It is hard to speak to the specifics of your case absent a more complete understanding of the facts and the issues involved. Suffice it to say, it is unusual although not irregular for the Secretary of the Army (or her delegee) to overturn a favorable ABCMR decision. Typically, such cases involve some sort of substantial internal disagreement regarding the case between the board staff and the Army staff or command involved in the underlying issues or that provided an advisory opinion. The rationale provided in the written decision of the Secretary – likely made and signed by the Deputy Assistant Secretary of the Army for Review Boards – may offer some insight in that regard and may provide grist for possible judicial review either by the US Court of Federal Claims or a U.S. district court depending on the issues involved.
Under the applicable statutory authority, 10 U.S.C. § 1552(a)(1), the Secretary of the Army may correct any military record of the Department of the Army when the Secretary considers it necessary to correct an error or remove an injustice. Such final corrective action is generally, but not always, taken by the three-member correction board panels comprised of Department of the Army civilians. But, it is important to remain mindful that it is the Secretary of the Army that has the authority to correct records and the ABCMR always acts for the Secretary subject to the Secretary’s authority. The Secretary of the Army has delegated this final decision authority to the Deputy Assistant Secretary of the Army for Review Boards (DASA-RB), who reports to the Assistant Secretary of the Army for Manpower and Reserve Affairs. The delegations of authority from the SA to the ASA (M&RA) to the DASA-RB may carve out various issues or types of cases with respect to who has final agency approval authority.
The ABCMR procedures regarding when a decision is final are detailed in the U.S. Code of Federal Regulations at 32 C.F.R. §§ 581.3.
In most cases, ABCMR action is final without review by the Secretary of the Army or her delegee. 32 C.F.R. §§ 581.3(g)(1)-(2). An ABCMR decision is final when it: (a) denies an application (except one involving the Military Whistleblowers Protection Act -MWPA); or (b) grants full or partial relief without a hearing when (1) the relief is recommended by a staff agency in an advisory opinion; and (2) the ABCMR panel was unanimous; and (3) the case does not involve an appointment or promotion requiring Senate confirmation. In the case of a grant of full or partial relief where any one of these three requirements is not met, the Secretary of the Army or here delegee has to make the final decision. Under 32 C.F.R. § 581.3(g)(2)(ii), the ABCMR is required to forward a case to the DASA-RB for final Secretarial action in any case in which: (1) a hearing was held; (2) the facts involve the MWPA; or (3) the ABCMR recommends relief but is not authorized to act for the Secretary of the Army on the application. This latter provision may cover a lot of ground, including carve outs in the delegations of authority or simply internal DA policy or bureaucratic butt covering.
The Secretary of the Army may review the ABCMR’s decision and may approve or disapprove it in whole or in part, but must provide a written rationale. 32 C.F.R. § 581.3(g)(3). The Secretary of the Army has the authority to reject the recommendation of the ABCMR—even one supported by the administrative record—so long as the Secretary’s rejection decision is not arbitrary or capricious, unsupported by substantial evidence, or otherwise contrary to the law. Strand v. United States, 951 F.3d 1347, 1354 (Fed. Cir. 2020); see Villarreal-Dancy v. U.S. Dept. of the Air Force, 2022 WL 4482597, at *9-11 (D.D.C. Sep. 27, 2022) (acknowledging authority of Secretary of Air Force to reverse the decision of the AFBCMR, but finding that the reversal was arbitrary and capricious because it lacked any reasoned justification).
