Personnel Review Boards

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]

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