The Secretary concerned shall, after consulting the Secretary of Veterans Affairs, establish a board of review, consisting of not fewer than three members, to review the discharge or dismissal (other than a discharge or dismissal by sentence of a general court-martial) of any former member of an armed force under the jurisdiction of his department upon its own motion or upon the request of the former member or, if he is dead, his surviving spouse, next of kin, or legal representative. A motion or request for review must be made within 15 years after the date of the discharge or dismissal. With respect to a discharge or dismissal adjudged by a court-martial case tried or reviewed under chapter 47 of this title (or under the Uniform Code of Military Justice (Public Law 506 of the 81st Congress)), action under this subsection may extend only to a change in the discharge or dismissal or issuance of a new discharge for purposes of clemency.
(b)(1)
A board established under this section may, subject to review by the Secretary concerned, change a discharge or dismissal, or issue a new discharge, to reflect its findings.
(2)
section 1553a of this title If a board established under this section does not grant a request for an upgrade to the characterization of a discharge or dismissal, that declination may be considered under section 1552 or , as applicable.
(c)
A review by a board established under this section shall be based on the records of the armed forces concerned and such other evidence as may be presented to the board. A witness may present evidence to the board in person or by affidavit. A person who requests a review under this section may appear before the board in person or by counsel or an accredited representative of an organization recognized by the Secretary of Veterans Affairs under chapter 59 of title 38.
(d)(1)(A)
In the case of a former member of the armed forces who, while serving on active duty as a member of the armed forces, was deployed in support of a contingency operation and who, at any time after such deployment, was diagnosed by a physician, clinical psychologist, or psychiatrist as experiencing post-traumatic stress disorder or traumatic brain injury as a consequence of that deployment, a board established under this section to review the former member’s discharge or dismissal shall include a member who is a clinical psychologist or psychiatrist, or a physician with training on mental health issues connected with post traumatic stress disorder or traumatic brain injury (as applicable).
(B)
In the case of a former member described in paragraph (3)(B) who claims that the former member’s post-traumatic stress disorder or traumatic brain injury as described in that paragraph is based in whole or in part on sexual trauma, intimate partner violence, or spousal abuse, a board established under this section to review the former member’s discharge or dismissal shall seek advice and counsel in the review from a psychiatrist, psychologist, or social worker with training on mental health issues associated with post-traumatic stress disorder or traumatic brain injury or other trauma as specified in the current edition of the Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.
(2)
In the case of a former member described in paragraph (1) or a former member whose application for relief is based in whole or in part on matters relating to post-traumatic stress disorder or traumatic brain injury as supporting rationale or as justification for priority consideration, the Secretary concerned shall expedite a final decision and shall accord such cases sufficient priority to achieve an expedited resolution. In determining the priority of cases, the Secretary concerned shall weigh the medical and humanitarian circumstances of all cases and accord higher priority to cases not involving post-traumatic stress disorder or traumatic brain injury only when the individual cases are considered more compelling.
(3)(A)
In addition to the requirements of paragraphs (1) and (2), in the case of a former member described in subparagraph (B), the Board shall—
(i)
review medical evidence of the Secretary of Veterans Affairs or a civilian health care provider that is presented by the former member; and
(ii)
review the case with liberal consideration to the former member that post-traumatic stress disorder or traumatic brain injury potentially contributed to the circumstances resulting in the discharge or dismissal or to the original characterization of the member’s discharge or dismissal.
(B)
A former member described in this subparagraph is a former member described in paragraph (1) or a former member whose application for relief is based in whole or in part on matters relating to post-traumatic stress disorder or traumatic brain injury as supporting rationale, or as justification for priority consideration, whose post-traumatic stress disorder or traumatic brain injury is related to combat or military sexual trauma, as determined by the Secretary concerned.
(e)
In the case of a former member of the armed forces (other than a former member covered by subsection (d)) who was diagnosed while serving in the armed forces as experiencing a mental health disorder, a board established under this section to review the former member’s discharge or dismissal shall include a member who is a clinical psychologist or psychiatrist, or a physician with special training on mental health disorders.
(f)
Each board established under this section shall make available to the public each calendar quarter, on an Internet website of the military department concerned or the Department of Homeland Security, as applicable, that is available to the public the following:
(1)
The number of motions or requests for review considered by such board during the calendar quarter preceding the calendar quarter in which such information is made available, including cases in which a mental health condition of the former member, including post-traumatic stress disorder or traumatic brain injury, is alleged to have contributed, whether in whole or part, to the original characterization of the discharge or dismissal of the former member.
(2)
The number of claims submitted during the calendar quarter preceding the calendar quarter in which such information is made available that relate to service by a former member during a war or contingency operation, catalogued by each war or contingency operation.
(3)
The number of discharges or dismissals corrected pursuant to the consideration described in paragraph (1) to upgrade the characterization of discharge or dismissal of former members.
(4)
The number and disposition of claims decided during the calendar quarter preceding the calendar quarter in which such information is made available in which sexual assault is alleged to have contributed, whether in whole or in part, to the original characterization of the discharge or release of the former member.
Sections 1553 and 1554 are restated, without substantive change, to conform to the style adopted for title 10.
Editorial Notes
References in Text
act May 5, 1950, ch. 169, § 164 Stat. 107act Aug. 10, 1956, ch. 1041, § 5370A Stat. 641The Uniform Code of Military Justice (Public Law 506 of the 81st Congress), referred to in subsec. (a), is , , which was classified to chapter 22 (§ 551 et seq.) of Title 50, War and National Defense, and was repealed and reenacted as chapter 47 (§ 801 et seq.) of this title by , , the first section of which enacted this title.
Amendments
Pub. L. 116–2832021—Subsec. (d)(1)(B). substituted “is based” for “in based”.
Pub. L. 116–92, § 5222019—Subsec. (a). , substituted “not fewer than three” for “five”.
Pub. L. 116–92, § 521(b)Subsec. (d)(1). , designated existing provisions as subpar. (A) and added subpar. (B).
Pub. L. 115–91, § 520(b)2017—Subsec. (d)(3)(A)(ii). , substituted “discharge or dismissal or to the original characterization of the member’s discharge or dismissal” for “discharge of a lesser characterization”.
Pub. L. 113–291, § 521(b)(1)2014—Subsec. (d)(1). , substituted “clinical psychologist or psychiatrist, or a physician with training on mental health issues connected with post traumatic stress disorder or traumatic brain injury (as applicable)” for “physician, clinical psychologist, or psychiatrist” before period at end.
Pub. L. 101–1891989—Subsecs. (a), (c). substituted “Secretary of Veterans Affairs” for “Administrator of Veterans’ Affairs”.
Pub. L. 98–2091983—Subsec. (a). inserted provision that with respect to a discharge or dismissal adjudged by a court-martial case tried or reviewed under chapter 47 of this title (or under the Uniform Code of Military Justice (Public Law 506 of the 81st Congress)), action under this subsection may extend only to a change in the discharge or dismissal or issuance of a new discharge for purposes of clemency.
Pub. L. 87–6511962— amended section generally without substantive change to conform to the style adopted for the revision of this title.
Statutory Notes and Related Subsidiaries
Effective Date
section 2 of Pub. L. 85–857Section effective , see , set out as a note preceding Part I of Title 38, Veterans’ Benefits.
Reviews of Characterization of Administrative Discharges of Certain Members on the Basis of Failure To Receive COVID-19 Vaccine
section 1553 of title 10A board established under , United States Code, shall grant a request pursuant to such section to review the characterization of a discharge or dismissal of a former member of a covered Armed Force if such discharge or dismissal was solely based on the failure of such former member to obey a lawful order to receive a vaccine for COVID-19.
“(b)
Covered Armed Force Defined .—
In this section, the term ‘covered Armed Force’ means the Army, Navy, Marine Corps, Air Force, Coast Guard, or Space Force.”
section 1553 of title 10Each Secretary concerned shall develop and provide training for members of discharge review boards under , United States Code, that are under the jurisdiction of such Secretary on each of the following:
“(A)
Sexual trauma.
“(B)
Intimate partner violence.
“(C)
Spousal abuse.
“(D)
The various responses of individuals to trauma.
“(2)
Uniformity of training .—
The Secretary of Defense and the Secretary of Homeland Security shall jointly ensure that the training developed and provided pursuant to this subsection is, to the extent practicable, uniform.
“(3)
Secretary concerned defined .—
section 101(a)(9) of title 10In this subsection, the term ‘Secretary concerned’ has the meaning given that term in , United States Code.”
, , , provided that:
Confidential Review of Characterization of Terms of Discharge of Members of the Armed Forces Who Are Victims of Sexual Offenses