10 U.S.C. § 1553 — Review of discharge or dismissal

Page 1442 TITLE 10—ARMED FORCES § 1553 for members of boards for the correction of military records under section 534(c) of the National Defense Au- thorization Act for Fiscal Year 2017 [Pub. L. 114–328] (10 U.S.C. 1552 note) shall include training on each of the following: ‘‘(1) Sexual trauma. ‘‘(2) Intimate partner violence. ‘‘(3) Spousal abuse. ‘‘(4) The various responses of individuals to trau- ma.’’ Pub. L. 114–328, div. A, title V, § 534(c), Dec. 23, 2016, 130 Stat. 2122, as amended by Pub. L. 115–91, div. A, title V, § 523(a), Dec. 12, 2017, 131 Stat. 1381, provided that: ‘‘(1) IN GENERAL.—Not later than one year after the date of the enactment of this Act [Dec. 23, 2016], each Secretary concerned shall develop and implement a comprehensive training curriculum for members of boards for the correction of military records under the jurisdiction of such Secretary in the duties of such boards under section 1552 of title 10, United States Code. The curriculum shall address all areas of admin- istrative law applicable to the duties of such boards. This curriculum shall also address the proper handling of claims in which a sex-related offense is alleged to have contributed to the original characterization of the discharge or release of the claimant, including guide- lines for the consideration of evidence substantiating such allegations in accordance with the requirements of section 1554b(b) of title 10, United States Code, as added by section 522 of the National Defense Authoriza- tion Act for Fiscal Year 2018 [Pub. L. 115–91]. ‘‘(2) UNIFORM CURRICULA.—The Secretary of Defense and the Secretary of Homeland Security shall jointly ensure that the curricula developed and implemented pursuant to this subsection are, to the extent prac- ticable, uniform. ‘‘(3) TRAINING.— ‘‘(A) IN GENERAL.—Each member of a board for the correction of military records shall undergo retrain- ing (consistent with the curriculum developed and implemented pursuant to this subsection) regarding the duties of boards for the correction of military records under section 1552 of title 10, United States Code, at least once every five years during the mem- ber’s tenure on the board. ‘‘(B) CURRENT MEMBERS.—Each member of a board for the correction of military records as of the date of the implementation of the curriculum required by paragraph (1) (in this paragraph referred to as the ‘curriculum implementation date’) shall undergo training described in subparagraph (A) not later than 90 days after the curriculum implementation date. ‘‘(C) NEW MEMBERS.—Each individual who becomes a member of a board for the correction of military records after the curriculum implementation date shall undergo training described in subparagraph (A) by not later than 90 days after the date on which such individual becomes a member of the board. ‘‘(4) REPORTS.—Not later than 18 months after the date of the enactment of this Act [Dec. 23, 2016], each Secretary concerned shall submit to Congress a report setting forth the following: ‘‘(A) A description and assessment of the progress made by such Secretary in implementing training re- quirements for members of boards for the correction of military records under the jurisdiction of such Secretary. ‘‘(B) A detailed description of the training cur- riculum required of such Secretary by paragraph (1). ‘‘(C) A description and assessment of any impedi- ments to the implementation of training require- ments for members of boards for the correction of military records under the jurisdiction of such Sec- retary. ‘‘(5) SECRETARY CONCERNED DEFINED.—In this sub- section, the term ‘Secretary concerned’ means a ‘Sec- retary concerned’ as that term is used in section 1552 of title 10, United States Code.’’ BOARD FOR CORRECTION OF MILITARY RECORDS Pub. L. 101–225, title II, § 212, Dec. 12, 1989, 103 Stat. 1914, provided that: ‘‘Not later than 6 months after the date of the enactment of this Act [Dec. 12, 1989], the Secretary of Transportation shall— ‘‘(1) amend part 52 of title 33, Code of Federal Regu- lations, governing the proceedings of the board estab- lished by the Secretary under section 1552 of title 10, United States Code, to ensure that a complete appli- cation for correction of military records is processed expeditiously and that final action on the application is taken within 10 months of its receipt; and ‘‘(2) appoint and maintain a permanent staff, and a panel of civilian officers or employees to serve as members of the board, which are adequate to ensure compliance with paragraph (1) of this subsection.’’ § 1553. Review of discharge or dismissal (a) The Secretary concerned shall, after con- sulting the Secretary of Veterans Affairs, estab- lish 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 ju- risdiction of his department upon its own mo- tion 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 re- spect to a discharge or dismissal adjudged by a court-martial case tried or reviewed under chap- ter 47 of this title (or under the Uniform Code of Military Justice (Public Law 506 of the 81st Con- gress)), action under this subsection may extend only to a change in the discharge or dismissal or issuance of a new discharge for purposes of clem- ency. (b)(1) A board established under this section may, subject to review by the Secretary con- cerned, change a discharge or dismissal, or issue a new discharge, to reflect its findings. (2) 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 sec- tion 1552 or section 1553a of this title, as applica- ble. (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 af- fidavit. A person who requests a review under this section may appear before the board in per- son or by counsel or an accredited representa- tive of an organization recognized by the Sec- retary 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 diag- nosed 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 estab- lished under this section to review the former member’s discharge or dismissal shall include a member who is a clinical psychologist or psy- chiatrist, or a physician with training on mental health issues connected with post traumatic stress disorder or traumatic brain injury (as ap- plicable). Page 1443 TITLE 10—ARMED FORCES § 1553 (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 dis- missal shall seek advice and counsel in the re- view from a psychiatrist, psychologist, or social worker with training on mental health issues as- sociated with post-traumatic stress disorder or traumatic brain injury or other trauma as speci- fied in the current edition of the Diagnostic and Statistical Manual of Mental Disorders pub- lished by the American Psychiatric Association. (2) In the case of a former member described in paragraph (1) or a former member whose appli- cation for relief is based in whole or in part on matters relating to post-traumatic stress dis- order or traumatic brain injury as supporting rationale or as justification for priority consid- eration, the Secretary concerned shall expedite a final decision and shall accord such cases suffi- cient priority to achieve an expedited resolu- tion. 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 para- graphs (1) and (2), in the case of a former mem- ber 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 mem- ber; and (ii) review the case with liberal consider- ation to the former member that post-trau- matic stress disorder or traumatic brain in- jury potentially contributed to the cir- cumstances resulting in the discharge or dis- missal or to the original characterization of the member’s discharge or dismissal. (B) A former member described in this sub- paragraph is a former member described in para- graph (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 trau- matic brain injury is related to combat or mili- tary sexual trauma, as determined by the Sec- retary concerned. (e) In the case of a former member of the armed forces (other than a former member cov- ered 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 mem- ber’s discharge or dismissal shall include a member who is a clinical psychologist or psy- chiatrist, 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 avail- able to the public the following: (1) The number of motions or requests for re- view considered by such board during the cal- endar quarter preceding the calendar quarter in which such information is made available, including cases in which a mental health con- dition 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 characteriza- tion 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 oper- ation, catalogued by each war or contingency operation. (3) The number of discharges or dismissals corrected pursuant to the consideration de- scribed in paragraph (1) to upgrade the charac- terization of discharge or dismissal of former members. (4) The number and disposition of claims de- cided during the calendar quarter preceding the calendar quarter in which such informa- tion is made available in which sexual assault is alleged to have contributed, whether in whole or in part, to the original characteriza- tion of the discharge or release of the former member. (Added Pub. L. 85–857, § 13(v)(2), Sept. 2, 1958, 72 Stat. 1266; amended Pub. L. 87–651, title I, § 110(a), Sept. 7, 1962, 76 Stat. 509; Pub. L. 98–209, § 11(b), Dec. 6, 1983, 97 Stat. 1407; Pub. L. 101–189, div. A, title XVI, § 1621(a)(2), Nov. 29, 1989, 103 Stat. 1603; Pub. L. 111–84, div. A, title V, § 512(b), Oct. 28, 2009, 123 Stat. 2281; Pub. L. 113–291, div. A, title V, § 521(b), Dec. 19, 2014, 128 Stat. 3360; Pub. L. 114–328, div. A, title V, §§ 533(b), 535, Dec. 23, 2016, 130 Stat. 2121, 2123; Pub. L. 115–91, div. A, title V, §§ 520(b), 521(b), (c)(2), title X, § 1081(a)(28), Dec. 12, 2017, 131 Stat. 1379, 1380, 1595; Pub. L. 116–92, div. A, title V, §§ 521(b), 522, 523(b)(2)(B), Dec. 20, 2019, 133 Stat. 1353, 1354; Pub. L. 116–283, div. A, title X, § 1081(a)(28), Jan. 1, 2021, 134 Stat. 3872.) HISTORICAL AND REVISION NOTES Sections 1553 and 1554 are restated, without sub- stantive change, to conform to the style adopted for title 10. Editorial Notes REFERENCES IN TEXT The Uniform Code of Military Justice (Public Law 506 of the 81st Congress), referred to in subsec. (a), is act May 5, 1950, ch. 169, § 1, 64 Stat. 107, 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 act Aug. 10, 1956, ch. 1041, § 53, 70A Stat. 641, the first section of which enacted this title. AMENDMENTS 2021—Subsec. (d)(1)(B). Pub. L. 116–283 substituted ‘‘is based’’ for ‘‘in based’’. 2019—Subsec. (a). Pub. L. 116–92, § 522, substituted ‘‘not fewer than three’’ for ‘‘five’’. Page 1444 TITLE 10—ARMED FORCES § 1553a Subsec. (b). Pub. L. 116–92, § 523(b)(2)(B), designated existing provisions as par. (1) and added par. (2). Subsec. (d)(1). Pub. L. 116–92, § 521(b), designated ex- isting provisions as subpar. (A) and added subpar. (B). 2017—Subsec. (d)(3)(A)(ii). Pub. L. 115–91, § 520(b), sub- stituted ‘‘discharge or dismissal or to the original char- acterization of the member’s discharge or dismissal’’ for ‘‘discharge of a lesser characterization’’. Subsec. (f). Pub. L. 115–91, § 1081(a)(28), substituted ‘‘calendar’’ for ‘‘calender’’ wherever appearing. Subsec. (f)(2). Pub. L. 115–91, § 521(c)(2), substituted ‘‘former member’’ for ‘‘claimant’’. Subsec. (f)(4). Pub. L. 115–91, § 521(b), added par. (4). 2016—Subsec. (d)(3). Pub. L. 114–328, § 535, added par. (3). Subsec. (f). Pub. L. 114–328, § 533(b), added subsec. (f). 2014—Subsec. (d)(1). Pub. L. 113–291, § 521(b)(1), sub- stituted ‘‘clinical psychologist or psychiatrist, or a physician with training on mental health issues con- nected with post traumatic stress disorder or trau- matic brain injury (as applicable)’’ for ‘‘physician, clin- ical psychologist, or psychiatrist’’ before period at end. Subsec. (e). Pub. L. 113–291, § 521(b)(2), added subsec. (e). 2009—Subsec. (d). Pub. L. 111–84 added subsec. (d). 1989—Subsecs. (a), (c). Pub. L. 101–189 substituted ‘‘Secretary of Veterans Affairs’’ for ‘‘Administrator of Veterans’ Affairs’’. 1983—Subsec. (a). Pub. L. 98–209 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 dis- charge for purposes of clemency. 1962—Pub. L. 87–651 amended section generally with- out substantive change to conform to the style adopted for the revision of this title. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Jan. 1, 1959, see section 2 of Pub. L. 85–857, 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 Pub. L. 118–31, div. A, title V, § 527, Dec. 22, 2023, 137 Stat. 255, provided that: ‘‘(a) MANDATORY REVIEW.—A board established under section 1553 of title 10, United States Code, shall grant a request pursuant to such section to review the char- acterization 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.’’ DISCHARGE REVIEW BOARDS Pub. L. 116–92, div. A, title V, § 525(b), Dec. 20, 2019, 133 Stat. 1356, provided that: ‘‘(1) IN GENERAL.—Each Secretary concerned shall de- velop and provide training for members of discharge re- view boards under section 1553 of title 10, 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 trau- ma. ‘‘(2) UNIFORMITY OF TRAINING.—The Secretary of De- fense and the Secretary of Homeland Security shall jointly ensure that the training developed and provided pursuant to this subsection is, to the extent prac- ticable, uniform. ‘‘(3) SECRETARY CONCERNED DEFINED.—In this sub- section, the term ‘Secretary concerned’ has the mean- ing given that term in section 101(a)(9) of title 10, United States Code.’’ CONFIDENTIAL REVIEW OF CHARACTERIZATION OF TERMS OF DISCHARGE OF MEMBERS OF THE ARMED FORCES WHO ARE VICTIMS OF SEXUAL OFFENSES Pub. L. 113–291, div. A, title V, § 547, Dec. 19, 2014, 128 Stat. 3375, which related to review process for correc- tion of military records, consideration of individual ex- periences in connection with offenses, and preservation of confidentiality, was repealed by Pub. L. 115–91, div. A, title V, § 522(a)(3), Dec. 12, 2017, 131 Stat. 1380. See section 1554b of this title. § 1553a. Review of a request for upgrade of dis- charge or dismissal (a) ESTABLISHMENT.—The Secretary of Defense shall establish a process by which to conduct a final review of a request for an upgrade in the characterization of a discharge or dismissal. (b) CONSIDERATION; RECOMMENDATION.—(1) Upon the request of a petitioner, the Secretary of Defense shall review the findings and deci- sions of the boards established under sections 1552 and 1553 of this title regarding the final re- view of a request for an upgrade in the charac- terization of a discharge or dismissal. (2) The Secretary of Defense may recommend that the Secretary of the military department concerned upgrade the characterization of the discharge or dismissal of the petitioner if the Secretary of Defense determines that such rec- ommendation is appropriate after review under paragraph (1). (c) DEFINITIONS.—In this section: (1) The term ‘‘final review of a request for an upgrade in the characterization of a discharge or dismissal’’ means a request by a petitioner for an upgrade to the characterization of a dis- charge or dismissal— (A) that was not granted under sections 1552 and 1553 of this title; and (B) regarding which the Secretary of De- fense determines the petitioner has ex- hausted all remedies available to the peti- tioner under sections 1552 and 1553 of this title. (2) The term ‘‘petitioner’’ means a member or former member of the armed forces (or if the member or former member is dead, the surviving spouse, next of kin, or legal rep- resentative of the member or former member) whose request for an upgrade to the character- ization of a discharge or dismissal was not granted under sections 1552 and 1553 of this title. (Added Pub. L. 116–92, div. A, title V, § 523(a), Dec. 20, 2019, 133 Stat. 1354.) Statutory Notes and Related Subsidiaries IMPLEMENTATION AND REPORTING Pub. L. 116–92, div. A, title V, § 523(c)–(e), Dec. 20, 2019, 133 Stat. 1355, provided that: ‘‘(c) DEADLINE.—The Secretary of Defense shall im- plement section 1553a of such title [title 10, United States Code], as added by subsection (a), not later than January 1, 2021.