DoD Discharge Appeal Review Board (DARB)

DoD’s New Level of Review for Military Discharges:

The Discharge Appeals Review Board (DARB)

On April 7, 2021 the Department of Defense (DoD) announced a new level of review for those discharged after December 20, 2019: The Discharge Appeal Review Board (DARB). The DARB is not run by the military departments – i.e. the Department of the Navy (and Marine Corps), Department of the Army, or the Department of the Air Force. The Department of the Air Force will administer the program but it will be wholly independent of the Air Force boards.

The Discharge Appeal Review Board (DARB) will review any discharge upgrade applications that were denied by the service boards – Discharge Review Boards (DRB) or Board for Correction of Military Records / Board for Correction of Naval Records (BCMR/BCNR).

The process to obtain review by the DARB requires the applicant to first exhaust all appeals to the service’s Discharge Review Board and Board of Corrections.  This is normally three separate applications – application to the Discharge Review Board (file review only); application to the Discharge Review Board (personal appearance); and finally application to the Board of Corrections.  After the applicant has been denied the requested relief by the Board of Corrections, the applicant can apply to the DARB.

The DARB will only review the materials submitted to the Board of Corrections.  This is extremely important.  The DARB is serving more like an appeals court than a separate board.  You can’t make new arguments or present new information to the DARB.

Here is a summary of the rules that apply at the DARB.

The DARB is intended to function as a final level of administrative review. The following basic rules apply:

  1. Post-December 20, 2019. This one is straightforward. The Veteran applicant must have been discharged on or after December 20, 2019. This means there are very few Veterans eligible right now to apply to the DARB because the Discharge Review Board and Board of Corrections application processes can take up to 18 months each.
  2. No new evidence. The DARB will not accept new evidence not already presented to the BCMR / BCNR. The Veteran’s previous BCMR/BCNR package, service records, and decision letter are all that DARB will consider in its review. To introduce new evidence, the Veteran applicant must request that the BCMR/BCNR reconsider their case in light of the new evidence first.
  3. One-year deadline. The Veteran applicant must apply to the DARB within one year (365 calendar days) of their BCMR/BCNR decision. The DARB home page notes that an application filed after this deadline will be considered untimely and “may be denied” on that basis.
  4. No hearings. The DARB only conducts a documentary review of a Veteran applicant’s case; there are no in-person appearances.
  5. Only discharge upgrade applications. The DARB will only address requests for an upgrade in characterization of a discharge or dismissal.

Unresolved questions remain.  One of the biggest is how the DARB will impact lawsuits in Federal Court.  Currently, a Veteran applicant can sue in Federal Court after exhausting all administrative remedies.  Generally, these suits are against the service Departments, not the Department of Defense (who runs the DARB).  What will have to be resolved is whether an applicant has to apply and be denied by the DARB prior to suing in Federal Court.

This post was written by Korody Law extern Cade Spivey.  Mr. Spivey is a graduate of the United States Naval Academy and spent 7 years as a Surface Warfare Officer.  He will graduate from Wake Forest Law School in May 2021.  He has focused his studies on National Security Law including Security Clearance Law.  For a free evaluation of your discharge upgrade case, contact Korody Law at 904.383.7261.

Korody Law, P.A. 118 W. Adams Street, Suite 500, Jacksonville, FL 32202 - (904) 383-7261

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