the evidence. In reviewing each application, the boards start with the presumption of administration regularity; it’s the applicant’s burden to overcome this.

This may be done through statements in affidavit form or official documents or records. You may submit a written statement along with your application stating the reasons you believe corrective action is warranted.

At least three board members consider each application, with one member designated as chairperson. Each application is then reviewed by the panel to determine whether the applicant has met his burden by preponderance of the evidence to show that an error or injustice occurred, and if so, what relief is appropriate.

There is no right to a hearing before the boards, but the director of a board may grant a formal hearing whenever justice requires. Majority vote of the panel members constitutes a decision by the panel.

What will justify an upgrade in discharge? An upgrade in characterization of service can be based on unfairness or the contention that the discharge imposed was unjustified or inequitable. For example, an OTH discharge granted in the past for homosexuality could be upgraded due to issues of equity. Other discharges can be upgraded based on the facts of your youthfulness or inexperience at the time of your military service.

The board must make findings, recommendations and rationale for a denial in writing. Decisions can be appealed, usually by filing in federal court.

You can be represented by an attorney in matters brought before a records correction board, but keep in mind that the services are precluded from paying attorney fees, even if you are victorious.

Application for correction of military records is made by using form DD Form 149, Application for Correction of Military Record. The form can be downloaded online.

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Mathew B. Tully, Esq. is a field artillery officer in the New York National Guard currently deployed to the Middle East in support of Operation Bright Star. He is also the founding partner of Tully, Rinckey and Associates, a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.

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The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.