[Federal Register Volume 60, Number 197 (Thursday, October 12, 1995)]
[Proposed Rules]
[Pages 53153-53157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-25133]
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DEPARTMENT OF DEFENSE
Department of the Navy
32 CFR Part 723
Board for Correction of Naval Records
AGENCY: Department of the Navy, DOD.
ACTION: Proposed rule.
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SUMMARY: The Department of the Navy is proposing to amend the
procedures of the Board for Correction of Naval Records. This revision
incorporates format changes and clarifies various minor provisions of
the part.
DATES: Comments must be received on or before December 11, 1995.
ADDRESSES: Comments should be submitted to: Executive Director, Board
for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-
5100.
FOR FURTHER INFORMATION CONTACT: W. Dean Pfeiffer, Executive Director,
(703) 614-1402.
SUPPLEMENTARY INFORMATION: The Department of the Navy has determined
that this proposed rule is not a major rule because it will not have an
annual effect on the economy of $100 million or more. The Assistant
Secretary of the Navy (Manpower and Reserve Affairs) certifies that
this rule is exempt from the requirements of the Regulatory Flexibility
Act, 5 U.S.C. 601-611, and does not have a significant economic impact
on small entities as defined by the Act. This rule imposes no
obligatory information requirements beyond internal Navy use.
List of Subjects in 32 CFR Part 723
Administrative practice and procedure, Claims, Military personnel.
Accordingly, part 723 of chapter VI of title 32 of the Code of
Federal Regulations is proposed to be revised to read as follows:
PART 723--BOARD FOR CORRECTION OF NAVAL RECORDS
Sec.
723.1 General provisions.
723.2 Establishment, function and jurisdiction of the Board.
723.3 Application for correction.
723.4 Appearance before the Board; notice; counsel; witnesses;
access to records.
723.5 Hearing.
723.6 Action By the Board.
723.7 Action By the Secretary.
723.8 Staff action.
723.9 Reconsideration.
723.10 Settlement of claims.
723.11 Miscellaneous provisions.
Authority: 10 U.S.C. 1034, 1552.
Sec. 723.1 General provisions.
This part sets up procedures for correction of naval and marine
records by the Secretary of the Navy acting through the Board for
Correction of Naval Records (BCNR or the Board) to remedy error or
injustice. It describes how to apply for correction of naval and marine
records and how the BCNR considers applications. It defines the Board's
authority to act on applications. It directs collecting and maintaining
information subject to the Privacy Act of 1974 authorized by 10 U.S.C.
1034 and 1552.
Sec. 723.2 Establishment, function and jurisdiction of the Board.
(a) Establishment and composition. Under the foregoing statutory
authority, the Board for Correction of Naval Records is established by
the Secretary of the Navy. The Board consists of civilians of the
executive part of the Department of the Navy in such number, not less
than three, as may be appointed by the Secretary and who shall serve at
the pleasure of the Secretary. Three members present shall constitute a
quorum of the Board. The Secretary of the Navy will designate one
member as Chair. In the absence or incapacity of the Chair, an Acting
Chair chosen by the Executive Director shall act as Chair for all
purposes.
(b) Function. The Board is not an investigative body. Its function
is to consider applications properly before it for the purpose of
determining the existence of error or injustice in the naval records of
current and former members of the Navy and Marine Corps, to make
recommendations to the Secretary or to take corrective action on the
Secretary's behalf when authorized.
(c) Jurisdiction. The Board shall have jurisdiction to review and
determine all matters properly brought before it, consistent with
existing law.
Sec. 723.3 Application for correction.
(a) General requirements. (1) The application for correction must
be submitted on DD 149 (Application for Correction of Military Record)
or exact facsimile thereof, and should be addressed to: Board for
Correction of Naval Records, Department of the Navy, 2 Navy Annex,
Washington, DC 20370-5100. Forms and other explanatory matter may be
obtained from the Board upon request.
(2) Except as provided in paragraph (a)(3) of this section, the
application shall be signed by the person requesting corrective action
with respect to his/her record and will either be sworn to or will
contain a provision to the effect that the statements submitted in the
application are made with full knowledge of the penalty provided by law
for making a false statement or claim. (18 U.S.C. 287 and 1001)
(3) When the record in question is that of a person who is
incapable of making application, or whose whereabouts is unknown, or
when such person is deceased, the application may be made by a spouse,
parent, heir, or legal representative. Proof of proper interest shall
be submitted with the application.
(b) Time limit for filing application. Applications for correction
of a record must be filed within 3 years after discovery of the alleged
error or injustice. Failure to file within the time prescribed may be
excused by the Board if it finds it would be in the interest of justice
to do so. If the application is filed more than 3 years after discovery
of the error or injustice, the application must set forth the reason
why the Board should find it in the interest of justice
[[Page 53154]]
to excuse the failure to file the application within the time
prescribed.
(c) Acceptance of applications. An application will be accepted for
consideration unless:
(1) The Board lacks jurisdiction.
(2) The Board lacks authority to grant effective relief.
(3) The applicant has failed to comply with the filing requirements
of paragraphs (a)(l), (a)(2), or (a)(3) of this section.
(4) The applicant has failed to exhaust all available
administrative remedies.
(5) The applicant has failed to file an application within 3 years
after discovery of the alleged error or injustice and has not provided
a reason or reasons why the Board should find it in the interest of
justice to excuse the failure to file the application within the
prescribed 3-year period.
(d) Other proceedings not stayed. Filing an application with the
Board shall not operate as a stay of any other proceedings being taken
with respect to the person involved.
(e) Consideration of application. (1) Each application accepted for
consideration and all pertinent evidence of record will be reviewed by
a three member panel sitting in executive session, to determine whether
to authorize a hearing, recommend that the records be corrected without
a hearing, or deny the application without a hearing. This
determination will be made by majority vote.
(2) The Board may deny an application in executive session if it
determines that the evidence of record fails to demonstrate the
existence of probable material error or injustice. The Board relies on
a presumption of regularity to support the official actions of public
officers and, in the absence of substantial evidence to the contrary,
will presume that they have properly discharged their official duties.
Applicants have the burden of overcoming this presumption but the Board
will not deny an application solely because the record was made by or
at the direction of the President or the Secretary in connection with
proceedings other than proceedings of a board for correction of
military or naval records. Denial of an application on the grounds of
insufficient evidence to demonstrate the existence of probable material
error or injustice is final subject to the provisions for
reconsideration contained in Sec. 723.9.
(3) When an original application or a request for further
consideration of a previously denied application is denied without a
hearing, the Board's determination shall be made in writing and include
a brief statement of the grounds for denial.
(4) The brief statement of the grounds for denial shall include the
reasons for the determination that relief should not be granted,
including the applicant's claims of constitutional, statutory and/or
regulatory violations that were rejected, together with all the
essential facts upon which the denial is based, including, if
applicable, factors required by regulation to be considered for
determination of the character of and reason for discharge. Further the
Board shall make a determination as to the applicability of the
provisions of the Military Whistleblower Protection Act (10 U.S.C.
1034) if it is invoked by the applicant or reasonably raised by the
evidence. Attached to the statement shall be any advisory opinion
considered by the Board which is not fully set out in the statement.
The applicant will also be advised of reconsideration procedures.
(5) The statement of the grounds for denial, together with all
attachments, shall be furnished promptly to the applicant and counsel,
who shall also be informed that the name and final vote of each Board
member will be furnished or made available upon request. Classified or
privileged material will not be incorporated or attached to the Board
statement; rather, unclassified or nonprivileged summaries of such
material will be so used and written explanations for the substitution
will be provided to the applicant and counsel.
Sec. 723.4 Appearance before the board; notice; counsel; witnesses;
access to records.
(a) General. In each case in which the Board determines a hearing
is warranted, the applicant will be entitled to appear before the Board
either in person or by counsel of his/her selection or in person with
counsel. Additional provisions apply to cases processed under the
Military Whistleblower Protection Act (10 U.S.C. 1034).
(b) Notice. (1) In each case in which a hearing is authorized, the
Board's staff will transmit to the applicant a written notice stating
the time and place of hearing. The notice will be mailed to the
applicant, at least 30 days prior to the date of hearing, except that
an earlier date may be set where the applicant waives his/her right to
such notice in writing.
(2) Upon receipt of the notice of hearing, the applicant will
notify the Board in writing at least 15 days prior to the date set for
hearing as to whether he/she will be present at the hearing and will
indicate to the Board the name of counsel, if represented by counsel,
and the names of such witnesses as he/she intends to call. Cases in
which the applicant notifies the Board that he/she does not desire to
be present at the hearing will be considered in accordance with
Sec. 723.5 (b)(2).
(c) Counsel. As used in this part, the term ``counsel'' will be
construed to include members in good standing of the federal bar or the
bar of any state, accredited representatives of veterans' organizations
recognized by the Secretary of Veterans Affairs under 38 U.S.C. 3402,
or such other persons who, in the opinion of the Board, are considered
to be competent to present equitably and comprehensively the request of
the applicant for correction, unless barred by law. Representation by
counsel will be at no cost to the government.
(d) Witnesses. The applicant will be permitted to present witnesses
in his/her behalf at hearings before the Board. It will be the
responsibility of the applicant to notify his/her witnesses and to
arrange for their appearance at the time and place set for hearing.
Appearance of witnesses will be at no cost to the government.
(e) Access to records. (1) It is the responsibility of the
applicant to procure such evidence not contained in the official
records of the Department of the Navy as he/she desires to present in
support of his/her case.
(2) Classified or privileged information may be released to
applicants only by proper authorities in accordance with applicable
regulations.
(3) Nothing in this part authorizes the furnishing of copies of the
applicants official service records by the Board. Requests for copies
of these records should be submitted in accordance with applicable
regulations. The BCNR can provide a requester with information
regarding procedures for requesting copies of these records from the
appropriate retention agency.
Sec. 723.5 Hearing.
(a) Convening of board. The Board will convene, recess and adjourn
at the call of the Chair or Acting Chair.
(b) Conduct of hearing. (1) The hearing shall be conducted by the
Chair or Acting Chair, and shall be subject to his/her rulings so as to
ensure a full and fair hearing. The Board shall not be limited by legal
rules of evidence but shall maintain reasonable bounds of competency,
relevancy, and materiality.
(2) If the applicant, after being duly notified, indicates to the
Board that he/she does not desire to be present or to be represented by
counsel at the hearing, the Board will consider the case on the basis
of all the material
[[Page 53155]]
before it, including, but not limited to, the application for
correction filed by the applicant, any documentary evidence filed in
support of such application, any brief submitted by or in behalf of the
applicant, and all available pertinent records.
(3) If the applicant, after being duly notified, indicates to the
Board that he/she will be present or be represented by counsel at the
hearing, and without good cause and timely notice to the Board, the
applicant or representative fails to appear at the time and place set
for the hearing or fails to provide the notice required by
Sec. 723.4(b)(2), the Board may consider the case in accordance with
the provisions of paragraph (b)(2) of this section, or make such other
disposition of the case as is appropriate under the circumstances.
(4) All testimony before the Board shall be given under oath or
affirmation. The proceedings of the Board and the testimony given
before it will be recorded verbatim.
(c) Continuance. The Board may continue a hearing on its own
motion. A request for continuance by or in behalf of the applicant may
be granted by the Board if a continuance appears necessary to insure a
full and fair hearing.
Sec. 723.6 Action by the Board.
(a) Deliberations, findings, conclusions, and recommendations. (1)
Only members of the Board and its staff shall be present during the
deliberations of the Board.
(2) Whenever, during the course of its review of an application, it
appears to the Board's satisfaction that the facts have not been fully
and fairly disclosed by the records or by the testimony and other
evidence before it, the Board may require the applicant or military
authorities to provide such further information as it may consider
essential to a complete and impartial determination of the facts and
issues.
(3) Following a hearing, or where the Board determines to recommend
that the record be corrected without a hearing, the Board will make
written findings, conclusions and recommendations. If denial of relief
is recommended following a hearing, such written findings and
conclusions will include a statement of the grounds for denial as
described in Sec. 723.3(c)(4). The name and final vote of each Board
member will be recorded. A majority vote of the members present on any
matter before the Board will constitute the action of the Board and
shall be so recorded.
(4) Where the Board deems it necessary to submit comments or
recommendations to the Secretary as to matters arising from but not
directly related to the issues of any case, such comments and
recommendations shall be the subject of separate communication.
Additionally, in Military Whistleblower Protection Act cases, any
recommendation by the Board to the Secretary that disciplinary or
administrative action be taken against any Navy official based on the
Board's determination that the official took reprisal action against
the applicant will not be made part of the Board's record of
proceedings or furnished to the applicant but will be transmitted to
the Secretary as a separate communication.
(b) Minority report. In case of a disagreement between members of
the Board a minority report will be submitted, either as to the
findings, conclusions or recommendation, including the reasons
therefor.
(c) Record of proceedings. Following a hearing, or where the Board
determines to recommend that the record be corrected without a hearing,
a record of proceedings will be prepared. Such record shall indicate
whether or not a quorum was present, and the name and vote of each
member present. The record shall include the application for relief, a
verbatim transcript of any testimony, affidavits, papers and documents
considered by the Board, briefs and written arguments, advisory
opinions, if any, minority reports, if any, the findings, conclusions
and recommendations of the Board, where appropriate, and all other
papers, documents, and reports necessary to reflect a true and complete
history of the proceedings.
(d) Withdrawal. The Board may permit an applicant to withdraw his/
her application without prejudice at any time before its record of
proceedings is forwarded to the Secretary.
(e) Delegation of authority to correct certain naval records. (1)
With respect to all petitions for relief properly before it, the Board
is authorized to take final corrective action on behalf of the
Secretary, unless:
(i) Comments by proper naval authority are inconsistent with the
Board's recommendation;
(ii) The Board's recommendation is not unanimous; or
(iii) It is in the category of petitions reserved for decision by
the Secretary of the Navy.
(2) The following categories of petitions for relief are reserved
for decision by the Secretary of the Navy:
(i) Petitions involving records previously reviewed or acted upon
by the Secretary wherein the operative facts remained substantially the
same;
(ii) Petitions by former commissioned officers or midshipmen to
change the character of, and/or the reason for, their discharge; or,
(iii) Such other petitions as, in the determination of Office of
the Secretary or the Executive Director, warrant Secretarial review.
(3) The Executive Director after ensuring compliance with the above
conditions, will announce final decisions on applications decided under
this section.
Sec. 723.7 Action by the Secretary.
(a) General. The record of proceedings, except in cases finalized
by the Board under the authority delegated in Sec. 723.6(e), and those
denied by the Board without a hearing, will be forwarded to the
Secretary who will direct such action as he/she determines to be
appropriate, which may include the return of the record to the Board
for further consideration. Those cases returned for further
consideration shall be accompanied by a brief statement setting out the
reasons for such action along with any specific instructions. If the
Secretary's decision is to deny relief, such decision shall be in
writing and, unless he/she expressly adopts in whole or in part the
findings, conclusions and recommendations of the Board, or a minority
report, shall include a brief statement of the grounds for denial. See
Sec. 723.3(e)(4).
(b) Military Whistleblower Protection Act. The Secretary will
ensure that decisions in cases involving the Military Whistleblower
Protection Act are issued within 180 days after receipt of the case and
will, unless the full relief requested is granted, inform applicants of
their right to request review of the decision by the Secretary of
Defense. Applicants will also be informed:
(1) Of the name and address of the official to whom the request for
review must be submitted.
(2) That the request for review must be submitted within 90 days
after his/her receipt of the decision of the Secretary of the Navy.
(3) That the request for review must be in writing and include:
(i) The applicant's name, address and telephone number;
(ii) A copy of the application to the Board and the final decision
of the Secretary of the Navy; and
(iii) A statement of the specific reasons the applicant is not
satisfied with the decision of the Secretary of the Navy.
(4) That the request must be based on the Board record; request for
review based on factual allegations or evidence not previously
presented to the Board
[[Page 53156]]
will not be considered under this paragraph but may be the basis for
reconsideration by the Board under Sec. 723.9.
Sec. 723.8 Staff action.
(a) Transmittal of final decisions granting relief. (1) If the
final decision of the Secretary is to grant the applicant's request for
relief the record of proceedings shall be returned to the Board for
disposition. The Board shall transmit the finalized record of
proceedings to proper naval authority for appropriate action.
Similarly, final decisions of the Board granting the applicant's
request for relief under the authority delegated in Sec. 723.6(e),
shall also be forwarded to the proper naval authority for appropriate
action.
(2) The Board shall transmit a copy of the record of proceedings to
the proper naval authority for filing in the applicant's service record
except where the effect of such action would be to nullify the relief
granted. In such cases no reference to the Board's decision shall be
made in the service record or files of the applicant and all copies of
the record of proceedings and any related papers shall be forwarded to
the Board and retained in a file maintained for this purpose.
(3) The addressees of such decisions shall report compliance
therewith to the Executive Director.
(4) Upon receipt of the record of proceedings after final action by
the Secretary, or by the Board acting under the authority contained in
Sec. 723.6(a), the Board shall communicate the decision to the
applicant. The applicant is entitled, upon request, to receive a copy
of the Board's findings, conclusions and recommendations.
(b) Transmittal of final decisions denying relief. If the final
decision of the Secretary or the Board is to deny relief, the following
materials will be made available to the applicant:
(1) A statement of the findings, conclusions, and recommendations
made by the Board and the reasons therefor;
(2) Any advisory opinions considered by the Board;
(3) Any minority reports; and
(4) Any material prepared by the Secretary as required in
Sec. 723.7. Moreover, applicant shall also be informed that the name
and final vote of each Board member will be furnished or made available
upon request and that he/she may submit new and material evidence or
other matter for further consideration.
Sec. 723.9 Reconsideration.
After final adjudication, further consideration will be granted
only upon presentation by the applicant of new and material evidence or
other matter not previously considered by the Board. New evidence is
defined as evidence not previously considered by the Board and not
reasonably available to the applicant at the time of the previous
application. Evidence is material if it is likely to have a substantial
effect on the outcome. All requests for further consideration will be
initially screened by the Executive Director of the Board to determine
whether new and material evidence or other matter (including, but not
limited to, any factual allegations or arguments why the relief should
be granted) has been submitted by the applicant. If such evidence or
other matter has been submitted, the request shall be forwarded to the
Board for a decision. If no such evidence or other matter has been
submitted, the applicant will be informed that his/her request was not
considered by the Board because it did not contain new and material
evidence or other matter.
Sec. 723.10 Settlement of claims.
(a) Authority. (1) The Department of the Navy is authorized under
10 U.S.C. 1552 to pay claims for amounts due to applicants as a result
of corrections to their naval records.
(2) The Department of the Navy is not authorized to pay any claim
heretofore compensated by Congress through enactment of a private law,
or to pay any amount as compensation for any benefit to which the
claimant might subsequently become entitled under the laws and
regulations administered by the Secretary of Veterans Affairs.
(b) Application for settlement. (1) Settlement and payment of
claims shall be made only upon a claim of the person whose record has
been corrected or legal representative, heirs at law, or beneficiaries.
Such claim for settlement and payment may be filed as a separate part
of the application for correction of the record.
(2) When the person whose record has been corrected is deceased,
and where no demand is presented by a duly appointed legal
representative of the estate, payments otherwise due shall be made to
the surviving spouse, heir or beneficiaries, in the order prescribed by
the law applicable to that kind of payment, or if there is no such law
covering order of payment, in the order set forth in 10 U.S.C. 2771; or
as otherwise prescribed by the law applicable to that kind of payment.
(3) Upon request, the applicant or applicants shall be required to
furnish requisite information to determine their status as proper
parties to the claim for purposes of payment under applicable
provisions of law.
(c) Settlement. (1) Settlement of claims shall be upon the basis of
the decision and recommendation of the Board, as approved by the
Secretary or his designee. Computation of the amounts due shall be made
by the appropriate disbursing activity. In no case will the amount
found due exceed the amount which would otherwise have been paid or
have become due under applicable laws had no error or injustice
occurred. Earnings received from civilian employment, self employment
or any income protection plan for such employment during any period for
which active duty pay and allowances are payable will be deducted from
the settlement. To the extent authorized by law and regulation, amounts
found due may be reduced by the amount of any existing indebtedness to
the Government arising from military service.
(2) Prior to or at the time of payment, the person or persons to
whom payments are to be made shall be advised by the disbursing
activity of the nature and amount of the various benefits represented
by the total settlement and shall be advised further that acceptance of
such settlement shall constitute a complete release by the claimants
involved of any claim against the United States on account of the
correction of the record.
(d) Report of settlement. In every case where payment is made, the
amount of such payment and the names of the payee or payees shall be
reported to the Executive Director.
Sec. 723.11 Miscellaneous provisions.
(a) Expenses. No expenses of any nature whatsoever voluntarily
incurred by the applicant, counsel, witnesses, or by any other person
in the applicant's behalf, will be paid by the Government.
(b) Indexing of decisions. (1) Documents sent to each applicant and
counsel in accordance with Sec. 723.3(e)(5) and Sec. 723.8(a)(4), above
together with the record of the votes of Board members and 11 other
statements of findings, conclusions and recommendations made on final
determination of an application by the Board or the Secretary will be
indexed and promptly made available for public inspection and copying
at the Armed Forces Discharge Review/Correction Boards Reading Room.
(2) All documents made available for public inspection and copying
shall be indexed in a usable and concise form so as to enable the
public to identify those
[[Page 53157]]
cases similar in issue together with the circumstances under and/or
reasons for which the Board and/or Secretary have granted or denied
relief. The index shall be published quarterly and shall be available
for public inspection and distribution by sale at the reading room
located at Crystal Mall 4, Room 211, Arlington, Virginia. Inquiries
concerning the index or the reading room may be addressed to the Chief,
Micromation Branch/Armed Forces Discharge Review/Correction Boards
Reading Room, Crystal Mall 4, 1941 Jefferson Davis Highway, Arlington,
Virginia 22202.
(3) To the extent necessary to prevent a clearly unwarranted
invasion of personal privacy, identifying details of the applicant and
other persons will be deleted from the documents made available for
public inspection and copying. Names, addresses, social security
numbers and military service numbers must be deleted. Deletions of
other information which is privileged or classified may be made only if
a written statement of the basis for such deletion is made available
for public inspection.
Dated: September 28, 1995.
M. A. Waters,
LCDR, JAGC, USN, Federal Register Liaison Officer.
[FR Doc. 95-25133 Filed 10-11-95; 8:45 am]
BILLING CODE 3810-FF-P
