"There may be a possibility of different outcomes, as each service has its own regulations for discharge in relationship to the type of offense, and some may emphasize certain factors over others," said Phyllis Joyner, who chairs the DARB. "Commanders have the discretion to consider a wide variety of factors in determining what actions they take." Joyner explained that many times, the less favorable discharge characterizations are decided by service members at discharge boards or courts-martial. When it comes to dismissals and dishonorable and bad conduct discharges, these are part of a court-martial sentence meted out by a military judge or military court members. Similarly, the administrative discharge characterizations are at times decided by a panel of board members, not just the commander.
"The combination of service culture, command discretion, and service characterization being determined by boards or courts composed of different service members leads to individualized outcomes, which may, at times, create unintended disparity," noted Joyner. "The DARB will offer service members a final opportunity to seek relief at the DOD level," Joyner added. "We just want to make sure that applicants receive a fair, just and equitable discharge from the outcomes across the services."
The DARB, which was established by the 2020 National Defense Authorization Act, operates independently of the military services and sits at the level of the Office of the Secretary of Defense. It provides veterans with a review of their discharge status that adheres to a consistent standard.
The DARB only makes a recommendation to the service secretary. New evidence is not accepted.
Any odds on whether the Justice Department will argue that GIs have to exhaust this further remedy before suing under the Administrative Procedure Act?