[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                     
          
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                   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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