Legislative proposal for reform of boards for correction of records

Private practitioner Raymond J. Toney has posted this analysis on Jurist of S. 1130, The Legal Justice for Servicemembers Act proposed by Sens. Barbara Boxer, Ron Wyden and Ed Markey. Here's an excerpt relating to the record-correction provisions (he promises a follow-on concerning the whistleblower provisions):

Key findings from the 1996 DoD Report and FOIA requests (on file with the author) include: (1) BCMR members serve voluntarily on a part-time basis in addition to their full-time employment with the given military department; (2) BCMR members receive little meaningful training prior to or during their board service; (3) BCMR members are not required to, and typically do not, review actual application materials; (4) BCMR staff prepare recommended decisions which voting members almost invariably accept; (5) on average Army and Navy BCMR members spend less than five minutes on each application and (6) personal appearance hearings are a rarity.

Most disturbing, however, are the measures taken by the staff of the Army, Navy, and Coast Guard BCMRs to keep applicants and their submissions away from actual voting members. Only the Air Force requires its members to review applications in advance of decisional meetings. As the Navy has noted: 

Generally the Board members do not prepare in any way for the applications that they will be called upon to decide during their regularly scheduled meetings. Simply put they do not see or have any knowledge of the cases they will decide before they meet.

That approach, shared by the Army and Coast Guard BCMRs, results in the complete dependence by BCMR members on the staff who prepare and present applications. Without personally reviewing all applications, BCMR members cannot know if staff members have accurately and fairly presented the facts and law of a case, and they often do not. In the case of the Navy BCMR, staff also can serve as voting board members, and often do.

An information sheet obtained from the Army BCMR through FOIA purports to prepare new members for their first board meeting, explaining:

There are usually about 90 cases divided into three stacks by potential decision - Grant, Partial Grant, and Deny. Many Board members choose to review the grant cases first as [a] method for getting warmed up...Cases range in sizes from 5-10 pages up to a wrapped bundle with several folders of 30-40 pages each. In the beginning, take a few minutes to review the case. As you become familiar with cases you will know exactly where you need to begin reviewing.

The Board members then are instructed to initial their vote on each case. “It is the Chair’s responsibility to review each case for the two board member’s vote initials, initial the Chair’s final vote and sign each case to complete the process.” This strongly indicates that the three board members do not convene in a traditional sense, discuss each case, vote on the case just discussed, and then move to the next. Rather, each member goes through the stack of cases initialing his or her decisions. According to the Army: 

If you come across a decision on a case that you may not agree with, you can do two things. The first is to bring up the case and summarize the point of disagreement orally to the other two Board members, or tell the Chair of the Board that you believe the case needs further review and discussion and either it hand it to the Chairman or put it aside where it won’t be mixed in with the other cases.

Board member discussion of a case thus is called for only where a member disagrees with a recommended decision of the staff.

Many applications to the BCMRs raise issues of credibility, which in other adjudicative contexts are resolved through witness testimony. While Congress authorizes the BCMRs to hold personal appearance hearings, and applicants frequently request them, the BCMRs rarely do, even where highly material facts are disputed. The Navy BCMR has not held a hearing in over twenty years [PDF]. The Army held one hearing in a span of four years, while deciding over 36,000 applications during the same period.