[Federal Register Volume 63, Number 188 (Tuesday, September 29, 1998)]
[Proposed Rules]
[Pages 51875-51878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-25863]
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DEPARTMENT OF DEFENSE
Department of the Army
32 CFR Part 581
[AR 15-185]
Army Board for Correction of Military Records
AGENCY: Assistant Secretary of the Army for Manpower and Reserve
Affairs, DOD.
ACTION: Proposed rule.
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[[Page 51876]]
SUMMARY: The Department of the Army proposes to amend its regulation on
Army Board for Correction of Military Records to bring it in line with
changes to Army Regulation 15-185, with the same title. This proposal
updates the policies and procedures for consideration of applications,
and corrections of the military records process. The section implements
portions of Title 10, U.S. Code 1034, and Department of Defense (DOD)
Directive 7050.6, Military Whistleblower Protection, that pertain to
actions by the Army Board for Correction of Military Records. It also
implements DoD Instruction 1336.6 Correction of Military Records and
streamlines portions of the application process by transferring the
information into a Department of the Army Pamphlet.
DATES: Comments must be received not later than October 29, 1998.
ADDRESSES: Comments may be sent to The Army Review Boards Agency, ATTN:
SFMR-RBR, 1941 Jefferson Davis Highway, Arlington, VA 22202-4508.
FOR FURTHER INFORMATION CONTACT: Ms. Gale Thomas, Military Personnel
Management Specialist, (703) 607-2044.
SUPPLEMENTARY INFORMATION: Section 581.3 contained in 32 CFR part 581
provides Department of the Army policy, criteria and administrative
instructions regarding an applicant's request for the correction of a
military record.
Executive Order 12866
This proposed rule is not a significant regulatory action pursuant
to Executive Order 12866, Regulatory Planning and Review, dated
September 30, 1993.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 601, et seq, the
proposed rule will not have an annual effect on the economy of $100
million or have a significant impact on a substantial number of small
entities. The proposed rule only concerns the release of information
that pertains to Federal records.
Paperwork Reduction Act
In compliance with The Paperwork Reduction Act, information
collection is required on Department of Defense Form 149 titled
``Application for Correction of Military Record''. The form is
necessary to identify specific types of information in support of the
Army Board requirements. The form was approved previously by the Office
of Management Budget (OMB) and assigned OMB Control No. 0704-0003.
List of Subjects in 32 CFR Part 581
Administrative practice and procedure, Archives and Records,
Military Personnel.
Accordingly, part 581 is proposed to be amended as follows:
1. The authority citation for 581 continues to read as follows:
Authority: 10 U. S. C. 1552, 1553, 1554, 3012; 38 U. S. C.
3103a.
2. Section 581.3 is proposed to be revised to read as follows:
Sec. 581.3 Army Board for Correction of Military Records.
(a) General.--(1) Purpose. This section prescribes the policies and
procedures for correction of military records by the Secretary of the
Army, acting through the Army Board for Correction of Military Records
(ABCMR).
(2) Statutory authority. Title 10 U. S. C. Section 1552, Correction
of Military Records: Claims Incident Thereto (10 U. S. C. 1552), is the
statutory authority for this section.
(b) Responsibilities.--(1) The Secretary of the Army. The Secretary
of the Army will oversee the operations of the ABCMR. The Secretary
will take final action on applications as appropriate.
(2) The ABCMR Director. The ABCMR Director will manage the ABCMR's
day-to-day operations.
(3) The Chair. The Chair of a given ABCMR panel will preside over
the ABCMR panel, conduct a hearing, maintain order, ensure the
applicant receives a full and fair opportunity to be heard and certify
the written record of proceedings in pro forma and formal hearings as
being true and correct.
(4) The ABCMR members. The ABCMR members will--
(i) Review all applications properly before them, to determine the
existence of error or injustice.
(ii) If persuaded that probable material error or injustice exists,
and sufficient evidence exist on the record, direct or recommend
changes in military records to correct the error or injustice.
(iii) Recommend a hearing when appropriate in the interest of
justice.
(iv) Deny applications where the alleged error or injustice is not
adequately supported by the evidence, and a hearing is not deemed
proper.
(v) Deny applications where the application is not timely filed,
and it is not in the interest of justice to excuse the failure to
timely file.
(5) The Army records holding agency. The Army records holding
agency will--
(i) Take appropriate action on routine issues that may be
administratively corrected under authority inherent in the custodian of
the records and do not require ABCMR action.
(ii) Furnish all requested Army military records to the ABCMR.
(iii) Request additional information from the applicant, if needed,
to assist the ABCMR in conducting a full and fair review of the matter.
(iv) Take corrective action directed by the ABCMR or the Secretary
of the Army.
(v) Inform the Defense Finance and Accounting Service (DFAS), when
appropriate, the applicant, his or her counsel, if any, and interested
Members of Congress, if any, after a correction is complete.
(vi) Return original records of the soldier or former soldier
obtained from the Department of Veterans Affairs (VA).
(6) The Army staff agencies and commands. The Army staff agencies
and commands will--
(i) Furnish advisory opinions on matters within their areas of
expertise upon request of the ABCMR, within a timely manner.
(ii) Obtain additional information or documentation as needed
before providing the opinions to the ABCMR.
(iii) Provide records, investigations, information, and
documentation upon request of the ABCMR.
(iv) Provide additional assistance upon request of the ABCMR.
(v) Take corrective action directed by the ABCMR or the Secretary
of the Army.
(7) DFAS. The ABCMR staff will request that DFAS--
(i) Furnish advisory opinions on matters within its area of
expertise upon request.
(ii) Obtain additional information or documentation as needed
before providing the opinions.
(iii) Provide financial records upon request.
(iv) Settle claims on behalf of the Army based on ABCMR final
actions.
(v) Report quarterly on the monies expended as a result of ABCMR
action, and the names of the payees, to the ABCMR Director.
(c) ABCMR establishment and functions.--(1) ABCMR Establishment.
The ABCMR operates pursuant to law (10 U. S. C. 1552) within the Office
of the Secretary of the Army. The ABCMR consists of civilians regularly
employed in the executive part of the Department of the Army (DA), who
are appointed by the Secretary of the Army, and who
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serve on the ABCMR as an additional duty. Three members constitute a
quorum.
(2) ABCMR Functions. (i) The ABCMR considers individual
applications properly brought before it. In appropriate cases, it
directs or recommends correction of military records to remove an error
or injustice.
(ii) When an applicant has suffered reprisal under the Military
Whistleblower Protection Act (10 U. S. C. 1034 and Department of
Defense Directive (DODD) 7050.6), the ABCMR may recommend to the
Secretary of the Army that disciplinary or administrative action be
taken against any Army official who committed an act of reprisal
against the applicant.
(iii) The ABCMR will decide cases on the evidence of record. It is
not an investigative body. The ABCMR may, in its discretion, hold a
hearing (sometimes referred to as an evidentiary hearing or an
administrative hearing in 10 U. S. C. 1034 and DODD 7050.6), or call
for additional evidence or opinions.
(d) Application procedures.--(1) Who may apply. The ABCMR's
jurisdiction under 10 U. S. C. 1552 extends to any military record of
the DA. It is the nature of the record, and/or the status of the
applicant, that defines the ABCMR's jurisdiction.
(i) Usually applicants are soldiers or former soldiers of the
active Army, the U.S. Army Reserve (USAR), and in certain cases, the
Army National Guard (ARNG), and other military and civilian individuals
affected by an Army military record. Requests are personal to the
applicant and relate to military records. Requests are submitted on
Department of Defense (DD) Form 149, Application for Correction of
Military Record. Soldiers in an active or reserve status need not
submit applications via their chain of command.
(ii) 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 legal representative (such as a guardian or executor) of
the soldier or former soldier may be able to show a proper interest.
Applicants must send proof of proper interest with the application when
requesting correction of another person's military records.
(2) Time limits. Applicants must file an application within 3 years
after the alleged error or injustice was discovered or should have been
discovered. The ABCMR may deny an untimely application. The ABCMR may
excuse untimely filing in the interest of justice.
(3) Administrative remedies. The ABCMR will not consider an
application until the applicant has exhausted all administrative
remedies to correct the alleged error or injustice.
(4) Stay of other proceedings. Applying to the ABCMR does not stay
other proceedings.
(5) Counsel. (i) Applicants may be represented by counsel, at their
own expense.
(ii) See DODD 7050.6 for provisions for counsel in cases processed
under 10 U. S. C. 1034.
(e) Application processing. (1) Actions by the ABCMR Director and
staff. The ABCMR staff will review each application to determine if it
meets the criteria for consideration by the ABCMR. The application may
be returned without action if:
(i) The applicant fails to complete and sign the application.
(ii) The applicant has not exhausted all other administrative
remedies.
(iii) The ABCMR does not have jurisdiction to grant the requested
relief.
(iv) No new evidence was submitted with a request for
reconsideration.
(2) Burden of proof. The ABCMR begins its consideration of each
case with the presumption of administrative regularity. The applicant
has the burden of proving an error or injustice by a preponderance of
the evidence.
(3) ABCMR consideration. (i) A panel consisting of at least three
ABCMR members shall consider each application properly brought before
it. One panel member serves as its chair.
(ii) The panel may consider the case on the merits in executive
session or authorize a hearing.
(iii) Each application will be reviewed to determine:
(A) Whether the preponderance of the evidence shows that an error
or injustice exists.
(1) If so, what relief is appropriate.
(2) If not, deny relief.
(B) Whether to authorize a hearing.
(C) If the application is filed outside the statute of limitations,
whether to deny based on untimeliness or to waive the statute in the
interest of justice.
(f) ABCMR hearings. Applicants do not have a right to a hearing
before the ABCMR. The Director or the ABCMR may grant a formal hearing
whenever justice requires.
(g) Disposition of applications. (1) ABCMR decisions. The panel's
majority vote constitutes the action of the ABCMR. The ABCMR's
findings, recommendations, and, in the case of a denial, the rationale
will be in writing.
(2) ABCMR final action. (i) The ABCMR acts for the Secretary of the
Army and its decision is final when it:
(A) Denies any application (except under 10 U.S.C. 1034).
(B) Grants any application in whole or in part without a hearing
when:
(1) The relief is as recommended by the proper staff agency in an
advisory opinion; and
(2) Is unanimously agreed to by the ABCMR panel; and
(3) Does not involve an appointment or promotion requiring
confirmation by the Senate.
(ii) The ABCMR will forward the decisional document to the
Secretary of the Army for final decision in any case where:
(A) A hearing was held.
(B) The facts involve reprisals under the Military Whistleblower
Protection Act confirmed by the Department of Defense Inspector General
(DODIG) under 10 U.S.C. 1034 and DODD 7050.6.
(C) The ABCMR recommends relief, but is not authorized to act for
the Secretary of the Army on the application.
(3) Decision of the Secretary of the Army. (i) The Secretary of the
Army may direct such action as he or she deems proper on each case.
Cases returned to the Board for further consideration will be
accompanied by a brief statement of the reasons for such action. If the
Secretary does not accept the ABCMR's recommendation, or adopts a
minority position, or fashions an action that he or she deems proper
and supported by the record, that decision will be in writing and will
include a brief statement of the grounds for denial or revision.
(ii) The Secretary of the Army will issue decisions on cases
covered by the Military Whistleblower Protection Act (10 U.S.C. 1034
and DODD 7050.6). In cases where the DODIG concluded that there was
reprisal, these decisions will be made within 180 days after receipt of
the application and the investigative report by the DODIG, the
Department of the Army Inspector General (DAIG), or other Inspector
General (IG) offices. Unless the full relief requested is granted,
these applicants will be informed of their right to request review of
the decision by the Secretary of Defense.
(4) Reconsideration of applications. An applicant may ask the ABCMR
to reconsider its decision under the following circumstances:
(i) If the ABCMR receives the request within 1 year of the ABCMR's
action, and the ABCMR has not previously reconsidered the matter, the
ABCMR staff will review the request to
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determine if it includes evidence (including, but not limited to, any
facts or arguments as to why relief should be granted) that was not in
the record at the time of the ABCMR's prior consideration. If new
evidence has been submitted, the request will be submitted to the ABCMR
for its determination of whether new evidence exists sufficient to show
probable material error or injustice. If no new evidence is found, the
ABCMR staff will return the application to the applicant without
action.
(ii) If the ABCMR receives the request more than 1 year after the
ABCMR's action, or after the ABCMR has already considered one request
for reconsideration, the ABCMR staff will review the request to
determine if substantial relevant evidence is submitted showing fraud,
mistake of law, mathematical miscalculation, manifest error, or the
existence of substantial, relevant new evidence discovered
contemporaneously or within a short time after the ABCMR's original
consideration. If the ABCMR staff finds such evidence, it will be
submitted to the ABCMR for its determination of whether a material
error or injustice exists, and if so, the proper remedy. If the ABCMR
staff does not find such evidence, the application will be returned to
the applicant without action.
(h) Claims/Expenses.--(1) Authority. (i) The Army, by law, may pay
claims for amounts due to applicants as a result of correction of
military records.
(ii) The Army may not pay any claim previously compensated by
Congress through enactment of a private law.
(iii) The Army may not pay for any benefit to which the applicant
might later become entitled under the laws and regulations managed by
the VA.
(2) Settlement of claims. (i) The ABCMR will furnish DFAS copies of
decisions potentially affecting monetary entitlement or benefits. DFAS
will treat such decisions as claims for payment by or on behalf of the
applicant.
(ii) DFAS will settle claims on the basis of the corrected military
record. DFAS will compute the amount due, if any. DFAS may require
applicants to furnish additional information to establish their status
as proper parties to the claim and/or to aid in deciding amounts due.
Earnings received from civilian employment during any period for which
active duty pay and allowances are payable will be deducted. The
applicant's acceptance of a settlement fully satisfies the claim
concerned.
(3) Payment of expenses. The Army may not pay attorney's fees or
other expenses incurred by or on behalf of an applicant in connection
with an application for correction of military records under 10 U.S.C.
1034 or 1552.
(i) Miscellaneous provisions.--(1) Special standards. (i) Pursuant
to the November 27, 1979 order of the United States District Court for
the District of Columbia in Giles v. Secretary of the Army (Civil
Action No. 77-0904), a former Army service member is entitled to an
honorable discharge if a less than honorable discharge was issued to
the service member, on or before November 27, 1979, in an
administrative proceeding in which the Army introduced evidence
developed by or as a direct or indirect result of compelled urinalysis
testing administered for the purpose of identifying drug abusers
(either for the purposes of entry into a treatment program or to
monitor progress through rehabilitation or follow-up).
(ii) Applicants who believe that they fall within the scope of
paragraph (i) (1)(i) of this section should place the word CATEGORY
``G'' in block 11, (DD Form 149) Application for Correction of Military
or Naval Record. Such applications should be viewed expeditiously by a
designated official who will either send the individual an honorable
discharge certificate if the individual falls within the scope of
paragraph (i) (1)(i) of this section, or forward the application to the
Discharge Review Board if the individual does not fall within the scope
of paragraph (i) (1)(i) of this section. The action of the designated
official shall not constitute an action or decision by the Board for
Correction of Military Records.
(2) Public access to decisions. (i) After deletion of personal
information, a redacted copy of each decision will be indexed by
subject and made available for review and copying at a public reading
room at Crystal Mall 4, 1941 Jefferson Davis Highway, Arlington,
Virginia. The index will be in a usable and concise form so as to
indicate the topic considered and the reasons for the decision. Under
the Freedom of Information Act, 5 U.S.C. 552, records created on or
after November 1, 1996 shall be available by electronic means.
(ii) Under the Freedom of Information Act, 5 U.S.C. 552, and the
Privacy Act of 1974, 5 U.S.C. 552(a), the ABCMR will not furnish to
third parties information submitted with or about an application unless
specific written authorization is received from the applicant, or as
otherwise authorized by law.
Loren G. Harrell,
Director, Army Board for Correction of Military Records.
[FR Doc. 98-25863 Filed 9-28-98; 8:45 am]
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