2017 NDAA Breathes New Life into Previously Denied ABCMR Requests for Reconsideration
As part of the National Defense Reauthorization Act for the 2017 fiscal year, the federal statute governing military records-correction boards, 10 U.S.C. § 1552 was amended with several new provisions. Among them was a new, standardized rule for requests for reconsideration that could benefit large numbers of ABCMR applicants whose requests for reconsideration were rejected as untimely under now-invalidated rules.
The ABCMR is considered the highest level of administrative appeal for Army personnel matters—almost every grievance ultimately will find its way to the Board for a final decision. If an initial application is denied, the applicant has the option of applying for reconsideration and each board has it own particular rules. For the past 12 years or so, the ABCMR’s rules have been uniquely rigid. Unlike the Board for Correction of Naval Records (BCNR) for example, the ABCMR placed a strict, one-year deadline for reconsideration requests that were based on “new and material evidence” and allowed for only one request.
The ABCMR’s rule was problematic for a number of reasons, not the least of which is that new, material evidence often surfaces years after an applicant initially applies to the Board. But under the ABCMR’s strict deadline, request for reconsideration based on such material were immediately rejected as untimely, no matter how clear and convincing the evidence may have been.
The statute now contains a provision stating that “[a]ny request for reconsideration of a determination of a board under this section, no matter when filed, shall be reconsidered by a board under this section if supported by materials not previously presented to or considered by the board in making such determination.” § 1552(a)(3)(B).
This provision suggests a number of key changes in the landscape for ABCMR requests for reconsideration:
- The ABCMR’s one-year deadline now appears to be invalid.
- The ABCMR’s one-time reconsideration rule is now appears similarly invalid.
- Most importantly, it appears that any applicant who was at one time denied reconsideration purely on timeliness grounds now must be considered by the board so long as they are supported by “materials not previously presented to or considered by the board . . .”
If you have a case where the ABCMR denied a request for reconsideration as untimely, we can help.