E9-31231. Naval Discharge Review Board

AGENCY:

Department of the Navy, DoD.

ACTION:

Final rule.

SUMMARY:

The Department of the Navy amends its rules under 32 CFR Part 724 to reflect the name change of the Naval Council of Personnel Boards to the Secretary of the Navy Council of Review Boards and to update other administrative information pertaining to the Naval Discharge Review Board.

DATES:

This rule is effective January 6, 2010.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Commander Tanya M. Cruz, JAGC, U.S. Navy, Office of the Judge Advocate General (Administrative Law), Department of the Navy, 1322 Patterson Ave., SE., Suite 3000, Washington Navy Yard, DC 20374-5066, telephone: [phone].

SUPPLEMENTARY INFORMATION:

The Department of the Navy published a proposed rule at 74 FR 31222 on June 30, 2009, amending 32 CFR Part 724 to reflect the name change of the Naval Council of Personnel Boards to the Secretary of the Navy Council of Review Boards and to update other administrative information pertaining to the Naval Discharge Review Board, including the administration and management of Naval Discharge Review Board (NDRB) Panels within the National Capital Region (NCR) and other selected sites. Comments were submitted on the proposed rule.

Analysis of Comments and Changes

Comment. A commentator expressed disagreement with the determination that the proposed changes do not constitute significant regulatory action, stating that the proposed rule impacts due process rights pertaining to the NDRB. The Department disagrees with this comment. The proposed rule does not restrict any qualified applicant from requesting the NDRB to conduct a review of a discharge from the naval service. The proposed rule amends applicable regulations for purposes of clarifying the administration and management of the NDRB Panels within the NCR and other selected sites. In addition, the proposed rule updates administrative information relating to the Secretary of the Navy Council of Review Boards and the NDRB. The proposed rule does not meet requirements under Executive Order 12866, “Regulatory Planning and Review,” to be considered a significant regulatory action.

Comment. A commentator disagreed with the proposed changes to 32 CFR Parts 724.221, 724.222, 724.501, and 724.601, stating that the proposed changes impair the possibility of traveling boards. The Department disagrees with this interpretation of the proposed changes. The proposed rule amends applicable regulations for purposes of clarifying the administration and management of NDRB Panels within the NCR and other selected sites. The current regulations provide for the NDRB Panels to travel to other selected sites within the contiguous 48 states as permitted by available resources. The current regulations also provide that the selection of sites and frequency of visits shall be predicated on the number of requests pending within a region. The proposed rule is consistent with applicable regulations and does not eliminate the right to appear before the NDRB. However, upon further consideration, the Department has decided not to adopt the changes as proposed regarding NDRB traveling panels under 32 CFR Parts 724.221, 724.222, 724.501 and 724.601.

Comment. A commentator sought clarification under 32 CFR Part 724.504, regarding the text “if required;” specifically, whether this text was intended to modify “health record,” or “health record” and “service record.” The proposed change only pertains to medical records. For purposes of clarity, the text “if required” has been inserted before the words “health records” in the final rule.

The written comments received were fully considered in making the final amendments to 32 CFR Part 724. It has been determined that this final rule amendment is not a major rule within the criteria specified in Executive Order 12866, as amended by Executive Order 13258, and does not have substantial impact on the public.

Matters of Regulatory Procedure

Executive Order 12866, “Regulatory Planning and Review”

It has been determined that 32 CFR Part 724 is not a significant regulatory action. The rule does not:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities;

(2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of the recipients thereof; or

(4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

It has been certified that 32 CFR Part 724 does not contain a Federal Mandate that may result in the expenditure by State, local, and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.

Public Law 96-511. “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

It has been certified that 32 CFR Part 724 does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).

Federalism (Executive Order 13132)

It has been certified that 32 CFR Part 724 does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

(1) The States;

(2) The relationship between the National Government and the States; or

(3) The distribution of power and responsibilities among the various levels of government.

List of Subjects in 32 CFR Part 724

• Administrative practice and procedure
• Archives and records, and Military personnel

For the reasons set forth in the preamble, the Department of the Navy amends 32 CFR Part 724 as follows:

PART 724—NAVAL DISCHARGE REVIEW BOARD

1. The authority citation for Part 724 continues to read as follows:

Authority: 5 U.S.C. 301; 10 U.S.C. 1553.

2. Section 724.116 is amended by revising the section heading to read as follows:

§ 724.116

Counsel/Representative.

* * * * *

§ 724.118

[Amended]

3. Section 724.118 is amended by removing “and medical” in the second sentence.

4. Section 724.201 is revised to read as follows:

§ 724.201

Authority.

The Naval Discharge Review Board, established pursuant to 10 U.S.C. 1553, is a component of the Secretary of the Navy Council of Review Boards. On December 6, 2004, the Assistant Secretary of the Navy (Manpower & Reserve Affairs) approved the change in name from Naval Council of Personnel Boards to Secretary of the Navy Council of Review Boards. By SECNAVINST 5730.7 series, the Assistant Secretary of the Navy (Manpower and Reserve Affairs) is authorized and directed to act for the Secretary of the Navy within his/her assigned area of responsibility and exercises oversight over the Secretary of the Naval Council of Review Boards. SECNAVINST 5420.135 series states the organization, mission, duties and responsibilities of the Secretary of the Naval Council of Review Boards to include the Naval Discharge Review Board. The Chief of Naval Operations established the Office of Naval Disability Evaluation and the Navy Council of Personnel Boards on 1 October 1976 (OPNAVNOTE 5450 Ser 09b26/535376 of 9 Sep 1976 (Canc frp: Apr 77)). The Chief of Naval Operations approved the change in name of the Office of Naval Disability Evaluation and Navy Council of Personnel Boards to Naval Council of Personnel Boards on 1 February 1977 (OPNAVNOTE 5450 Ser 099b26/32648 of 24 Jan 1977 (Canc frp: Jul 77)) with the following mission Statement:

To administer and supervise assigned boards and councils.

§ 724.223

[Amended]

5. Section 724.223 is amended in paragraph (d) by removing “NCPB” and adding “NDRB” in its place.

Subpart C—Director, Secretary of the Navy Council of Review Boards and President Naval Discharge Review Board; Responsibilities in Support of the Naval Discharge Review Board

6. The Subpart C heading is revised to read as set forth above.

7. Section 724.302 is amended as follows:

a. The section heading is revised to read as set forth below; and

b. Paragraph (h) is amended by removing “Naval Council of Personnel Boards” and adding “Secretary of the Navy Council of Review Boards” in its place.

§ 724.302

Functions: Director, Secretary of the Navy Council of Review Boards.

* * * * *

§ 724.303

[Amended]

8. Section 724.303 is amended in paragraph (e) by removing “5211.5C” and adding “5211.5 series” in its place.

§ 724.501

[Amended]

9. Section 724.501 is amended in paragraph (e) by removing “withdrawn” and adding “withdraw” in its place.

§ 724.502

[Amended]

10. Section 724.502 is amended as follows:

a. Paragraph (c) is amended by removing “Suite 905—801 North Randolph Street, Arlington, VA 22203” and adding “720 Kennon Ave SE., Suite 309, Washington, DC 20374-5023” in its place; and

b. Paragraph (d) is amended by removing “696-4881” and adding “685-6600” in its place.

§ 724.504

[Amended]

11. Section 724.504 is amended in paragraph (a) by adding “, if required,” prior to “health record.”

§ 724.601

[Amended]

12. Section 724.601 is amended by removing “Naval Council of Personnel Boards” and adding “Secretary of the Navy Council of Review Boards” in its place.

13. Section 724.701 is amended as follows:

a. The introductory text is amended by removing “Naval Council of Personnel Boards” and adding “Secretary of the Navy Council of Review Boards” in its place; and

b. Paragraph (c) is revised to read as follows:

§ 724.701

Composition.

* * * * *

(c) Normally, at least three of the five members of the NDRB shall belong to the service from which the applicant whose case is under review was discharged.

* * * * *

14. Section 724.703 is revised to read as follows:

§ 724.703

Legal counsel.

Normally, the NDRB shall function without the immediate attendance of legal counsel. In the event that a legal advisory opinion is deemed appropriate by the NDRB, such opinion shall be obtained routinely by reference to the Counsel assigned to the Office of the Director, Secretary of the Navy Council of Review Boards. In addition, the NDRB may request advisory opinions from staff offices of the Department of the Navy, including, but not limited to the General Counsel and the Judge Advocate General.

Dated: December 28, 2009.

A.M. Vallandingham,

Lieutenant Commander, Judge Advocate General's Corps, U.S. Navy, Federal Register Liaison Officer.