A former staff lawyer for the Army Board for Correction of Military Records (BCMR) has come forward calling its practices unjust and asking for reform from the Secretary of Defense.
The statements come in the wake of a recent Fusion investigation that found the Board routinely denies veterans a chance to correct their records and gain financial benefits from the government.
“I’ve been thinking about this for a long time, even while I worked with the Board,” said former Army Col. Howard Cooley, who’s now a partner at a Virginia-based law firm. “In private practice, I was able to be on the other side. I saw this is really difficult, this is not fair.”
The BCMR is the last place service members can go within a service branch to appeal an error or injustice on their military records, including overturning a discharge that left them without benefits. Fusion’s investigation found that the Army Board spends an average of less than four minutes per application and very rarely allows applicants to appear in person for hearings.
Separately, a class-action lawsuit filed after Fusion’s report alleges that thousands of applications may have been denied illegally because they did not reach Army Board members at all.
Cooley served as a lawyer for the Army BCMR from 1999 through 2001. The Board has a doctor and counsel on staff to advise analysts, who review applications and write case summaries and draft decisions for Board members. Members are senior civilian employees of the Army who are hand-picked by the Secretary of the Army to decide these cases.
Cooley said staff counsel saw “only saw a small fraction” of cases later decided by the Board.
Like many lawyers who spoke with Fusion, Cooley said issues with the Board stem primarily from large caseloads and pressure to move cases through the system quickly. The Army Board receives about 16,500 applications per year, 90% of which much be decided within 10 months.
That’s more cases than were decided by federal district courts in Maryland, North Carolina, South Carolina, Virginia and West Virginia combined in 2010, Cooley pointed out.
“They’re in a pressure cooker of a situation and they can’t get out,” he said.
In a letter mailed Monday to the Secretaries of Defense and Homeland Security, Cooley lays out what he believes are the main problems with the Boards for all service branches: that in an effort to decide cases quickly they reject admissible evidence, do not hold hearings, and issue summary denials to applicants that often do not address evidence brought.
The result, asserts Cooley, is a system that leaves service members with “grounds to lack confidence in the quality and fairness,” of the process.
“The main problem is that to do a decent job of analyzing the BCMR cases, the Board members require a lot more time,” Cooley writes in his letter.
Cooley lays out a 20-point plan that could help meet that aim, including the creation of separate appellate Boards in addition to the BCMRs for each individual branch, and the creation of an advocacy office to assist service members applying to the Boards.
His proposal also adds hundreds more Board members, some of whom would work for the Board full-time, allowing them to have more time to consider applications. (In all service branches, BCMR Board members are volunteers who serve in addition to doing their normal jobs.)
And Cooley recommends hearings be held for at least a quarter of the cases brought before the Boards, including all applications dealing with military sexual assault. (We found that victims of sexual assault have a particularly difficult time getting relief from the Board.)
“What are Wounded Warriors to do when their Secretarial ambassador – BCMRs – refuse to meet with them and look them in the eye in a discussion about PTSD and a host of other issues?” Cooley asks in his letter.
“It is precisely because BCMRs have such great power but are so obscure and essentially are the last word on behalf of their Secretaries, that they should on their own initiative be much fairer and far more accountable and transparent to Servicemembers,” Cooley wrote.
Cooley said he believes problems with the system are deeply entrenched and institutional. “I don’t think these are bad people,” he said.
“When I worked at the Board, my perspective was much broader in terms of breadth of cases seen,” said Cooley. “You’re looking at it globally, and you can say, ‘We did some good things, we got folks promoted, put them back on active duty.’”
Denials, said Cooley, “don’t seem to be that problematic from that perspective.” But now that he’s on the other side in private practice, he’s seen that for service members a denial can be devastating.
“This is this client’s Superbowl,” said Cooley, describing one application he says he submitted recently as an attorney in private practice. The application had 400 pages of supporting documentation. It was denied without a hearing.
“I had general officers look at it. I had a panel of colonels look at it,” said Cooley. “It was all dismissed in cursory fashion … I was so disappointed.”