[Code of Federal Regulations]
[Title 32, Volume 1]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR70.9]

[Page 347-349]
 
                       TITLE 32--NATIONAL DEFENSE
 
              CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE
 
PART 70--DISCHARGE REVIEW BOARD (DRB) PROCEDURES AND STANDARDS--Table of 
Contents
 
Sec. 70.9  Discharge review standards.

    (a) Objective of review. The objective of a discharge review is to 
examine the propriety and equity of the applicant's discharge and to 
effect changes, if necessary. The standards of review and the underlying 
factors that aid in determining whether the standards are met shall be 
historically consistent with criteria for determining honorable

[[Page 348]]

service. No factors shall be established that require automatic change 
or denial of a change in discharge. Neither a DRB nor the Secretary of 
the Military Department concerned shall be bound by any methodology of 
weighting of the factors in reaching a determination. In each case, the 
DRB or the Secretary of the Military Department concerned shall give 
full, fair, and impartial considerations to all applicable factors 
before reaching a decision. An applicant may not rceive a less favorable 
discharge than that issued at the time of separation. This does not 
preclude correction of clerical errors.
    (b) Propriety. (1) A discharge shall be deemed proper unless, in the 
course of discharge review, it is determined that:
    (i) There exists an error of fact, law, procedure, or discretion 
associated with the discharge at the time of issuance; and that the 
rights of the applicant were prejudiced thereby (such error shall 
constitute prejudicial error if there is substantial doubt that the 
discharge would have remained the same if the error had not been made); 
or
    (ii) A change in policy by the Military Service of which the 
applicant was a member, made expressly retroactive to the type of 
discharge under consideration, requires a change in the discharge.
    (2) When a record associated with the discharge at the time of 
issuance involves a matter in which the primary responsibility for 
corrective action rests with another organization (for example, another 
Board, agency, or court), the DRB will recognize an error only to the 
extent that the error has been corrected by the organization with 
primary responsibility for correcting the record.
    (3) The primary function of the DRB is to exercise its discretion on 
issues of equity by reviewing the individual merits of each application 
on a case-by-case basis. Prior decisions in which the DRB exercised its 
discretion to change a discharge based on issues of equity (including 
the factors cited in such decisions or the weight given to factors in 
such decisions) do not bind the DRB in its review of subsequent cases 
because no two cases present the same issues of equity.
    (4) The following applies to applicants who received less than fully 
Honorable administrative discharges because of their civilian misconduct 
while in an inactive reserve component and who were discharged or had 
their discharge reviewed on or after April 20, 1971: the DRB shall 
either recharacterize the discharge to Honorable without any additional 
proceedings or additional proceedings shall be conducted in accordance 
with the Court's Order of December 3, 1981, in Wood v. Secretary of 
Defense to determine whether proper grounds exist for the issuance of a 
less than Honorable discharge, taking into account that;
    (i) An Other than Honorable (formerly undesirable) Discharge for an 
inactive reservist can only be based upon civilian misconduct found to 
have affected directly the performance of military duties;
    (ii) A General Discharge for an inactive reservist can only be based 
upon civilian misconduct found to have had an adverse impact on the 
overall effectiveness of the military, including military morale and 
efficiency.
    (c) Equity. A discharge shall be deemed to be equitable unless:
    (1) In the course of a discharge review, it is determined that the 
policies and procedures under which the applicant was discharged differ 
in material respects from policies and procedures currently applicable 
on a Service-wide basis to discharges of the type under consideration 
provided that:
    (i) Current policies or procedures represent a substantial 
enhancement of the rights afforded a respondent in such proceedings; and
    (ii) There is substantial doubt that the applicant would have 
received the same discharge if relevant current policies and procedures 
had been available to the applicant at the time of the discharge 
proceedings under consideration.
    (2) At the time of issuance, the discharge was inconsistent with 
standards of discipline in the Military Service of which the applicant 
was a member.
    (3) In the course of a discharge review, it is determined that 
relief is warranted based upon consideration of the applicant's service 
record and other evidence presented to the DRB viewed

[[Page 349]]

in conjunction with the factors listed in this section and the 
regulations under which the applicant was discharged, even though the 
discharge was determined to have been otherwise equitable and proper at 
the time of issuance. Areas of consideration include, but are not 
limited to:
    (i) Quality of service, as evidenced by factors such as:
    (A) Service history, including date of enlistment, period of 
enlistment, highest rank achieved, conduct or efficiency ratings 
(numerical or narrative);
    (B) Awards and decorations;
    (C) Letters of commendation or reprimand;
    (D) Combat service;
    (E) Wounds received in action;
    (F) Records of promotions and demotions;
    (G) Level of responsibility at which the applicant served;
    (H) Other acts of merit that may not have resulted in a formal 
recognition through an award or commendation;
    (I) Length of service during the service period which is the subject 
of the discharge review;
    (J) Prior military service and type of discharge received or 
outstanding postservice conduct to the extent that such matters provide 
a basis for a more thorough understanding of the performance of the 
applicant during the period of service which is the subject of the 
discharge review;
    (K) Convictions by court-martial;
    (L) Records of nonjudicial punishment;
    (M) Convictions by civil authorities while a member of the Service, 
reflected in the discharge proceedings or otherwise noted in military 
service records;
    (N) Records of periods of unauthorized absence;
    (O) Records relating to a discharge instead of court-martial.
    (ii) Capability to serve, as evidenced by factors such as:
    (A) Total capabilities. This includes an evaluation of matters, such 
as age, educational level, and aptitude scores. Consideration may also 
be given whether the individual met normal military standards of 
acceptability for military service and similar indicators of an 
individual's ability to serve satisfactorily, as well as ability to 
adjust to military service.
    (B) Family and Personal Problems. This includes matters in 
extenuation or mitigation of the reason for discharge that may have 
affected the applicant's ability to serve satisfactorily.
    (C) Arbitrary or capricious action. This includes actions by 
individuals in authority that constitute a clear abuse of such authority 
and that, although not amounting to prejudicial error, may have 
contributed to the decision to discharge or to the characterization of 
service.
    (D) Discrimination. This includes unauthorized acts as documented by 
records or other evidence.