[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Proposed Rules]
[Pages 63489-63491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29345]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
33 CFR Part 52
[OST Docket No. OST-95-878; Notice 95-14]
RIN 2105-AC31
Coast Guard Board for Correction of Military Records; Procedural
Regulation
AGENCY: Office of the Secretary, DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department proposes to amend its regulations with respect
to reconsideration of final decisions of the Board for Correction of
Military Records of the Coast Guard (Board). This action is taken on
the Department's initiative in order to streamline processing of these
cases and to clarify the circumstances under which final decisions can
be reconsidered. The proposed amendment will make it possible for the
Board to expedite reconsideration and will increase the resources
available to meet the requirement that all cases be decided within 10
months of the receipt of a completed application.
DATES: Comments must be submitted on or before February 9, 1996. Late-
filed comments will be considered to the extent practicable.
ADDRESSES: Comments should be mailed, preferably in duplicate, to
Docket No. OST-95-878, Documentary Services Division, C-55, PL-401,
U.S. Department of Transportation; 400 Seventh Street SW, Washington,
D.C. 20590. Comments will be available for review by the public at this
address from 9 a.m. through 5 p.m., Monday
[[Page 63490]]
through Friday. Persons wishing acknowledgment of their comments'
receipt should include a stamped, self-addressed postcard. The
Documentary Services Division will time and date-stamp the card and
return it to the commenter.
FOR FURTHER INFORMATION CONTACT: Robert H. Joost, Chairman, Board for
Correction of Military Records of the Coast Guard, C-60, Office of the
General Counsel, U.S. Department of Transportation, 400 Seventh Street
SW, Washington, D.C. 20590-0001. Telephone: (202) 366-9335.
SUPPLEMENTARY INFORMATION:
The Board Process With Respect to Reconsideration
The Secretary of Transportation, acting through the Department of
Transportation Board for Correction of Military Records of the Coast
Guard, is authorized by section 1552 of title 10, United States Code,
to correct the military records of serving, separated and retired Coast
Guard military personnel when there is an error or injustice in a
military record.
After a final decision has been reached on an application for
correction, the decision can be appealed by the applicant in an
appropriate Federal court. There is no right, under 10 U.S.C. 1552, to
administrative reconsideration of a final decision, but applicants have
always been allowed to request such reconsideration by regulation.
Under the present DOT BCMR regulation with respect to
reconsideration (33 CFR 52.67(b)), the only basis for reconsideration
is the presentation of ``newly discovered evidence or information, not
previously considered by the Board * * * [which] would, if true, result
in a determination other than that originally made.''
The present regulation does not explicitly authorize
reconsideration if the applicant offers evidence showing that material
legal or factual error was made by the Board in its original decision.
Also, it does not provide a means for expeditious handling of requests
for reconsideration that do not meet the threshold requirements for
review. Because of the current statutory direction that Board decisions
be issued within 10 months of receiving a complete application, and the
resulting pressure on Board resources, the Board must find ways to
increase its efficiency of operation. An expedited process for handling
facially defective reconsideration requests is proposed as an
appropriate step in that direction. In addition, the present rule does
not require that a request for reconsideration be made within a certain
time period.
The Proposal
The proposed rule would explicitly authorize the Board to consider
applications for reconsideration upon a showing that the Board
committed legal or factual error in the original determination that
could have resulted in a determination other than that made.
The proposed rule would authorize the Chairman not to docket
applications for reconsideration that do not meet the threshold
requirements for reconsideration, i.e. applications that only (1)
present evidence or information previously considered by the Board, (2)
present new evidence or information that is clearly not material to the
result in the case, (3) present new evidence or information that could
have been submitted earlier with the exercise of reasonable diligence,
or (4) make arguments as to legal or factual error that are clearly not
material to the result. The phrase ``otherwise comes to the attention
of the Board'' has been deleted, however, as unnecessary.
The proposed rule would provide that no Board member who considered
an applicant's original application for correction would participate in
the consideration of that person's application for reconsideration.
There will, to the extent practicable, be a related prohibition on the
staff member; the person who drafted the original decision would not
draft the reconsideration decision. In light of these safeguards, it
would not be necessary for the Secretary's designate to approve each
denial of a reconsideration request, thus expediting the review
process.
Section-by-Section Analysis
Section 52.67, Reconsideration, is rewritten to add the new
requirements outlined above, and to simplify the procedure on
reconsideration.
Paragraph (a) provides that reconsideration of an application may
occur if the applicant meets at least one of two sets of criteria. The
first of these, paragraph (a)(1), directs reconsideration if an
applicant presents evidence or information that was not previously
considered by the Board if that evidence or information could result in
a different determination and if it ``could not have been presented to
the Board prior to its original determination if the applicant had
exercised reasonable diligence.'' The second of these, paragraph
(a)(2), directs reconsideration if an applicant presents evidence or
information that the Board committed legal or factual error in the
original determination that could have resulted in a different result.
Paragraph (b) directs the Chairman to docket a reconsideration
request if it meets the requirements of paragraph (a)(1) or (a)(2). If
neither of these requirements is met, the Chairman shall not docket the
request, and shall return the application to the applicant with a
statement that no action is being taken due to a failure to meet the
threshold requirements for docketing.
Paragraph (c) provides that the Board shall consider each
application for reconsideration that has been docketed under paragraph
(b). This paragraph also provides that the final decision on
reconsideration shall involve a different Board than the one that
initially considered the application.
Paragraph (d) provides that the Board's final action on docketed
application for reconsideration shall be the same as if they were
original applications for correction.
Paragraph (e) provides that an applicant's request for
reconsideration must be filed within two years after the issuance of a
final decision, subject to other legal rules such as the Soldier's and
Sailor's Civil Relief Act. The two-year statute of limitations
parallels the time period allowed by Article 73 of the Uniform Code of
Military Justice for petitioning for a new trial after the approval of
a court-martial sentence on the grounds of newly discovered evidence or
fraud on the court. If the Chairman dockets an applicant's request for
reconsideration under paragraph (b), the two-year requirement may be
waived if the Board finds that it would be in the interest of justice
to consider the request despite its untimeliness.
Regulatory Process Matters
This NPRM does not propose a significant rule under Executive Order
12681 or the Department's Regulatory Policies and Procedures. The costs
of a purely procedural change in the Board's rule would be negligible.
The NPRM would not, if adopted, have a significant economic effect on a
substantial number of small entities, as defined in the Regulatory
Flexibility Act. There are no Federalism factors to warrant the
preparation of a Federalism assessment.
List of Subjects in 32 CFR Part 52
Administrative practice and procedure, Archives and records,
Military personnel, Military records.
[[Page 63491]]
Issued this 24th day of November at Washington, DC.
Mortimer L. Downey,
Deputy Secretary of Transportation.
For the reasons set forth in the preamble, the Office of the
Secretary of the U.S. Department of Transportation proposes to amend 33
CFR Part 52 as follows:
PART 52--[AMENDED]
1. The authority citation for Part 52 is revised to read as
follows:
Authority: 10 U.S.C. 1552; 49 U.S.C. 108; Pub. L. 101-225, 103
Stat. 1908, 1914.
2. Section 52.67 is revised to read as follows:
Sec. 52.67 Reconsideration.
(a) Reconsideration of an application for correction of a military
record shall occur if an applicant requests it and the request meets
the requirements set forth in paragraph (a)(1) or (a)(2) of this
section.
(1) An applicant presents evidence or information that was not
previously considered by the Board that could result in a determination
other than that originally made. Evidence or information may only be
considered if it could not have been presented to the Board prior to
its original determination if the applicant had exercised reasonable
diligence; or
(2) An applicant presents evidence or information that the Board,
or the Secretary as the case may be, committed legal or factual error
in the original determination that could have resulted in a
determination other than that originally made.
(b) The Chairman shall docket a request for reconsideration of a
final decision if it meets the requirements of paragraph (a)(1) or
(a)(2) of this section. If neither of these requirements is met, the
Chairman shall not docket such request.
(c) The Board shall consider each application for reconsideration
that has been docketed. None of the Board members who considered an
applicant's original application for correction shall participate in
the consideration of that applicant's application for reconsideration.
(d) Action by the Board on a docketed application for
reconsideration is subject to Sec. 52.64(b).
(e) An applicant's request for reconsideration must be filed within
two years after the issuance of a final decision, except as otherwise
required by law. If the Chairman dockets an applicant's request for
reconsideration, the two-year requirement may be waived if the Board
finds that it would be in the interest of justice to consider the
request despite its untimeliness.
[FR Doc. 95-29345 Filed 12-8-95; 8:45 am]
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