Administrative Appeals

The COVID-19 vaccine mandate was a contentious issue within the U.S. military, forcing thousands of service members into difficult dilemmas—either comply with the order or face discharge. While the DoD’s 2021 vaccination requirement was framed as a necessary measure to ensure force readiness and protect personnel from COVID-19, it also led to significant hardship, particularly for service members who sought exemptions on religious or medical grounds but were denied.

Ultimately, many who refused the vaccine were administratively separated, often with general discharges that impacted their benefits, career opportunities, and future in the Armed Forces. The rapid rollout of the mandate, coupled with inconsistent guidance and a sham exemption process, left many feeling abandoned by the very institution they had dedicated their lives to serving.

At Military Justice Attorneys, we’ve seen firsthand the challenges service members endured during this turbulent time and have remained committed to fighting for service members were discriminated against and unjustly punished for their stance. If you were discharged for refusing the vaccine and have questions about reinstatement, contact us today for a consultation.

Background

On August 24, 2021, the Secretary of Defense mandated that all service members receive the COVID-19 vaccine. The Secretary of Defense later rescinded the mandate on January 10, 2023. Despite being rescinded, over 8,000 service members were discharged under the Biden administration due to their COVID-19 vaccination status.

Many, if not most, were discharged for “serious misconduct” and did not receive a fully honorable characterization. Prior to their discharge, these service members were shamed, mocked, ridiculed, discriminated against, and made to suffer incalculable personal and professional damage. They were then unceremoniously kicked out and forced to uproot their lives during a period of great uncertainty.

The Secretary of Defense’s recission memo required the removal of adverse information for individuals currently serving in the Armed Forces but required veterans who were discharged for refusing to take the COVID-19 vaccine to petition their respective Discharge Review Board or Board for Correction of Military Records to request removal of adverse information

Executive Order Reinstating Service Members

Now, in 2025, the landscape has shifted.

On inauguration day, President Trump vowed to reinstate service members who were discharged for refusing to comply with the COVID-19 vaccine mandate.

On January 27, 2025, President Trump delivered on that promise by signing an Executive Order aimed at reinstating service members who were discharged solely for refusing the COVID-19 vaccine. This marks a dramatic policy reversal and offers a new path forward for those affected by the mandate.

What the Executive Order Says

President Trump’s executive order, titled "Reinstating Service Members Discharged Under the Military’s COVID-19 Vaccination Mandate," directs the Secretary of Defense and the Secretary of Homeland Security to take concrete steps toward reversing the impact of the vaccine requirement. The order states:

"The vaccine mandate was an unfair, overbroad, and completely unnecessary burden on our service members. Further, the military unjustly discharged those who refused the vaccine, regardless of the years of service given to our Nation, after failing to grant many of them an exemption that they should have received. Federal Government redress of any wrongful dismissals is overdue."

In response to these concerns, the executive order mandates the following actions:

1. Reinstatement of Discharged Service Members. Service members who were involuntarily discharged solely due to their refusal to take the COVID-19 vaccine can request reinstatement. Those reinstated must be returned to their prior rank and pay grade and will receive full back pay, benefits, and any compensation or bonuses they would have earned had they not been separated.
2. Reinstatement for Those Who Voluntarily Left Service. Service members who chose to separate or allowed their service contract to lapse due to the vaccine mandate may also return to duty. If they provide a written, sworn attestation stating that the mandate was the reason for their departure, they will be reinstated without penalty or loss of rank, pay, or status.
3. Accountability and Implementation Timeline. The Secretary of Defense and the Secretary of Homeland Security must report back to the President within 60 days on their progress in executing this order. The order does not provide details on how reinstatement will be handled for service members who have since moved on to other careers or reenlisted under different terms. These details will likely be clarified as policies are developed.

Read the full Executive Order here along with a Fact Sheet further explaining the action.

What This Means for Discharged Service Members

For thousands of former military members, this executive order presents a potential opportunity for reinstatement, back pay, and restoration of lost benefits. However, it also raises important questions about how the reinstatement process will be carried out and whether all discharged service members will qualify.

Here’s what you need to consider if you were separated due to the vaccine mandate:

1. What Happens If You Were Discharged for Refusing the Vaccine? If you were discharged solely for refusing the COVID-19 vaccine, you now have the option to apply for reinstatement. If granted, you will be restored to your previous position, rank, and benefits. However, if your discharge was not solely due to vaccine refusal—such as if you also had other disciplinary actions—it is unclear whether you will be eligible for reinstatement.
2. What About Those Who Took General or Other-Than-Honorable Discharges? Many service members received general discharges instead of honorable ones due to their refusal to comply with the vaccine mandate. This has had serious repercussions, including loss of GI Bill benefits, VA healthcare eligibility, and future career opportunities. This executive order suggests that those individuals should be eligible to have their discharges upgraded if they return to service. However, the exact process for correcting discharge statuses remains to be seen.
3. What If You Already Moved On? Many service members who were discharged due to the vaccine mandate have since moved on to civilian careers, obtained new employment, or enrolled in higher education. The order does not force anyone to return—it is voluntary. However, those who have adjusted to civilian life may still want to explore whether they qualify for compensation or benefits restoration without necessarily rejoining the military.
4. Will There Be Any Compensation for Those Who Choose Not to Return? While the executive order ensures back pay for those who do return, it does not explicitly mention whether service members who decline reinstatement will receive any financial redress for their wrongful discharge. This could be an issue that courts or Congress will need to address in the coming months.

Next Steps for Affected Service Members

1. Stay Informed on Implementation Policies. This executive order sets the groundwork for reinstatement, but the actual process will depend on how the DoD and DHS implement these policies. Service members should monitor updates from the military branches regarding application procedures and eligibility requirements.
2. Consult Legal Counsel Before Making a Decision. The decision to return to service is not one to take lightly. If you were discharged under the vaccine mandate, it’s important to understand your eligibility for reinstatement, what benefits or pay you may be entitled to, and how this could impact your long-term military career. Speaking with a military law attorney can help clarify your options and determine the best path forward.
3. Prepare Documentation for Your Reinstatement Request. If you plan to seek reinstatement, gather all documentation related to your separation, including your DD-214, discharge paperwork, and any exemption requests you previously submitted. Being proactive will help speed up the process once applications open.

MJA is Here to Help

At MA we have been advocating for service members since the vaccine mandate was first implemented. If you or someone you know was discharged due to the vaccine requirement and wants to explore reinstatement or benefits restoration, we can help you:

• Determine eligibility for reinstatement
• Navigate the application process
• Advocate for discharge upgrades or lost benefits
• Assess your rights and options

This executive order marks a major shift, but the details still need to be worked out. Our team at MJA is actively monitoring new developments and is available to answer questions from veterans nationwide. To speak with a lawyer, call (843) 773-5501 or contact us online.

Article 138, UCMJ, allows service members who have been wronged by their commanding officer to petition a superior commissioned officer for relief. When used correctly, Article 138 complaints are a powerful tool to stop abusive commanders from unlawfully punishing or otherwise adversely impacting a service members’ rights. 

Military Justice Attorneys has decades of experience representing service members and understands how to effectively lodge an Article 138 complaint. Contact one of our military defense lawyers today to learn more.

Article 138, Ucmj

Article 138 of the UCMJ, Complaints of wrongs, provides a means of redress to service members who believe they have been wronged by their commanding officer. Article 138, UCMJ, states:

“Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings had thereon.”

Statutory Right To Submit A Complaint

Service members have a statutory right to submit a complaint under Article 138, UCMJ. As such, commanders are legally prohibited from restricting the submission of such complaints or retaliating against a service member who submits a complaint.

While the right to submit an Article 138 complaint is created by law, each branch has specific guidance establishing the policies and procedures to submit and dispose of complaints:

• Air Force (AFI 51-505)
• Army (AR 27-10)
• Coast Guard (COMDTINST M5810.1H)
• Marine Corps (JAGINST 5800.7F)
• Navy (NAVREGS Article 1150)

*This article will primarily discuss Article 138 complaints in the Army. Service members considering filing an Article 138 complaint should speak to one of our Military Justice Attorneys for specific guidance about their case.

Limitations On Article 138 Complaints

Not just anyone can bring a complaint pursuant to Article 138, UCMJ. A complaint of wrongs under Article 138 can only be brought by members of the Armed Forces against their commanding officer. The commanding officer must have been in the service member’s chain of command at the time of the alleged wrong and was authorized to impose nonjudicial punishment (also known as Article 15 punishment and Captain’s Mast) on the service member.

Additionally, not every perceived injustice can form the basis of an Article 138 Complaint. In order to qualify under Article 138, UCMJ, the service member must show they were wronged by their commanding officer. Army regulations define a “wrong” as a “discretionary act or omission by a commanding officer, under color of Federal military authority, that adversely affects the complainant personally and that is:

1. In violation of law or regulation;
2. Beyond the legitimate authority of that commanding officer;
3. Arbitrary, capricious, or an abuse of discretion, or
4.  Materially unfair.”

Generally, Article 138 complaints must be brought within 90 days of discovering the wrong.

Prerequisites For Filing An Article 138 Complaint

Before filing an Article 138 complaint, a service member must first notify their commanding officer of the wrong and ask for relief. This initial request for redress must—

1. Be in writing and signed by the complainant;
2. Clearly identify the relationship between the complainant and the respondent (commanding officer);
3. Clearly identify the date and nature of the alleged wrong;
4. Clearly identify the specific redress desired; and
5. Be submitted through command channels to the respondent commanding officer.

See AR 27-10, paragraph 19-6.

In the Army, Commanders in the Regular Army must respond to an initial request for redress within 15 days after receiving the request. Reserve Commanders must respond within 60 days of receipt. The Commander’s response must “specifically address what redress the commander is granting or otherwise state why redress is denied.” A commanding officer’s failure to timely respond can be treated as a denial.

Article 138 Complaint Requirements

 If an initial request for redress is unsuccessful, a service member may submit an Article 138 complaint to the General Court-Martial Convening Authority (GCMCA) who had jurisdiction over them at the time of the alleged wrong. Under Army Regulations, an Article 138 complaint must:

1. Be in writing and signed by the complainant;
2. Be addressed to the GCMCA with jurisdiction over the respondent at the time of the alleged wrong;
3. Clearly identify the complainant’s current military organization and address;
4. Clearly identify the complainant’s military organization at the time of the wrong;
5. Clearly identify the commanding officer who the Soldier believes committed the wrong;
6. Indicate the date a written initial request for redress was submitted to that commanding officer, and the date of the respondent commanding officer’s response or lack thereof;
7. Specifically state that it is a complaint submitted pursuant to Article 138 and any applicable regulation;
8. Clearly and concisely describe the specific wrong or wrongs complained of. When not readily apparent, state the reason the complainant considers it a wrong;
9. State the specific redress the complainant seeks. Unless it is readily apparent, state the reason the complainant considers the redress appropriate; and
10. Have attached to it— (a) The complainant’s initial request for redress and the commanding officer’s response, if any; and (b) Any supporting information or documents the complainant desires to be considered.

Article 138 complaints may be submitted to any superior commissioned officer.

Taking Action On The Complaint

Upon receipt of an Article 138 complaint, the GCMCA will determine whether the complaint is legally and factually sufficient in accordance with service regulations. Deficient complaints are generally not acted on and are returned to the complainant with a statement explaining how the complaint is deficient and how it can be corrected. A GCMCA may, however, waive certain deficiencies in a complaint for “good cause.”

If the complaint is legally and factually sufficient, the GCMCA must determine if the alleged wrong is appropriate for review under Article 138. An alleged wrong will not be considered when “other adequate processes exist for addressing the wrong alleged in the complaint.” Examples of alleged wrongs that are typically not considered as appropriate for Article 138 complaints include:

1. Matters relating to courts-martial, NJP, and similar actions taken pursuant to military criminal law regulations;
2. Officer or enlisted elimination actions;
3. Whistleblower reprisal allegations reported pursuant to 10 USC 1034;
4. Withdrawals of flying status;
5. Appeals from findings of pecuniary liability;
6. Appeals from administrative reductions in enlisted grades;
7. Appeals from evaluation reports; and
8. Filing of adverse information in official personnel records;

If the GCMCA finds that a complaint is sufficient and requests redress that is appropriate under Article 138, the GCMCA is required to “examine into the complaint.” This examination must result in specific findings regarding each alleged wrong and whether the act or omission complained of (1) violated any law or regulation, (2) was beyond the commanding officer legitimate authority, (3) was arbitrary, capricious, or an abuse of discretion, or (4) is materially unfair.

The GCMCA must act personally on the Article 138 complaint and notify the service member whether redress was denied or granted.

Protect Your Freedom And Your Military Career

Article 138 complaints are a powerful tool service members can use to stop commanders from taking unlawful action against them. Military Justice Attorneys has represented service members for decades and understands how to effectively lodge an Article 138 complaint. Contact one of our military defense lawyers today to learn more.

The post Article 138 Complaints: What You Need to Know appeared first on Military Justice Attorneys.

So, you stuck to your guns and refused to get the jab? When everyone else caved to pressure from peers and their command, you stood strong and refused to compromise your convictions. And the military rewarded your courage by discharging you from the service for misconduct and, most likely, with a less than fully honorable discharge. What now?

Fortunately, not all discharge decisions are final. Each service branch has a Discharge Review Board (DRB) and Board for Correction of Military Records (BCMR) established to correct errors and remove injustices from the official military records of service members. These boards can upgrade and correct a veteran’s characterization of service, reenlistment code, and narrative reason for separation, among other things.

MJA has successfully helped veterans upgrade their discharge characterizations of service and has battled the military’s unlawful COVID-19 policies from the beginning. Contact our military defense lawyers now to learn more.

Unjust Separations

Thousands of service men and women across the military branches have been administratively discharged for refusing to take the COVID-19 vaccine. Many of these veterans had sincerely held religious beliefs against the vaccine and submitted religious accommodation requests but were discharged before federal courts stepped in to protect them against separation. Those veterans were unjustly separated in violation of their due process and constitutional rights. In order to restore those rights, veterans must seek relief from federal court or one of the military’s administrative review boards.  

Discharge Review Boards

For veterans simply seeking to upgrade their characterization of service or change the reason they were discharge, the discharge review boards provide a great option.

Pursuant to federal law, each military branch maintains a Discharge Review Board (DRB) which meets regularly to review submissions and hear oral arguments in favor of applicants. Veterans seeking a discharge upgrade may, within 15 years from their military discharge, petition one of the following DRBs:

• Air Force Discharge Review Board (AFDRB)
• Army Discharge Review Board (ADRB)
• Coast Guard Discharge Review Board (CGDRB)
• Naval Discharge Review Board (NDRB)

The DRBs are authorized to reconsider discharges not ordered by sentence of a general court-martial and non-medical in nature; upgrade characterizations of service; issue re-enlistment codes; and restore rank as a matter of propriety and/or equity and fairness.

One of the biggest advantages of the DRB is that an applicant has the right to request a personal appearance in front of the board. The veteran can represent himself at the personal appearance or be represented by counsel.

Boards For Correction Of Military Records

Another option for veterans seeking relief is the Boards for Correction of Military/Naval Records. Each service branch has a Board for Correction of Military Records established to correct errors and remove injustices from the official military records of service members. Such records may include, but are not limited to, records regarding discharges, reenlistment codes, disciplinary matters, performance evaluations, selection for promotion, advancement, retirement, dates of service, disability ratings, medals, and various bonuses and benefits. The BCMRs include:

• Air Force Board for Correction of Military Records (AFBCMR)
• Army Board for Correction of Military Records (ABCMR)
• Board for Correction of Military Records of the Coast Guard (BCMR)
• Board for Correction of Naval Records (BCNR)

Current and former members of the United States military (including Reserve personnel) may apply for a correction of an error or removal of an injustice in their official military record. If a former service member is deceased or incompetent, the member’s spouse, next of kin (parent, sibling, or child), or legal representative can apply for the service member. Applicants must first exhaust available administrative avenues of relief before applying to a BCMR.

Discharge Appeal Review Board

If neither the DRB nor BCMR/BCNR provide relief, veterans may be eligible to petition the Department of Defense’s Discharge Appeal Review Board (DARB). The DARB, created in 2021, provides final review of discharge or dismissal characterization upgrade requests when petitioners have exhausted all available administrative remedies. The DARB is the highest administrative level of review for a discharge upgrade request. 

To be eligible, the service member must have been separated on or after December 20, 2019, and has exhausted all available appeals with their service DRB and BCMR/BCNR. The requirement to “exhaust all available appeals” simply means that the petitioner has already requested and been denied relief from their service DRB and BCMR/BCNR before applying to the DARB. The DARB may review both voluntary or involuntary discharges based on:

Enlisted:

• Expiration of service obligation
• Change in service obligations
• Weight control failure
• Convenience of the Government
• Disability
• Defective enlistments and induction
• Unsatisfactory reserve participation
• Secretarial plenary authority
• Entry-level conduct/performance
• Unsatisfactory performance
• Military Department reasons
• Misconduct
• Separation in lieu of court-martial
• Security
• Drug abuse rehabilitation failure
• Alcohol abuse rehabilitation failure

Officer:

• Substandard performance of duty
• Misconduct or moral or professional dereliction
• Retention not clearly consistent with national security interests;
• Sentence by court-martial
• Dropping from the rolls

If the DARB recommends that the petitioner’s characterization of service be upgraded, this recommendation is sent to the Secretary of the Military Department concerned for final action. The Secretary of the Military Department makes the final decision.

Contact Us Today

Not all discharge decisions are final. MJA has successfully helped veterans upgrade their discharge characterization of service and reason for separation and has battled the military’s unlawful COVID-19 policies from the beginning. Contact our military defense lawyers now to learn more.

**UPDATE – On 10 January 2023, the Secretary of Defense officially rescinded the COVID-19 vaccine for the U.S. military. Check out our January 2023 blog post to see how this affects active duty service members and former service members who were discharged for not taking the COVID-19 vaccine.

The post I was Discharged for Not Taking the COVID-19 Shot: What Now? appeared first on Military Justice Attorneys.

A sentence of confinement is not always final. A service member in confinement due to a court-martial conviction can request special clemency or parole from the appropriate military authority. If granted, the service member can be released early before serving the total amount of confinement adjudged at court-martial.

MJA has successfully petitioned for clemency or parole on behalf of service members convicted of some of the most serious offenses under the UCMJ. If you have a loved one serving a substantial sentence of confinement due to a court-martial conviction, don’t delay in seeking legal advice. Contact our military defense lawyers now to learn more.

Clemency From Convening Authority

When seeking to reduce a sentence to confinement, a convicted service member’s first line of attack is to seek clemency from the convening authority. Rule for Court-Martial (R.C.M.) 1109 allows a convening authority to reduce, commute, or suspend, in whole or in part, certain punishments and even set aside or disapprove certain convictions. This authority is greatly limited, however, depending on the specific charge and the severity of the punishment. For example, a convening authority cannot set aside, disapprove, or take any other action on the findings of a court-martial for a violation of Article 120(a) or (b). 

About Clemency And Parole Boards

Even after the convening authority has taken final action on the case, the military’s clemency and parole boards have the authority to reduce sentences of confinement awarded to service members at court-martial or grant parole. Clemency means suspending the unserved part of a court-martial sentence, to include upgrading a discharge or restoring someone to active duty. Parole is an early release from confinement under the supervision of a parole officer. There are three clemency and parole boards for the military:

• Air Force Clemency and Parole Board
• Army Clemency and Parole Board
• Naval Clemency and Parole Board (reviews cases for Navy, Marine Corps, and Coast Guard)

The boards are composed of five member panels that review case specific requests for clemency and parole based on objective criteria.

Policy Objectives

The goal of any clemency and parole program is to help ensure justice by balancing competing needs. For example, the Naval Clemency and Parole Board lists its objectives as:

• Preservation of good order and discipline;
• Preservation of equality in the administration of justice, including elimination of severe sentence disparity by the remission, mitigation, or suspension of the disparate portion of the sentence; and
• Protection of the best interests of the naval service, the individual offender, the victim, and society.

These policy objectives can be satisfied when boards conduct impartial and individual reviews of cases and make recommendations based on specific facts and circumstances.

Eligibility For Clemency And Parole

DoDI 1325.07, Administration of Military Correctional Facilities and Clemency and Parole Authority, prescribes the procedures to carry out operation of the military’s correctional programs and the administration of military clemency and parole programs.

Under the instruction, a prisoner is eligible for clemency, restoration to duty, or reenlistment when the court-martial convening authority has taken action on the sentence; the case has been reviewed by a military confinement facility, disposition board, or probation official; and the prisoner meet the eligibility criteria. The eligibility criteria for clemency, restoration to duty, or reenlistment is complicated and spelled out in detail in DoDI 1325.07.

A prisoner is eligible for release on parole when requested by the prisoner, and when:

• The prisoner has an approved unsuspended punitive discharge or dismissal or an approved administrative discharge or retirement; and
• The unsuspended sentence or aggregate sentence to confinement is 12 months or more. In cases in which the sentence to confinement is less than 30 years, the prisoner must have served one-third of the term of confinement, but in no case less than 6 months.

Just because a prisoner is eligible for clemency or parole does not mean that it will be awarded. Decisions about clemency, parole, or *mandatory supervised release (MSR) are highly fact dependent and are made on a case-by-case basis.

(*MSR is similar to parole and is a type of conditional release that may be imposed by a Clemency and Parole Board. MSR is when a prisoner is released from confinement at the established Minimum Release Date (MRD). MSR can’t be requested by the prisoner and is always directed by the Board. In contrast, parole is when a prisoner is released from confinement before the established MRD).

Factors Considered By The Clemency And Parole Boards

DoDI 1325.07 requires military Clemency and Parole Boards to evaluate the following factors when considering an individual for clemency or parole :

• The nature and the circumstances of the prisoner’s offenses;
• The prisoner’s military and civilian history;
• The prisoner’s confinement file, including offense-related rehabilitation programs;
• The personal characteristics of the prisoner, including age, education, marital and family status, and psychological profile;
• The impact of the prisoner’s offense on the victim and the prisoner’s efforts to make restitution to the victim;
• The protection and welfare of society;
• The need for good order and discipline in the Service; and
• Other matters, as appropriate

While these are general factors, the Clemency and Parole Boards are required to make impartial, case-specific determinations based on a convicted service member’s personal facts and circumstances.

Clemency And Parole Board Hearing

Prior to the board hearing, all board members are required to have reviewed the case. Recommendations and determinations will be made by a majority vote. At the discretion of any member of the Board, a minority opinion may be included with its decision and/or recommendation.

Clemency and Parole Board proceedings are non-adversarial and prisoners are not authorized to make a personal appearance before the Board. Others, including family members, friends, professional colleagues, or attorneys who are designated in writing by the prisoner, may appear on behalf of the prisoner at no expense to the government.

In addition to personal appearances made on behalf of a prisoner, victims, victim’s families, and representatives may also appear to present information concerning the impact of the offenses on the victim or the victim’s family. The Clemency and Parole Board retains the authority to determine who may be permitted to appear and to limit the time of any presentation before the board.

For parole cases, the Board’s recommendation must include, at a minimum:

1. Complete risk factor instrument and complete assessment of information on all Discipline and Adjustment Board convictions or other discipline problems the prisoner has had while in confinement;
2. Confirmation and documentation of the prisoner’s parole plan pertaining to residence, employment, and where applicable, restitution to victims or payment of any fine;
3. Recommendations of the board concerning prisoner requests and justification for recommendations;
4. Information concerning the prisoner’s progress in treatment, custody, or other institutional progress; and
5. Any additional information concerning aggravating or mitigating factors that may impact decisions pertaining to the prisoner’s requests.

Numerous issues can adversely impact a prisoner’s chance of getting early release. Examples include poor behavior (conduct) in confinement, lack of participation in rehabilitation programs, poor work performance, and an incomplete parole plan, to name a few. If the prisoner retains an attorney, they attorney can help the prisoner and his/her family prepare the parole plan and put together written matters that will be considered by the board.

Board Decisions

In making their decision and recommendations, the Clemency and Parole Boards do not engage in discrimination and cannot consider the prisoner’s race, age, color, religion, gender, sexual orientation, or national origin as a factor in determining the appropriateness of clemency or parole.

With the Department of the Navy, the Clemency and Parole Board’s results are typically provided to the confining facility or parole office within 15 business days from the date the hearing was held. Notably, staff members at the NC&PB are not authorized to disclose any results directly to the offender or other third parties.

The Army and Air Force Clemency and Parole Boards’ processes are similar, with the final decision being returned to the correctional facility within about one to two weeks after the Board hearing.

Clemency Or Parole Is Possible

MJA has successfully petitioned for clemency or parole for service members convicted of some of the most serious offenses under the UCMJ. In one case, MJA represented a dishonorably discharged United States Marine before the Naval Clemency and Parole Board (NC&PB). The Marine had been convicted of violating Articles 92, 114, and 119, UCMJ, and was serving a sentence of 69 months confinement. Despite having an exemplary confinement record, the Marine had petitioned for and was denied parole. The Marine retained MJA to fight for his release. MJA prepared and submitted to the NC&PB an extensive petition showing that the Marine met the criteria for parole and had received a disparately severe sentence under the Department of Defense’s instructions and relevant case law. MJA also appeared telephonically at the board hearing to advocate on behalf of the Marine. After reviewing all the evidence, the NC&PB agreed and approved the Marine’s request for parole!

Petition For Your Freedom Today

A sentence of confinement does not have to be final. MJA has successfully petitioned for clemency or parole on behalf of service members convicted of some of the most serious offenses under the UCMJ. If you have a loved one serving a  sentence of confinement due to a court-martial conviction, don’t delay in seeking legal advice. Contact our military defense lawyers now to learn more.

The post HOPE: The DoD’s Clemency and Parole Boards appeared first on Military Justice Attorneys.

The Department of the Air Force has a maze of administrative review boards which can be difficult to navigate. Understanding the different boards, their functions, and the type of relief that can be granted is critical for Airmen seeking to correct their official military record.

MJA has successfully helped service members correct errors and injustices in their military records. If you need relief from one of the Army’s administrative review boards, contact us today for your consultation.

AIR FORCE REVIEW BOARDS

The Air Force Review Boards Agency (AFRBA) manages multiple military and civilian processes through the Secretary of the Air Force. The AFRBA has multiple boards which service members can apply to, including:

• Air Force Board for Correction of Military Records (AFBCMR)
• Air Force Discharge Review Board (AFDRB)
• Personnel Security Appeal Board (PSAB)
• DoD Physical Disability Board of Review (PDBR)
• Review Boards Office at Randolph AFB, Texas
• The Executive Support Office (MRBE)
• Secretary of the Air Force Personnel Council (SAFPC)
• Air Force Civilian Appellate Review Office (AFCARO)

TYPES AND FUNCTION OF REVIEW BOARDS

Air Force Board for Correction of Military Records (AFBCMR): The AFBCMR reviews applications for correction of military records of Air Force members (Regular, Guard, and Reserve) or former Airmen. 

Air Force Discharge Review Board (AFDRB): The AFDRB’s objective is to review an applicant’s discharge to determine whether the characterization of service, reason for discharge, and re-enlistment code should be changed for reasons of propriety or equity.

Personnel Security Appeal Board: The PSAB adjudicates appeals of security eligibility/clearance withdrawals by the Air Force Central Adjudication Facility to determine if eligibility should be reinstated or if the appeal should be denied.

DoD Physical Disability Board of Review: The PDBR reviews applications by personnel that received a disability rating of 20% or less from all services between September 11, 2001, and December 31, 2009. 

Review Boards Office at Randolph AFB, Texas: Processes applications for correction of military records for the AFBCMR, DRB, and the PDBR. 

The Executive Support Office (MRBE): Provides administrative, communication, IT, personnel and logistic support for all directorates within the Agency. 

Secretary of the Air Force Personnel Council (SAFPC): The SAFPC acts for, recommends to, and announces decisions on behalf of SECAF for a variety of military personnel issues. SAFPC is comprised of five (5) boards:

• AF Personnel Board
• AF Discharge Review Board
• AF Decorations Board
• AF Clemency and Parole Board
• AF Personnel Board

Air Force Civilian Appellate Review Office: The AFCARPO adjudicates discrimination complaints and administrative grievances filed by civilian employees and applicants filed against the Air Force. 

AIR FORCE DISCHARGE REVIEW BOARD

The AFDRB is probably one of the most, if the the most, commonly petitioned board by Air Force veterans. That’s because the AFDRB’s objective is to review an applicant’s discharge to determine whether the characterization of service, reason for discharge, and re-enlistment code should be changed for reasons of propriety or equity.

You see, not all discharge decisions are inherently final. Pursuant to federal law, each military branch maintains a Discharge Review Board (DRB) which meets regularly to review submissions and hear oral arguments in favor of applicants. Veterans seeking a discharge upgrade must petition their respective DRB within 15 years from their military discharge if they want their discharge reviewed.

Former members of the Air force, Air National Guard, or Air Force Reserve discahrged within the last 15 years may apply. If the service member was discharged more than 15 years ago, the AFDRB will not accept the application and the veteran must apply directly to the Air Force Board for Correction of Military Records to seek a review of their discharge

To apply, applicants must submit a completed DD Form 293 form containing the veteran’s personal information, requested correction, justification for the request, and whether they are requesting an in person hearing, among other information. Applicants may attach as evidence documents in support of their application. Applicants may request a “records only” review where the Board considers available military personnel records, medical records (if relevant) and documentary evidence provided by the applicant. Otherwise, an applicant may request a personal appearance before the Board.

There is no such thing as an automatic discharge upgrade due to the passage of time. The burden of proof rests with the applicant to show either an error or injustice that would justify the DRB to grant a discharge upgrade of provide other relief. Absent evidence to the contrary, the DRB will presume presume that the military record was appropriate and in compliance with service regulations.

AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

The other most commonly used board is the AFBCMR, which can provide even greater relief to qualifying veterans.

The AFBCMR is the highest administrative level of appeal within the Air Force and is empowered to correct any error or injustice to a veteran’s military records. Such records may include, but are not limited to, records regarding discharges, reenlistment codes, disciplinary matters, performance evaluations, selection for promotion, advancement, retirement, dates of service, disability ratings, medals, and various bonuses and benefits.

Current and former members of the Air Force may apply for a correction of an error or removal of an injustice in their official military record. If a former service member is deceased or incompetent, the member’s spouse, widow or widower, next of kin (parent, sibling, or child), or legal representative can apply for the service member.

Before applying the AFBCMR, the applicant must first exhaust all available avenues of administrative relief provided by existing law or regulations prior to seeking relief before this Board. Examples of Boards which provide administrative relief that must be exhausted before applying to the AFBCMR include:

• Combat Related Special Compensation (CRSC)
• Air Force Discharge Review Board (AFDRB)
• Evaluation Reports Appeals Board (ERAB)
• Fitness Assessment Appeals Board (FAAB)
• Purple Heart Review Board (PHRB)
• Air Force Personnel Board (AFPB)
• Secretary of the Air Force Remissions Board (SAFRB)

Additional resources and personnel programs exist for service members to consult before applying to the AFBCMR about routine updates to the personnel records.

To apply, applicants must submit a completed DD149 form containing the veteran’s personal information, requested correction, justification for the request, and date and time when the alleged error or injustice was discovered, among other information. Applicants may attach as evidence documents in support of their application.

The burden of proof to show either an error or injustice rests with the applicant. Absent evidence to the contrary, the BCMRs will presume presume that the military record was appropriate and in compliance with service regulations. Applicants can request a personal appearance before the Boards, but are not entitled to a hearing.

BOARDS OF REVIEW “READING ROOMS”

The Department of Defense requires an “Electronic Reading Room” for the Military Departments’ Boards for the Corrections of Military/Naval Records and the Discharge Review Boards. The reading room contains decisions for each of the Boards from October 1998 to the present for public research. Applicants intending to file a petition with ARBA should search the “Reading Room” for decisional documents which may be helpful to their petition. 

The “Reading Room” also contains board statistics. These statistics track the number and type of applications filed, whether the petitions involve claims of mental health or sexual assault, and in what percentage of cases the boards granted relief.

CONTACT US TODAY

MJA has successfully helped service members correct errors and injustices in their military records. If you believe you may be entitled to relief, contact us today for your consultation.

The post The Air Force Review Boards Agency: An Overview appeared first on Military Justice Attorneys.

The Department of the Army has a maze of administrative review boards which can be difficult to navigate. Understanding the different boards, their functions, and the type of relief that can be granted is critical for Soldiers seeking to correct their official military record.

MJA has successfully helped service members correct errors and injustices in their military records. If you need relief from one of the Army’s administrative review boards, contact us today for your consultation.

ARMY ADMINISTRATIVE REVIEW BOARDS

The Army Review Boards Agency (ARBA) serves as the highest administrative level of review within the Department of the Army. The ARBA administers the following boards:

• Army Board for Correction of Military Records (ABCMR)
• Army Discharge Review Board (ADRB)
• Army Grade Determination Review Board (AGDRB)
• Army Active-Duty Board
• Army Board of Review for Eliminations
• Army Ad Hoc Board
• Army Physical Disability Appeal Board
• Army Physical Disability Review Board (APDRB)
• Army Clemency and Parole Board
• Army Special Review Board (ASRB) [Evaluation Appeals]
• Department of the Army Suitability Evaluation Board (DASEB)
• Department of the Army Conscientious Objector Board (DACORB)

TYPES AND FUNCTION OF REVIEW BOARDS

Army Board for Correction of Military Records: The ABCMR is the highest level of administrative review within the Department of the Army with the mission to correct errors or injustices in Army military records. Soldiers must exhaust administrative remedies before appealing to the ABCMR.

Army Discharge Review Board: The ADRB reviews requests to change a veteran’s administrative discharge and to change the characterization of service and/or the reason for discharge. The veteran has the burden to prove the existence of an error or injustice to support the requested change and must file their appeal with 15 years of discharge.

Army Grade Determination Review Board: The AGDRB determines the highest grade in which a Soldier served satisfactorily. This determination of service can have pay implications for retired enlisted Soldiers and Officers.

Army Physical Disability Review Board: The APDRB can review decisions made by a retiring Board, medical Board, or other disposition Board denying a service member’s disability claim upon separation or retirement. Soldiers or former Soldiers who separated or retired from active duty within the past 15 years with a physical disability separation without pay for such physical disability, may be eligible to apply to this Board.

Army Clemency and Parole Board: The ACPB conducts clemency, parole and mandatory supervised release hearings for eligible Army prisoners and supervisees. Clemency and parole eligibility dates are determined by the length of the adjudged sentence.

Department of the Army Suitability Evaluation Board: The DASEB reviews appeals to remove unfavorable information or move unfavorable information into the restricted section of the Soldier’s OMPF. Army Regulation 600-37, Unfavorable Information, describes how and when service members should submit such appeals.

BOARDS OF REVIEW “READING ROOMS”

The Department of Defense requires an “Electronic Reading Room” for the Military Departments’ Boards for the Corrections of Military/Naval Records and the Discharge Review Boards. The reading room contains decisions for each of the Boards from October 1998 to the present for public research. Applicants intending to file a petition with ARBA should search the “Reading Room” for decisional documents which may be helpful to their petition.

The “Reading Room” also contains board statistics. These statistics track the number and type of applications filed, whether the petitions involve claims of mental health or sexual assault, and in what percentage of cases the boards granted relief.

CONTACT US TODAY

MJA has successfully helped service members correct errors and injustices in their military records. If you believe you may be entitled to relief, contact us today for your consultation.

The post The Army Review Boards Agency: An Overview appeared first on Military Justice Attorneys.

The Department of the Navy has a maze of administrative review boards which can be difficult to navigate. Understanding the different boards, their functions, and the type of relief that can be granted is critical for Sailors and Marines seeking to correct their official military record.

MJA has successfully helped service members correct errors and injustices in their military records. If you need relief from one of the Navy’s administrative review boards, contact us today for your consultation.

SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS

The Secretary of the Navy Council of Review Boards (SECNAVCORB) is an administrative body within the Department of the Navy (DON) that reviews cases, conducts hearings, and renders decisions on behalf of the Secretary of the Navy. The SECNAVCORB is comprised of the following boards:

• Physical Evaluation Board (PEB)
• Combat-Related Special Compensation Board (CRSCB)
• Naval Discharge Review Board (NDRB)
• Naval Complaints Review Board (NCRB)
• Naval Clemency and Parole Board (NCPB)
• Navy Department’s Board of Decorations and Medals (NDBDM)
• Disability Review Board (DRB)

TYPES AND FUNCTION OF REVIEW BOARDS

Physical Evaluation Board: The PEB administers the DON Disability Evaluation System and makes determinations regarding a service member’s fitness to continue naval service, entitlement to benefits, disability ratings, and disposition of evaluated service members. It is comprised of the informal and formal PEB.

Combat-Related Special Compensation Board: The CRSCB determines the eligibility and entitlement of former and retired Navy and Marine Corps members to combat-related special compensation. Combat Related Special Compensation is a tax-free entitlement created for disability and non-disability military retirees with combat-related disabilities.

Naval Discharge Review Board: The NDRB reviews the characterization of service and reason for discharge of former members of the Navy and Marine Corps (except those discharged by reason of sentence of general court–martial, or when more than 15 years has elapsed from the date of discharge). The NDRB has the authority to change, correct, or modify any discharge.

Naval Complaints Review Board: The NCRB reviews complaints pertaining to NDRB decisions properly referred by the Joint Services Review Activity.

Navy Clemency and Parole Board: The NC&PB reviews and makes determinations regarding clemency, parole, or mandatory supervised release in properly referred Navy and Marine Corps cases. The NC&PB also reviews and makes recommendations regarding Naval policy and procedures in clemency, parole, and mandatory supervised release matters.

Navy Department Board of Decorations and Medals: The NDBDM assists in all matters of policy, procedures, and administration concerning Navy and Marine Corps decorations, medals, and ribbons. The NDBDM reviews and recommends action on awards submitted to SECNAV for approval and reviews awards issued by awarding authorities.

Disability Review Board: The DRB reviews disability decisions and forwards a recommendation for final decision by the Assistant Secretary of the Navy (Manpower & Reserve Affairs). Former service members who were separated or retired from active duty without pay because of physical disability may to apply to this board.

Personnel Security Appeals Board: The PSAB decides appeals of unfavorable personnel security determinations (including SCI access) made by the DON Central Adjudication Facility.

If a service member’s petition to a SECNAVCORB is denied, the service member can appeal to the Board for Correction of Naval Record (BCNR). BCNR is the highest level of administrative review within the Department of the Navy/Marine Corps to correct errors or injustice to member’s records.

BOARDS OF REVIEW “READING ROOMS”

The Department of Defense requires an “Electronic Reading Room” for the Military Departments’ Boards for the Corrections of Military/Naval Records and the Discharge Review Boards. The reading room contains decisions for each of the Boards from October 1998 to the present for public research. Applicants intending to file a petition with the SECNAVCORB should search the “Reading Room” for decisional documents which may be helpful to their petition.

The “Reading Room” also contains board statistics. These statistics track the number and type of applications filed, whether the petitions involve claims of mental health or sexual assault, and in what percentage of cases the boards granted relief.

CONTACT US TODAY

MJA has successfully helped service members correct errors and injustices in their military records. If you believe you may be entitled to relief, contact us today for your consultation.

_______________________

Related Posts:

• Correction of Military Records

The post The Navy’s Council of Review Boards: An Overview appeared first on Military Justice Attorneys.

On April 7, 2021, the Department of Defense (DoD) announced a new board of appeals for service members who were discharged from the military on or after December 20, 2019. The Discharge Appeal Review Board (DARB) will provide final review of discharge or dismissal characterization upgrade requests when petitioners have exhausted all available administrative remedies.

MJA has successfully helped service members upgrade their discharge characterization of service. If you believe your discharge or dismissal was unjust, erroneous, or otherwise warrants an upgrade, contact us today for your consultation.

What Is The Darb?

Established under Title 10 U.S.C. § 1553a, the DARB conducts a final review of any request for an upgrade in the characterization of a discharge or dismissal. The DARB is the highest administrative level of review for a discharge upgrade request. While the DoD has designated the Air Force as lead agent to implement the process, the DARB serves as the final level of administrative review for ALL branches of the military.

Who Is Eligible To Apply?

Any DoD Service member separated on or after December 20, 2019, who has exhausted all available appeals with their service Discharge Review Board (DRB) and Board for Correction of Military/Naval Records (BCM/NR), may apply to the DARB. If a current or former service member is deceased or incapacitated, the surviving spouse, next of kin, or legal representative may apply on their behalf.

The requirement to “exhaust all available appeals” simply means that the petitioner has already requested and been denied relief from their service DRB and BCM/NR before applying to the DARB.

What Types Of Discharges Can The Darb Review?

The DARB may review both voluntary or involuntary discharges based on:

Enlisted:

• Expiration of service obligation
• Change in service obligations
• Weight control failure
• Convenience of the Government
• Disability
• Defective enlistments and induction
• Unsatisfactory reserve participation
• Secretarial plenary authority
• Entry-level conduct/performance
• Unsatisfactory performance
• Military Department reasons
• Misconduct
• Separation in lieu of court-martial
• Security
• Drug abuse rehabilitation failure
• Alcohol abuse rehabilitation failure

Officer:

• Substandard performance of duty
• Misconduct or moral or professional dereliction
• Retention not clearly consistent with national security interests;
• Sentence by court-martial
• Dropping from the rolls

If the DARB recommends that the petitioner’s characterization of service be upgraded, this recommendation is sent to the Secretary of the Military Department concerned for final action. The Secretary of the Military Department makes the final decision.

What Evidence Does The Darb Consider?

The DARB is not an investigative board and does NOT accept new documentation or evidence to support a discharge or dismissal characterization appeal. Rather, the DARB only reviews records from the service BCM/NR in making their determination. Providing new evidence will result in closure of a petitioner’s DARB application. The DARB is a document review board ONLY and does not allow for personal appearances.

When Should I Apply?

Service members discharged on or after December 20, 2019, through December 31, 2020, must submit a request for relief to the DARB on or before January 1, 2022, or within 365 calendar days of receipt of the BCM/NR decision, whichever is later.

Service members discharged on or after January 1, 2021, must submit a request for relief within 365 calendar days of the date of receipt of the BCM/NR decision.

Requests filed outside these timelines are untimely and may be denied by the DARB.

How Do I Apply?

Applicants can apply electronically or by mail following the instructions on the DARB’s website. Applications should include the following information:

• Full name of Petitioner
• Mailing address
• Phone number with area code
• Email address
• The BCM/NR Docket/Case number a copy of the associated discharge/dismissal upgrade denial letters (if possible)

Representatives applying on behalf of a service member must provide their personal and contact information and attach proof of status or relationship documentation, if applicable.

Is There Any Risk To Applying?

No, the DARB may not lower a discharge characterization decision.

Contact Us Today

The post The Discharge Appeal Review Board (DARB): The DoD’s New, Final Appeal appeared first on Military Justice Attorneys.

The Army’s Qualitative Management Program (QMP) is a powerful force-shaping tool used to deny continued service to NCOs in the rank of SSG through CSM/SGM. While the QMP may be the single greatest threat to an Army NCO’s military career, most Soldiers know little about the process until they are notified of selection for QMP.

Military Justice Attorneys (MJA) has successfully helped Soldiers fight unjust QMP actions. If you have been notified of selection for QMP, contact us today for your consultation.

OVERVIEW

The Army’s QMP is a powerful force-shaping tool used by the U.S. Army Human Resources Command (USA HRC) to deny continued service to NCOs whose performance, conduct and/or potential for advancement do not meet Army standards.

The QMP’s stated intent is to: (1) enhance the quality of the career enlisted force; (2) selectively retain the best qualified Soldiers; (3) deny continued service to nonproductive Soldiers; and (4) encourage Soldiers to maintain their eligibility for further service. The QMP is not intended as a substitute for commanders initiating involuntary administrative separation procedures for misconduct or court-martial, when required.

While the QMP is theoretically intended to purge the NCO corps of unqualified Soldiers, in practice, the program has turned HRC’s “Soldiers First” motto on its head, casting a wide net and threatening the career of any Soldier who receives so much as an administrative reprimand.

QMP SELECTION

The Army’s QMP is governed by Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations) and Army Directive 2014-06 (Qualitative Management Program).

According to these policies, selection criteria for the QMP includes, but is not limited to:

• Moral or ethical conduct incompatible with the values of the NCO corps and the Army ethic;
• Lack of potential to perform NCO duties in current grade;
• Decline in efficiency and performance over a continuing period, as reflected by noncommissioned officer evaluation report or failure of Noncommissioned Officer Education System (NCOES) courses;
• Recent or continuing disciplinary problems, as evidenced by conviction by court-martial, nonjudicial punishment, or administrative reprimand; or
• Other discriminators such as imposition of a field commander’s bar to re-enlistment, inability to meet physical fitness standards, and failure to comply with requirements of the Army body composition program.

Soldiers are typically selected for QMP after the USA HRC receives adverse material for permanent filing in the performance or restricted folder of an NCO’s Army Military Human Resource Records (AMHRR).

Such adverse material—which must be based on performance or conduct in the Soldier’s current grade—may include: (1) a General Officer Memorandum of Reprimand (GOMOR); (2) court-martial conviction or Article 15 punishment; (3) a Noncommissioned Officer Evaluation Report based on a “Relief for Cause”; (4) a Service School Academic Evaluation Report indicating Noncommissioned Officer Education System course failure; or (5) an approved request from a commander with general court-martial convening authority referring an NCO to a QMP screening board.

The QMP does not apply to Soldiers who hold the grade of SGT and below, have an approved retirement application, and who were selected for QMP by a previous board and retained on active duty, assuming there are no new bases for QMP since the retention determination.

SOLDIER’S RIGHTS

Soldiers selected for QMP may submit written matters in extenuation or mitigation to the president of the QMP board addressing their potential for continued service. Soldiers are not permitted to submit “[c]orrespondence that criticizes or reflects on the character, conduct, or motives of any other Soldier.” Any matters submitted to the board must be received by the date established in the notification memorandum.

The submission of compelling written matters is the Soldier’s single best opportunity to convince the QMP board of their potential for continued service. An experienced military attorney can review the evidence and allegations that led to the QMP and help the Soldier craft a meaningful and effective response to the notification.

Alternatively, Soldiers who are retirement eligible may submit for voluntary retirement in lieu of being further processed by the QMP. Voluntary retirements must be approved effective no later than the date the Director of Military Personnel Management, Office of the DCS, G-1, approves the results of the QMP board.

Soldiers are not entitled to personally appear before a QMP Selection board.

QMP SCREENING AND RECOMMENDATIONS

Soldiers selected for QMP will be screened by a Headquarters Department of the Army centralized selection board. The board reviews the performance portion of the Soldier’s OMPF, Personal Qualification Record, Enlisted Record Brief, and other authorized documents related to the Soldier. The board will also review any written matters submitted by the Soldier.

This material is reviewed by the board to evaluate the Soldier’s past performance and potential for continued performance, resulting in a recommendation on whether the Soldier should be retained in the Army. QMP board recommendations are sent to the Director of Military Personnel Management, Office of the Deputy Chief of Staff, G-1, or his/her designee, who is authorized to approve the recommendations of the QMP boards.

APPEALING A QMP DETERMINATION

A Soldier who is denied continued service by the QMP may appeal the decision and request retention on active duty. Appeals can be extremely difficult and are generally limited to newly discovered evidence, the subsequent removal of documents from the Soldier’s AMHRR, or material error in the Soldier’s record that was reviewed by the QMP screening board.

An experienced military justice attorney can be the difference between a successful and unsuccessful appeal. USA HRC has stated that “98-99% of the appeals that [they] receive do not meet submission guidance as identified in the denial of continued service memorandum” and are returned to the Soldier without further action. MJA has won appeals resulting in both termination of the QMP action and removal of the underlying adverse information.

Soldiers must send a notice of intent to appeal to USA HRC within 7 days of receipt of the QMP results notification memorandum and must submit the appeal itself through proper channels within 30 days of receipt of the notification of denial of continued service.

Soldiers selected for denial of continued service who do not submit a request for voluntary retirement or voluntary discharge, who are not pending a decision on a QMP appeal, or whose QMP appeal was unsuccessful, will be involuntarily discharged.

CONTACT MJA TODAY

The Army’s QMP is a powerful force-shaping tool which can destroy a Soldier’s military career. MJA has successfully helped Soldiers fight unjust QMP actions. If you have been notified of QMP, contact one of our military defense lawyers today to learn more about your rights.

The post “Soldiers Last” – Understanding the Army’s Qualitative Management Program (QMP) appeared first on Military Justice Attorneys.