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[Federal Register Volume 89, Number 230 (Friday, November 29, 2024)]
[Rules and Regulations]
[Pages 94603-94613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27268]

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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.

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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

[[Page 94604]]

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:
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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/get-military-service-records/.

 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, 
bad-conduct, 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\
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    \2\ See 10 U.S.C. 1553; see 10 U.S.C. 1552.
    \3\ See 10 U.S.C. 1553.
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 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/NR \5\:
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    \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).

 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.
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    \6\ 10 U.S.C. 1552(a)(1).
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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 combat-related 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\
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    \7\ See 10 U.S.C. 1552(h)(2)(B), see 10 U.S.C. 
1553(d)(3)(A)(ii)).
    \8\ The 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'').
    \9\ See 32 CFR 70.1.
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    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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    \10\ Update 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/115th-congress/house-event/LC64219/text?s=1&r=326.
    \11\ Update 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/115th-congress/house-event/LC64219/text?s=1&r=326.

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[[Page 94605]]

    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\
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    \12\ 10 U.S.C. 1553a(c)(1).
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    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\
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    \13\ 10 U.S.C. 1553a(a).
    \14\ 10 U.S.C. 1553(b)(2).
    \15\ 10 U.S.C. 1552(a)(4)(B).
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    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\
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    \16\ 10 U.S.C. 1553a(a).
    \17\ Public Law 116-92, section 523(c).
    \18\ Id. The annual reports can be accessed at https://boards.law.af.mil/OSD_DARB.htm.
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    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\
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    \19\ See 10 U.S.C. 1553a(b).
    \20\ 10 U.S.C. 1553a(c)(1).
    \21\ 10 U.S.C. 1553a(c)(2).
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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.
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    \22\ Public Law 116-92, section 523.
    \23\ The 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/#board-info/darb/navbar.
    \24\ The 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/.
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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\
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    \25\ See 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).
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    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:
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    \29\ 10 U.S.C. 1553a(c)(2).
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     The Service member's date of discharge or dismissal was on 
or after December 20, 2019; \30\
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    \30\ See 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.
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     The Service member received a less than honorable 
characterization of service; \31\
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    \31\ See 10 U.S.C. 1553a(c)(1).
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     The petitioner has exhausted all remedies available at the 
respective Military Departments' DRB and BCM/NR; \32\ and
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    \32\ 10 U.S.C. 1553a(c)(1)(B).
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     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\
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    \33\ See 10 U.S.C. 1553a(c)(1).
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    Petitioners can request a DARB discharge review by sending a 
written request by email to [email protected] 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://afrba-portal.cce.af.mil/#board-info/darb/navbar.

[[Page 94606]]

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 courts-martial), 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\
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    \34\ See 32 CFR 70; see 10 U.S.C. 1553.
    \35\ 10 U.S.C. 1552.
    \36\ There 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.
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    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\
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    \38\ The 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.
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    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 cost-effective approach, based on the analysis 
in this section.
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    \40\ Public Law 116-92, section 523.
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    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.
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    \41\ Public Law 110-181; 10 U.S.C. 1554a.
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    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.
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    \42\ A less than honorable discharge characterization includes 
dismissals, a general, other than honorable, uncharacterized, bad-
conduct, and dishonorable discharges.
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    As of June 30, 2022, there were approximately 63,294 former Active-
Duty 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.
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    \43\ Active-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)).
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    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

[[Page 94607]]

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\
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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.
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    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.
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    \45\ According 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.)
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    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

[[Page 94608]]

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
----------------------------------------------------------------------------------------------------------------
                                                                                     Number of       Cost per
         Review process             Work hours    Employee grade  Effective rate     employees        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.
---------------------------------------------------------------------------

    \46\ These 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.

                                    Table 3--Estimated Total Government Cost
----------------------------------------------------------------------------------------------------------------
                                                      Percent
                 Review process                      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 cost-effective 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 
cost-effective 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.

[[Page 94609]]

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\
---------------------------------------------------------------------------

    \47\ Service 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 fact-
specific basis.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \48\ The 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/.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

     The DRBs have an active collection associated with DD 293 
titled ``Application for the Review of

[[Page 94610]]

Discharge From the Armed Forces of The United States,'' OMB Control 
Number. 0704-0004.\50\
---------------------------------------------------------------------------

    \50\ See www.reginfo.gov to access the most current version of 
this information collection--including all supporting documentation.
---------------------------------------------------------------------------

    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-SORN-Article-View/Article/569931/a0015-185-sfmr.aspx)
Navy and Marine Corps (http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570411/nm01000-1/)
Air Force (https://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/569833/f036-safcb-a/)
Defense Finance and Accounting Service (http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-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-SORN-Article-View/Article/570054/a0600-8-104-ahrc.aspx)
Navy (http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570310/n01070-3/)
Marine Corps (http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-wide-SORN-Article-View/Article/570626/m01070-6/)
Air Force (http://dpcld.defense.gov/Privacy/SORNsIndex/DOD-Component-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.

0
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.

Sec.  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.

Sec.  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.

[[Page 94611]]

    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-of-kin, 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.

Sec.  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).

Sec.  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.

Sec.  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

[[Page 94612]]

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: 
[email protected]. 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.

Sec.  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, 
Senate-confirmed (PAS) official but further re-delegation 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.

Sec.  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

[[Page 94613]]

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.

Sec.  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
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