HOW MANY TIMES CAN YOU APPEAL TO BCMR

RikersIsland1

RikersIsland1

PEB Forum Regular Member
PEB Forum Veteran
Someone told me that you can only appeal to BCMR two times, then you have to go to federal court. Anyone know if this is correct. If not, then how many times can you appeal? Thanks.
 
The answer depends on the timing of the request for reconsideration. But generally speaking, yes, two reviews are all you will get. Here is the pertinent part of AR 15-185:

"2–15. Reconsideration of Army Board for Correction of Military Records decision
An applicant may request the reconsideration of an ABCMR decision under the following circumstances:​
a. ​
​
If the ABCMR receives the request for reconsideration within 1 year of the ABCMR’s original decision and if the ABCMR has not previously reconsidered the matter, the ABCMR staff will review the request to determine if it contains evidence (including, but not limited to, any facts or arguments as to why relief should be granted) that was not in the record at the time of the ABCMR’s prior consideration. If new evidence has been submitted, the request will be submitted to the ABCMR for its determination of whether the new evidence is sufficient to demonstrate material error or injustice. If no new evidence is found, the ABCMR staff will return the application to the applicant without action.
​

b. ​
​
If the ABCMR receives a request for reconsideration more than 1 year after the ABCMR’s original decision or after the ABCMR has already considered one request for reconsideration, then the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction."

I think the answer may change depending on if you raise a different point of error, but it would depend on the circumstances of the case and what you have previously requested. In any such situation, especially after an initial denial, I would advise that the applicant should get legal advice.

Also, it is important to keep in mind the six year statute of limitations for most suits in Federal court. If you are not applying soon after discharge, I would definitely seek legal advice to ensure there are no issues with the timing. If you get this one wrong, it may forever bar any lawsuit.

Finally, the court may return the case to the ABCMR (or other Service's BCMR/BNCR for members of other branches) to address issues. So, in that sense, there may be more than two opportunities for ABCMR review. All of these situations would be fact specific to the case.​

 
So the request for reconsideration goes in within the year, but are cases so backed up that it'll take two or three years until you actually get to the hearing?
 
By statute, they have a goal of processing cases within 10 months. However, for reconsiderations, the ABCMR staff (not the Board) looks at the case to see if there is new evidence. Prior to a recent Federal Court case, the staff was also deciding if the evidence merited review. They are now under a Federal Court order to have the staff only decide if there is new evidence. If so, the ABCMR must then review the case. This would, in the worst case, be within the same time guidelines, but the processing time should not be greater. I think the time would depend on the volume and complexity of new evidence submitted. But, like I said, you have to be mindful of the clock!
 
I would think as a matter of efficiency if you want your case reviewed, especially if you have evidence the board didn't look at, that you would have your request and evidence sent off within a few weeks of going to the board.

If it meant trying to get doctor appointments to get more evidence, I could easily see that eating up a year.
 
Are the boards responsible to the UCMJ? Specifically Article 92. Failure to Obey Order or Regulation.

I am familiar with many decisions based on guidelines after WWII, not retroactive, obviously do not pertain to WWII era. They continue to base justification(s) by quoting AR's, WD Circulars, etc. not pertaining to veterans of the Battle of Bataan, and Battle of the Bulge.

History shows to the contrary, members of identical units were approved decorations, and/or awards as late as 2002, and 2003 when presented by members of Congress. Also, Commanding Generals and/or subordinates involved with approvals.

If they are not under the UCMJ, what avenue should one take to enforce the guidelines?

Second subject: I am familiar with the daughter of a WWII veteran (deceased) denied twice for the Purple Heart. An attorney asked for $40,000 to represent her.
If the Army would follow the AR's, there would be no attorney required. I believe she chose another avenue.

Robert
 
The boards are made up of civilians, so generally speaking, they are not bound by the UCMJ (there is a somewhat "theoretical" exception for those civilians who are retired military).

The recourse is in Federal Court. For disability claims, most likely would be US Court of Federal Claims. The problem with military awards is that, though they can represent enormous pride and can impact certain other benefits, there is no monetary value to them by themselves. This makes pursuing an appeal to a denial more difficult for a number of reasons.

In cases like that (and in most BCMR/PDBR, for that matter), it makes more sense, in my opinion, to seek legal representation when you first file to the administrative board. The reason for this is that you can get a good assessment of your case, maximize your chances for success at the board, and very importantly, will have raised issues that a reviewing court will find compelling. Remember, failure to raise an issue at the administrative appeal level often means you cannot raise it later for the first time in court.
 
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