June 17, 2020 | Written By Elizabeth Candelario
This isn’t fair, I didn’t get a chance to explain, they didn’t follow the regulation, I shouldn’t have this in my record, how can I change it?
These are questions service members ask themselves every day and many can find no answer. Some have heard of this board that exists called the Board of Corrections for Naval Record (BCNR). Some are aware that BCNR is how they can get their records changed, but when trying to determine what it is or how it works, the answers are elusive. People talk about BCNR as though it’s this nebulous thing that is out there but is too complicated to understand. The reality, however, is that BCNR’s process and procedures are relatively simple. What is complicated is positioning yourself to have your petition favorably reviewed, to receive relief, get what you want, and have your record changed.
All branches of the military have a Board for Correction of Military Records (BCMR), and they work in similar ways. For the Army, it’s the Army Board for Correction of Military Records (ABCMR). The Air Force likewise has the Airforce Board for the Correction of Military Records. And for the Coast Guard, there’s the Board for Correction of Military Records of the Coast Guard, a board of civilians within the U.S. Department of Homeland Security. While I specifically address the details of BCNR in this article, the other BCMR bodies have similar procedures. Consequently, the below discussion addresses issues that are relevant to any servicemember asking how this works and seeking to figure it out.
So what is BCNR, and when can it help me?
The BCNR is the highest level of administrative review within the Department of the Navy. It is a board of civilians established by and authorized to act on behalf of the Secretary of the Navy to correct military records when necessary to remedy an error or remove an injustice.
There are many reasons why both current and former Marines and Sailors may find themselves needing to seek a change in their military records to avoid significant career and financial implications. It may be something as serious as an unjust Administrative Separation (AdSep), based on inaccurate information or procedural error, such as noncompliance with federal law or service regulation. The member may need to seek modification or correction of the nature or type of discharge the reenlistment code. Maybe the member received improper counseling that resulted in denial of a travel claim, ineligibility for a bonus, or loss of education benefits. There could be negative paperwork in their record, such as a negative fitrep that was the basis for lack of promotion, which was procedurally improper or otherwise unjust such that it should be removed e.g., violates provisions of the Performance Evaluation System (PES), The Naval Military Personnel Manual (MILPERSMAN), or Individual Records Administration Manual (IRAM). Or, it could be something simple such as seeking a name change on your DD214 based on a genuine error or because having a former name causes an injustice, due to divorce or transgender status.
Administrative and procedural errors happen all the time, and BCNR is way to get them fixed. Unfortunately, there is little available guidance for service members on how to do it.
How Do I Seek Relief from BCNR?
The BCNR will only grant you relief, i.e. fix what you want them to fix, if you follow the appropriate procedures. First, before you can seek relief from BCNR, you must have exhausted any available administrative remedies. For example, if you are seeking a change, correction, or modification to the type or nature of discharge after Administrative Separation from the Navy, you may first need to petition the Naval Discharge Review Board.
Second, you need to prepare and submit the appropriate paperwork. The application form to petition BCNR, or any BCMR, is DD 149. Using this form and attachments thereto, you explain the error or injustice that you are seeking to have removed from your records. You must also present your arguments as to why you should be granted this relief. Importantly, you need to submit all evidence that you want the Board to consider; the Board is not an investigative Body, meaning it will not conduct an investigation to look into the facts and circumstances of your situation beyond what you submit with your petition. Thus, it is critical that you be as thorough as possible in compiling your application and drafting arguments in support of your position. For this reason, having the help of knowledgeable legal counsel may make all the difference.
There are also timelines to bear in mind. You must file your application within three years of discovering the alleged error or injustice. Or, your application must set forth the reasons why it would be “in the interest of justice” for the Board to accept a later filing.
How Does the Board Consider My Request?
Once your application is submitted, by federal statute the Board is required to process your case “in a timely manner.” This means that BCNR reviews applications in the order in which they are received, but it can still be up to 18 months until you receive a decision, depending on the complexity of your particular application. During this time, the Board will often obtain an advisory opinion from other Department of Navy offices. These opinions are not binding, meaning the Board does not have to implement the recommended action, but they are considered by the Board in determining whether to grant or deny your requested relief and the opinion becomes part of the record in your case. If the opinion is negative, you should be given an opportunity to respond to the opinion in writing, which will be considered with the rest of your petition before the Board makes its decision.
What Happens if BCNR Denies my Request?
Even if you have already unsuccessfully submitted a petition to BCNR, you still have options. In some situations, you may be able to submit a new petition. You may also be able to request reconsideration of the Board’s denial. Additionally, you can appeal a BCNR denial to Federal Court.
Your best chance at a favorable result is to have a clear, complete, and well-organized petition that sets forth all the evidence and legal arguments as to why there is an error or injustice in your records. The assistance of experienced counsel can be invaluable in helping you put forth the strongest case and obtaining the relief you deserve.
Elizabeth Candelario is a Partner with Parlatore Law Group. As a military spouse, she recognizes the many Administrative challenges service members face and is dedicated to helping them ensure their honorable service is appropriately documented and recognized.
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