Unfortunately, your experience is not unique or an aberration. Despite the fanciful representations made on the ABCMR website suggesting that a decision will be made within 12 to 18 months, experience shows as you have discovered that it may take two to three years or longer for the ABCMR to issue a decision from the time it enters an application into its case management system. That does not include the 60 to 90 day period that the application sits in the mail room after receipt awaiting processing.
Unfortunately, there is no remedy for an applicant faced with inordinate ABCMR lassitude and unreasonable delay. The ABCMR knows this and has little or no incentive or motivation to work harder, faster or more efficiently. The requirement in 10 U.S.C. § 1557(b) that a correction board take final action within 18 months of receipt of an application is meaningless and offers an applicant no remedy. 10 U.S.C. § 1557(d) (“Failure of a Corrections Board to meet the applicable timeliness standard for any period of time under subsection (a) or (b) does not confer any presumption or advantage with respect to consideration by the board of any application.”); see Lewis v. United States, 476 F. App'x 240, 245 (Fed. Cir. 2012) (“[T]he failure to meet the timeliness standard [in § 1557] cannot be the basis for finding error in the BCNR's decision.”); Buholtz v. United States, 2023 WL 2054073, at *6 (Fed. Cl. Feb. 16, 2023). The Secretary of the Army or her delegee, just like the other secretaries of the military departments, routinely waives the timeliness standard for correction board action based on the purported determination that it “warrants a longer period of consideration.” 10 U.S.C. § 1557(c).
Congressional inquiries are worthless. Unless the applicant is or is backed by a major political donor or has some other unusual political juice, members of Congress have no interest in the administrative problems of Soldiers or veterans and any inquiry will be handled by low level staff members, usually at some remote office location. The congressional staff will send an inquiry to Army Congressional liaison where some lieutenant colonel action officer will forward it to the ABCMR. The ABCMR will respond with anodyne language that there are many applications, each is taken in turn for fairness, and the application is being considered in the ordinary course of administration. The lieutenant colonel at Army Congressional liaison will forward that ABCMR boilerplate response to the Congressional staff, happy to get it off their plate as just the importuning of another annoying and bothersome Soldier or veteran. The Congressional staff will forward the worthless ABCMR response to the applicant on very official looking Congressional letterhead, thereby checking the constituent service box but providing no real assistance and completely meaningless and unhelpful information.
Some attorneys consider expediting review of a client’s case, particularly if the record reflects an obvious or apparent error by the military department, by filing a complaint in the U.S. Court of Federal Claims or a United States district court without prior resort to the ABCMR or another correction board. There is no requirement to exhaust administrative remedies at the ABCMR or another correction board before filing a lawsuit against the United States. If there is such an obvious error, a voluntary remand to the board is a likely outcome within 90 days of filing with a court order that the Board issue a decision within six months – thereby saving 18 to 24 months or more of processing time and having the benefit of continuing court jurisdiction over the administrative process on remand. But that work around involves some risk, because any issue alleged in the complaint that was not raised below during the Army or military administrative process, whether involving a PEB, board, or other military proceeding, may be dismissed by the court as having been waived. See Exnicios v. United States, 140 Fed. Cl. 339, 367 (2018) (plaintiff waived his unlawful command influence claims by not raising them before a board of inquiry, an appeal to a show cause authority, or before a board of review); Spehr v. United States, 51 Fed. Cl. 69, 87–88 (2001) (holding plaintiff waived claim by not raising it during or after administrative discharge hearings), aff’d, 49 F. App’x 303 (Fed. Cir. 2002).
