[Code of Federal Regulations]

[Title 32, Volume 1]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 32CFR70.9]



[Page 415-417]

 

                       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 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



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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 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:



[[Page 417]]



    (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.