Semi-regularly, I intend to make note of key precedential cases involving judicial review of BCMR decisions. Today’s case is Wilhelmus v. Geren, 796 F.Supp.2d 157 (D.D.C. 2011).
Wilhelmus held that the Army Board for Correction of Military Records (ABCMR) violated the Administrative Procedure Act (APA) by failing to properly distinguish its own relevant precedent. Despite the Army’s contentions otherwise, the court held that BCMRs must follow their own past precedent and treat like casessimilarly unless it can provide a legitimate reason for doing so. Id. at 162. The court noted that “the need to consider relevant precedent becomes especially acute when a plaintiff has pointed to a specific prior decision as very similar to his own situation.” Id.
Wilhemus is an important case and a powerful tool for BCMR applicants. But it must be leveraged correctly to be effective. Speaking from experience, despite their apparent duty to do so, military records-correction boards generally do not research relevant cases on their own to ensure they are treating cases similarly. There effectively is a de facto responsibility on the applicant to point to specific prior decisions that might carry precedential weight.
By law, BCMRs are required to make past cases available and they are published in online reading rooms. That might sound convenient but the online interfaces appear to be from the Internet’s dark ages and searching for similar cases can be extremely difficult. Nonetheless, it is absolutely imperative to search for and locate any similarly situated cases and present them to the Board in an argument citing Welhelmus and the Boards’ indisputable duty to follow their own precedent.
Contact Midwest Military & Veterans Law to maximize your chances at success at the ABCMR, AFBCMR, BCNR, CGBCMR, and PHSCCBCMR.