Coast Guard Board for Correction of Military Records; Procedural Regulation

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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