Federal Register / Vol. 89, No. 230 / Friday, November 29, 2024 / Rules and Regulations 94603 

established to contain aircraft ascending 

via the Area Navigation (RNAV) (Global 

Positioning System [GPS]) RWY 32 

missed approach procedure until 

reaching 1,200 feet AGL. 

The Colusa Class E airspace beginning 

at 1,200 feet above the surface is 

redundant and should be removed. 

Finally, the FAA proposes 

administrative modifications to the 

airport’s legal description to update the 

geographic coordinates located in the 

text header to match the FAA’s 

database. 

Regulatory Notices and Analyses 

The FAA has determined that this 

proposed regulation only involves an 

established body of technical 

regulations for which frequent and 

routine amendments are necessary to 

keep them operationally current. It, 

therefore: (1) is not a ‘‘significant 

regulatory action’’ under Executive 

Order 12866; (2) is not a ‘‘significant 

rule’’ under DOT Regulatory Policies 

and Procedures (44 FR 11034; February 

26, 1979); and (3) does not warrant 

preparation of a regulatory evaluation as 

the anticipated impact is so minimal. 

Since this is a routine matter that will 

only affect air traffic procedures and air 

navigation, it is certified that this 

proposed rule, when promulgated, will 

not have a significant economic impact 

on a substantial number of small entities 

under the criteria of the Regulatory 

Flexibility Act. 

Environmental Review 

This proposal will be subject to an 

environmental analysis in accordance 

with FAA Order 1050.1F, 

‘‘Environmental Impacts: Policies and 

Procedures,’’ prior to any FAA final 

regulatory action. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

The Proposed Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

amends 14 CFR part 71 as follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D, AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for 14 CFR 

part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(f), 106(g); 40103, 

40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 

1959–1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of FAA Order JO 7400.11J, 

Airspace Designations and Reporting 

Points, dated July 31, 2024, and 

effective September 15, 2024, is 

amended as follows: 

Paragraph 6005 Class E Airspace Areas 

Extending Upward From 700 Feet or More 

Above the Surface of the Earth. 

* * * * * 

AWP CA E5 Colusa, CA [Amended] 

Colusa County Airport, CA 

(Lat. 39°10 ́44′N, long. 121°59 ́36′W) 

That airspace extending upward from 700 

feet above the surface within 6.6-mile radius 

of the airport, within 1.5 miles either side of 

the 193° bearing extending from the 6.6-mile 

radius to 12 miles south of the airport, and 

within 1.8 miles either side of the 331° 

bearing extending from the 6.6-mile radius to 

6.8 miles northwest of the airport. 

* * * * * 

Issued in Des Moines, Washington, on 

November 21, 2024. 

B.G. Chew, 

Group Manager, Operations Support Group, 

Western Service Center. 

[FR Doc. 2024–27837 Filed 11–27–24; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF COMMERCE 

Bureau of Industry and Security 

15 CFR Parts 738, 740, 742 and 774 

[Docket No. 241113–0293] 

RIN 0694–AJ63 

Implementation of Additional Controls 

on Pakistan 

Correction 

In rule document 2024–27648, 

appearing on pages 93164–93169, in the 

issue of Tuesday, November 26, 2024, 

make the following correction: 

On page 93164, in the third column, 

in the DATES section, in the first and 

second lines ‘‘November 25, 2024,’’ 

should read ‘‘December 26, 2024,’’ 

[FR Doc. C1–2024–27648 Filed 11–27–24; 8:45 am] 

BILLING CODE 0099–10–D 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

32 CFR Part 73 

[Docket ID: DoD–2022–OS–0105] 

RIN 0790–AL57 

DoD Discharge Appeal Review Board 

AGENCY: Office of the Under Secretary of 

Defense for Personnel and Readiness 

(OUSD(P&R)), Department of Defense 

(DoD). 

ACTION: Interim final rule; request for 

comments. 

SUMMARY: This interim final rule 

implements Section 523 of the National 

Defense Authorization Act (NDAA) for 

Fiscal Year (FY) 2020, which requires 

the DoD to provide Service members 

and their authorized representatives 

with one final review of requests for an 

upgrade in the characterization of a 

discharge or dismissal. This rule 

establishes the Discharge Appeal 

Review Board (DARB) as the DoD 

authority responsible for considering 

such requests after all other 

administrative remedies have been 

exhausted. This rule also details the 

procedures for a petitioner and their 

authorized representatives to request 

this final review, the standards the 

DARB will apply when considering a 

petitioner’s request, and the procedures 

the Military Departments will follow 

after the DARB adjudicates the request. 

The purpose of DARB review is to 

ensure uniform standards of review are 

met for requests for upgrades of a 

discharge or dismissal regardless of the 

petitioner’s service affiliation. 

DATES: This interim final rule is 

effective November 29, 2024. Comments 

must be received by January 28, 2025. 

ADDRESSES: You may submit comments, 

identified by docket number and/or 

Regulation Identifier Number (RIN) 

number and title, by any of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Department of Defense, Office 

of the Assistant to the Secretary of 

Defense for Privacy, Civil Liberties, and 

Transparency, Regulatory Directorate, 

4800 Mark Center Drive, Attn: Mailbox 

24, Suite 05F16, Alexandria, VA 22350– 

1700. 

Instructions: All submissions received 

must include the agency name and 

docket number or RIN for this Federal 

Register document. The general policy 

for comments and other submissions 

from members of the public is to make 

these submissions publicly available at 

http://www.regulations.gov as they are 

received without change, including any 

personal identifiers or contact 

information. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Margarete Ashmore, Office of Legal 

Policy, 703–697–3387. 

SUPPLEMENTARY INFORMATION: 

A. Background 

At the time of discharge or dismissal 

from the Armed Forces (Air Force, 

Army, Coast Guard, Navy, Marine 


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1 Information on how to request a Service 

member’s military service records (including a DD 

214) is available at https://www.va.gov/records/getmilitary-service-records/. 

2See 10 U.S.C. 1553; see 10 U.S.C. 1552. 

3See 10 U.S.C. 1553. 

4 32 CFR 70, Part 70—Discharge Review Board 

(DRB) Procedures and Standards is available at 

https://www.ecfr.gov/current/title-32/subtitle-A/ 

chapter-I/subchapter-D/part-70. 

5 10 U.S.C. 1552; 32 CFR 865 Subpart A (Air 

Force BCMR), 32 CFR 581.3 (Army BCMR), 33 CFR 

52 (Coast Guard BCMR), and 32 CFR 723 (Navy 

BCMR). 

6 10 U.S.C. 1552(a)(1). 

7See 10 U.S.C. 1552(h)(2)(B), see 10 U.S.C. 

1553(d)(3)(A)(ii)). 

8The DoD has issued policy guidance related to 

the application of liberal consideration in DoD 

memoranda: Secretary of Defense Memorandum, 3 

September 2014, titled ‘‘Supplemental Guidance to 

Military Boards for Correction of Military/Naval 

Records Considering Discharge Upgrade Requests 

by Veterans Claiming Post Traumatic Stress 

Disorder (PTSD)’’ (‘‘Hagel Memo’’); Under Secretary 

of Defense Memorandum, 25 August 2017, titled 

‘‘Clarifying Guidance to Military Discharge Review 

Boards and Boards for Correction of Military/Naval 

Records Considering Requests by Veterans for 

Modification of their Discharge Due to Mental 

Health Conditions, Sexual Assault, or Sexual 

Harassment’’ (‘‘Kurta Memo’’). 

9See 32 CFR 70.1. 

10Update on Military Review Board Agencies, 

Hearing Before the Subcomm. on Military Personnel 

of the H. Comm. on Armed Services, 115th Cong. 

(2018), https://www.congress.gov/event/115thcongress/house-event/LC64219/text?s=1&r=326. 

11Update on Military Review Board Agencies, 

Hearing Before the Subcomm. on Military Personnel 

of the H. Comm. on Armed Services, 115th Cong. 

(2018), https://www.congress.gov/event/115thcongress/house-event/LC64219/text?s=1&r=326. 

Corps, and Space Force), each Service 

member is issued a DD 214 titled 

‘‘Certificate of Release or Discharge from 

Active Duty.’’ 1 It can include the 

following information about the Service 

member and his or her period of active 

military service: 

• Date and place of entry into active 

duty 

• Home address at the time of entry 

• Mailing address after separation 

• Military service length 

• Duty stations and assignments 

• Rank and MOS (military occupational 

specialty) 

• Decorations, medals, badges, 

citations, and campaign ribbons 

• Military education 

• Separation information (type, 

character of service, authority, 

separation and reentry codes, and 

reason for separation) 

This separation document is used to 

verify the Service member’s period of 

active service. The reasons surrounding 

a Service member’s discharge or 

dismissal, noted by a separate code, as 

well as a narrative, and the resulting 

characterization of service (e.g. 

honorable, general (under honorable 

conditions), other than honorable, badconduct, dishonorable) may impact the 

Service member’s eligibility for certain 

Federal and State provided veteran 

benefits and could affect his or her 

employment opportunities following 

separation. For example, a DD 214 

generally is needed to qualify for the 

following: 

• Department of Veterans Affairs (VA) 

guaranteed home loans 

• VA education benefits 

• Veterans’ Preference for civilian 

employment 

• VA Health Care Enrollment 

• VA Disability claims 

• Social Security benefits 

• VA and Department of Labor (DOL) 

homeless veteran programs 

• Federally provided flags and veteran 

burial benefits 

• Certain veteran and military service 

organizations memberships 

The Department of Veterans Affairs 

uses the DD 214 to determine if the 

Service member is eligible for the GI 

Bill, a VA home loan, health care 

eligibility, and disability benefits. The 

DOL uses it to determine eligibility for 

certain unemployment compensation 

and reemployment rights. The surviving 

spouse or dependents of a military 

veteran also need this form to apply for 

Federal and State provided burial and 

memorial benefits (i.e., funeral services, 

headstones, presidential memorial 

certificates, and burial flags). 

Currently, each Military Department, 

operating through the Military 

Departments’ Discharge Review Boards 

(DRBs) and Boards for Correction of 

Military/Naval Records (BCM/NRs) have 

the authority to upgrade a Service 

member’s characterization of service 

and to correct the Service member’s 

military record.2 Service members 

seeking a change in their discharge may, 

within 15 years of the date of their 

discharge (except for a discharge or 

dismissal by general courts-martial), 

apply to their respective Military 

Department’s DRB: 3

• Air Force Discharge Review Board 

• Army Discharge Review Board 

• Coast Guard Discharge Review Board 

• Naval Discharge Review Board 

The DRBs may upgrade a Service 

member’s discharge when appropriate 

based on improprieties or inequities in 

the discharge.4 Service members seeking 

a correction to their military records 

that were discharged more than 15 years 

ago, including Service members who 

were discharged or dismissed by general 

courts-martial, may make their request 

directly to their respective Military 

Department’s BCMR/NR5: 

• Air Force Board for Correction of 

Military Records 

• Army Board for Correction of Military 

Records 

• Coast Guard Board for Correction of 

Military Records 

• Board for Correction of Naval Records 

The BCM/NRs are empowered, 

subject to certain constitutional, 

statutory, and regulatory limitations, to 

change a Service member’s military 

record ‘‘to correct an error or remove an 

injustice.’’ 6 Changes to a Service 

member’s discharge or dismissal as a 

result of a request to the Military 

Departments’ DRBs and BCM/NRs may 

include an upgrade to the character of 

service, a change to separation and 

reentry codes, and changes to the 

narrative reason for separation as 

reflected on the Service member’s DD 

214. 

B. Previous Regulatory History and 

Requirements of the 2020 NDAA 

By statute, the DRBs and BCM/NRs 

are required to review a Service 

member’s discharge or dismissal 

upgrade or correction to their military 

records request based upon combatrelated or military sexual trauma (MST)- 

related post-traumatic stress disorder 

(PTSD) or traumatic brain injury (TBI) 

‘‘with liberal consideration’’ to the 

Service member that the combat-related 

or MST-related PTSD or TBI potentially 

contributed to the circumstances 

resulting in the discharge or dismissal 

or to its characterization.7 The term 

‘‘liberal consideration’’ is not statutorily 

defined, but the DoD has provided the 

Military Departments an analytical 

framework for reviewing such cases.8

Although the DRBs and BCM/NRs have 

some discretion on how to apply this 

analytical framework, the policies, 

procedures, and standards for the 

review of a discharge or dismissal must 

be uniform and consistent across the 

military services.9

In a September 2018 House Armed 

Services Committee hearing, House 

committee members expressed concerns 

that the DRBs and BCM/NRs were not 

providing appropriate upgrades to 

Service member’s discharges or 

dismissals or military record corrections 

for applicants who presented evidence 

of a service-connected PTSD, a TBI, or 

being sexually assaulted while in the 

military.10 House committee members 

were also concerned that the DRBs and 

BCM/NRs were inconsistently applying 

‘‘liberal consideration’’ and that the 

discharge or dismissal upgrade rate for 

these cases was different across all the 

military services.11


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Federal Register / Vol. 89, No. 230 / Friday, November 29, 2024 / Rules and Regulations 94605 

12 10 U.S.C. 1553a(c)(1). 

13 10 U.S.C. 1553a(a). 

14 10 U.S.C. 1553(b)(2). 

15 10 U.S.C. 1552(a)(4)(B). 

16 10 U.S.C. 1553a(a). 

17Public Law 116–92, section 523(c). 

18 Id. The annual reports can be accessed at 

https://boards.law.af.mil/OSD_DARB.htm. 

19See 10 U.S.C. 1553a(b). 

20 10 U.S.C. 1553a(c)(1). 

21 10 U.S.C. 1553a(c)(2). 

22Public Law 116–92, section 523. 

23The first DoD Memorandum, ‘‘Department of 

Defense Implementation of Section 523 of the 

National Defense Authorization Act for Fiscal Year 

2020,’’ published January 29, 2021, was updated on 

May 17, 2022, by DoD Memorandum, ‘‘Update to 

Department of Defense Appeal Review Board 

Procedures.’’ These DoD Memoranda can be 

accessed at https://afrba-portal.cce.af.mil/#boardinfo/darb/navbar. 

24The Directive-Type Memorandum (‘‘DTM’’), 

‘‘DoD Discharge Appeal Review Board,’’ published 

May 5, 2023, and is available on the DoD Directives 

Division website and can be accessed at https://

www.esd.whs.mil/Directives/Recent-Publications/. 

25See 10 U.S.C. 1553a(b). 

26 10 U.S.C. 1553a(b), (c). 

27 10 U.S.C. 1553a; Public Law 116–92, section 

523. 

28 10 U.S.C. 1553a(b)(2). 

29 10 U.S.C. 1553a(c)(2). 

30See 10 U.S.C. 1553a; see Public Law 116–92, 

section 523; see also DTM, ‘‘DoD Discharge Appeal 

Review Board,’’ published May 5, 2023, and is 

available on the DoD Directives Division website 

and can be accessed at https://www.esd.whs.mil/ 

Directives/Recent-Publications/. If this portion of 

the rule is held to be invalid by a court, the 

remainder of the rule should be considered 

severable and not affected by such determination. 

31See 10 U.S.C. 1553a(c)(1). 

32 10 U.S.C. 1553a(c)(1)(B). 

33See 10 U.S.C. 1553a(c)(1). 

To provide increased oversight and to 

ensure that the DRBs and BCM/NRs 

uniformly and consistently apply DoD 

policies related to the review of a 

Service member’s discharge or 

dismissal, Congress passed section 523 

of the FY 2020 NDAA, as codified at 10 

U.S.C. 1553a on December 20, 2019. 

This allows for a new level of review for 

petitioners (or their authorized 

representatives), with certain 

limitations, to seek ‘‘an upgrade in the 

characterization of a discharge or 

dismissal.’’ 12

This ‘‘final review’’ is independent 

from the reviews conducted by the 

Military Departments’ DRBs and BCM/ 

NRs.13 Section 523 amended 10 U.S.C. 

1553 to include ‘‘a request for an 

upgrade to the characterization of a 

discharge or dismissal’’ that was 

declined ‘‘may be considered under 

section 1552 or section 1553a of this 

title, as applicable.’’ 14 Similarly, 10 

U.S.C. 1552 was also amended to 

include ‘‘a request for an upgrade to the 

characterization of a discharge or 

dismissal’’ that was declined ‘‘may be 

considered under section 1553a of this 

title.’’ 15

The DoD has the authority to design 

and implement the process to conduct 

a ‘‘final review of a request for an 

upgrade in the characterization of a 

discharge or dismissal.’’ 16 Congress 

directed the Secretary of Defense to ‘‘use 

existing organizations, boards, 

processes, and personnel of the 

Department of Defense’’ to the 

‘‘maximum extent practicable’’ when 

establishing this process and it set 

January 1, 2021, as the deadline for the 

implementation.17 The Secretary of 

Defense is also required to publish 

annual reports regarding the DoD’s new 

final review process, to include the 

number of requests considered, the 

upgrades granted or declined to the 

characterization of a discharge or 

dismissal, and the associated reports 

must be accessible to the public.18

Upon the request of a petitioner who 

has exhausted all available 

administrative remedies under 10 U.S.C. 

1552 and 1553, the Secretary of Defense 

must review the findings and decisions 

of the Military Department’s DRB and 

BCM/NR and make a recommendation 

to the Secretary of the Military 

Department concerned for final action.19

The term ‘‘final review of a request for 

an upgrade in the characterization of a 

discharge or dismissal’’ was also 

defined as ‘‘a request by a petitioner for 

an upgrade to the characterization of a 

discharge or dismissal’’ that was 

exhausted but not granted by his or her 

Military Department’s BCM/NR.20 A 

‘‘petitioner’’ means ‘‘a member or 

former member of the armed forces (or 

if the member or former member is 

dead, the surviving spouse, next of kin, 

or legal representative of the member or 

former member).’’ 21

C. Progress Since the 2020 NDAA 

Section 523 directed ‘‘[t]he Secretary 

of Defense shall implement section 

1553a . . . not later than January 1, 

2021.’’ 22 To accommodate the timeline 

set by Congress, the DoD designated the 

Physical Disability Board of Review 

(PDBR), an entity established as part of 

the NDAA for FY 2008 to reassess the 

accuracy and fairness of the combined 

disability ratings assigned Service 

members who were discharged as unfit 

for continued military service between 

September 11, 2001, and December 31, 

2009, to assume responsibility while its 

statutory mission was concluding and 

later take over the duties for this new 

review process under this rule. The DoD 

also established policies for 

implementing internal requirements 

while beginning work on this rule. The 

DoD issued two internal Deputy 

Secretary of Defense (DepSecDef) 

Memoranda 23 and one Directive-Type 

Memorandum (DTM),24 to provide the 

process and procedures for conducting 

a final review. This rulemaking is the 

final step in establishing the DARB. 

D. Process for Petitioning the DARB 

It should be noted per statute that the 

DARB is strictly a document review 

board.25 Any new evidence a petitioner 

wishes to introduce must first be 

reviewed and a determination made by 

the respective Military Department’s 

DRB and BCM/NR.26 After reviewing a 

Service member’s case file records, the 

DARB may make a recommendation to 

upgrade the characterization of 

discharge or dismissal based on their de 

novo review.27 If the DARB 

recommends an upgrade, this 

recommendation will be sent to the 

Secretary of the Military Department 

concerned for final action.28

In most cases, the current or former 

Service member petitions the DARB for 

an upgrade to the characterization of his 

or her discharge or dismissal. If the 

Service member is deceased or 

incapacitated, the surviving spouse, 

next of kin, or legal representative may 

apply for a final review on the Service 

member’s behalf.29 Petitioners are 

eligible for a DARB review when all four 

criteria below are met: 

• The Service member’s date of 

discharge or dismissal was on or after 

December 20, 2019; 30

• The Service member received a less 

than honorable characterization of 

service; 31

• The petitioner has exhausted all 

remedies available at the respective 

Military Departments’ DRB and BCM/ 

NR; 32 and 

• The petitioner’s request for an 

upgrade in the characterization of a 

discharge or dismissal was denied or it 

was only partially granted at their 

respective Military Department’s BCM/ 

NR.33

Petitioners can request a DARB 

discharge review by sending a written 

request by email to saf.mr.darb@

us.af.mil or by mail to Air Force Review 

Boards Agency, SAF/MRBD (DARB), 

3351 Celmers Lane, Joint Base Andrews, 

MD 20762–6435. To learn more about 

DARB and the process for petitioning 

for a final discharge review, visit the Air 

Force Review Board Agency website 

located at https://afrbaportal.cce.af.mil/#board-info/darb/ 

navbar. 


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94606 Federal Register / Vol. 89, No. 230 / Friday, November 29, 2024 / Rules and Regulations 

34See 32 CFR 70; see 10 U.S.C. 1553. 

35 10 U.S.C. 1552. 

36There is a three-year deadline to apply to a 

BCM/NR from the date of the discovery of an 

alleged error or injustice, but the time limit can be 

waived in the ‘‘interest of justice.’’ 10 U.S.C. 

1552(b). 

37 10 U.S.C. 1553. 

38The Navy’s data was included in this number 

but its case tracking systems for data was based on 

an in-house database that was inconsistent before 

mid-2019, and as a result, it is reasonable to assume 

that the total numbers may be higher. 

39 If an applicant received a partial upgrade at the 

BCM/NR, this data would not be included in the 

15% unless the applicant requested and received a 

partial upgrade at the BCM/NR. Additionally, the 

Army could not provide the total number of 

applicants who received the upgrade requested 

without a case-by-case review, and as a result, it 

was not included when determining the average 

percent of upgrades granted by the military 

departments. 

40Public Law 116–92, section 523. 

41Public Law 110–181; 10 U.S.C. 1554a. 

42A less than honorable discharge 

characterization includes dismissals, a general, 

other than honorable, uncharacterized, badconduct, and dishonorable discharges. 43Active-Duty Service members include members 

of the Army, Navy, Marine Corps, Coast Guard, Air 

Force, and Space Force. Additionally, while 

Reserve Service members may be eligible for a final 

review, Active-Duty Service member data were 

used here because they primarily petition the DRBs 

and BCM/NRs, and they are more likely to qualify 

for Veterans Benefits if their discharge 

characterization is upgraded as they meet the 

length-of-service criteria needed for veteran status 

(38 U.S.C. 5303A(b); 38 CFR 3.12a(a)(1)). 

II. Expected Impact of This Interim 

Rule 

A. Baseline 

If requesting a discharge upgrade 

within 15 years of the date of discharge 

(except discharges by general courtsmartial), the Service member must first 

apply to their respective Military 

Department’s DRB to review their 

discharge and the resulting 

characterization of service.34 A Service 

member who is not satisfied with the 

DRB’s findings and decision regarding 

their request may also seek relief from 

their respective Military Department’s 

BCMR/NR.35 Service members who 

were discharged more than 15 years 

ago 36 and Service members requesting 

an upgrade of their dismissal or 

discharge by general courts-martial 

should seek review of their discharge or 

dismissal directly to their respective 

Military Department’s BCMR/NR.37

Between October 1, 2016, and 

September 30, 2021, approximately 

23,176 individuals requested an 

upgrade to the characterization of a 

discharge or dismissal at their Military 

Department’s BCM/NR.38 Of the 23,176 

upgrade requests, the BCM/NRs fully 

granted 15% of their requests for an 

upgrade to the characterization of their 

discharge or dismissal on average.39

Military Department BCM/NRs are 

currently the highest level of 

administrative review for the review of 

a discharge or dismissal, and their 

decisions constitute final agency action 

on a request for an upgrade to the 

characterization of a discharge or 

dismissal. As this is a new 

congressionally mandated additional 

review, there is no pre-established 

baseline cost of comparison for this rule. 

B. Policy 

DoD’s solution is to use existing DoD 

board personnel who are familiar with 

established review processes to conduct 

a final review of a request for an 

upgrade in the characterization of a 

discharge or dismissal—PDBR, as 

provided under 10 U.S.C. 1554a. The 

OUSD(P&R) which is responsible for 

overseeing the Military Department’s 

DRBs and BCM/NRs also oversees the 

PDBR. This solution was chosen 

because it provides petitioners with a 

fair and equitable review and it meets 

Congress’ direction for establishing and 

implementing a process using existing 

DoD ‘‘organizations, boards, processes, 

and personnel’’ to the ‘‘maximum extent 

practicable.’’ 40 By using existing PDBR 

personnel, similar processes, and 

infrastructure to conduct a similar 

discharge review, it is the most costeffective approach, based on the 

analysis in this section. 

Congress directed the establishment 

of the PDBR in 2008 to review a Service 

member’s request for an upgrade in the 

disability rating of their medical 

discharge.41 The PDBR requires at least 

three members to conduct the review. 

Service members who were separated 

from the Armed Forces, who received a 

disability rating of 20 percent or less, 

and were found not eligible for 

retirement, could request a review of 

their disability rating under the process. 

The PDBR reviews the Service member’s 

medical records and the Military 

Department’s disability determination 

and makes a recommendation to the 

Secretary of the Military Department 

concerned on whether to upgrade the 

disability rating. The PDBR was created 

to review Service member’s medical 

discharges between a set period, ending 

on December 31, 2009, and the PDBR 

will cease operating on October 1, 2024. 

Because PDBR personnel are familiar 

with discharge upgrades from the 

Military Departments, including Service 

member medical issues and the related 

benefits available, the personnel would 

be able to quickly take on this new 

congressionally mandated discharge 

review. The PDBR caseload is 

dwindling and any remaining cases or 

requests for a disability upgrade review 

received after October 1, 2024, will be 

transferred to their respective Military 

Department BCM/NRs, so the existing 

PDBR personnel, processes to conduct 

comparable reviews, and infrastructure 

would be fully utilized in the intake of 

requests and conducting the final 

reviews. A three-member panel also 

ensures that a petitioner has a fair 

process that will allow an opportunity 

for a thorough and thoughtful review of 

the Military Department’s findings and 

decisions. 

1. Estimated Final Review Requests 

Pursuant to 10 U.S.C. 1553a, any 

Service member who has been 

discharged or dismissed with a less than 

honorable discharge characterization,42

whose request for an upgrade in the 

characterization of their discharge or 

dismissal was denied or only partially 

granted by their respective Military 

Department BCM/NR, and who 

exhausted all available remedies with 

their respective Military Department’s 

DRB and BCM/NR, may petition the 

DARB for a final review. Because 

section 116–92 of the FY 2020 NDAA 

and 10 U.S.C. 1553a became effective on 

December 20, 2019, the DARB requires 

that the Service member was discharged 

or dismissed on or after December 20, 

2019, to be eligible for this additional 

review. The eligibility date aligns with 

the language in section 523 of the 

NDAA for FY 2020 and allows for faster 

action while also affording finality to 

prior, and potentially long-resolved, 

Military Departments’ decisions on 

requests for upgrades, which would in 

turn permit earlier intervention by a 

civilian court. Additionally, it provides 

for clear eligibility determinations by 

establishing an explicit date-certain 

timeframe for eligibility. 

As of June 30, 2022, there were 

approximately 63,294 former ActiveDuty Service members who had been 

discharged or dismissed on or after 

December 20, 2019 and received a less 

than honorable discharge 

characterization.43 Petitioners however 

are not eligible for a DARB final review 

until they fully exhaust all their 

administrative remedies at their 

respective Military Department’s DRB 

and BCM/NR. 

The time to fully exhaust their 

administrative remedies varies 

significantly based on the complexity of 

their case, the military service involved, 

and whether they request a 

documentary record review or a 

personal appearance hearing. Based on 

internal records, the DoD anticipates it 

will take at least 18 months from their 


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44 In fiscal year 2022, the DoD received 4 requests 

for a final review under this process, but none of 

the petitioners were eligible for a final review. The 

petitioners were not eligible because they were 

seeking an upgrade to a discharge or dismissal that 

was issued before December 20, 2019, or they failed 

to first exhaust their administrative remedies at 

their respective Military Department’s DRB and 

BCM/NR. 

45According to the Bureau of Labor Statistics, the 

median weekly earnings for full-time wage and 

salary workers in 2021 was $998.00, for an hourly 

rate based on a 40-hour workweek of $24.95. 

(http://www/bls.gov/cps/cpsaat39.htm.) 

date of discharge or dismissal to fully 

exhaust their available remedies at their 

Military Department’s DRB and BCM/ 

NR but it could take much longer than 

this. Individuals who have requested an 

upgrade to a discharge or dismissal and 

are not satisfied with their result at their 

Military Department’s BCM/NR may 

then consider petitioning the DARB for 

a final review. The DARB requires a 

petitioner to request a final review 

within 12 months of receipt of their 

BCM/NR decision. Thus, it will take a 

minimum of 18 to 30 months from the 

date of a discharge or dismissal for the 

DARB to receive a petitioner’s final 

review request.44

Based on the BCM/NR data analyzed 

previously in the baseline, 

approximately 23,176 individuals 

requested an upgrade to the 

characterization of a discharge or 

dismissal at the Military Department’s 

BCM/NRs over a five-year period, which 

equates to 4,635 requests a year. 

Assuming the BCM/NR will fully grant 

15% of these requests to fully upgrade 

the characterization of discharge or 

dismissal, this results in an estimated 

3,940 petitioners a year who will be 

eligible for a final review. Because the 

process for a petitioner to request a final 

review is straight-forward and some 

petitioners may not be interested in a 

further appeal as they may have 

received partial relief and be satisfied 

with that result, the DoD assumes that 

75% of these eligible petitioners a year 

will petition for a final review. As a 

result, we estimate that the DARB will 

receive 2,955 final review requests a 

year. 

2. Costs of Policy 

In determining whether to petition the 

DARB for a final review, we estimate 

that it would take a petitioner up to 2 

hours to view case file records and the 

BCM/NR decision to decide whether to 

request a final review, and an additional 

5 to 30 minutes on average to submit a 

request for a final review. Assuming 2.5 

hours in total at the median hourly rate 

of $24.95 based on data from the Bureau 

of Labor Statistics (BLS),45 the cost of 

this activity is $62.38. While 

representation by an attorney is not 

necessary, a Service member may 

decide to consult with an attorney when 

determining whether to request a final 

review. Because the DARB conducts 

only a record review and a Service 

member may already have an attorney 

who represented them in their DRB and 

BCM/NR proceedings, any consultation 

with the same attorney for the purposes 

of conducting this additional DoD 

review will be minimal. 

The cost to a petitioner or an 

authorized representative for submitting 

a request for a final review itself will 

vary based on whether the request is 

submitted electronically or by mail. The 

DARB is not authorized to accept new 

information in support of a petitioner’s 

request for a final review, so the 

resulting cost to the petitioner may only 

be minimal printing, scanning, 

photocopying, and postage. The DARB 

encourages electronic submission of 

requests for final reviews by email as 

the processing will be faster and such a 

request will be at no cost to the 

petitioner. If a petitioner elects to mail 

a request, a basic letter requesting a final 

review and any supplementary evidence 

of a relationship to a Service member, 

if required, would cost the petitioner 

$0.55 in postage. A petitioner 

submitting a request by mail will likely 

choose to use certified mail, requiring 

additional postage of $3.75, and may 

add a return receipt, that is an 

additional $3.05 for a mail receipt or 

$1.85 for an electronic return receipt. 

After a petitioner submits a request for 

a final review, the DARB will download 

the relevant case file records from the 

BCM/NR and this request to transfer 

records will be at no cost to the 

petitioner. As a result, we estimate the 

total cost to a petitioner to request a 

final review would be $6.24 to $69.35, 

as shown in Table 1. 

TABLE 1—ESTIMATED PUBLIC COST FOR DARB REVIEW

Activity Hours Rate Total cost 

Review case .............................................................. 0 to 2.00 $24.95 ........................................................................ $0–$49.90 

Submit petition ........................................................... 0.08 to 0.50 $24.95 ........................................................................ $6.24 to $12.48 

Additional cost to submit petition via mail ................. ........................ Postage at $0.55 ....................................................... $0.55 

Certified Mail at $3.75 ............................................... $3.75 

Mail Return Receipt at $3.05 .................................... $3.05 

Electronic Return Receipt at $1.85 ........................... $1.85 

Total Cost ........................................................... ........................ .................................................................................... $6.24 to $69.73 

Next, we estimate the costs associated 

with the intake, review, and processing 

of a final review request, which is 

illustrated in Table 2. Once the DARB 

receives a final review request, it is 

anticipated that it will take 

approximately 4 hours of time for intake 

procedures such as data entry for case 

creation, verifying BCM/NR case 

information, receiving case file records, 

bookmarking key documents in the 

record, sending acknowledgement 

letters to petitioners, and assigning the 

case to a three-member panel. Assuming 

a GS–11 at the step 5 salary rate of 

$84,941 based on the 2022 Washington 

DC, locality pay table, which is 

equivalent to an effective rate of $81.40 

(hourly rate of $40.70 plus benefits at 

100%), the cost for this case 

management activity per final review 

request is $325.60 (effective rate of 

$81.40 multiplied by 4 hours of work). 

While the complexity of a case will 

vary and significantly change the time 

of review, we estimate that 

approximately 30 hours in total would 

be spent by board members reviewing 

the case file records, voting, and 

drafting a recommendation on whether 

to upgrade the characterization of the 

discharge or dismissal. Assuming a GS– 

14 at the step 8 salary rate of $155,687 

based on the 2022 Washington DC 

locality pay table, which is equivalent to 

an effective rate of $149.20 (hourly rate 

of $74.60 plus benefits at 100%), the 

cost for the review of a petitioner’s 

request is $4,476.00. 

Additionally, if a petitioner’s case 

involves a mental health issue, a 

military or civilian healthcare provider 


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46These are the total number of petitions, prior 

to any analysis of the merits of the claims, or 

determination of whether the petitioner properly 

applied for a final review. 

will review the case file records to 

determine if an advisory opinion was 

required and included by the BCM/NR. 

We anticipate this medical review will 

take about 1 hour on average. Assuming 

a GP–15 at the step 5 salary rate of 

$147,942 based on the 2022 General 

Schedule base pay table with the 

additional $20,000 General Medical 

Officer incentive pay incorporated, 

which is equivalent to an effective rate 

of $141.78 (hourly rate of $70.89 plus 

benefits at 100%)), the cost for this case 

management activity per final review 

request is $141.78. Based on data from 

January 2022–March 2022, 41% of the 

cases before the DRBs and BCM/NRs 

involved Mental Health claims (https:// 

boards.law.af.mil/stats_CY2022.htm). 

TABLE 2—ESTIMATED GOVERNMENT SUB-PROCESS COST

Review process Work hours Employee 

grade Effective rate Number of employees 

Cost per 

process 

Intake ................................................................................... 4 GS–11(5) $81.40 1 $325.60 

Board Review ....................................................................... 30 GS–14(8) 149.20 3 4,476.00 

Medical Review .................................................................... 1 GP–15(5) 141.78 1 141.78 

Based on the anticipated 2,955 final 

review requests a year,46 assuming 41% 

of these petitions will involve Mental 

Health claims necessitating a military or 

civilian healthcare provider review and 

59% will not, we estimate the total 

annual costs for processing and 

reviewing these requests to be 

$14,360,565, as shown in Table 3. 

TABLE 3—ESTIMATED TOTAL GOVERNMENT COST

Review process Percent 

petitions Cases Process cost Total cost 

Intake and Board Review ................................................................................ 59 1,743 $4,801.60 $8,369,188.8 

Intake, Board Review, and Medical Review .................................................... 41 1,212 4,943.38 5,991,376.56 

Total Cost ................................................................................................. ........................ ........................ ........................ 14,360,565 

C. Policy Alternative #1 

The DoD considered using personnel 

from the BCM/NRs to conduct the final 

reviews, as these personnel would be 

fully trained on the review process for 

a request for an upgrade to the 

characterization of a discharge or 

dismissal, but it concluded that this was 

not the most equitable solution. The 

BCM/NRs apply military service 

specific policies in their reviews of 

discharges or dismissals. While it may 

be possible to use personnel from each 

of the BCM/NRs for a consolidated 

military service review board to conduct 

these final reviews, utilizing the same 

personnel who would be reviewing the 

findings and decisions of the BCM/NRs 

may present a conflict of interest as 

these personnel may have an interest in 

interpreting a DoD policy based on the 

culture of their military service. 

Congress also explicitly provided in 10 

U.S.C. 1553a that a petitioner must have 

fully exhausted all remedies available at 

their respective Military Department’s 

DRB and BCM/NR before they are 

eligible for a final review, which 

indicates that congress intended the 

final review process to be separate and 

distinct from the existing DRB and 

BCM/NR review processes. 

This also may not be the most costeffective approach because, unlike the 

PDBR mission, the BCM/NRs caseload is 

not expected to diminish. If the BCM/ 

NRs took on this congressionally 

mandated additional review, it would 

add the estimated cost of $14,455,783 

per year to their budget and may create 

inefficiencies due to the increase in 

workload. 

Accordingly, the DoD concluded that 

a distinct board focused on applying 

DoD-level policies was a better policy 

alternative, as it could ensure the review 

of a request for an upgrade to the 

characterization of a discharge or 

dismissal was consistent with both 

military service specific policies and 

DoD policies. The PDBR is a more costeffective approach because of its 

dwindling cases, existing infrastructure 

and resources, and experience 

conducting military reviews. 

D. Policy Alternative #2 

The DoD also considered using 

another existing DoD review board to 

conduct the final reviews, the Defense 

Office of Hearings and Appeals (DOHA), 

but it concluded that it would not be a 

cost-effective approach. The DOHA 

holds due process hearings and appeals 

of security clearance cases. Contractor 

employees who are applying for or 

seeking to retain their security 

clearances can request a hearing, and it 

will be held and decided before a DOHA 

Administrative Judge. 

Although DOHA’s review is different 

from the review of a request for an 

upgrade in the characterization of a 

discharge or dismissal, it was 

considered as a policy alternative 

because its board was familiar with 

applying DoD-level policies and 

standards of review. The DoD ultimately 

decided that the PDBR was a better 

policy alternative than the DOHA 

because it would take a significant 

amount of time to train existing DOHA 

personnel on the review process for a 

request for an upgrade to the 

characterization of a discharge or 

dismissal. It would also require 

additional personnel, new processes, 

and infrastructure for the DOHA to 

conduct these reviews in addition to its 

security clearance reviews. 

II. Regulatory Compliance Analysis 

Interim Final Rule Justification 

As discussed in the SUPPLEMENTARY

INFORMATION section, the DoD is issuing 

this rule as an interim final rule because 

it is a procedural rule that relates to 

‘‘agency organization, procedure, or 

practice’’ within the meaning of 5 U.S.C. 

553(b)(A). As such, this rule is exempt 

from the prior notice and comment and 

delayed effective date (see 5 U.S.C. 


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47Service members who are discharged under 

other than honorable conditions may apply to the 

VA for consideration of these benefits and the VA 

makes this eligibility determination on a factspecific basis. 

48The DTM, ‘‘DoD Discharge Appeal Review 

Board,’’ published May 5, 2023, is available on the 

DoD Directives Division website and can be 

accessed at https://www.esd.whs.mil/Directives/ 

Recent-Publications/. 

49 Information regarding this collection— 

including all supporting materials—can be accessed 

at www.reginfo.gov and providing either the title or 

number of the collection. 

553(d)) requirements. Additionally, 

pursuant to 5 U.S.C. 553(b)(B) and 

(d)(3), there is also good cause to issue 

this interim final rule and make it 

immediately effective because delay for 

notice and comment would be 

impracticable and unnecessary, and 

delay in effectiveness is not needed in 

this circumstance. 

Congress’ statutory direction and 

intent was for the DoD to establish and 

implement a process to conduct a final 

review of a request for an upgrade in the 

characterization of a discharge or 

dismissal. This rule merely concerns the 

DoD’s procedures and practice for 

conducting a final review and directs 

how those requests should be 

submitted. To comply with 

congressional requirements, DoD is 

issuing this rule to establish the DARB 

as the administrative body to conduct a 

final review of a petitioner’s request for 

an upgrade in the characterization of a 

discharge or dismissal. The DARB does 

not change the substantive standards 

applicable to requests for an upgrade. 

The DARB simply reviews the Military 

Department’s decisions to ensure 

uniform discharge review standards are 

applied, regardless of the Service 

member’s service affiliation in its 

review, and it may facilitate an upgrade 

to the discharge or dismissal 

characterization. 

A Service member’s discharge or 

dismissal characterization may have a 

significant impact on their personal, 

financial, and professional future (and 

by extension, upon their families). 

Entitlement to educational benefits 

under the G.I. Bill, for instance, is 

limited to Service members who 

separated from active duty with an 

honorable characterization of service 

(even separation under general (under 

honorable conditions) does not qualify). 

Service members who separate under 

other than honorable conditions (OTH) 

are not automatically eligible for VA 

disability compensation, access to VA 

home loans, or medical care at VA 

facilities.’’ 47

Additionally, many employers request 

the discharge characterization from 

individuals who list military service on 

their resume and may be reluctant to 

hire individuals who were discharged 

with a less than honorable 

characterization of service. Finally, 

spouses and dependents of Service 

members may also be impacted by this 

rule because they may be eligible for 

additional benefits based on the Service 

member’s characterization of service. 

The consequences of delaying an 

upgrade in the characterization of 

service can therefore be hugely 

significant to former Service members 

and their families. The need to avoid 

delay in establishing final-review 

procedures that may result in an 

upgrade is reflected in Congress’ 

directive that the Department establish 

a final review process not later than 

January 1, 2021. Between the statutory 

deadline and the issuance of this rule, 

the DoD established the policies and 

procedures for conducting a final rule 

and its process was provided in a DTM, 

‘‘DoD Discharge Appeal Review Board,’’ 

which was available to the public in 

May 2023.48 The DARB is currently 

operating pursuant to that issued 

memoranda. The DoD has considered 

the necessity for immediate 

implementation against providing 

affected parties more time for notice and 

comment on this rule and concluded 

that, because the rule continues an 

existing policy and only changes the 

procedures within the Departments, it is 

in the best interest of affected Service 

members and their families to comply 

with Congress’s direction to act 

expeditiously. Moreover, because the 

rule provides for continuity with 

existing policy, time is not needed for 

parties to plan or adjust their behavior, 

and there is good cause to implement 

the rule now, without waiting for a 

delayed effective date. 

A. Executive Order 12866, ‘‘Regulatory 

Planning and Review,’’ as Amended by 

Executive Order 14094, ‘‘Modernizing 

Regulatory Review’’ and Executive 

Order 13563, ‘‘Improving Regulation 

and Regulatory Review’’ 

Executive Order 12866, as affirmed by 

Executive Order 13563 and amended by 

14094 (88 FR 21879, April 11, 2023), 

directs agencies to assess all costs, 

benefits and available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health, safety 

effects, distributive impacts, and 

equity). These Executive Orders 

emphasize the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. This rule 

has been designated significant, under 

section 3(f) of Executive Order 12866, as 

amended by Executive Order 14094. 

B. Congressional Review Act (5 U.S.C. 

801 et seq.) 

Pursuant to subtitle E of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, also known as the 

Congressional Review Act, the Office of 

Information and Regulatory Affairs has 

determined that this rule does not meet 

the criteria set forth in 5 U.S.C. 804(2). 

C. Public Law 96–354, ‘‘Regulatory 

Flexibility Act’’ (5 U.S.C. 601) 

The USD(P&R) certified that this rule 

is not subject to the Regulatory 

Flexibility Act (5 U.S.C. 601) because it 

would not, if promulgated, have a 

significant economic impact on a 

substantial number of small entities. 

Therefore, the Regulatory Flexibility 

Act, as amended, does not require us to 

prepare a regulatory flexibility analysis. 

D. Sec. 202, Public Law 104–4, 

‘‘Unfunded Mandates Reform Act’’ 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 (2 U.S.C. 

1532) requires agencies to assess 

anticipated costs and benefits before 

issuing any rule whose mandates 

require spending in any 1 year of $100 

million in 1995 dollars, updated 

annually for inflation. This rule will not 

mandate any requirements for State, 

local, or Tribal governments, and will 

not affect private sector costs. 

E. Public Law 96–511, ‘‘Paperwork 

Reduction Act’’ (44 U.S.C. Chapter 35) 

While there are no new information 

collection requirements associated with 

this rule, two existing collections under 

the Paperwork Reduction Act are 

already in use. The DoD does not 

believe rule changes the data elements, 

cost, or burden associated with these 

collections as the DARB is not 

authorized to accept new information in 

support of a petitioner’s request for a 

final review. There is no standardized 

format for requesting a DARB discharge 

review. 

• The DARB will review BCM/NR 

case file records which may include 

DRB case file records. This is associated 

with DD 149 titled ‘‘Application for 

Correction of Military Record Under the 

Provisions of Title 10, U.S. Code, 

Section 1552,’’ OMB Control Number. 

0704–0003.49

• The DRBs have an active collection 

associated with DD 293 titled 

‘‘Application for the Review of 


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50See www.reginfo.gov to access the most current 

version of this information collection—including all 

supporting documentation. 

Discharge From the Armed Forces of 

The United States,’’ OMB Control 

Number. 0704–0004.50

The DoD has Privacy Act System of 

Records Notices (SORNs) associated 

with these collections are as follows: 

Army (http://dpcld.defense.gov/Privacy/ 

SORNsIndex/DOD-wide-SORNArticle-View/Article/569931/a0015- 

185-sfmr.aspx) 

Navy and Marine Corps (http://

dpcld.defense.gov/Privacy/ 

SORNsIndex/DOD-wide-SORNArticle-View/Article/570411/ 

nm01000-1/) 

Air Force (https://dpcld.defense.gov/ 

Privacy/SORNsIndex/DOD-wideSORN-Article-View/Article/569833/ 

f036-safcb-a/) 

Defense Finance and Accounting 

Service (http://dpcld.defense.gov/ 

Privacy/SORNsIndex/DOD-wideSORN-Article-View/Article/570192/ 

t7340b/) 

Coast Guard (https://www.gpo.gov/ 

fdsys/pkg/FR-2013-10-02/html/2013- 

23991.htm) 

Official Military Personnel Files: 

Army (http://dpcld.defense.gov/Privacy/ 

SORNsIndex/DOD-wide-SORNArticle-View/Article/570054/a0600-8- 

104-ahrc.aspx) 

Navy (http://dpcld.defense.gov/Privacy/ 

SORNsIndex/DOD-wide-SORNArticle-View/Article/570310/n01070- 

3/) 

Marine Corps (http://dpcld.defense.gov/ 

Privacy/SORNsIndex/DOD-wideSORN-Article-View/Article/570626/ 

m01070-6/) 

Air Force (http://dpcld.defense.gov/ 

Privacy/SORNsIndex/DODComponent-Article-View/Article/ 

569821/f036-af-pc-c/) 

Coast Guard (http://www.gpo.gov/fdsys/ 

pkg/FR-2011-10-28/html/2011- 

27881.htm) 

F. Executive Order 13132, ‘‘Federalism’’ 

Executive Order 13132 establishes 

certain requirements that an agency 

must meet when it promulgates a rule 

that imposes substantial direct 

requirement costs on State and local 

governments, preempts State law, or 

otherwise has federalism implications. 

This rule will not have a substantial 

effect on State and local governments. 

G. Executive Order 13175, 

‘‘Consultation and Coordination With 

Indian Tribal Governments’’ 

Executive Order 13175 establishes 

certain requirements that an agency 

must meet when it promulgates a rule 

that imposes substantial direct 

compliance costs on one or more Indian 

Tribes, preempts Tribal law, or effects 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. This 

rule will not have a substantial effect on 

Indian Tribal governments. 

List of Subjects in 32 CFR Part 73 

Administrative practice and 

procedure, Military personnel, Veterans, 

Health professions. 

■ Accordingly, 32 CFR part 73 is added 

to read as follows: 

PART 73—DOD DISCHARGE APPEAL 

REVIEW BOARD (DARB) 

Sec. 

73.1 Purpose. 

73.2 Definitions. 

73.3 Membership and designation. 

73.4 Responsibilities. 

73.5 Application procedures. 

73.6 Review procedures and standards. 

73.7 Final action. 

73.8 Annual reporting requirements. 

Authority: 10 U.S.C. 1553a. 

§ 73.1 Purpose. 

(a) This part establishes the DARB as 

the administrative body to conduct a 

final review of a petitioner’s request for 

an upgrade in the characterization of a 

discharge or dismissal, pursuant to 10 

U.S.C. 1553a. This part also provides 

the procedures for Service members (or 

their representatives) to request a final 

review, the standards that the DARB 

will apply when it reviews a petitioner’s 

request, and the procedures following 

the DARB’s recommended disposition 

of a request. 

(b) The DARB ensures that DoD-level 

policies, procedures, and standards 

related to the review of discharges and 

dismissals are uniformly and 

consistently applied across the military 

services. Reporting of the number of 

upgrades granted or denied pursuant to 

this final review process will also be 

made available for public inspection 

through the DoD Reading Room 

available at https://boards.law.af.mil. 

The term ‘‘Military Department’’ as used 

here in this part includes the Coast 

Guard. The terms, ‘‘Military Services,’’ 

and ‘‘Armed Forces,’’ refers to the 

Army, Navy, Marine Corps, Coast 

Guard, Air Force, and Space Force. 

§ 73.2 Definitions. 

Case file records. All records that 

members of the BCM/NR have access to, 

not limited to what the BCM/NR analyst 

presents to the DARB. These records 

necessarily include the record of 

proceedings, exhibits, and findings and 

decisions of both the BCM/NR and DRB. 

Characterization of a discharge or 

dismissal. The characterization of a 

discharge or dismissal is a 

determination reflecting a Service 

member’s conduct and performance of 

duty while in military service during a 

specific period of military service. 

Administrative discharges can be 

characterized as honorable, general 

(under honorable conditions), other 

than honorable conditions, or can be 

described as uncharacterized (as in an 

entry-level separation). If a discharge is 

adjudged at a court-martial, the assigned 

characterization may be a bad-conduct 

discharge, or dishonorable discharge, or 

a dismissal. The term characterization of 

a discharge or dismissal is also referred 

to as a ‘‘character of discharge’’ or 

‘‘character of service.’’ 

Characterization of less than 

honorable. A characterization that is 

less than honorable includes a general 

under honorable conditions, other than 

honorable conditions, uncharacterized, 

bad-conduct discharge, dishonorable 

discharge, or a dismissal. 

DARB member. A person authorized 

to review a DARB request and make a 

recommendation to the DARB president 

on whether the petitioner’s request for 

an upgrade to the characterization of a 

discharge or dismissal should be 

granted, partially granted, or denied. 

Discharge Appeal Review Board 

(DARB). An administrative board 

constituted by the Secretary of Defense 

and vested with the authority to 

conduct a final review of a request for 

an upgrade in the characterization of a 

discharge or dismissal under the 

provisions of 10 U.S.C. 1553a. 

Exhausted all remedies available. 

Petitioner requested an upgrade in the 

characterization of a discharge or 

dismissal and presented all evidence 

and arguments in support of their 

request to their respective Military 

Department’s DRB and BCM/NR, 

including any materials not previously 

presented or considered by the board in 

making such determination when 

requesting reconsideration by the 

Military Department BCM/NR. 

Final review. The process by which a 

petitioner’s request for an upgrade to the 

characterization of a discharge or 

dismissal that was not granted at the 

respective Military Department’s DRB 

and BCM/NR after the petitioner 

exhausted all remedies available to the 

petitioner is evaluated. 

New information. Material not 

previously presented to, or considered 

by, the appropriate Military 

Department’s BCM/NR. 


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Petitioner. A member or former 

member of the Armed Forces whose 

request for an upgrade to the 

characterization of a discharge or 

dismissal was not granted by the 

relevant Military Department’s DRB and 

BCM/NR. If the member or former 

member is deceased or legally 

incompetent, the term ‘‘petitioner’’ 

includes the surviving spouse, next-ofkin, or legal representative who is acting 

on behalf of the member or former 

member. The term ‘‘petitioner’’ also 

includes a member or former member of 

the Armed Forces’ counsel. 

Preponderance of the evidence. A 

standard of proof, evidence which as a 

whole shows that the fact sought to be 

proved is more probable than not. 

Record review. A review of the 

Service member’s case file records. 

Service member. A member or former 

member of the Armed Forces. 

§ 73.3 Membership and designation. 

The DARB is set up independently 

from the Military Departments’ DRBs 

and BCM/NRs. The DARB is comprised 

of civilian government employees and 

consists of a President, Deputy Director, 

and at least three members for each 

panel. The DARB President and Deputy 

Director are appointed as inferior 

officers by the Secretary of Defense. The 

Secretary of the Air Force (SECAF), as 

the designated lead agent for the DARB, 

appoints DARB members and assigns 

them to a panel(s). 

§ 73.4 Responsibilities. 

(a) The USD(P&R) is responsible for 

directing the implementation of the 

DARB and serves as the Principal Staff 

Assistant with oversight of the DARB 

process, policies, procedures, and 

standards for the final review of a 

request for an upgrade in the 

characterization of a discharge or 

dismissal under 10 U.S.C. 1553a. The 

USD(P&R) must: 

(1) Ensure that petitioners are 

afforded an opportunity to request a 

final review of their requests for an 

upgrade to the characterization of a 

discharge or dismissals consistent with 

10 U.S.C. 1553a; 

(2) Ensure that Secretary of Defense 

appoints the DARB President and DARB 

Deputy Director as inferior officers; 

(3) Review and approve any DARB or 

DARB-related policies or procedures 

that the Secretaries of the Military 

Departments or the DARB President 

develops before implementation of such 

policies or procedures; 

(4) Resolve all issues concerning the 

DARB that cannot be resolved between 

the DARB President and the Secretaries 

of the Military Departments; and 

(5) Modify or supplement this part as 

necessary. 

(b) The Secretaries of the Military 

Departments have the authority to 

approve, partially approve, or 

disapprove a DARB’s recommendation 

to upgrade or partially upgrade a 

petitioner’s characterization of a 

discharge or dismissal. The Secretary of 

the Military Department’s decision is 

the final agency action. If an upgrade or 

partial upgrade is approved, the 

Secretary of the Military Department is 

responsible for ensuring that all 

necessary administrative actions are 

taken to effect the change, including 

issuance of a new or corrected DD 214. 

(c) SECAF is responsible for the 

formation, operation, and management 

of the DARB. The SECAF must: 

(1) Appoint DARB members to a 

panels and assign cases to ensure 

reviews are conducted in an impartial 

manner; 

(2) Appoint other staff as necessary 

for intake procedures; 

(3) Respond to all inquiries from 

private individuals, organizations, or 

public officials about DARB matters. 

When the specific Military Service can 

be identified, refer such correspondence 

to the appropriate Secretary of the 

Military Department; and 

(4) Ensure the timely online 

publication of annual reports as 

required by section 523 of the FY 2020 

NDAA, Public Law 116–92. 

(d) The DARB President is responsible 

for administrating and overseeing the 

DARB. The DARB President may 

delegate their authority to the Deputy 

Director of the DARB, but no further 

delegation is authorized. The DARB 

President shall: 

(1) Review a DARB panel’s 

recommendation and provide the final 

adjudication of the DARB 

recommendation regarding a petitioner’s 

request for an upgrade to the 

characterization of a discharge or 

dismissal. 

(2) Develop policy, procedures, and 

evaluation standards for the DARB, 

subject to review and approval by the 

SECAF and the USD(P&R) before 

implementation of such policy, 

procedures, and evaluation standards. 

(e) The DARB Deputy Director is 

responsible for managing the DARB’s 

day-to-day operations. 

(f) A DARB panel considers a 

petitioner’s final review request 

properly brought before it, is 

responsible for performing a record 

review, applying DoD policies and 

standards, and if appropriate will make 

a recommendation to the DARB 

President on whether a petitioner’s 

request for an upgrade to the 

characterization of a discharge or 

dismissal should be granted, partially 

granted, or denied. 

§ 73.5 Application procedures. 

(a) Who is eligible for a final review? 

To be eligible for a final review, the 

following criteria must be met: 

(1) The Service member’s date of 

discharge or dismissal was on or after 

December 20, 2019; 

(2) Service member received a less 

than honorable characterization of 

service at the time of discharge or 

dismissal; 

(3) All remedies available have been 

exhausted at the respective Military 

Department’s DRB and BCM/NR; and 

(4) The request for an upgrade in the 

characterization of a discharge or 

dismissal was denied or it was only 

partially granted at the respective 

Military Department’s BCM/NR. 

(b) Who may request a final review? 

(1) In most cases, the petitioner is the 

Service member, and the final review 

relates to their military service records. 

(2) If the Service member is deceased 

or legally incompetent and incapable of 

acting on their own behalf, a spouse, 

next of kin, or legal representative may 

be able to act on behalf of the Service 

member. 

(c) When can a petitioner request a 

final review? (1) Petitioners must first 

exhaust all available remedies at their 

respective Military Department’s DRB 

and BCM/NR before requesting a final 

review. The DARB will return an 

unexhausted request to the petitioner 

without considering it. 

(2) After exhausting their 

administrative remedies, Petitioners 

must request a final review within 365 

calendar days after the date of receipt of 

their respective Military Department’s 

BCM/NR decision. The DARB may deny 

an untimely request. 

(d) How does a petitioner make a final 

review request? (1) A request must be 

made in writing, but the completion of 

a DoD form is not required to request a 

final review. An email or letter 

requesting a final review is sufficient to 

make a request. Sample templates to 

request a final review can be accessed 

at https://afrba-portal.cce.af.mil/ 

#application-submission-darb. 

(2) The contents of a request must 

include the following: 

(i) the petitioner’s name, address, 

telephone number, and email address; 

(ii) the Service member’s name if 

represented by counsel or a 

representative; and 

(iii) the BCM/NR docket number to 

assist the DARB in obtaining records 

from the respective Military 

Department’s BCM/NR. If this 


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94612 Federal Register / Vol. 89, No. 230 / Friday, November 29, 2024 / Rules and Regulations 

information is not provided, the DARB 

may return the request without 

considering it. 

(3) Additional documentation may be 

needed in support of a request for 

review by the DARB. If requesting a 

final review on behalf of a Service 

member, proof of status or relationship 

documents are required and must be 

enclosed or attached to a request for a 

final review. Proof of status or 

relationship documentation may 

include a death certificate, marriage 

license, divorce decree, birth certificate, 

notarized power of attorney, and court 

appointment of conservatorship or 

guardianship. The DARB will return the 

request to the petitioner without 

considering it when a proper 

relationship to a Service member has 

not been shown. 

(4) If there is new information in 

support of a request to upgrade the 

characterization of a discharge or 

dismissal, the DARB cannot review it. If 

the petitioner has new information, the 

petitioner must first seek 

reconsideration from the appropriate 

Military Department’s BCM/NR to 

exhaust all remedies available. 

(e) Where do petitioners send a final 

review request? Petitioners may submit 

a request for a final review by mail or 

email. Requests by email are preferred 

and should be sent to the following 

address: saf.mr.darb@us.af.mil. 

Requests by mail should be sent to the 

following address: Air Force Review 

Boards Agency, SAF/MRBD (DARB), 

3351 Celmers Lane, Joint Base Andrews, 

MD 20762–6435. 

(f) How do petitioners withdraw a 

final review request? Petitioners may 

withdraw a request for a final review in 

writing at any time before the DARB 

panel’s scheduled review. 

§ 73.6 Review procedures and standards. 

(a) Intake of final review requests. (1) 

Before conducting a final review, DARB 

personnel will review submitted 

requests to ensure eligibility for a final 

review. 

(2) DARB personnel will provide 

notification to the petitioner to confirm 

receipt of the final review request. If it 

is determined that the petitioner is 

ineligible for a final review, DARB 

personnel will also notify the petitioner 

in writing of the reason(s) their request 

did not qualify for a final review. 

(3) Once a case intake is complete, 

DARB personnel will access or request 

case file records from the respective 

Military Department’s BCM/NR and 

assign a DARB panel to consider the 

final review request. 

(4) If it is determined that a 

petitioner’s case involves the 

adjudication of a Mental Health 

condition, a military or civilian health 

care provider will review the case file 

records to determine if a medical 

advisory opinion is required and 

missing. If the case file is missing a 

medical advisory opinion or other 

pertinent information the case will be 

returned the Military Department’s 

BCM/NR for reconsideration or a 

document request. 

(b) Consideration of final review 

requests—(1) Scope of review. The 

DARB’s review is limited to the case file 

records related to a petitioner’s request 

for an upgrade in the characterization of 

a discharge or dismissal. The DARB is 

not authorized to review or address new 

information provided by a petitioner in 

support of a request for an upgrade in 

the characterization of a discharge or 

dismissal. 

(2) Standard of review. In considering 

a petitioner’s request for an upgrade in 

the characterization of a discharge or 

dismissal, the DARB will review the 

Military Department’s BCM/NR decision 

de novo. The DARB independently 

reviews the case file records, applies 

DoD discharge review polices and 

standards and applicable Military 

Service policies, and recommends an 

upgrade, if appropriate. This new 

review occurs without giving any 

deference to the Military Department’s 

BCM/NR findings and decision. 

(3) DARB panel adjudication. The 

DARB panel will consider the 

petitioner’s request and case file 

records, examine pertinent DoD and 

Military Service regulations and 

policies, discuss the case and issues, 

and vote to determine whether a 

petitioner’s request for an upgrade in 

the characterization of a discharge or 

dismissal should be granted, partially 

granted, or denied. 

(4) DARB panel recommendation. A 

majority vote constitutes the 

recommended action of the DARB 

panel. The DARB panel will provide a 

written recommendation including the 

number of votes and any minority votes 

and their reason(s) for their 

recommendation. The written 

recommendation must provide a basis 

for their decision to deny a request to 

upgrade, to partially upgrade, or to fully 

upgrade the characterization of a 

discharge or dismissal. The DARB 

panel’s written recommendation will be 

submitted to the DARB President. 

(5) Review of the DARB panel’s 

recommendation and the 

recommendation of the DARB. The 

DARB President reviews the DARB 

panel’s written recommendation and 

makes the recommendation for the 

DARB. The DARB President will submit 

the DARB’s written recommended 

action to the SECAF. 

(i) If the DARB President approves the 

DARB panel’s recommendation, the 

recommendation will constitute the 

recommended action of the DARB. 

(ii) If the DARB President disagrees 

with the DARB panel’s 

recommendation, the DARB President 

will provide a new recommendation. 

This new recommendation will be in 

writing and will include the change to 

be made and the reasons for rejecting 

the recommendation of the DARB panel. 

(6) Discretionary review of the DARB’s 

recommended action. The DARB 

President’s actions are subject to 

discretionary review by the SECAF. 

(i) The DARB’s recommended action 

will be the final recommended action 

unless the SECAF exercises their 

discretionary review authority within 30 

calendar days after the DARB President 

submits the recommendation to the 

SECAF. 

(ii) If the SECAF chooses to exercise 

their discretionary review authority to 

review the DARB’s recommended action 

within 30 calendar days, and the SECAF 

changes the DARB’s recommended 

action, the SECAF will provide a 

written recommendation with 

supporting reasons and the new 

recommendation will constitute the 

final recommended action. 

(iii) The SECAF may delegate, in 

writing, its discretionary authority to act 

on DARB recommendations to a 

Presidentially appointed, Senateconfirmed (PAS) official but further redelegation is not authorized. 

(c) Reconsideration at the BCM/NR. If 

it is unclear from the DARB’s review 

whether the appropriate Military 

Department BCM/NR considered 

relevant evidence when it denied the 

requested discharge or dismissal 

upgrade, the DARB may return a case 

directly to the BCM/NR for 

reconsideration. If the Military 

Department BCM/NR concerned accepts 

the case for reconsideration, the 

petitioner will be notified in writing. 

§ 73.7 Final action. 

(a) The Secretary of the Military 

Department concerned will approve or 

disapprove the DARB’s recommended 

action to upgrade or partially upgrade 

the characterization of a discharge or 

dismissal within 90 calendar days. The 

Secretary of the Military Department 

must approve the DARB’s recommended 

action unless the Secretary finds that 

the recommendation is not supported by 

the preponderance of the evidence. 

(b) If the DARB recommends to deny 

an upgrade to the characterization of a 

discharge or dismissal and upholds the 


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Federal Register / Vol. 89, No. 230 / Friday, November 29, 2024 / Rules and Regulations 94613 

1On November 13, 2024, the Bureau of Labor 

Statistics announced that the CPI–U increased 2.6% 

over the last 12 months. 

Military Department’s BCM/NR 

decision, the DARB will notify the 

petitioner in writing of its final 

decision. If the DARB recommends to 

upgrade or partially upgrade the 

characterization of a discharge or 

dismissal, the Secretary of the Military 

Department concerned will notify the 

petitioner in writing of its final 

decision. 

(1) If the Secretary of the Military 

Department approves the DARB 

recommendation, the petitioner will be 

notified of the approved change and any 

change to the characterization of a 

discharge or dismissal will be effective 

as of the date of discharge. 

(2) If the Secretary of the Military 

Department disapproves the DARB 

recommendation, the Secretary 

concerned must provide the petitioner a 

written explanation detailing its 

rationale for disapproving the DARB’s 

recommendation. 

(c) The Secretaries of the Military 

Departments may delegate, in writing, 

the authority to act on DARB 

recommendations to a PAS official but 

further re-delegation is not authorized. 

(d) The Secretary’s or designee’s 

action will be the final action. The 

petitioner has no right to a further 

review or to appeal this decision. 

§ 73.8 Annual reporting requirements. 

(a) The DARB President will submit 

draft reports to OUSD(P&R) by the 1st of 

October for the preceding FY (October 

1st through September 30th). The first 

report will be published on October 1, 

2022, and the report will contain the 

DARB data for FY 2022. 

(b) The reporting period will be 

inclusive from the first through the last 

days of each reporting period. 

(c) The report will contain the 

following information: 

(1) The number of requests received; 

(2) The number of requests rejected 

for failure to meet eligibility criteria for 

a final review; 

(3) The number of requests 

considered; 

(4) The number of requests returned 

to the BCM/NRs for reconsideration; 

(5) The number of recommendations 

to upgrade the characterization of a 

discharge or dismissal granted by the 

Secretaries of the Military Departments 

pursuant to the DARB, to include the 

most common reasons for such 

upgrades; and 

(6) The number of recommendations 

to upgrade the characterization of a 

discharge or dismissal declined by the 

Secretaries of the Military Departments 

pursuant to the DARB, to include the 

most common reasons for such 

declinations. 

(d) The annual reports will be 

published on a publicly accessible DoD 

website; the reports can be accessed at 

https://boards.law.af.mil/OSD_

DARB.htm. 

Dated: November 18, 2024. 

Patricia L. Toppings, 

OSD Federal Register Liaison Officer, 

Department of Defense. 

[FR Doc. 2024–27268 Filed 11–27–24; 8:45 am] 

BILLING CODE 6001–FR–P 

LIBRARY OF CONGRESS 

Copyright Royalty Board 

37 CFR Part 381 

[Docket No. 24–CRB–0009–PBR (2023– 

2027) COLA (2025)] 

Cost of Living Adjustment to Public 

Broadcasters Compulsory License 

Royalty Rate 

AGENCY: Copyright Royalty Board, 

Library of Congress. 

ACTION: Final rule; cost of living 

adjustment. 

SUMMARY: The Copyright Royalty Judges 

announce a cost of living adjustment 

(COLA) to the royalty rate that 

noncommercial radio stations at certain 

colleges, universities, and other 

educational institutions that are not 

affiliated with National Public Radio 

must pay for the use in 2025 of 

published nondramatic musical 

compositions in the SESAC Performing 

Rights, LLC (SESAC) and Global Music 

Rights, LLC (GMR) repertories pursuant 

to the statutory license under the 

Copyright Act for noncommercial 

broadcasting. 

DATES: 

Effective date: November 29, 2024. 

Applicability dates: These rates are 

applicable to the period January 1, 2025, 

through December 31, 2025. 

FOR FURTHER INFORMATION CONTACT: 

Anita Brown, CRB Program Assistant, 

(202) 707–7658, crb@loc.gov. 

SUPPLEMENTARY INFORMATION: Section 

118 of the Copyright Act, title 17 of the 

United States Code, creates a statutory 

license for the use of published 

nondramatic musical works and 

published pictorial, graphic, and 

sculptural works in connection with 

noncommercial broadcasting. 

On June 28, 2023, the Copyright 

Royalty Judges (Judges) adopted final 

regulations governing the rates and 

terms of copyright royalty payments 

under section 118 of the Copyright Act 

for the license period 2023–2027. See 88 

FR 41827. Pursuant to these regulations, 

on or before December 1 of each year, 

the Judges shall publish in the Federal 

Register notice of the change in the cost 

of living and a revised schedule of the 

rates codified at § 381.5(c)(3) and (4) 

relating to compositions in the repertory 

of SESAC and GMR. The adjustment, 

fixed to the nearest dollar, shall be the 

greater of (1) the change in the cost of 

living as determined by the Consumer 

Price Index (all consumers, all items) 

(‘‘CPI–U’’) ‘‘during the period from the 

most recent index published prior to the 

previous notice to the most recent index 

published prior to December 1 of that 

year’’ or (2) 1.5%. 37 CFR 381.10. 

The change in the cost of living as 

determined by the CPI–U during the 

period from the most recent index 

published prior to the previous notice, 

i.e., before December 1, 2023, to the 

most recent index published before 

December 1, 2024, is 2.6%.1 In 

accordance with 37 CFR 381.10(b), the 

Judges announce that the COLA for 

calendar year 2025 shall be 2.6%. 

Application of the 2.6% COLA to the 

2024 rates for the performance of 

published nondramatic musical 

compositions in the repertory of SESAC 

and GMR—$194 per station—results in 

an adjusted rate of $199 per station, 

rounded to the nearest dollar. 

List of Subjects in 37 CFR Part 381 

Copyright, Music, Radio, Rates, 

Television. 

Final Regulations 

In consideration of the foregoing, the 

Copyright Royalty Judges amend part 

381 of title 37 of the Code of Federal 

Regulations as follows: 

PART 381—USE OF CERTAIN 

COPYRIGHTED WORKS IN 

CONNECTION WITH 

NONCOMMERCIAL EDUCATIONAL 

BROADCASTING 

■ 1. The authority citation for part 381 

continues to read as follows: 

Authority: 17 U.S.C. 118, 801(b)(1) and 

803. 

■ 2. Section 381.5 is amended by 

revising paragraphs (c)(3)(iii) and 

(c)(4)(iii) as follows: 

§ 381.5 Performance of musical 

compositions by public broadcasting 

entities licensed to colleges and 

universities. 

* * * * * 

(c) * * * 

(3) * * * 


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