    [House Hearing, 115 Congress]
    [From the U.S. Government Publishing Office]

                             [H.A.S.C. No. 115-119]

                               UPDATE ON MILITARY

                             REVIEW BOARD AGENCIES

                                   __________

                                    HEARING

                                   BEFORE THE

                       SUBCOMMITTEE ON MILITARY PERSONNEL

                                     OF THE

                          COMMITTEE ON ARMED SERVICES

                            HOUSE OF REPRESENTATIVES

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                  HEARING HELD

                               SEPTEMBER 27, 2018

    [GRAPHIC NOT AVAILABLE IN TIFF FORMAT]

                                   __________

                        U.S. GOVERNMENT PUBLISHING OFFICE
    33-475                      WASHINGTON : 2019

    --------------------------------------------------------------------------------------

                       SUBCOMMITTEE ON MILITARY PERSONNEL

                        MIKE COFFMAN, Colorado, Chairman

    WALTER B. JONES, North Carolina      JACKIE SPEIER, California
    STEVE RUSSELL, Oklahoma              ROBERT A. BRADY, Pennsylvania
    DON BACON, Nebraska                  NIKI TSONGAS, Massachusetts
    MARTHA McSALLY, Arizona              RUBEN GALLEGO, Arizona
    RALPH LEE ABRAHAM, Louisiana         CAROL SHEA-PORTER, New Hampshire
    TRENT KELLY, Mississippi             JACKY ROSEN, Nevada
    (Vacancy)
                     Dan Sennott, Professional Staff Member
                    Craig Greene, Professional Staff Member
                             Danielle Steitz, Clerk

                                C O N T E N T S

                                  ----------
                                                                       Page

                  STATEMENTS PRESENTED BY MEMBERS OF CONGRESS

    Coffman, Hon. Mike, a Representative from Colorado, Chairman,
      Subcommittee on Military Personnel.............................     1
    Speier, Hon. Jackie, a Representative from California, Ranking
      Member, Subcommittee on Military Personnel.....................     5

                                   WITNESSES

    Blackmon, Francine C., Deputy Assistant Secretary of the Army,
      Review Boards, Department of the Army..........................     2
    Fedrigo, John A., Director, Air Force Review Boards Agency,
      Department of the Air Force....................................     5
    Woods, Robert L., Principal Deputy Assistant Secretary, Manpower
      and Reserve Affairs, Department of the Navy....................     3

                                    APPENDIX

    Prepared Statements:

        Blackmon, Francine C.........................................    20
        Coffman, Hon. Mike...........................................    19
        Fedrigo, John A..............................................    36
        Woods, Robert L..............................................    29

    Documents Submitted for the Record:

        Rates of Relief and Case Backlog Charts......................    45

    Witness Responses to Questions Asked During the Hearing:

        [There were no Questions submitted during the hearing.]

    Questions Submitted by Members Post Hearing:

        Ms. Speier...................................................    49

    .
                    UPDATE ON MILITARY REVIEW BOARD AGENCIES

                                  ----------

                      House of Representatives,
                           Committee on Armed Services,
                            Subcommittee on Military Personnel,
                          Washington, DC, Thursday, September 27, 2018.
        The subcommittee met, pursuant to call, at 4:30 p.m., in
    Room 2322, Rayburn House Office Building, Hon. Mike Coffman
    (chairman of the subcommittee) presiding.

     OPENING STATEMENT OF HON. MIKE COFFMAN, A REPRESENTATIVE FROM
         COLORADO, CHAIRMAN, SUBCOMMITTEE ON MILITARY PERSONNEL

        Mr. Coffman. I want to welcome everyone to today's hearing
    on the military review board agencies. Eighteen months ago, the
    subcommittee held a hearing designed to provide an overview of
    the review board agencies, including an understanding of their
    workload. The purpose of today's hearing is to follow up with
    the review boards to determine what improvements have been made
    to their processes and what challenges the boards still face.
        Each of the services have a board for correction of
    military records and a discharge review board designed to
    correct errors in, and remove injustices from, military
    records. They receive thousands of applications each year from
    applicants requesting everything from name changes on personnel
    documents to discharge upgrades.
        In reviewing the written statements of the witnesses today,
    I am encouraged by the level of effort and dedication that has
    gone into improving the efficiency and thoroughness of the
    boards' processes. I was also struck by the sheer volume of
    applications that the board receives each year.
        However, despite the great strides that have been made,
    much work remains. I am still deeply concerned by the
    persistent backlog of applications and delays in processing.
    The services have been unable to meet many of the
    congressionally mandated processing timelines for the past few
    years. In some cases, veterans have waited 450 days or more for
    action on their applications. These delays have real
    consequences for both the applicants and their families.
        While I appreciate the fact that case volume has increased
    significantly, and many of the cases are more complex, I look
    forward to hearing from the witnesses about your long-term
    plans to fix the backlogs. In addition, I would like to hear
    from each of the witnesses about how you are leveraging
    technology to improve efficiency. Finally, I look forward to
    acquiring a deeper understanding of what additional resources
    are needed to ensure the boards are able to meet processing
    timelines in the future.
        Before I introduce our panel, let me offer the ranking
    member, Ms. Speier, when she is here--when she is here--not
    that Jackie. So what we are going to do, I think we are going
    to take testimony. And then Ms. Speier, when she gets here,
    will make her opening remarks.
        We are joined today by an outstanding panel. We will give
    each witness the opportunity to present his or her testimony
    and each member an opportunity to question the witnesses. We
    would respectfully remind the witnesses to summarize, to the
    greatest extent possible, the high points of your written
    testimony in 5 minutes or less. Your written comments and
    statements will be made part of the hearing record.
        Let me welcome our panel: Ms. Francine Blackmon, Deputy
    Assistant Secretary of the Army for Review Boards; Mr. Robert
    Woods, Principal Deputy Assistant Secretary of the Navy for
    Manpower and Reserve Affairs; Mr. John Fedrigo--did I say that
    right? close enough--Director of the Air Force Review Boards
    Agency.
        With that, Ms. Blackmon, you may now make your opening
    statement.
        [The prepared statement of Mr. Coffman can be found in the
    Appendix on page 19.]

     STATEMENT OF FRANCINE C. BLACKMON, DEPUTY ASSISTANT SECRETARY
           OF THE ARMY, REVIEW BOARDS, DEPARTMENT OF THE ARMY

        Ms. Blackmon. Chairman Coffman, distinguished members of
    this committee, I thank you for the opportunity to appear
    before you on behalf of the Army Review Boards Agency and the
    Army Board for the Correction of Military Records. Since I last
    testified before this committee, the Army has added 20 new
    civilian positions, bringing us to 132 personnel. In 2017, the
    Secretary of the Army reported that the ABCMR [Army Board for
    Correction of Military Records] did not meet the 10-month
    timeliness standard for cases received in fiscal year 2015.
    This year, the Secretary of the Army reported that for cases
    received in fiscal year 2016, the ABCMR did not meet the 90
    percent within 10 months or the 100 percent within 18 months
    timeliness standards.
        The current ABCMR case backlog is 13,806. The reasons for
    the backlog include a substantial reduction in administrative
    case closures. We now hold incomplete applications open for 90
    days while we work to add missing documents.
        [Off mike] for over 15 years. This antiquated system costs
    ARBA [Army Review Boards Agency] millions of dollars in annual
    sustainment fees and lacks the agility to address changing
    business requirements.
        Our upgraded case tracking system, ACTS [Army Case Tracking
    System] 2.0, will support our modernized new business processes
    and workflows. In fiscal year 2016, you extended the
    legislation which protects a review board agency's personnel
    authorizations. This provision expires on December 31, 2019, so
    at this point I would like to take a turn and look at the rates
    of relief on the placemats.
        [The chart referred to can be found in the Appendix on page
    45.]
        Ms. Blackmon. And so if you look at the ARBA, or the review
    board agency, our discharge grant rates. As I indicated, in
    fiscal year 2014, we were sitting at about 22 percent. We had a
    slight dip in December--between July and December 2015, but
    currently we are sitting at about a 52 percent grant rate.
        So if I turn the chart over and actually look at the
    backlog itself, you can see that beginning in January 2012, we
    were actually meeting the congressional mandates. In 2015,
    where we really started to look at our processes, and really
    focusing on what could we do better for the applicants, you
    started to see the backlog increase.
        [The chart referred to can be found in the Appendix on page
    46.]
        Ms. Blackmon. At about January of 2018 or so, we started to
    say, what could we do without really additional resources? And
    so we were looking at things like quick win cases, where we
    could actually move the cases to lower levels for them to
    adjudicate, and quick hit cases where they were easy cases,
    things like Social Security numbers, name changes that we could
    kind of adjudicate very quickly. So as you can see, that number
    has started to drop, but we still have a significant backlog.
        So with additional growth, funding of IT [information
    technology] systems, sustainment of current business processes,
    and continuation of existing legislative language, we will be
    in a powerful position to execute this vital mission to protect
    the men and women who serve our Nation along with their
    families. I thank you for your continued support of our All-
    Volunteer Army and the Army Review Boards Agency.
        [The prepared statement of Ms. Blackmon can be found in the
    Appendix on page 20.]
        Mr. Coffman. Thank you, Ms. Blackmon.
        Mr. Woods, you are now recognized.

       STATEMENT OF ROBERT L. WOODS, PRINCIPAL DEPUTY ASSISTANT
    SECRETARY, MANPOWER AND RESERVE AFFAIRS, DEPARTMENT OF THE NAVY

        Mr. Woods. Good afternoon, Chairman Coffman and
    distinguished members of the committee. Again, my name is
    Robert Woods. I am the Principal Deputy Assistant Secretary for
    Manpower and Reserve Affairs. On behalf of Secretary Spencer
    and Assistant Secretary Slavonic, as well as the passionate
    day-to-day leaders of our boards, I want to thank you for the
    opportunity to appear before you today to provide you an update
    since our last hearing in March of 2017 on the progress we have
    made in reviewing petitions seeking various military discharge
    upgrades and relief.
        Let me start by assuring you that leadership of the
    department remains committed to assisting our present and
    former sailors and Marines with fair and open processes that
    will allow for appropriate corrections to their military
    service records, and we appreciate your legislative efforts, as
    well, which have enhanced the resources available to us to
    streamline and modernize our processes with a view toward
    providing greater transparency, quality, and efficiency in the
    adjudication of matters presented before the boards.
        Now, you may recall in our last hearing, Chairman Coffman
    expressed concern that in fiscal year 2016 the board petitions
    seeking changes to their military discharge in which
    petitioners presented evidence of service-connected post-
    traumatic stress or traumatic brain injury, the Department of
    the Navy had granted relief in only about 18 percent of those
    cases.
        Members of the subcommittee also expressed similar concerns
    about a similar rate of relief pursuant to petitions presenting
    evidence of sexual assault while in military service.
        I am pleased to report that in the period since our last
    hearing, we have improved significantly our review processes
    for these cases by providing specific training for our staff
    and board members on mental health and sexual assault issues
    and ensuring that our boards have the benefit of advisers from
    medical experts in all of these cases.
        And as a result, in petitions adjudicated by the Board for
    Correction of Naval Records since the third quarter of fiscal
    year 2017 when last we met, we granted relief in just over 43
    percent of the petitions presenting evidence of mental health
    issues and granted relief in just over 40 percent of those
    cases presenting evidence of sexual assault. And of course,
    this compares very favorably to the approximate 14 percent rate
    of relief granted in discharge petitions that did not involve
    mental health issues or sexual assault issues.
        Aligned with Secretary Spencer's priorities, which focus on
    people, capabilities, and processes, the assistant secretary
    has directed the BCNR [Board for Correction of Naval Records]
    to conduct a comprehensive transformation effort. And in fiscal
    year 2017, we invested more than $2 million in a business
    process reengineering effort designed to transform the BCNR
    into a more modern and highly functioning organization.
        Additionally, the department funded 14 additional full-time
    civilian staff members, doubled the number of volunteer board
    members, and approved $500,000 for a new case management
    system. With the additional $1 million in appropriations this
    fiscal year, the BCNR began efforts to digitize existing
    records, migrate data systems, modernize our IT systems, and
    increase our manpower. Although these enhancements will
    significantly improve our execution of our mission, there is
    more that needs to be done and we recognize that.
        One of the things we plan to do to try to get after our
    backlog is we are planning to contract for help in getting at
    those backlog cases so that we can process them more
    effectively, and we hope that within about 12 to 18 months of
    letting that contract, we will be able to eliminate our backlog
    of 4,500 cases that we now have and get to a more steady state
    of processing cases as they arrived within the timelines that
    have been established by the law.
        So with that brief statement and opening, I thank you again
    for this opportunity and present myself for your questions.
        [The prepared statement of Mr. Woods can be found in the
    Appendix on page 29.]
        Mr. Coffman. Thank you. Mr. Fedrigo, you are now recognized
    for your opening statement.

    STATEMENT OF JOHN A. FEDRIGO, DIRECTOR, AIR FORCE REVIEW BOARDS
                  AGENCY, DEPARTMENT OF THE AIR FORCE

        Mr. Fedrigo. Good afternoon, Chairman Coffman and Ranking
    Member Speier. On behalf of the men and women of the Air Force
    Review Boards Agency, thank you for the opportunity to appear
    before you today.
        The Air Force BCMR [Board for the Correction of Military
    Records] has made great strides since we reported to Congress
    last September. The BCMR embarked on a large-scale
    transformation effort that identified innovative solutions
    across a wide spectrum, achieving significant results that have
    put us on a path of success. A thorough process reengineering
    effort led to a 50 percent increase in BCMR's production
    capacity. Total inventory has been reduced 48 percent from an
    all-time high of 7,000 cases at the end of fiscal year 2017 to
    3,634 cases as of 26 September 2018.
        The Air Force provided funds in late fiscal year 2018 for 1
    year of surge support. By the end of that contract period, the
    BCMR projects that the entire backlog of noncompliant cases
    will be eliminated and aging cases that would otherwise have
    reached noncompliance will be processed within the required
    timeline.
        The BCMR executed an organizational redesign to ensure the
    right structure was in place to most effectively support the
    new process. The reorganized structure ensures every team
    member contributes to case processing, and this includes the
    leadership team. It also has the added benefit of providing a
    career ladder for the civilian workforce, incentivizing high-
    performing individuals and keeping valuable knowledge within
    the organization.
        The BCMR is projected to meet the congressionally mandated
    18-month completion requirement for fiscal year 2018 cases.
    Even with all of the success and significant improvements
    achieved, we look forward to the opportunity to discuss
    possible future requirements to set the BCMR up for continued
    success and ensure that we can meet all congressional
    timeliness requirements while delivering high-quality decisions
    for our airmen.
        Mr. Chairman, I thank you for the opportunity to appear
    before this committee and look forward to your questions.
        [The prepared statement of Mr. Fedrigo can be found in the
    Appendix on page 36.]
        Mr. Coffman. Thank you. I would now like to recognize Ms.
    Speier for her opening statement.

        STATEMENT OF HON. JACKIE SPEIER, A REPRESENTATIVE FROM
     CALIFORNIA, RANKING MEMBER, SUBCOMMITTEE ON MILITARY PERSONNEL

        Ms. Speier. Sorry for my late arrival, but my scooter had
    an accident, so----
        Mr. Coffman. Oh, no.
        Ms. Speier. Thank you, Mr. Chairman. When we last met to
    discuss this topic in March of 2017, I stated that your jobs
    are among the most important and difficult in the Pentagon. I
    still believe that, but I am also concerned with the systems
    that you oversee.
        You are charged with ensuring the service of our military
    members is fairly characterized and accurately reflected in
    their records. To serve the men and women who have sacrificed
    for our country, the process must be timely, fair, and
    transparent.
        During the last hearing, we focused on the way boards can
    make our veterans whole, especially those who have suffered
    from TBI [traumatic brain injury], PTSD [post-traumatic stress
    disorder], and other such conditions, either because of years
    of conflict or sexual assault. Today I would like to get an
    update on how each of you are addressing these issues with
    claims adjudication, but I would also like to discuss some of
    the congressionally mandated requirements and how those
    influence your processes.
        Before beginning, I want to share a story with you that I
    believe is timely and just and reflects a real life-altering
    set of circumstances. Harmony Allen served in the Air Force and
    was discharged in 2011. She was brutally raped while she served
    and suffers from traumatic brain injury and post-traumatic
    stress disorder to this day.
        Since April 2013, she has been attempting to get her
    records corrected to reflect the disabling injuries she
    sustained. Despite Harmony's persistent efforts to gather
    documents, request notes from doctors, and otherwise
    demonstrate that her condition originated while she served, the
    Air Force BCMR continued to deny her based on tenuous or
    outright false technical grounds.
        This fight has taken a toll on Harmony and her family. She
    has provided my office with a memo documenting her experience
    in detail. I will work with the Air Force to ensure Harmony is
    provided an opportunity to have her case reviewed under the
    current rules and only request a fair determination.
        We have made changes to the BCMR system since Harmony went
    through the worst of her ordeal, but I am still concerned that
    you are all focusing on closing cases instead of adjudicating
    them fairly. Timely responses do matter, but it is incumbent
    upon you, your staffs, and board members to fully and fairly
    review claims that come forward. All too often, cases disappear
    into a black box, the system spits out a negative result years
    later, and service members have no idea why or how to appeal
    the decision.
        If making BCMRs fair and more transparent requires
    additional resources, consolidating boards across services, or
    even a special claims court that treated some cases
    differently, I want to hear your suggestions. I would like to
    hear from each of you on how you balance the requirements of
    meeting timelines versus a thorough review of each case.
        I would also like to know how each of you implement liberal
    consideration and the training requirement for board members to
    include collaboration, if there is any, amongst the boards to
    ensure that there is some equity across all the services. I
    thank you again and look forward to the answers to those
    questions.
        Mr. Coffman. Thank you, Ms. Speier.
        Let me begin with questions. And this is for anyone. Some
    of the--well, let's start with Ms. Blackmon and go Mr. Woods
    and Mr. Fedrigo. Some of the witnesses have mentioned in their
    written statements that they have hired surge support to
    eliminate the application backlog. I appreciate those efforts,
    but what specific additional resources are needed to ensure a
    long-term fix so that applications are processed within
    congressionally mandated timelines?
        Ms. Blackmon. So, sir, within the Army, we are working with
    our senior leaders to actually bring on additional contract
    work to help us actually with the surge. In terms of the IT
    systems, I am happy to report that this past week we actually
    filled it, ACTS 2.0, which will help us immensely get after the
    backlog. And I am fairly confident, with the additional surge
    and workload in the IT system, that we will be able to reach a
    steady state.
        Mr. Coffman. Mr. Woods.
        Mr. Woods. Thank you, sir. In fact, if you'd like to take a
    look at the placemat that you have that deals with case
    backlogs, the chart at the top of that page reflects the Navy's
    study that we have been trying to do to make sure that we
    understand all of the aspects of the process and how it moves
    forward. And so I mentioned in my opening statement that we are
    looking to engage some surge capability, as well, and that we
    hope that with that surge capability, we are going to be able
    to eliminate the backlog that we have.
        [The chart referred to can be found in the Appendix on page
    46.]
        Mr. Woods. Basically, given our present staffing and our
    abilities to process cases in our present form, we basically
    are able to take care of cases as they come within a fairly
    reasonable time, but we are having trouble killing the backlog.
        And so the program that we are trying to do now is a
    multifaceted approach. First of all, we are looking at some
    surge capability that will help us process a lot of the backlog
    cases that we have now so that they can go to hearing and get
    on track to get that accomplished as a sort of separate entity.
        Secondly, as I mentioned, we have some fairly significant
    upgrades to both our case processing databases and the software
    that we are using to process cases. And because of the business
    case analysis that we have done over the last year or so, and
    it is still ongoing and almost complete, we have determined
    sort of how to process the paperwork more efficiently within
    the resources that we have so that we can get them through
    these systems more quickly.
        And to address--I am not sure that we need extra resources
    at this point from Congress necessarily, but rather to continue
    to engage in the way that we have decided to go forward to try
    and attack this. I think we have a pretty good plan. We are
    hopeful that within about 12 to 18 months of starting the surge
    process, which we hope to start within the next 6 months or so,
    we will be able to attack that backlog and get to that.
        And then once we are there, the workforce that we have and
    that we are adding to when we get to our total numbers, I think
    we will be in a position to where we will have eliminated that
    backlog and we will be able to just continue and do cases and
    get them done within the timely aspect. So that is our goal,
    and that is what we think we have figured out a way to do here.
        Mr. Coffman. Thank you. Mr. Fedrigo.
        Mr. Fedrigo. Mr. Chairman, the surge support that I
    mentioned in my opening statement is solely focused on working
    our backlog. The process reengineering work that we did was to
    get after how we are doing the incoming cases today. So we have
    a two-pronged approach. One is using the surge support to
    eliminate that backlog that has, in effect, been hanging over
    the head of the workforce at the agency for many years now, and
    we are well on our way to reducing that backlog.
        And as I said in my opening statement, we believe when we
    report our fiscal year 2018 numbers to you in 2020, we will be
    fully compliant. The process reengineering and the 50 percent
    improvement in efficiency that we have gained with our
    leadership team engaging in case processing, we believe is
    going to get us very close to being able to match the workforce
    to the steady-state incoming cases that we will be receiving
    once that backlog is gone.
        Mr. Coffman. Thank you. Ms. Speier.
        Ms. Speier. Mr. Fedrigo, what happens after the contract
    expires?
        Mr. Fedrigo. So, ma'am, once the contract is expired, those
    individuals that are providing that surge capacity will leave
    our workforce, but at the same time that they leave the
    workforce, we expect that that backlog that they are solely
    working on will be gone. They are working on those legacy cases
    that are already on----
        Ms. Speier. Yeah, we understand that. So you are basically
    saying that once the contract is complete, that the backlog
    will have been addressed?
        Mr. Fedrigo. That is correct. Yes, ma'am.
        Ms. Speier. All right. What I am concerned with--first of
    all, I would like to know why we shouldn't have just one
    system, one entity. I am concerned that the upgrade rates are
    different from each of the services. And I think a service
    member who served should have the confidence in knowing that I
    am being treated the same way if I were in the Army, the Air
    Force, or the Navy, and that is not suggested by the data.
        So I would like to know your comments about whether or not
    we would be better served if we could just consolidate all of
    you into one system.
        Mr. Woods. I would like to address that for a moment if I
    may. I will start, anyway. So I would direct your attention to
    the other side of the sheet that we had in front of you to
    show, if you just look at the--this reflects the rates of
    relief for the three boards. And ours is in the lower right-
    hand corner.
        And I think ours would illustrate, at least to some extent,
    an answer to your question, which is that I really don't know
    that consolidating it into one giant board would make us any
    more efficient or any more consistent across the board with
    regard to individualized cases.
        My concern is that----
        Ms. Speier. Why do you say that? I mean, if you look at
    this chart for your service, it is all over the map.
        Mr. Woods. Exactly, so that is my point. So that reflects
    the individualized nature of these cases. If we get cases that
    warrant relief, we are granted relief. So these charts are
    somewhat deceiving in that they show a spike up and down, et
    cetera. What they really reflect, at least in my opinion,
    anyway, is that--is the individualized nature of these cases.
        And it is really the factual scenarios that are presented
    in each and every case which we take very seriously and spend
    time on----
        Ms. Speier. Well, let's--let me interrupt you.
        Mr. Woods. Yes, ma'am, sure.
        Ms. Speier. If we look at sexual assault and mental health
    across the services, Army is trending up, Navy is up and down,
    and Air Force has trended down. One of the requirements we made
    in one of the recent NDAAs [National Defense Authorization
    Acts] was for you to develop a liberal consideration across all
    of the services.
        So if we have, in fact, done that, shouldn't there be a--
    shouldn't those cases all look relatively the same?
        Mr. Woods. So, yes, ma'am, I think to a certain extent. And
    this was one of the things that I addressed in my opening
    statement----
        Ms. Speier. Sorry I missed it.
        Mr. Woods [continuing]. Which was--no, that is quite all
    right--and that is that when we were here last, one of the
    things that was of great concern--and understandably so--to the
    members was the rate of relief in these types of cases. And
    back then, as I indicated, Chairman Coffman had indicated, that
    for fiscal year 2016 the Navy's grants were down around 18
    percent and a similarly low rate of relief given in cases
    involving sexual assault, et cetera.
        And so in the period of time since our last hearing, which
    would have been third quarter of fiscal year 2017 through
    present, based on a number of things that we have done inside
    the board itself to try to get after this, we have improved
    those rates and our mental health rates now are at around--for
    that entire period were at about--just over 43 percent of the
    petitions receiving relief and for the sexual assault cases,
    just over 40 percent receiving relief.
        And that was really a result of an educational push to
    train our staffs, both the permanent career staff of the board
    as well as the board members who act in a voluntary basis, to
    train them both on sexual assault issues and on PTSD and other
    mental health issues. We have professionals come in and train
    them.
        Ms. Speier. All right. I have got a limited amount of time.
    Let me go to Mr. Fedrigo. Why is it down for the Air Force?
        Mr. Fedrigo. Ma'am, on that particular chart, I would like
    to make a correction. For fiscal year 2017 and 2018, the actual
    grant rates are 31 percent and 32 percent for the BCMRs, not
    those 20 percent line that is shown on that chart. So that was
    an anomaly in our data that we provided a late change to the
    chart, so it should be 31 percent and 32 percent.
        But that shows all BCMR cases, ma'am, which when it comes
    to the BCMR, things like sexual trauma, discharge upgrades,
    PTSD is a very small portion of what they do. Out of roughly
    6,000 cases that come in to the BCMR every year, about 140 of
    them fall into that category. And in that category, for
    instance, last year, in the last 4 quarters that we reported to
    OSD [Office of the Secretary of Defense], 36 percent of cases
    that reported sexual trauma were actually grants within the
    BCMR.
        In our Discharge Review Board [DRB], we see a higher
    percentage of cases. About 62 percent of all the cases that
    come into the DRB have some mental health aspect to them. And
    when we pulled the data parts of this hearing, 8--excuse me, 50
    percent, or 9 of the last 18 cases that involved military
    sexual trauma were actually grants from the DRB.
        So we have seen a significant increase in the grant
    percentages in those cases.
        Ms. Speier. All right. Ms. Blackmon.
        Ms. Blackmon. So, ma'am, I will tell you that we take
    liberal consideration seriously. With each of the cases that
    come in, we have our intake program that actually, you know, if
    there is something that the case is weak, we will actually
    reach out, hold the case open 30 to 60, 90 days to say to the
    applicant, here are some things that we think are missing.
        We actually have our mental health medical providers scour
    the medical records to see if there is anything that is within
    the medical records. We also have very, very comprehensive
    training. I know the last time I was here, I had spoke about
    Dr. Lisak actually coming in and training let's say a military
    sexual trauma.
        Last December, we had an individual to come in and brief us
    about PTSD and the impact of PTSD on the soldier. And this
    December, we are going to do something very similar, bringing
    Dr. Lisak back, given that we have about an additional 40 to 50
    new members to the workforce, and so we just need to ensure
    that as we bring in new personnel, that they understand the
    impact of liberal consideration on these particular cases.
        Ms. Speier. Okay. I am going to have to leave. I want to
    thank you all for your participation in this hearing. I want to
    thank the chairman. But I would really appreciate if you would
    give some thought to what consolidation would look like, what
    would be wrong with consolidation, what would be the
    advantages. There has been some talk of a special claims court
    to legally adjudicate tough cases that could separate out the
    ones that are more difficult and take more time.
        I just want us to not be fixated into three separate
    entities when we are talking about a universe of service
    members who have served who want to be considered for upgrades.
    And we want to make sure they are all being treated the same.
    And these numbers, these charts reflect a lot of differences.
        So with that, I yield back.
        Mr. Coffman. Thank you, Ms. Speier.
        Let me continue the questioning then. What--if you--why
    don't we start--we will go in the opposite, Mr. Fedrigo, we
    will start with you, Mr. Woods, Ms. Blackmon.
        What are the services doing to identify the root cause of
    the dramatic increase in applications? Are service members
    being discharged without a good understanding of the
    consequences of their discharge characterization? Mr. Fedrigo.
        Mr. Fedrigo. Mr. Chairman, the increase that we see coming
    into the BCMR primarily, although we have seen somewhat of an
    uptick in all of our boards, we believe that is in large part
    due to our outreach programs. We do a pretty aggressive
    outreach effort to make sure that our service members that are
    currently serving understand all their options within the BCMR.
        In fact, we have a separate track within the BCMR for
    currently serving airmen who are facing career decisions
    related to promotions, decorations, PCS [permanent change of
    station] movements, financial issues, to try to fast-track
    those cases and get those answers to those currently serving
    airmen as quickly as possible.
        But when they separate, whether that be through retirement
    or finishing an enlistment, they are also leading with that
    same knowledge of what the BCMR can do for them. So we believe
    the uptick in cases--and it has not been significant in numbers
    when it comes to the sheer volume of cases--is much to do with
    our outreach.
        Our real timeliness challenges come with the complexity of
    these cases. We are seeing a much higher number of cases in our
    DRB and some in our BCMR that have mental health components.
    Right now, even with the fact that we have hired three new
    mental health providers, that still in many cases is adding 130
    days to our process to get effective mental health advisories.
    So it is the complexity, Mr. Chairman, not necessarily just the
    numbers.
        Mr. Coffman. Mr. Woods.
        Mr. Woods. So I agree with my colleague. I think the Navy
    has not noticed a substantial increase in numbers of cases,
    although we have had some increases. But more importantly, we
    have--and I would attribute those increases to, as Mr. Fedrigo
    said, our outreach efforts. We have a fairly extensive outreach
    efforts that we have done. We have met with many of the service
    support groups that are out there in the community, Human
    Rights Watch, places like that. We have put a lot up on the
    internet to try and ensure that folks know our defense counsel
    in military justice system are all aware of the opportunity to
    come and advise their clients to come to the Board for
    Correction of Naval Records, if that is necessary.
        So we have had a very significant outreach effort. But I
    think, to Mr. Fedrigo's point, what we are seeing more is an
    increase in the complexity of the cases that are coming in, not
    so much in the volume, although the volume has increased
    somewhat. The more difficult aspect of it is that the nature of
    the cases involving various mental health issues, post-
    traumatic stress, things of that nature that are very difficult
    to deal with, those require more time, they require
    professional review by psychiatric specialists and so forth.
        And so because we are giving those cases that attention and
    that expert review, it is increasing the time that it takes to
    process these cases. But we are attempting to do various things
    like doing a triage upfront of cases as they come in to see,
    for example, any case that is along the lines of the ones we
    have been talking about with the mental health issue or sexual
    assault type of thing.
        We triage those and identify those early and immediately
    seek the medical review of those at that point, rather than
    waiting for them to go further down the line into the process
    and then go, oh, we need to get one of these reviews. And so we
    have been doing a number of things to try and streamline our
    processes, but, again, I will let it stand. I don't think a
    great number of increase, but really a great increase in
    complexity.
        Mr. Coffman. Ms. Blackmon.
        Ms. Blackmon. Sir, I would also have to echo the words of
    my colleagues, first, in terms of outreach. Back in, I guess,
    Memorial Day weekend, we met with several hundred veterans
    during Rolling Thunder, just to kind of describe some of the
    things that we have the ability for them to do. Just last week,
    we actually met with, again, several hundred veterans at our
    retiree affairs event.
        But I would also add that last December we had a senior
    counsel from the Human Rights Watch that came in and briefed
    the entire workforce. And her comment was, she says,
    individuals that I have coming forward now have essentially
    said things have changed within the Army Review Board Agency; 5
    or 6 years ago, everyone would say, why go to the review board
    agency? Because it is going to be a denial. And they are now
    reaching out to their peers to say, you need to resubmit,
    because the cases are being looked at very differently.
        Mr. Coffman. All of the services have reviewed past cases
    to ensure veterans with PTSD, TBI, and survivors of sexual
    assault receive a thorough and fair review of their
    applications. How confident are you now that those who have a
    diagnosis of PTSD, TBI, or were survivors of sexual assault are
    receiving fair and full consideration of their application?
        Mr. Woods, I will start with you.
        Mr. Woods. Thank you, sir. I think that we are doing a
    great job in doing that, I really do sincerely. We spend a lot
    of time on these cases. We pay close attention to them. We have
    the guidance from DOD [Department of Defense] with regard to
    liberal consideration and those efforts. And we take those
    things extremely seriously.
        And as I said before, we have expert folks taking a look at
    these cases, as well, and providing advice to our board
    members. So I think that they are getting a very fair shake at
    these things, and we are--and I think that is evident in the
    fact that our numbers have increased--our numbers of grants of
    relief in those types of cases, as I said in my opening
    statement.
        Mr. Coffman. Mr. Fedrigo.
        Mr. Fedrigo. Mr. Chairman, I would agree with Mr. Woods'
    comments. Every one of these cases gets a complete medical
    review from a licensed provider, as well as a complete legal
    review from an attorney on our staff in the Air Force Review
    Boards Agency. So by the time those cases come to our panels,
    they have professional advisories from the right folks with the
    right background to make sure that our panel members who are
    deciding these cases have the best information available to
    them. And as a result, as I mentioned earlier, our grant rates
    have come up significantly with these type of cases.
        Mr. Coffman. Ms. Blackmon.
        Ms. Blackmon. Sir, again, I would have to echo the words of
    my colleague. One of the things, however, that we do is that if
    there is a disconnect between what the mental health provider
    has essentially said and the board has a bit of a disagreement
    with the input that the medical provider has indicated, those
    cases actually come forward to me for review.
        And so I see every one of those disconnects to say exactly,
    what have we done with that particular case?
        Mr. Coffman. Thank you, okay. The Army and Navy are
    partnering on a new standard case tracking system. Does the Air
    Force need a similar system upgrade? And are you considering
    working with the other services on that? Mr. Fedrigo.
        Mr. Fedrigo. Mr. Chairman, we are paying close attention to
    what the Army and Navy are doing. We are just coming to the end
    of our development of our own case management system, that the
    last step is to go do a portal that we can allow electronic
    submission across all 10 of the boards we support at the Air
    Force Review Boards Agency, which would, of course, include the
    BCMR and the DRB.
        But as the Navy and the Army have moved forward, we have
    people from AFRBA [Air Force Review Boards Agency] that are
    working with them to find out where we can all work together on
    these systems going forward.
        Mr. Coffman. Well, I wish to thank the witnesses for their
    testimony this afternoon. This has been a very informative
    hearing. There being no further business, the subcommittee
    stands adjourned.
        [Whereupon, at 5:11 p.m., the subcommittee was adjourned.]

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                                A P P E N D I X

                               September 27, 2018

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                  PREPARED STATEMENTS SUBMITTED FOR THE RECORD

                               September 27, 2018

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                       DOCUMENTS SUBMITTED FOR THE RECORD

                               September 27, 2018

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                  QUESTIONS SUBMITTED BY MEMBERS POST HEARING

                               September 27, 2018

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                       QUESTIONS SUBMITTED BY MS. SPEIER

        Ms. Speier. What proportion of BCMR and DRB cases relate to MST,
    TBI, or PTSD?
        Ms. Blackmon. About six percent of ABCMR and ADRB cases relate to
    discharge upgrade requests citing MST, TBI or PTSD. By ARBA policy, all
    are prioritized and receive expedited adjudication.
        Ms. Speier. Can you describe how your service interprets ``liberal
    consideration'' and how you train your board members to apply this
    concept?
        Ms. Blackmon. We take liberal consideration seriously with each of
    the cases that come in. In every case, we do whatever we can to get to
    the best possible outcome for the applicant. Our liberal consideration
    begins with our intake team, as they perform the initial review of the
    case. If they see that the case file is weak, we reach out to the
    applicant, hold the case open thirty/sixty/ninety days to say to the
    applicant ``here are some things that we think are missing.'' Liberal
    consideration continues with case preparation by the ARBA medical
    office. We have our mental health medical providers scour the medical
    records to see if there's anything that's within the medical records.
    We also have a very comprehensive training for ARBA staff. That
    training has included whole of agency training by a world-renowned
    expert on MST, and an expert on the impact of PTSD on the soldier. We
    repeat this training periodically given the new staff we continually
    bring in. All ARBA staff are trained on the DOD Liberal Consideration
    guidance, and all board members are provided similar training.
        Ms. Speier. DC District Court judge found that BCMRs are bound by
    previous decisions in Wilhelmus v. Geren. Do you believe your members
    and staff are bound by precedent when deciding cases? Do you have
    systems in place to ensure staff and members can refer to previous
    decisions when deciding cases?
        Ms. Blackmon. In Wilhelmus v. Geren, the U.S. District Court for
    the District of Columbia held that an agency normally must adhere to
    its precedents when adjudicating cases before it. If an agency deviates
    from its precedents, it must provide a rational reason for doing so.
    According to the Court, this requirement becomes especially acute when
    an applicant has pointed to a specific prior decision as being very
    similar to his or her own situation. At ARBA, we view the holding in
    Wilhelmus as a reaffirmation of the ABCMR's duty to fully address all
    issues and arguments raised by the applicant. If an applicant cites
    previous ABCMR decisions in support of his or her application, we are
    bound to either follow those precedents or to distinguish them from the
    applicant's own situation. In either event, the ABCMR is obligated to
    address all of the applicant's arguments and to provide a clear
    explanation for its ultimate decision. Although it does not have a
    sophisticated term-searchable database with which to catalogue and
    retrieve previous decisions, the ABCMR does access previous decisions
    by name or case number if an applicant cites one as precedent.
        Ms. Speier. Findings in favor of applicants are reviewed before
    being finalized, but when boards rule against veterans, there is no
    system of review. I'm disturbed that there isn't a check in place to
    ensure fair treatment. How do you guarantee that your boards' decisions
    are consistent and high quality? Do you have internal audits? Are there
    standards boards are supposed to refer to? Training standards that have
    to be met? How do you check compliance? Is there an external
    ombudsperson?
        Ms. Blackmon. For the ABCMR, all ABCMR Board recommendations are
    reviewed by the Director, ABCMR to ensure consistency and fair
    treatment. Board members receive training on current policy and their
    responsibilities regarding case reviews. Board Members take and sign an
    oath that requires them to exercise their independent judgement in all
    cases they consider. They are required to certify they have read and
    understand all policy guidance related to liberal consideration,
    equity, justice and clemency determinations. In accordance with current
    ARBA policy, special category cases (MST, PTSD, OBH), cases counter to
    an advisory opinion, or non-unanimous panel votes are provided to the
    ARBA Deputy or Deputy Assistant Secretary of the Army (DASA) for
    review. Cases where the ABCMR Director disagrees with the Board
    recommendation are forwarded to the DASA for further review/decision.
    The Army Discharge Review Board (ADRB) is organized and staffed to
    maximize consistency and high quality. There are three levels of review
    for each case within the ADRB: Team Chief (TC), Presiding Officer (PO),
    and ADRB President. Once the ADRB votes, then the PO reviews the case
    and submits it to the ADRB President for final review. In the event the
    ADRB President does not agree with the board vote, he can submit his
    reasons to the DASA (RB). She has the Secretarial Review Authority
    (SRA) to ultimately decide the merits of the case. As described
    previously, ADRB's organization has several layers of checks and
    balances to ensure consistent and high quality decisions. The TC
    reviews the Analysts, the PO reviews the TC, and the ADRB President
    reviews the PO. Additionally, the ADRB has training standards for
    Analysts, Board Members, and Presiding Officers that are detailed in
    standard operating procedures (SOPs) that are updated annually. In
    addition to internal training standards, ARBA has quarterly training
    and annual training stand-down days to address emerging policies and
    clarifying guidance. The DASA (RB), the ABCMR Director, and the
    President ADRB ensure all personnel receive the required training to
    promote consistency and fairness in case processing and adjudication.
    There is no external ombudsperson, however DOD provides oversight to
    ARBA. In accordance with the National Defense Authorization Act for
    Fiscal Year 2017, we submit quarterly reports to OSD to track the
    discharge upgrade percentages for special cases (PTSD, MST, and TBI).
    Finally, we are in the process of adding a training/standardization/
    quality control officer to the ARBA staff.
        Ms. Speier. There are proposals to consolidate the BCMRs into a
    unified, not service-specific, system with regional jurisdictions, or
    even create a special claims court to legally adjudicate tough cases.
    Those alternatives may create efficiencies and help applicants receive
    just hearings. What is your evaluation of those proposals? How would a
    consolidated BCMR with regional offices function? What are the costs
    and benefits?
        Ms. Blackmon. All these proposals seek to promote greater
    consistency amongst Services when it relates to discharge upgrades
    involving post-traumatic stress disorder, traumatic brain injury, and/
    or military sexual trauma. The disparate discharge upgrade rates
    amongst the Services, at the root of these proposals, is not a
    structural problem, but rather a cultural problem. The Army currently
    has the highest grant rates of the three Services. But it has not
    always been that way. ARBA has been successful through 5 pillars:
    leadership, analysts, board members, medical, and legal. The leadership
    provides guidance based on liberal consideration and trains personnel
    uniformly. The leadership has also invested much organizational energy
    into hiring for character and training for skills--in terms of
    analysts, behavioral health professionals (psychiatrist and
    psychologists), and attorneys. You have to have the ``right'' people to
    execute effectively in accordance with DOD liberal consideration
    guidance and Congressional intent. We have established systems that
    provide internal oversight to decisions to allow for the maximum
    opportunity for an upgrade. To promote greater consistency amongst the
    Services we recommend we consider repurposing the Physical Disability
    Board of Review to become the DOD Discharge Upgrade Appellate Authority
    (DUAA). All discharge upgrade requests denied by Service Boards for
    Correction of Military/Naval Records or Service Discharge Review Boards
    automatically would be sent to the DUAA for reconsiderations (without
    referral to the applicant). The DUAA would take final action (upgrade
    the discharge, or sustain the service denial) on this class of cases.
    The DUAA could be placed under the OUSD (P&R)'s Joint Service Review
    Activity, the Defense Office of Hearings and Appeals (OSD GC), or the
    Army Review Boards Agency (as the Service with the highest grant rate).
    The pros of such a proposal are consistency and standardization of
    process for applicants, stops disparate treatment of applicants,
    utilizes existing assets (PDBR + oversight body). The cons of such a
    proposal are resources (DOD has planned to sunset PDBR and harvest
    current funding for other personnel programs), loss of Service
    Secretary authority, and the solution does not recognize Service
    culture.
        Ms. Speier. It's not clear what work staff do and whether boards
    members independently evaluate the evidence before reaching their
    decisions. Will each of you please provide a yes or no answer to the
    following: 1. Do board members receive case materials at least 24 hours
    before the day they decide on those cases? 2. Are board members
    required to review these applications before the day they decide on
    cases? If no, why not? 3. Do staff provide board members with case
    summaries? 4. Are those summaries written in persuasive form or do they
    include recommendations?
        Ms. Blackmon. For question 1: yes for both ADRB and ABCMR. For
    question 2: yes for both ADRB and ABCMR. For question 3: yes for both
    ADRA and ABCMR. For question 4, no for the ADRB (that is, the staff
    presents facts only). For the ABCMR, the staff presentations are
    currently in persuasive form, but moving to a fact-only format.
        Ms. Speier. In what percentage of cases do board members decide
    against staff recommendations?
        Ms. Blackmon. ABCMR and ADRB analysts do not provide
    recommendations to the board for review.
        Ms. Speier. How much staff time goes into an average case? How much
    time does a board spend deciding a case on average? How many cases does
    a board evaluate in a day?
        Ms. Blackmon. Depending on the complexity of the case, the ABCMR
    and ADRB staffs spend 3-9 hours per case. Again, depending on the
    complexity of the case, the board spends 15-30 minutes per case.
    Finally, the boards evaluate 20-40 cases per day.
        Ms. Speier. Another part of this problem is that individuals with
    cases before BCMRs have an incredibly difficult time researching cases
    to find and apply relevant cases. Federal law requires you to post
    cases online, but cases are posted late and difficult to navigate. Can
    you commit to creating a modern, regularly updated, easily searchable,
    online system of past cases? What resources would you need to create
    that system?
        Ms. Blackmon. Yes, I can commit to creating a modern, regularly
    updated, easily searchable, online system of past cases. We estimate
    that to do so would require approximately 1 million dollars of contract
    labor.
        Ms. Speier. How often do boards concur or differ with expert
    medical evaluators? What about outside experts' whose testimony is
    included in applicants' packages?
        Ms. Blackmon. ARBA boards rarely non-concur with expert medical
    evaluators. For the ABCMR, in those cases where the Board
    recommendation is counter to the advisory, by ARBA policy those cases
    are referred to the DASA for review/decision. Cases involving claims of
    behavioral health issues, traumatic brain injuries, sexual assault, or
    physical injuries are referred to the internal ARBA medical staff for
    advisory opinions. If the applicant includes evidence from outside
    experts (civilian providers or the VA) regarding a condition or
    experience, that evidence is reviewed by the ARBA medical staff/ABCMR
    staff and included in the case summaries presented for board
    consideration. For the ADRB, when they do non-concur, it is typically
    to provide more relief based on liberal guidance. For example, a
    medical advisor may not mitigate offenses based on their medical
    opinion. However, the board will vote to upgrade a discharge based on
    compassion, clemency, or liberal guidance. In accordance with the
    National Defense Authorization Act for Fiscal Year 2018, the Boards
    evaluate civilian medical testimony equal to Army or VA testimony.
        Ms. Speier. How many personal appearances has your BCMR held in the
    past year? The past decade?
        Ms. Blackmon. The ABCMR held two personal hearings in the past year
    and since October 2009 has held a total of 12 personal appearance
    hearings. As a part of the California Army National Guard Incentive
    review directed in the National Defense Authorization Act for Fiscal
    Year 2017, the Special Board of Review (ABCMR) conducted 20 personal
    appearance hearings between June and September 2017. Finally, we are
    adding opportunities for ABCMR applicants to make personal appearances
    at locations around the United States in conjunction with the ADRB's
    quarterly traveling panels.
        Ms. Speier. What proportion of BCMR and DRB cases relate to MST,
    TBI, or PTSD?
        Mr. Fedrigo. The number of cases and proportion of cases are based
    on all cases adjudicated in FY2018.

    ----------------------------------------------------------------------------------------------------------------
                                         Number of Cases                               Percent of Cases
                         -------------------------------------------------------------------------------------------
                                    BCMR                    DRB                   BCMR                   DRB
    ----------------------------------------------------------------------------------------------------------------
    MST                   19                       12                    0.86%                    4.2%
    ----------------------------------------------------------------------------------------------------------------
    TBI                    6                        4                    0.27%                    1.4%
    ----------------------------------------------------------------------------------------------------------------
    PTSD                  65                       36                    2.9%                    12.5%
    ----------------------------------------------------------------------------------------------------------------

        Ms. Speier. Can you describe how your service interprets ``liberal
    consideration'' and how you train your board members to apply this
    concept?
        Mr. Fedrigo. AFBCMR and AFDRB board members are provided training
    and guidance on new or modified law, regulation, and/or policy that
    impacts the adjudication of cases. The AFBCMR provided board members
    liberal consideration-specific training at an annual day-long board
    member symposium. The training included how to identify cases where
    liberal consideration applies and proper application of the
    consideration. AFDRB also provides liberal consideration training to
    board members as well as copies of all applicable commander's memos and
    policies. Board members understand that while liberal consideration
    does not mandate an upgrade, medical knowledge and societal/military
    norms have changed in how these cases are adjudicated. The Air Force
    does not demand the same level of medical scrutiny as years past when
    evaluating the intersection of mental health conditions and misconduct.
    Similarly, we do not expect the same level of proof or documentation of
    sexual assault or sexual harassment suffered before current options for
    restricted reporting, heightened protection for victims, and greater
    support for victims existed. Board members are asked to address the
    following set of questions for all liberal consideration cases: 1. Did
    the veteran have a condition or experience that may excuse or mitigate
    the discharge? 2. Did that condition exist/experience occur during
    military service? 3. Does that condition or experience actually excuse
    or mitigate the discharge? 4. Does that condition or experience
    outweigh the discharge?
        Ms. Speier. DC District Court judge found that BCMRs are bound by
    previous decisions in Wilhelmus v. Geren. Do you believe your members
    and staff are bound by precedent when deciding cases? Do you have
    systems in place to ensure staff and members can refer to previous
    decisions when deciding cases?
        Mr. Fedrigo. The AFBCMR strives to adjudicate cases consistently
    with adherence to precedent where warranted. We acknowledge that two
    cases that are substantively the same should result in similar relief.
    The need for a consistent set of standards and consistent application
    of those standards is critical to the integrity of the Board. We also
    acknowledge that no two Airman's military service, personal history,
    medical needs, medical treatment, and overall life journey are the
    same. Therefore, each case must be analyzed and adjudicated on its own
    merits, to ensure fairness, and/or equity are maintained. The AFBCMR
    continuously monitors for consistency and utilizes the public reading
    room, internal case management system, and performance dashboards to
    reference previous cases and their decisions. AFBCMR staff personnel
    also monitor all board deliberations and use these observations to
    identify future training opportunities for board members. The AFBCMR
    notes the DC District Court has also held that agencies are permitted
    to change course when handling similar cases. In Gilbert v. Wilson, 292
    F. Supp. 3d 426 (D.D.C. 2018), the DC District Court upheld the
    AFBCMR's decision to deny waivers to applicants because the Board
    articulated a reasonable explanation for its decision to reassess its
    approach to waivers. The court reasoned, the ``classic direction for a
    court reviewing such an agency action is that an agency changing its
    course must supply a reasoned analysis indicating that prior policies
    and standards are being deliberately changed, not casually ignored.''
    If the court is satisfied the agency has taken ``a hard look at the
    issues with the use of reasons and standards'' the court will uphold
    its findings so long as ``the agency's path may be reasonably
    discerned.''
        Ms. Speier. Findings in favor of applicants are reviewed before
    being finalized, but when boards rule against veterans, there is no
    system of review. I'm disturbed that there isn't a check in place to
    ensure fair treatment. How do you guarantee that your boards' decisions
    are consistent and high quality? Do you have internal audits? Are there
    standards boards are supposed to refer to? Training standards that have
    to be met? How do you check compliance? Is there an external
    ombudsperson?
        Mr. Fedrigo. Providing fair and equitable treatment in every case
    is the highest priority for the AFBCMR. Therefore, the AFBCMR conducts
    multiple leadership reviews and provides rigorous training for all
    staff personnel across the process. Each case decision is, at a
    minimum, reviewed by an AFBCMR Board Operations Manager, a GS-14 with
    decades of experience in the Air Force personnel career field.
    Additionally, the AFBCMR Director, a GS-15 with decades of Air Force
    personnel experience, and a person outside of the deliberation process,
    reviews all decisions. If an inconsistent outcome is detected the case
    is immediately routed for legal and senior leadership review. Well
    trained board members are key to fair and consistent decisions. The
    AFBCMR far exceeds the mandatory training requirement for board members
    as set by Congress, providing annual training and additional electronic
    newsletters on changes to policy, environment/operating conditions, key
    topics and other subjects pertinent to board members. Prior to becoming
    a board member, each person must complete a day-long training session
    conducted by AFBCMR staff, Air Force attorneys, mental health
    professionals, OSD P&R, DOD IG, and the Air Force Personnel Center
    (AFPC). The AFBCMR provides robust onboarding and reinforces the
    information through ongoing training and communication.
        Ms. Speier. There are proposals to consolidate the BCMRs into a
    unified, not service-specific, system with regional jurisdictions, or
    even create a special claims court to legally adjudicate tough cases.
    Those alternatives may create efficiencies and help applicants receive
    just hearings. What is your evaluation of those proposals? How would a
    consolidated BCMR with regional offices function? What are the costs
    and benefits?
        Mr. Fedrigo. As more functions become centralized and consolidated
    to provide services or perform functions across the DOD, one of the
    common factors that those efforts have is non service-specific or
    limited service-specific knowledge, needs, or dependencies. The service
    BCMRs make decisions based heavily, if not sometimes solely, on
    service-specific policy and guidance. In addition, each service has
    different historical and personnel records, tracks different data
    points, works in different systems, applies service-specific policy,
    utilizes distinct operations and processes (e.g., how enlisted and
    officers are promoted and taking different physical fitness tests), and
    has fundamentally different missions. The Air Force has not conducted
    nor is aware of any studies that look at potential efficiencies or cost
    savings. There is significant benefit for the AFBCMR to be located in
    the National Capital Region. The AFBCMR relies on collateral board
    members, all of whom must be at least a GS-15 or higher, we are able to
    leverage the larger population of experienced AF senior leadership in
    the National Capital Region to maintain experienced board members and
    recruit replacements as needed. This would be difficult almost anywhere
    else. There could be opportunities to have some joint operations across
    the types of issues that the various BCMRs adjudicate where regulation,
    policy, and guidance is consistent across the services. The OSD
    Physical Disability Board of Review (PDBR) has shown that for specific
    types of cases, joint operation is both more efficient and yields high
    quality, fair decisions. The types of cases where regulation and policy
    is currently consistent across services are the cases dealing with
    medical issues, to include mental health, military sexual trauma, PTSD,
    etc. These are the case types where there is the most opportunity for
    joint adjudication.
        Ms. Speier. It's not clear what work staff do and whether boards
    members independently evaluate the evidence before reaching their
    decisions. Will each of you please provide a yes or no answer to the
    following: 1. Do board members receive case materials at least 24 hours
    before the day they decide on those cases? 2. Are board members
    required to review these applications before the day they decide on
    cases? If no, why not? 3. Do staff provide board members with case
    summaries? 4. Are those summaries written in persuasive form or do they
    include recommendations?
        Mr. Fedrigo. The following answers are for both the AFBCMR and
    AFDRB. Q1. Yes, Q2. Yes, Q3. Yes, Q4. No.
        Ms. Speier. In what percentage of cases do board members decide
    against staff recommendations?
        Mr. Fedrigo. The AFBCMR Staff does not provide any recommendations.
        Ms. Speier. How much staff time goes into an average case? How much
    time does a board spend deciding a case on average? How many cases does
    a board evaluate in a day?
        Mr. Fedrigo. Each examiner spends anywhere from eight hours
    reviewing and analyzing a simple case to 40 hours or more reviewing and
    analyzing more difficult cases. If an applicant has one clear
    contention on a common issue, the review and analysis are fairly
    straight forward. However, cases require exponentially more time with
    each contention presented by the applicant and the analysis becomes
    more involved. Our Panels consist of 3 GS-15/SES board members. On
    average, each panel adjudicates 25-30 cases per session, which are
    provided to the voting panel members at least 7 calendar days prior to
    the panel's convening date. Each panel member spends multiple hours
    preparing for the panel--reviewing the case summaries, analyzing
    records, and examining advisories from Air Force subject matter
    experts. The actual panel time ranges depending on the breadth and
    difficulty of cases being adjudicated. The AFBCMR does not track length
    of panels. Anecdotally, some boards take as long as 2 hours, while
    others can be completed in 30 minutes if panel members agree
    unanimously or the board is adjudicating cases that all pertain to the
    same issue (e.g., name change), where the application of policy is
    fairly straight forward.
        Ms. Speier. Another part of this problem is that individuals with
    cases before BCMRs have an incredibly difficult time researching cases
    to find and apply relevant cases. Federal law requires you to post
    cases online, but cases are posted late and difficult to navigate. Can
    you commit to creating a modern, regularly updated, easily searchable,
    online system of past cases? What resources would you need to create
    that system?
        Mr. Fedrigo. All of the services utilize a joint DOD system and the
    Army is the executive agent responsible for operations and maintenance.
    The AFBCMR embraces the effort to modernize the online reading room to
    make the site more navigable and user friendly. We defer to the DOD and
    Army to determine the resources needed. The AFBCMR has updated its
    redaction process and established standard operating procedures to
    redact and post closed cases to the reading room on a monthly basis.
        Ms. Speier. How often do boards concur or differ with expert
    medical evaluators? What about outside experts' whose testimony is
    included in applicants' packages?
        Mr. Fedrigo. All medical cases and documents are reviewed by a
    medical doctor and mental health professionals per congressional
    requirement. The Board has not tracked how often boards concur or
    differ with expert medical evaluators, but cases boarded that do not
    concur with the medical advisory receive additional review from
    leadership.
        Ms. Speier. How many personal appearances has your BCMR held in the
    past year? The past decade?
        Mr. Fedrigo. The AFBCMR grants requests for personal appearances on
    a discretionary basis, predicated upon the Board finding that the
    applicant's presence, with or without counsel, would materially add to
    its understanding of the issues involved. The AFBCMR has not conducted
    any personal appearances within the last year and has conducted 3
    personal appearances in the past decade. Deliberate efforts are
    underway to increase the number of personal appearances for the next
    fiscal year, to include VTC and other remote teleconferencing options.
        Ms. Speier. What proportion of BCMR and DRB cases relate to MST,
    TBI, or PTSD?
        Mr. Woods.
        [GRAPHIC] [TIFF OMITTED] T3475.025

        .epsMs. Speier. Can you describe how your service interprets
    ``liberal consideration'' and how you train your board members to apply
    this concept?
        Mr. Woods. On August 25, 2017, the Office of the Under Secretary
    for Defense issued clarifying guidance to the Boards concerning
    requests by veterans for modification of their discharge due to mental
    health conditions, sexual assault, or sexual harassment. It is
    consistent with this guidance that the BCNR applies liberal
    consideration to petitions for relief where a veteran claims the
    petition is based in whole, or in part, on matters relating to mental
    health conditions, including PTSD, TBI, sexual assault, or sexual
    harassment. Utilizing this standard, the BCNR may consider evidence
    from a wide range of sources, but upgrades are not mandated. IAW Fiscal
    Year 2017 National Defense Authorization Act and in line with OSD
    guidance, the Navy developed a comprehensive training curriculum during
    FY17 and it was presented to all Board members and staff at a two-day
    conference in August 2017. There were also two make up sessions and
    another is tentatively scheduled for the spring of 2019. The BCNR will
    conduct future training curriculum every two years. Board members are
    briefed before each Board on the liberal consideration policy,
    reiterating the concepts set forth in the August 25, 2017 memorandum.
        Ms. Speier. DC District Court judge found that BCMRs are bound by
    previous decisions in Wilhelmus v. Geren. Do you believe your members
    and staff are bound by precedent when deciding cases? Do you have
    systems in place to ensure staff and members can refer to previous
    decisions when deciding cases?
        Mr. Woods. While the BCNR's case search capabilities are not as
    sophisticated as the Federal courts case publishing systems, the BCNR
    does comport with the holding Wilhelmus. Recognizing that no two
    service member's records are identical, the BCNR analyzes and
    adjudicates each case on its own merit to ensure fairness and equity to
    the petitioner. In so doing, the BCNR will consider prior cases known
    the board, as well as those cited by the petitioner, when the facts
    presented are sufficiently analogous and a similar result is
    appropriate. BCNR endeavors to promote consistent results by
    conducting/participating in regular training and monitoring board
    deliberations in similar matters. Together, these efforts ensure that
    BCNR decisions are well-reasoned and aligned with applicable policies,
    standards, and board precedent.
        Ms. Speier. Findings in favor of applicants are reviewed before
    being finalized, but when boards rule against veterans, there is no
    system of review. I'm disturbed that there isn't a check in place to
    ensure fair treatment. How do you guarantee that your boards' decisions
    are consistent and high quality? Do you have internal audits? Are there
    standards boards are supposed to refer to? Training standards that have
    to be met? How do you check compliance? Is there an external
    ombudsperson?
        Mr. Woods. Each decision is based on the individual petitioner's
    entire service record and all evidence provided by the applicant. Every
    case is comprehensively reviewed prior to the final decision being sent
    to the member(s). This process involves preparation of the case by the
    assigned staff member, a review by the individual section supervisor
    and, as appropriate, an additional review by the Deputy Director and/or
    a staff attorney prior to the Executive Director's final review and
    endorsement. This multi-step quality review process ensures the
    petitioners' applications are fully considered and that the final
    decisions deliver fair and equitable results.
        Ms. Speier. There are proposals to consolidate the BCMRs into a
    unified, not service-specific, system with regional jurisdictions, or
    even create a special claims court to legally adjudicate tough cases.
    Those alternatives may create efficiencies and help applicants receive
    just hearings. What is your evaluation of those proposals? How would a
    consolidated BCMR with regional offices function? What are the costs
    and benefits?
        Mr. Woods. We recognize many alternatives may be under
    consideration and it is difficult to offer an opinion without an actual
    proposal to evaluate and offer an informed view. As structured, the
    service specific BCMRS offer a foundation in that the staff members are
    well versed in the service rules, regulations, and processes. A
    consolidated BCMR would take away the service-specific expertise
    currently in place and eliminate the accountability provided by the
    individual service Boards.
        Ms. Speier. It's not clear what work staff do and whether boards
    members independently evaluate the evidence before reaching their
    decisions. Will each of you please provide a yes or no answer to the
    following: 1. Do board members receive case materials at least 24 hours
    before the day they decide on those cases? 2. Are board members
    required to review these applications before the day they decide on
    cases? If no, why not? 3. Do staff provide board members with case
    summaries? 4. Are those summaries written in persuasive form or do they
    include recommendations?
        Mr. Woods. 1) Yes and no. Cases are provided in advance where the
    complexity of the matter requires advance preparation. We are currently
    moving to a digitized process, which, once fully implemented, members
    will receive all cases at least 24 hours in advance of deliberations.
    2) Yes and no--depends on complexity. See answer #1. 3) Yes. 4) The
    executive summaries only include the facts of the case. A
    recommendation is not provided to the board as the decision is solely
    within the board's discretion to evaluate and decide.
        Ms. Speier. In what percentage of cases do board members decide
    against staff recommendations?
        Mr. Woods. All decisions are based solely on the Board members.
    Staff recommendations are not provided.
        Ms. Speier. How much staff time goes into an average case? How much
    time does a board spend deciding a case on average? How many cases does
    a board evaluate in a day?
        Mr. Woods. The average case preparation timeframe by staff ranges
    from 5-8 hours. Simple matters may take only a few hours to review;
    complex matters may take as long as 5 business days. Case preparation
    depends on case complexity and the amount of documentation involved.
    Generally, the boards review an average of 20 cases per day. The boards
    are not limited in the amount of time allowed for adjudication of any
    particular matter.
        Ms. Speier. Another part of this problem is that individuals with
    cases before BCMRs have an incredibly difficult time researching cases
    to find and apply relevant cases. Federal law requires you to post
    cases online, but cases are posted late and difficult to navigate. Can
    you commit to creating a modern, regularly updated, easily searchable,
    online system of past cases? What resources would you need to create
    that system?
        Mr. Woods. The Office of Legal Policy Under Secretary of Defense
    for Personnel & Readiness is actively working on enhancing the
    Department of Defense (DOD) Reading Room site to provide text
    accessible search tool and case catalog, which will offer a more
    modern, easily searchable and online system to review cases.
        Ms. Speier. How often do boards concur or differ with expert
    medical evaluators? What about outside experts' whose testimony is
    included in applicants' packages?
        Mr. Woods. The Board considers all material submitted by the
    applicant and all relevant naval records, including medical
    evaluations, as well as applicable laws, rules, regulations, and
    policies. Cases presented may or may not include the views of an expert
    medical evaluator. Because the boards consider cases based upon the
    totality of information presented, we do not measure how often the
    boards accept the view of an expert medical evaluator as this may only
    be one factor in the overall decision reached by the board.
        Ms. Speier. How many personal appearances has your BCMR held in the
    past year? The past decade?
        Mr. Woods. FY 2017 NDRB held 153 Personal Appearance Hearings--61
    conducted via Telephone. FY 2018 NDRB held 156 Personal Appearance
    Hearings--85 conducted via Telephone. Until recently, the BCNR had not
    granted any requests for a personal appearance. Most recently, the BCNR
    granted one request for a personal appearance during the past fiscal
    year.

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