Coast Guard Board for Correction of Military Records; Procedural Regulation

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

33 CFR Part 52

[OST Docket No. OST-95-878; Notice 95-14]

RIN 2105-AC31

Coast Guard Board for Correction of Military Records; Procedural

Regulation

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department proposes to amend its regulations with respect

to reconsideration of final decisions of the Board for Correction of

Military Records of the Coast Guard (Board). 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 proposed amendment will make it possible for the

Board to expedite reconsideration and will increase the resources

available to meet the requirement that all cases be decided within 10

months of the receipt of a completed application.

DATES: Comments must be submitted on or before February 9, 1996. Late-

filed comments will be considered to the extent practicable.

ADDRESSES: Comments should be mailed, preferably in duplicate, to

Docket No. OST-95-878, Documentary Services Division, C-55, PL-401,

U.S. Department of Transportation; 400 Seventh Street SW, Washington,

D.C. 20590. Comments will be available for review by the public at this

address from 9 a.m. through 5 p.m., Monday

[[Page 63490]]

through Friday. Persons wishing acknowledgment of their comments'

receipt should include a stamped, self-addressed postcard. The

Documentary Services Division will time and date-stamp the card and

return it to the commenter.

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:

The Board Process With Respect to Reconsideration

The Secretary of Transportation, acting through the Department of

Transportation Board for Correction of Military Records of the Coast

Guard, is authorized by section 1552 of title 10, United States Code,

to correct the military records of serving, separated and retired Coast

Guard military personnel when there is an error or injustice in a

military record.

After a final decision has been reached on an application for

correction, the decision can be appealed by the applicant in an

appropriate Federal court. There is no right, under 10 U.S.C. 1552, to

administrative reconsideration of a final decision, but applicants have

always been allowed to request such reconsideration by regulation.

Under the present DOT BCMR regulation with respect to

reconsideration (33 CFR 52.67(b)), the only basis for reconsideration

is the presentation of ``newly discovered evidence or information, not

previously considered by the Board * * * [which] would, if true, result

in a determination other than that originally made.''

The present regulation does not explicitly authorize

reconsideration if the applicant offers evidence showing that material

legal or factual error was made by the Board in its original decision.

Also, it does not provide a means for expeditious handling of requests

for reconsideration that do not meet the threshold requirements for

review. Because of the current statutory direction that Board decisions

be issued within 10 months of receiving a complete application, and the

resulting pressure on Board resources, the Board must find ways to

increase its efficiency of operation. An expedited process for handling

facially defective reconsideration requests is proposed as an

appropriate step in that direction. In addition, the present rule does

not require that a request for reconsideration be made within a certain

time period.

The Proposal

The proposed rule would explicitly authorize 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.

The proposed rule would authorize 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.

The proposed rule would provide 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 NPRM does not propose 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 NPRM would not, if adopted, 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 32 CFR Part 52

Administrative practice and procedure, Archives and records,

Military personnel, Military records.

[[Page 63491]]

Issued this 24th day of November at Washington, DC.

Mortimer L. Downey,

Deputy Secretary of Transportation.

For the reasons set forth in the preamble, the Office of the

Secretary of the U.S. Department of Transportation proposes to amend 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:

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. 95-29345 Filed 12-8-95; 8:45 am]

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