[Federal Register Volume 59, Number 142 (Tuesday, July 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18053]
[[Page Unknown]]
[Federal Register: July 26, 1994]
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DEPARTMENT OF DEFENSE
Department of the Air Force
32 CFR Part 865
Personnel Review Boards
AGENCY: Department of the Air Force, DoD.
ACTION: Proposed rule.
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SUMMARY: The Department of the Air Force is proposing to amend Part 865
of Chapter VII, Title 32, Code of Federal Regulations, by revising
Subpart A, Air Force Board for Correction of Military Records. Subpart
A establishes procedures for the consideration of applications for the
correction of military records and provides guidance to applicants and
others interested in the process. This revision incorporates format
changes and clarifies various minor provisions of the subpart. The
public is invited to participate in this rulemaking by submitting
comments to the point of contact listed below.
DATES: Comments must be received no later than September 26, 1994.
ADDRESSES: Comments should be submitted to: Executive Director, Air
Force Board for Correction of Military Records, 1535 Command Drive, EE
Wing, 3rd Floor, Andrews AFB MD 20331-7002.
FOR FURTHER INFORMATION CONTACT: C. Bruce Braswell, Executive Director,
(301) 981-5727.
SUPPLEMENTARY INFORMATION: The Department of the Air Force 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 Air Force (Manpower, Reserve Affairs,
Installations and Environment) 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 Air Force use.
List of Subjects in 32 CFR Part 865
Administrative practices and procedures, Military personnel,
Records.
Accordingly, 32 CFR Part 865, Subpart A, is proposed to be revised
to read as follows:
PART 865--PERSONNEL REVIEW BOARDS
Subpart A--Air Force Board for Correction of Military Records
Sec.
865.0 Purpose.
865.1 Setup of the Board.
865.2 Board responsibilities.
865.3 Application procedures.
865.4 Board actions.
865.5 Decision of the Secretary of the Air Force.
865.6 Reconsideration of applications.
865.7 Action after final decision.
865.8 Miscellaneous provisions.
Subpart A--Air Force Board for Correction of Military Records
Authority: 10 U.S.C. 1034, 1552.
Sec. 865.0 Purpose.
This subpart sets up procedures for correction of military records
to remedy error or injustice. It tells how to apply for correction of
military records and how the Air Force Board for Correction of Military
Records (AFBCMR, or the Board) 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. System of Records notice F035 SAFCB A,
Military Records Processed by the Air Force Correction Board, applies.
Sec. 865.1 Setup of the Board.
The AFBCMR operates within the Office of the Secretary of the Air
Force according to 10 U.S.C. 1552. The Board consists of civilians in
the executive part of the Department of the Air Force who are appointed
and serve at the pleasure of the Secretary of the Air Force. Three
members constitute a quorum of the Board.
Sec. 865.2 Board responsibilities.
(a) Considering applications. The Board considers all applications
properly brought before it. In appropriate cases, it directs correction
of military records to remove an error or injustice, or recommends such
correction.
(b) Recommending action. When an applicant alleges reprisal under
the Military Whistleblowers Protection Act, 10 U.S.C. 1034, the Board
may recommend to the Secretary of the Air Force that disciplinary or
administrative action be taken against those responsible for the
reprisal.
(c) Deciding cases. The Board normally decides cases on the
evidence of record. It is not an investigative body. However, the Board
may, in its discretion, hold a hearing or call for additional evidence
or opinions in any case.
Sec. 865.3 Application procedures.
(a) Who may apply:
(1) In most cases, the applicant is a member or former member of
the Air Force, since the request is personal to the applicant and
relates to his or her military records.
(2) An applicant with a proper interest may request correction of
another person's military records when that person is incapable of
acting on his or her own behalf, is missing, or is deceased. Depending
on the circumstances, a child, spouse, parent or other close relative,
an heir, or a legal representative (such as a guardian or executor) of
the member or former member may be able to show a proper interest.
Applicants will send proof of proper interest with the application when
requesting correction of another person's military records.
(b) Getting forms. Applicants may get a DD Form 149, Application
for Correction of Military Record Under the Provisions of Title 10,
U.S.C., Section 1552, and Air Force Pamphlet 31-5, Applicants' Guide to
the Air Force Board for Correction of Military Records (AFBCMR), from:
(1) Any Air Force Military Personnel Flight (MPF) or publications
distribution office.
(2) Most veterans' service organization.
(3) The Air Force Review Boards Office, SAF/MIBR, 550 C Street
West, Suite 40, Randolph AFB TX 78150-4742.
(4) The AFBCMR, 1535 Command Drive, EE Wing 3rd Floor, Andrews AFB
MD 20331-7002.
(c) Preparation. Before applying, applicants should:
(1) Review Air Force Pamphlet 31-5.
(2) Discuss their concerns with MPF, finance office, or other
appropriate officials. Errors can often be corrected administratively
without resort to the Board.
(3) Exhaust other available administrative remedies (otherwise the
Board may return the request without considering it).
(d) Submitting the application. Applicants should complete all
applicable sections of the DD Form 149, including at least:
(1) The name under which the member served.
(2) The member's social security number or Air Force service
number.
(3) The applicant's current mailing address.
(4) The specific records correction being requested.
(5) Proof of proper interest if requesting correction of another
person's records.
(6) The applicant's signature.
(e) Applicants should mail the original signed DD Form 149 and any
supporting documents to the Air Force address on the back of the form.
(f) Meeting time limits. Ordinarily, applicants must file an
application within 3 years after the error or injustice was discovered,
or, with due diligence, should have been discovered. An application
filed later is untimely and may be denied by the Board on that basis.
(1) The Board may excuse untimely filing in the interest of
justice.
(2) If the application is filed late, applicants should explain why
it would be in the interest of justice for the Board to waive the time
limits.
(g) Stay of other proceedings. Applying to the AFBCMR does not stay
other proceedings.
(h) Counsel representation. Applicants may be represented by
counsel, at their own expense.
(1) The term ``counsel'' includes members in good standing of the
bar of any state, accredited representatives of veterans' organizations
recognized under 38 U.S.C. 3402, and other persons determined by the
Executive Director of the Board to be competent to represent the
interests of the applicant.
(2) See Department of Defense Directive 7050.6, Military
Whistleblower Protection Act, 3 September 1992,1 for special
provisions for counsel in cases processed under 10 U.S.C. 1034.
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\1\Copies of the publication are available, at cost, from the
National Technical Information Service, U.S. Department of Commerce,
5285 Port Royal Road, Springfield, VA 22161.
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(i) Page limitations on briefs. Briefs in support of applications:
(1) May not exceed 25 double-spaced typewritten pages.
(2) Must be typed on one side of a page only with not more than 12
characters per inch.
(3) Must be assembled in a manner that permits easy reproduction.
(j) Responses to advisory opinions must not exceed 10 double-spaced
typewritten pages and meet the other requirements for briefs.
(k) These limitations do not apply to supporting documentary
evidence.
(l) In complex cases and upon request, the Executive Director of
the Board may waive these limitations.
(m) Withdrawing applications. Applicants may withdraw an
application at any time before the Board's decision. Withdrawal does
not stay the 3-year time limit.
Sec. 865.4 Board actions.
(a) Board information sources. The applicant has the burden of
providing evidence of probable error or injustice. However, the Board:
(1) May get additional information and advisory opinions on an
application from any Air Force organization or official.
(2) May require the applicant to furnish additional information
necessary to decide the case.
(b) Applicants will normally be given an opportunity to review and
comment on advisory opinions and additional information obtained by the
Board.
(c) Consideration by the Board. A panel consisting of at least
three board members considers each application. One panel member serves
as its chair. The panel's actions and decisions constitute the actions
and decisions of the Board.
(d) The panel may decide the case in executive session or authorize
a hearing. When a hearing is authorized, the procedures in paragraph
(f) of this section apply.
(e) Board deliberations. Normally only members of the Board and
Board staff will be present during deliberations. The panel chair may
permit observers for training purposes or otherwise in furtherance of
the functions of the Board.
(f) Board hearings. The Board in its sole discretion determines
whether to grant a hearing. Applicants do not have a right to a hearing
before the Board.
(g) The Executive Director will notify the applicant or counsel, if
any, of the time and place of the hearing. Written notice will be
mailed 30 days in advance of the hearing unless the notice period is
waived by the applicant. The applicant will respond not later than 15
days before the hearing date, accepting or declining the offer of a
hearing and, if accepting, provide information pertaining to counsel
and witnesses. The Board will decide the case in executive session if
the applicant declines the hearing or fails to appear.
(h) When granted a hearing, the applicant may appear before the
Board in person, represented by counsel, or in person with counsel and
may present witnesses. It is the applicant's responsibility to notify
witnesses, arrange for their attendance at the hearing, and pay any
associated costs.
(i) The panel chair conducts the hearing, maintains order, and
ensures the applicant receives a full and fair opportunity to be heard.
Formal rules of evidence do not apply, but the panel observes
reasonable bounds of competency, relevancy, and materiality. Witnesses
other than the applicant will not be present except when testifying.
Witnesses will testify under oath or affirmation. A recorder will
record the proceedings verbatim. The chair will normally limit hearings
to 2 hours but may allow more time if necessary to ensure a full and
fair hearing.
(j) Additional provisions apply to cases processed under 10 U.S.C.
1034. See DoDD 7050.6.\2\
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\2\See footnote to Sec. 865.3(h)(2).
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(k) The Board will not deny or recommend denial of an application
on the sole ground that the issue already has been decided by the
Secretary of the Air Force or the President of the United States in
another proceeding.
(l) Board decisions. The panel's majority vote constitutes the
action of the Board. The Board's decision will be in writing and will
include determinations on the following issues:
(1) Whether the provisions of the Military Whistleblowers
Protection Act apply to the application. This determination is needed
only when the applicant invokes the protection of the Act, or when the
question of its applicability is otherwise raised by the evidence.
(2) Whether the application was timely filed and, if not, whether
the applicant has demonstrated that it would be in the interest of
justice to excuse the untimely filing. When the Board determines that
an application is not timely, and does not excuse its untimeliness, the
application will be denied on that basis.
(3) Whether the applicant has exhausted all available and effective
administrative remedies. If the applicant has not, the application will
be denied on that basis.
(4) Whether the applicant has demonstrated the existence of an
error or injustice that can be remedied effectively through correction
of the applicant's military record and, if so, what corrections are
needed to provide full and effective relief.
(5) In Military Whistleblowers Protection Act cases only, whether
to recommend to the Secretary of the Air Force that disciplinary or
administrative action be taken against any Air Force official whom the
Board finds to have committed an act of reprisal against the applicant.
Any determination on this issue will not be made a part of the Board's
record of proceedings and will not be given to the applicant, but will
be provided directly to the Secretary of the Air Force under separate
cover (Sec. 865.2(b)).
(m) Record of proceedings. The Board staff will prepare a record of
proceedings following deliberations which will include:
(1) The name and vote of each Board member.
(2) The application.
(3) Briefs and written arguments.
(4) Documentary evidence.
(5) A hearing transcript if a hearing was held.
(6) Advisory opinions and applicants related comments.
(7) The findings, conclusions, and recommendations of the Board.
(8) Minority reports, if any.
(9) Other information necessary to show a true and complete history
of the proceedings.
(n) Minority reports. A dissenting panel member may prepare a
minority report which may address any aspect of the case.
(o) Separate communications. The Board may send comments or
recommendations to the Secretary of the Air Force as to administrative
or disciplinary action against individuals found to have committed acts
of reprisal prohibited by the Military Whistleblowers Protection Act
and on other matters arising from an application not directly related
to the requested correction of military records. Such comments and
recommendations will be separately communicated and will not be
included in the record of proceedings or given to applicant or counsel.
(p) Final action by the Board. The Board acts for the Secretary of
the Air Force and its decision is final when it:
(1) Denies any application (except under 10 U.S.C. 1034)
(2) Grants any application in whole or part when the relief was
recommended by the official preparing the advisory opinion, was
unanimously agreed to by the panel, and does not involve an appointment
or promotion requiring confirmation by the Senate.
(q) The Board sends the record of proceedings on all other
applications to the Secretary of the Air Force or his or her designee
for final decision.
Sec. 865.5 Decision of the Secretary of the Air Force.
(a) The Secretary may direct such action as he or she deems
appropriate on each case, including returning the case to the Board for
further consideration. Cases returned to the Board for further
reconsideration will be accompanied by a brief statement of the reasons
for such action. If the Secretary does not accept the Board's
recommendation, the decision will be in writing and will include a
brief statement of the grounds for denial.
(b) Decisions in cases under the Military Whistleblowers Protection
Act. The Secretary will issue decisions on such cases 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 (SecDef). 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 receipt of the decision by the Secretary of the Air Force.
(3) That the request for review must be in writing and include the
applicant's name, address, and telephone number; a copy of the
application to the AFBCMR and the final decision of the Secretary of
the Air Force; and a statement of the specific reasons the applicant is
not satisfied with the decision of the Secretary of the Air Force.
(4) That the request must be based on the Board record; requests
for review based on factual allegations or evidence not previously
presented to the Board will not be considered under this paragraph but
may be the basis for reconsideration by the Board under Sec. 865.6.
Sec. 865.6 Reconsideration of applications.
The Board may reconsider an application if the applicant submits
newly discovered relevant evidence that was not available when the
application was previously considered. The Executive Director will
screen each request for reconsideration to determine whether it
contains new evidence.
(a) If the request contains new evidence, the Executive Director
will refer it to a panel of the Board for a decision. The Board will
decide the relevance and weight of any new evidence, whether it was
reasonably available to the applicant when the application was
previously considered, and whether it was submitted in a timely manner.
The Board may deny reconsideration if the request does not meet the
criteria for reconsideration. Otherwise the Board will reconsider the
application and decide the case either on timeliness or merit as
appropriate.
(b) If the request does not contain new evidence, the Executive
Director will return it to the applicant without referral to the Board.
Sec. 865.7 Action after final decision.
(a) Action by the Executive Director. The Executive Director will
inform the applicant or counsel, if any, of the final decision on the
application. If any requested relief was denied, the Executive Director
will advise the applicant of reconsideration provisions and, for cases
processed under the Military Whistleblowers Protection Act, review by
the SecDef. The Executive Director will send decisions requiring
corrective action to the Chief of Staff, US Air Force, for necessary
action.
(b) Settlement of claims. The Air Force is authorized, under 10
U.S.C. 1552, to pay claims for amounts due to applicants as a result of
correction of military records.
(c) The Executive Director will furnish the Defense Finance and
Accounting Service (DFAS) with AFBCMR decisions potentially affecting
monetary entitlement or benefits. DFAS will treat such decisions as
claims for payment by or on behalf of the applicant.
(d) DFAS settles claims on the basis of the corrected military
record. Computation of the amount due, if any, is a function of DFAS.
Applicants may be required to furnish additional information to DFAS to
establish their status as proper parties to the claim and to aid in
deciding amounts due.
(e) Public access to decisions. After deletion of personal
information, AFBCMR decisions will be made available for review and
copying at a public reading room in the Washington DC metropolitan
area.
Sec. 865.8 Miscellaneous provisions.
(a) At the request of the Board, all Air Force activities and
officials will furnish the Board with:
(1) All available military records pertinent to an application.
(2) An advisory opinion concerning an application. The advisory
opinion will include an analysis of the facts of the case and of the
applicant's contentions, a statement of whether or not the requested
relief can be done administratively, and a recommendation on the
timeliness and merit of the request. Regardless of the recommendation,
the advisory opinion will include instructions on specific corrective
action to be taken if the Board grants the application.
(b) Access to records. Applicants will have access to all records
considered by the Board, except those classified or privileged. To the
extent practicable, applicants will be provided unclassified or
nonprivileged summaries or extracts of such records considered by the
Board.
(c) Payment of expenses. The Air Force has no authority to pay
expenses of any kind incurred by or on behalf of an applicant in
connection with a correction of military records under 10 U.S.C. 1034
or 1552.
Patsy J. Conner,
Air Force Federal Register Liaison Officer.
[FR Doc. 94-18053 Filed 7-25-94; 8:45 am]
BILLING CODE 3910-01-P
