Chapman Law Review
Abstract
“There is a presumption of regularity in the conduct of governmental affairs.” With these twelve words in the Department of Defense’s Code of Federal Regulations, the military discharge review boards (DRBs) have denied relief to thousands of veteran-applicants seeking a discharge upgrade. While seemingly innocuous, this administrative principle has become a nearly insurmountable barrier to relief for veterans with a less-than-honorable discharge. Veterans with a less-than-honorable discharge are generally ineligible for a range of veterans benefits, including health care and education benefits, and they have higher suicide rates compared to honorably discharged veterans.
For most veteran-applicants, the administrative path to a discharge upgrade offers little more than a dead end. The DRBs routinely deny hundreds of discharge upgrade requests every year, often relying on a mere statement of the presumption of regularity without explanation. Used in this way, the presumption effectively operates as a rubber-stamp to affirm the original discharge characterization rather than as a framework for analyzing a discharge upgrade request.
Despite its wide-reaching negative impact on veterans, the presumption as used by the DRBs has received little scholarly attention. This Article offers the first in-depth examination of the presumption’s regulatory history, revealing critical flaws in application. I argue that the DRBs erroneously apply the presumption and identify six irregularities in support of this thesis. I identify these irregularities in contrast to the presumption of regularity in other contexts and further characterize the irregularities as inconsistent with the DRBs’ governing body of regulations and other guidance documents that demand more than a rubber-stamp. The Article then offers four parameters for resolving or at least mitigating the irregularities, with an eye toward full, fair, and impartial review balanced with an appropriate level of deference to the government.
Recommended Citation
Jessica L. Wherry,
The Military Discharge Review Boards’ Irregular Presumption of Regularity,
29
Chap. L. Rev.
331
(2026).
Available at:
https://digitalcommons.chapman.edu/chapman-law-review/vol29/iss2/3