[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.]
=======================================================================
A P P E N D I X
September 27, 2018
=======================================================================
PREPARED STATEMENTS SUBMITTED FOR THE RECORD
September 27, 2018
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
=======================================================================
DOCUMENTS SUBMITTED FOR THE RECORD
September 27, 2018
=======================================================================
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
=======================================================================
QUESTIONS SUBMITTED BY MEMBERS POST HEARING
September 27, 2018
=======================================================================
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.
[all]