[Federal Register Volume 61, Number 94 (Tuesday, May 14, 1996)]
[Rules and Regulations]
[Pages 24233-24235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12030]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
Coast Guard
33 CFR Part 52
[OST Docket No. OST-95-878]
RIN 2105-AC31
Coast Guard Board for Correction of Military Records; Procedural
Regulation
AGENCY: Office of the Secretary, Coast Guard, DOT.
ACTION: Final Rule.
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SUMMARY: The Department is amending its regulation with respect to
reconsideration of final decisions of the Board for Correction of
Military Records of the Coast Guard (BCMR). 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 amendment will make it possible for the BCMR to
expedite the processing of reconsideration requests and it will
increase the resources available to meet the requirement that all cases
be decided within 10 months of the receipt of a completed application.
EFFECTIVE DATE: June 13, 1996.
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:
Comments on Proposed Rulemaking
Proposed rulemaking was published on pages 63489-63491 of the
Federal Register of December 11, 1995 [60 FR 63489], and invited
comments for 60 days ending February 9, 1996. Comments were received
from the following sources: (1) Eugene R. Fidell, Esq., an attorney in
private practice; and (2) Michael J. Calabro, Esq., an attorney in
private practice. The comments and the actions taken in response to the
comments are summarized below.
Both attorneys expressed concern with respect to the amount of time
that
[[Page 24234]]
may be consumed in processing a reconsideration request. The BCMR
appreciates this concern, but believes that delay, which is a problem
in the current reconsideration process, would be significantly reduced
under the proposed rule. The proposed rule, by eliminating duplicative
review of a reconsideration application, as required by the current
Sec. 52.67(c), and by providing for an expedited process in handling
facially defective reconsideration requests, will require less time per
reconsideration request than the current rule.
One of the commenting attorneys questioned the authority given to
the Chairman in proposed Sec. 52.67(b) on the ground that the enabling
statute (10 U.S.C. Sec. 1552) requires BCMR decisions to be made by the
Secretary acting through a board. That is true, but it is only true
with respect to an original decision. Section 1552 of title 10 does not
provide for, nor does it prohibit, the reconsideration of original
decisions. Reconsideration authority has been added by the BCMR's
regulations and its parameters can therefore be determined by those
regulations.
Comments were also offered on other aspects of the correction board
process for the Coast Guard. One attorney asked that the BCMR's basic
time limit regulation be updated, even though that was not a subject
addressed in the proposed rule. Both attorneys made suggestions with
regard to administrative matters that do not bear on the proposed rule
and do not require a rules change to implement: appropriate
designations and numbering for docketed reconsideration requests; the
formalization and publication of the Secretary's delegate's authority;
improvement of the system for indexing and retrieval of redacted Coast
Guard BCMR decisions; availability of redacted decisions to all who are
interested by bulletin board, CD-ROM, or mailed to subscribers on a
mailing list, in return for a reasonable fee. None of these comments
bear on the reconsideration regulation that is being considered in this
rulemaking process. Therefore, while these matters remain under
consideration, they are not addressed at this time.
Final Rule
This final rule explicitly authorizes 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.
This final rule also authorizes 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.
This final rule also provides 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 is not 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 rule
will not 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 33 CFR Part 52
Administrative practice and procedure, Archives and records,
Military personnel, Military records.
Issued this 8th day of May 1996, at Washington, D.C.------
Federico Pena,-
Secretary of Transportation.
-For the reasons set forth in the preamble, the Office of the
Secretary of the U.S. Department of Transportation amends 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:
[[Page 24235]]
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. 96-12030 Filed 5-13-96; 8:45 am]
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