05-22094. Personnel Review Board

AGENCY:

Assistant Secretary of the Army for Manpower and Reserve Affairs, DoD.

ACTION:

Final rule.

SUMMARY:

The Department of the Army amends its regulation on Army Board for Correction of Military Records to be in compliance with the United States District Court for the District of Columbia decision (Daniel J. Lipsman v. Secretary of the Army—Civil Action No. 02-0151 (RMU), Document Nos. 18, 20, decided September 7, 2004, 2004 U.S. Dist. LEXIS 17866).

DATES:

Effective Date: December 7, 2005.

ADDRESSES:

The Army Review Boards Agency, ATTN: SFMR-RBR, 1901 South Bell Street, 2nd Floor, Arlington, Virginia 22202-4508.

FOR FURTHER INFORMATION CONTACT:

Hubert S. Shaw, 703-607-1779.

SUPPLEMENTARY INFORMATION:

A. Background

This rule has previously been published. 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. The Administrative Procedure Act, as amended by the Freedom of Information Act, requires that certain policies and procedures and other information concerning the Department of the Army be published in the Federal Register. The policies and procedures covered by this part fall into that category. The Department of the Army received no responses to its notice of proposed rule change published on August 3, 2005; therefore, no substantive changes were made to the proposed rule.

B. Regulatory Flexibility Act

The Department of the Army has determined that the Regulatory Flexibility Act does not apply because the rule change does not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612.

C. Unfunded Mandates Reform Act

The Department of the Army has determined that the Unfunded Mandates Reform Act does not apply because the rule change does not include a mandate that may result in estimated costs to State, local or tribal governments in the aggregate, or the private sector, of $100 million or more.

D. National Environmental Policy Act

The Department of the Army has determined that the National Environmental Policy Act does not apply because the rule change does not have an adverse impact on the environment.

E. Paperwork Reduction Act

The Department of the Army has determined that the Paperwork Reduction Act does not apply because the rule change does not involve collection of information from the public.

F. Executive Order 12630 (Government Actions and Interference With Constitutionally Protected Property Rights)

The Department of the Army has determined that Executive Order 12630 does not apply because the rule change does not impair private property rights.

G. Executive Order 12866 (Regulatory Planning and Review)

The Department of the Army has determined that according to the criteria defined in Executive Order 12866 this rule change is not a significant regulatory action.

H. Executive Order 13045 (Protection of Children From Environmental Health Risk and Safety Risks)

The Department of the Army has determined that according to the criteria defined in Executive Order 13045 that Executive Order does not apply.

I. Executive Order 13132 (Federalism)

The Department of the Army has determined that according to the criteria defined in Executive Order 13132 that Executive Order does not apply because the rule change will not have a substantial effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

Carl W.S. Chun,

Director, Army Board for Correction of Military Records.

List of Subjects in 32 CFR Part 581

• Administrative practice and procedure
• Archives and Records
• Military Personnel

For reasons stated in the preamble the Department of the Army amends part 581 to read as follows:

PART 581—PERSONNEL REVIEW BOARD

1. The authority citation for part 581 continues to read as follows:

Authority: 10 U.S.C. 1552, 1553, 1554, 3013, 3014, 3016; 38 U.S.C. 3103(a).

2. Amend § 581.3 by revising paragraphs (g)(4)(i) and (ii) to read as follows:

§ 581.3

Army Board for Correction of Military Records.

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(g) * * *

(4) * * *

(i) If the ABCMR receives the request for reconsideration within 1 year of the ABCMR's original decision and if the ABCMR has not previously reconsidered the matter, the ABCMR staff will review the request to determine if it contains 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 the new evidence is sufficient to demonstrate 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 a request for reconsideration more than 1 year after the ABCMR's original decision or after the ABCMR has already considered one request for reconsideration, then the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction.

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