[UPDATE] New BCNR Rules for Requests for Reconsideration?

[UPDATE] The 2017 NDAA standardized reconsideration rules for all boards.  10 U.S.C § 1552 has been amended to allow for reconsideration applications based on "materials not previously presented to the Board" no matter when filed.  In other words, the statute now appears to allow for unlimited reconsiderations without time constraints.  Further, the request need only contain "materials not previously presented to the Board;" there is no requirement that the materials be newly discovered.  Because promulgation of reconsideration rules previously were left to individual boards, the new statutory standards effect cases in different ways, depending on their service branch.  I intend to more thoroughly analyze these effects in a future blog post. 

When a Board for Correction of Military Records (BCMR) denies an application or fails to grant proper relief, applicants may request reconsideration under certain circumstances.  Each BCMR has its own particular reconsideration requirements that must be satisfied or the Board will return the request without action.

Generally, the rules for reconsideration are published in the Code of Federal Regulations and service-specific governing regulations.  However, from September 16, 2014 and until July 2016 , the Board for Correction of Naval Records (BCNR) was informally implementing a new, stricter policy on reconsideration requests that was not published in any regulation or even noted on the Board’s website.  As discussed below, the BCNR’s informal rules were invalidated on July 1, 2016 but there are likely numerous reconsideration requests the Board improperly rejected from September 2014 to July 2016.  If your case was rejected, you may still be able to apply for reconsideration and we can help.

Before September 16, 2014, the BCNR’s reconsideration policy imposed no deadline for submission nor did it limit the number of reconsideration requests an applicant could submit.  The Board merely required “new and material evidence or other matter not previously considered by the Board” but allowed BCNR staff to determine whether the evidence was “new and material.”  32 C.F.R. § 723.9.  Since then, the BCNR had been applying a strict, one-year deadline in addition to a requirement for new and material evidence (as determined by the BCNR itself), striking the more flexible option to submit “other matters” not previously considered by the Board. 

The BCNR’s new procedure was substantially similar to that of the Army Board for Correction of Military Records (ABCMR), which changed their reconsideration regulations after the D.C. District Court invalidated a provision that allowed staff members—and not the ABCMR itself—to make merits determinations on the sufficiency of evidence submitted for reconsideration.  See Lipsman v. Sec’y of Army, 335 F. Supp. 2d 48, 55 (D.D.C. 2004) .  Contrary to the Army’s approach, the Navy did not update any regulations to reflect the change nor did they make any meaningful effort to notify potential applicants.  If you think this is unfair, you’re not alone.  But the lack of publication is only one of a number of anti-applicant actions made by the Board and Government counsel.

The BCNR’s unpublished change was prompted by an ongoing pro se lawsuit brought by a Marine plaintiff in 2010 challenging the BCNR’s decision to reject his requested for reconsideration of a BCNR decision issued decades earlier.  Lewis v. Sec'y of the Navy, No. 10-0842 (D.D.C. July 1, 2016).  Mr. Lewis argued that the BCNR’s reconsideration procedures violated Lipsman.  Lewis’ initial complaint was dismissed as untimely because his reconsideration request was not filed within six years of the BCNR’s initial denial, thereby depriving the D.C. District of jurisdiction under Nihiser v. White, 211 F. Supp. 2d 125, 131 (D.D.C. 2002).  Lewis appealed and the United States Court of Appeals for the D.C. Circuit remanded the case to the D.C. District with instructions to address Lewis’ challenge to the BCNR’s reconsideration policy.

Upon remand, the Navy repeatedly attempted to insulate the BCNR’s reconsideration rules from judicial scrutiny, evidently aware that its regulations may be unlawful.  First, Government counsel sought leave from the court to voluntarily remand the case to the BCNR and consider Lewis’ reconsideration matters, thereby rendering Lewis’ claim moot and preventing a negative public court opinion.   Judge Reggie B. Walton rejected the Navy’s motion, holding that it had been made in bad faith and “appear[ed] to be motivated solely by a desire to avoid judicial review of the challenged regulation.” 

Two weeks later—in another effort to avoid judicial review of the BCNR’s reconsideration regulations—the Navy changed its own rules without notice or publication.   The Assistant Secretary of the Navy for Manpower and Reserve Affairs issued a Memorandum for the Executive Director of the BCNR directing the Board to process applications in accordance with Lipsman.  Purportedly acting on this directive, the BCNR implemented—again without notice—the more restrictive rules mentioned above.  However, in an affidavit filed with the court the BCNR stated it would make a single exception in Lewis’ case and waive the new, strict one-year deadline.  Government counsel then argued that, under these new rules and because the BCNR would consider Lewis’ reconsideration, Lewis’ challenge to the regulation was moot. 

Judge Walton disagreed.  He held that the Navy’s unpublished policy change violated the Administrative Procedure Act (APA) and had no force or effect of law.  Turning to the regulation as currently published, Judge Walton held that it violated Lipsman and struck the provision in its entirety.  The Navy has not yet updated its regulations.

So what does this all mean? 

There is a class of applicants who submitted reconsideration requests between September 16, 2014 and July 1, 2016 whose cases were unlawfully rejected as untimely.  These applicants could reapply for reconsideration, although the requirements for new and material evidence must still be met.

BCNR’s post-Lewis reconsideration policy is unclear since the provisions have been invalidated and no new regulations have been published.  The BCNR’s website purports to be implementing Lipsman and that “the Board will reconsider an application if an applicant submits new evidence not previously considered by the Board.”

But Lipsman does not require a one-year deadline nor does it require the BCNR to limit reconsiderations to one-time requests; it merely requires the ABCMR itself to make substantive determinations on the sufficiency of evidence submitted for reconsideration.  Without any specific guidance, it would arguably the unlawful for the Board to apply strict one-year, one-time rules that are unpublished and exceed Lipsman’s holding.

If you think your case might have been affected by this convoluted legal mess, contact Midwest Military & Veterans Law.