PART 73—DOD DISCHARGE APPEAL REVIEW BOARD (DARB) Authority: 10 U.S.C. 1553a. Source: 89 FR 94610, Nov. 29, 2024, unless otherwise noted. § 73.1 Purpose. (a) This part establishes the DARB as the administrative body to conduct a final review of a petitioner's request for an upgrade in the characterization of a discharge or dismissal, pursuant to 10 U.S.C. 1553a. This part also provides the procedures for Service members (or their representatives) to request a final review, the standards that the DARB will apply when it reviews a petitioner's request, and the procedures following the DARB's recommended disposition of a request. (b) The DARB ensures that DoD-level policies, procedures, and standards related to the review of discharges and dismissals are uniformly and consistently applied across the military services. Reporting of the number of upgrades granted or denied pursuant to this final review process will also be made available for public inspection through the DoD Reading Room available at https://boards.law.af.mil. § 73.2 Definitions. Case file records. Characterization of a discharge or dismissal. Characterization of less than honorable. DARB member. Discharge Appeal Review Board (DARB). Exhausted all remedies available. Final review. New information. Petitioner. Preponderance of the evidence. Record review. Service member. § 73.3 Membership and designation. The DARB is set up independently from the Military Departments' DRBs and BCM/NRs. The DARB is comprised of civilian government employees and consists of a President, Deputy Director, and at least three members for each panel. The DARB President and Deputy Director are appointed as inferior officers by the Secretary of Defense. The Secretary of the Air Force (SECAF), as the designated lead agent for the DARB, appoints DARB members and assigns them to a panel(s). § 73.4 Responsibilities. (a) The USD(P&R) is responsible for directing the implementation of the DARB and serves as the Principal Staff Assistant with oversight of the DARB process, policies, procedures, and standards for the final review of a request for an upgrade in the characterization of a discharge or dismissal under 10 U.S.C. 1553a. The USD(P&R) must: (1) Ensure that petitioners are afforded an opportunity to request a final review of their requests for an upgrade to the characterization of a discharge or dismissals consistent with 10 U.S.C. 1553a; (2) Ensure that Secretary of Defense appoints the DARB President and DARB Deputy Director as inferior officers; (3) Review and approve any DARB or DARB-related policies or procedures that the Secretaries of the Military Departments or the DARB President develops before implementation of such policies or procedures; (4) Resolve all issues concerning the DARB that cannot be resolved between the DARB President and the Secretaries of the Military Departments; and (5) Modify or supplement this part as necessary. (b) The Secretaries of the Military Departments have the authority to approve, partially approve, or disapprove a DARB's recommendation to upgrade or partially upgrade a petitioner's characterization of a discharge or dismissal. The Secretary of the Military Department's decision is the final agency action. If an upgrade or partial upgrade is approved, the Secretary of the Military Department is responsible for ensuring that all necessary administrative actions are taken to effect the change, including issuance of a new or corrected DD 214. (c) SECAF is responsible for the formation, operation, and management of the DARB. The SECAF must: (1) Appoint DARB members to a panels and assign cases to ensure reviews are conducted in an impartial manner; (2) Appoint other staff as necessary for intake procedures; (3) Respond to all inquiries from private individuals, organizations, or public officials about DARB matters. When the specific Military Service can be identified, refer such correspondence to the appropriate Secretary of the Military Department; and (4) Ensure the timely online publication of annual reports as required by section 523 of the FY 2020 NDAA, Public Law 116-92. (d) The DARB President is responsible for administrating and overseeing the DARB. The DARB President may delegate their authority to the Deputy Director of the DARB, but no further delegation is authorized. The DARB President shall: (1) Review a DARB panel's recommendation and provide the final adjudication of the DARB recommendation regarding a petitioner's request for an upgrade to the characterization of a discharge or dismissal. (2) Develop policy, procedures, and evaluation standards for the DARB, subject to review and approval by the SECAF and the USD(P&R) before implementation of such policy, procedures, and evaluation standards. (e) The DARB Deputy Director is responsible for managing the DARB's day-to-day operations. (f) A DARB panel considers a petitioner's final review request properly brought before it, is responsible for performing a record review, applying DoD policies and standards, and if appropriate will make a recommendation to the DARB President on whether a petitioner's request for an upgrade to the characterization of a discharge or dismissal should be granted, partially granted, or denied. § 73.5 Application procedures. (a) Who is eligible for a final review? (1) The Service member's date of discharge or dismissal was on or after December 20, 2019; (2) Service member received a less than honorable characterization of service at the time of discharge or dismissal; (3) All remedies available have been exhausted at the respective Military Department's DRB and BCM/NR; and (4) The request for an upgrade in the characterization of a discharge or dismissal was denied or it was only partially granted at the respective Military Department's BCM/NR. (b) Who may request a final review? (2) If the Service member is deceased or legally incompetent and incapable of acting on their own behalf, a spouse, next of kin, or legal representative may be able to act on behalf of the Service member. (c) When can a petitioner request a final review? (2) After exhausting their administrative remedies, Petitioners must request a final review within 365 calendar days after the date of receipt of their respective Military Department's BCM/NR decision. The DARB may deny an untimely request. (d) How does a petitioner make a final review request? https://afrba-portal.cce.af.mil/#application-submission-darb. (2) The contents of a request must include the following: (i) the petitioner's name, address, telephone number, and email address; (ii) the Service member's name if represented by counsel or a representative; and (iii) the BCM/NR docket number to assist the DARB in obtaining records from the respective Military Department's BCM/NR. If this information is not provided, the DARB may return the request without considering it. (3) Additional documentation may be needed in support of a request for review by the DARB. If requesting a final review on behalf of a Service member, proof of status or relationship documents are required and must be enclosed or attached to a request for a final review. Proof of status or relationship documentation may include a death certificate, marriage license, divorce decree, birth certificate, notarized power of attorney, and court appointment of conservatorship or guardianship. The DARB will return the request to the petitioner without considering it when a proper relationship to a Service member has not been shown. (4) If there is new information in support of a request to upgrade the characterization of a discharge or dismissal, the DARB cannot review it. If the petitioner has new information, the petitioner must first seek reconsideration from the appropriate Military Department's BCM/NR to exhaust all remedies available. (e) Where do petitioners send a final review request? [email protected]. (f) How do petitioners withdraw a final review request? § 73.6 Review procedures and standards. (a) Intake of final review requests. (2) DARB personnel will provide notification to the petitioner to confirm receipt of the final review request. If it is determined that the petitioner is ineligible for a final review, DARB personnel will also notify the petitioner in writing of the reason(s) their request did not qualify for a final review. (3) Once a case intake is complete, DARB personnel will access or request case file records from the respective Military Department's BCM/NR and assign a DARB panel to consider the final review request. (4) If it is determined that a petitioner's case involves the adjudication of a Mental Health condition, a military or civilian health care provider will review the case file records to determine if a medical advisory opinion is required and missing. If the case file is missing a medical advisory opinion or other pertinent information the case will be returned the Military Department's BCM/NR for reconsideration or a document request. (b) Consideration of final review requests Scope of review. (2) Standard of review. de novo. (3) DARB panel adjudication. (4) DARB panel recommendation. (5) Review of the DARB panel's recommendation and the recommendation of the DARB. (i) If the DARB President approves the DARB panel's recommendation, the recommendation will constitute the recommended action of the DARB. (ii) If the DARB President disagrees with the DARB panel's recommendation, the DARB President will provide a new recommendation. This new recommendation will be in writing and will include the change to be made and the reasons for rejecting the recommendation of the DARB panel. (6) Discretionary review of the DARB's recommended action. (i) The DARB's recommended action will be the final recommended action unless the SECAF exercises their discretionary review authority within 30 calendar days after the DARB President submits the recommendation to the SECAF. (ii) If the SECAF chooses to exercise their discretionary review authority to review the DARB's recommended action within 30 calendar days, and the SECAF changes the DARB's recommended action, the SECAF will provide a written recommendation with supporting reasons and the new recommendation will constitute the final recommended action. (iii) The SECAF may delegate, in writing, its discretionary authority to act on DARB recommendations to a Presidentially appointed, Senate-confirmed (PAS) official but further re-delegation is not authorized. (c) Reconsideration at the BCM/NR. § 73.7 Final action. (a) The Secretary of the Military Department concerned will approve or disapprove the DARB's recommended action to upgrade or partially upgrade the characterization of a discharge or dismissal within 90 calendar days. The Secretary of the Military Department must approve the DARB's recommended action unless the Secretary finds that the recommendation is not supported by the preponderance of the evidence. (b) If the DARB recommends to deny an upgrade to the characterization of a discharge or dismissal and upholds the Military Department's BCM/NR decision, the DARB will notify the petitioner in writing of its final decision. If the DARB recommends to upgrade or partially upgrade the characterization of a discharge or dismissal, the Secretary of the Military Department concerned will notify the petitioner in writing of its final decision. (1) If the Secretary of the Military Department approves the DARB recommendation, the petitioner will be notified of the approved change and any change to the characterization of a discharge or dismissal will be effective as of the date of discharge. (2) If the Secretary of the Military Department disapproves the DARB recommendation, the Secretary concerned must provide the petitioner a written explanation detailing its rationale for disapproving the DARB's recommendation. (c) The Secretaries of the Military Departments may delegate, in writing, the authority to act on DARB recommendations to a PAS official but further re-delegation is not authorized. (d) The Secretary's or designee's action will be the final action. The petitioner has no right to a further review or to appeal this decision. § 73.8 Annual reporting requirements. (a) The DARB President will submit draft reports to OUSD(P&R) by the 1st of October for the preceding FY (October 1st through September 30th). The first report will be published on October 1, 2022, and the report will contain the DARB data for FY 2022. (b) The reporting period will be inclusive from the first through the last days of each reporting period. (c) The report will contain the following information: (1) The number of requests received; (2) The number of requests rejected for failure to meet eligibility criteria for a final review; (3) The number of requests considered; (4) The number of requests returned to the BCM/NRs for reconsideration; (5) The number of recommendations to upgrade the characterization of a discharge or dismissal granted by the Secretaries of the Military Departments pursuant to the DARB, to include the most common reasons for such upgrades; and (6) The number of recommendations to upgrade the characterization of a discharge or dismissal declined by the Secretaries of the Military Departments pursuant to the DARB, to include the most common reasons for such declinations. (d) The annual reports will be published on a publicly accessible DoD website; the reports can be accessed at https://boards.law.af.mil/OSD_DARB.htm.