Thousands of service members every year fall through the administrative cracks of the Department of Defense (DoD). Sometimes their paperwork is lost, other times, it’s sitting at someone’s desk waiting to get through the vast amount of red tape. As a result, many service members are separated for illegitimate reasons and thus do not obtain the benefits they were rightfully entitled to.
In these cases, you need to make a request through the Board for Correction of Military/ Naval Records (BCM/NR). The tasks may seem daunting, but with the right help, you can significantly improve your chances of obtaining favorable results from the BCMR/NR.

Record Corrections

Before petitioning to the BCM/NRs an applicant must first exhaust their administrative remedies. Which is why, depending on the type of request, you should consider requesting relief through another administrative agency.

For example, National Guard members may need to first request relief through their state’s TAG, or if you are requesting a discharge upgrade and you are within 15 years of your discharge, you may need to go through your military branch’s Discharge Review Board (DRB). You are not required to obtain a decision, only to show proof that you requested relief. If this proof is ignored by the BCM/NR, a federal lawsuit will quickly result in a judge compelling the military branch to process your application.

Discharge Upgrades

If you are requesting a discharge upgrade, a separated service member may apply to the DRB for that specific branch within 15 years of separation. At the DRB you have two “bites at the apple.” Applicants should file the appropriate document (DD Form 293) with a well-written legal brief and supporting evidence outlining their legal arguments including any procedural or regulatory errors that occurred during their separation proceedings. This is your first “bite” at the apple.

The standard for this board is that a service member proves an inequity or impropriety. Service members will have an opportunity to have their case adjudicated on the written record first and then an opportunity to personally appear at a hearing in Crystal City, VA or telephonically appear (if they make the request within the strict 15-year window). The hearing is your second “bite”. This 15-year limit will not be waived or extended.

All Other Administrative Corrections

The third “bite” at the apple if you started with the DRB, or if you are requesting other administrative corrections (i.e., medical disability retirement, CRSC, removal of adverse administrative action, etc.) is the BCM/NRs for that specific military branch. Record corrections not involving a discharge upgrade or changes to certain administrative data should be filed directly with the BCM/NR in most cases.
The DRB might not have the authority to grant this type of relief and filing with the DRB will unnecessarily delay relief. Service members generally have three years from the date they discover an error or injustice to submit the appropriate form (DD Form 149) and a well-written legal brief with supporting documentation to support the argument for a record correction and/or discharge upgrade.

If you are outside the three-year window, you can request the BCM/NR to consider your application in the interests of justice. The standard for the BCM/NR is that the service member proves that an error or injustice occurred. If you previously petitioned the BCM/NR and they denied your request, hope is not lost. You can request reconsideration at any time if there is new and material evidence (evidence that is relevant to the error or injustice being alleged) not yet considered by the BCM/NR. For discharge upgrades, this is your fourth “bite” at the apple.

Jonathan Gonzalez is an associate in Tully Rinckey’s Austin, TX, office, where he focuses on Veteran and Military law. Jonathan has successfully advocated on behalf of his clients before the Discharge Review Boards and Boards of Correction of Military Records. He has also successfully advocated for Service Members at Separation Board hearings and during military investigations. He can be reached at info@tullylegal.com or at 8885294543.