Personnel Review Boards

DEPARTMENT OF DEFENSE

Department of the Air Force

32 CFR Part 865

RIN 0701-AA43

Personnel Review Boards

AGENCY: Department of the Air Force, DOD.

ACTION: Final rule.

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SUMMARY: The Department of the Air Force has revised Part 865, Subpart

A of Subchapter G, Title 32 of the Code of Federal Regulations, which

provides for making application, and the consideration of applications,

for the correction of military records by the Secretary of the Air

Force acting through the Air Force Board for Correction of Military

Records.

EFFECTIVE DATE: March 1, 1996.

FOR FURTHER INFORMATION CONTACT: Mr. John J. D'Orazio, Chief Examiner,

(301) 981-3502.

SUPPLEMENTARY INFORMATION: On July 26, 1994, the Department of the Air

Force published (at 59 FR 37953) a proposed rule changing the

procedures for making applications, and consideration of applications,

for the correction of military records by the Secretary of the Air

Force acting through the Air Force Board for Correction of Military

Records. The following summarizes the major comments received and

action taken:

Two commentors stated that the rule should be amended to include

specific references concerning other administrative remedies which must

be exhausted prior to the submission of an application to the Board

(Sec. 865.4(l)(3)). Information related to this rule is contained in

Air Force Pamphlet (AFP) 36-2607, Applicant's Guide to the Air Force

Board for Correction of Military Records (AFBCMR), dated 3 November

1994. In addition, it is normally expected that an active member would

be made aware of any available administrative remedies by seeking

advice from personnel at their local Military Personnel Flight (MPF).

Furthermore, exhausting administrative remedies also refers to cases

where an application for correction of records is submitted by members

or former members and authorities at the MPF or the Air Force Personnel

Center, Randolph AFB, Texas, determine that an error exists and that

administrative relief may be effected by the Air Force office of

primary responsibility without referring the appeal to the Board. The

only other organization to which a former member must apply prior to

submitting an application to the AFBCMR is the Air Force Discharge

Review Board (AFDRB), which operates under its own statute (10 U.S.C.

1553) and Air Force Instruction (AFI) 36-2023, dated 14 October 1994.

In view of the above, and, since the cited information is already

available through other sources and would be made known to applicants

who are inquiring about the Board process, amendment of the rule to

include this information is deemed unnecessary.

Two commentors suggested that the rule should be amended to state

that time spent exhausting administrative remedies tolls the three-year

time limit (Sec. 865.3(f)). The Board takes the position that, for

practical reasons, efforts to seek other administrative remedies should

not toll the three-year statute of limitations found at 10 U.S.C.

1552(b). This rule works no hardship on potential applicants since the

Board may waive the failure to file within the three-year period if it

determines it is in the interest of justice to do so. Whether to waive

an untimely filing is a discretionary judgment to be made by the Board.

One commentor complained that the page limitation on briefs and

rebuttals was too severe, was unrealistic, and did not define ``brief''

(Sec. 865.3 (i) and (j)). The Board considers the term ``brief'' to be

self-explanatory. The rule already states that the limitation does not

apply to evidence submitted in support of the appeal. The Board does

not believe that the page limitations on briefs in support of an

application and in rebuttal to the Air Staff evaluations are too

severe. This rule was established to ensure that applicants and their

counsels briefly and succinctly state their cases; prolixity hinders,

rather than helps, the Board. In recognition that there exist cases of

unusual complexity, the rule allows for a waiver of the page

limitations by the Executive Director of the Board. Since the page

limitation requirement was established in 1985, the authority to

approve requests for waivers of this requirement has been liberally

exercised to ensure adequate briefing of issues the Board considers

important.

Two commentors stated that the rule should be changed (at

Sec. 865.8c) to provide for the payment of attorney's fees, with

interest, asserting that such payments are authorized by 5 U.S.C.

5596(b). 5 U.S.C. 5596(b) applies to employees as defined in 5 U.S.C.

2105. The cited provision of law does not apply to members of the Armed

Forces.

One commentor recommended that the rule be amended to place

limitations on the writers of advisory opinions with respect to the

number of pages, type of spacing, and ``unprofessional'' comments

(Sec. 865.8(a)(2)). Air Staff advisories rarely exceed more than two or

three pages except in cases where the issues are extremely complicated.

Furthermore, while the applicant has two opportunities to state his or

her case (in the initial submission and rebuttal), ordinarily, the

staff must state their position all at once. What constitutes

``Unprofessional comments'' is in the eye of the beholder. The Board

requires that the Air Staff provide unfettered opinions. If the Air

Staff provides information not relevant to the case, the Board can and

does elect not to rely on that information in making its final

determination, in the same way it does when similar information is

provided by an applicant or counsel.

Two commentors suggested that the rule be amended to include (at

Sec. 865.9) advice concerning appeals to Federal courts. The AFBCMR was

established to correct military records. A discussion of Post-Board

avenues of relief is not required by law nor would it be appropriate in

a rule pertaining to nonadversarial proceedings for the purpose of

securing administrative relief.

One commentor recommended that the rule be changed to include a

statement that, during its consideration of the case in executive

session, the Board gave genuine consideration to

[[Page 16047]]

permitting the applicants the opportunity to be heard (Sec. 865.4(d))

and requiring that the Board reply in a meaningful fashion to

meritorious issues raised by an applicant (Sec. 865.4(f)). Any decision

to grant an applicant's request for a personal appearance is at the

discretion of the Board. The Board gives careful and meaningful

consideration to every request made by an applicant, including a

request for a personal appearance. The Stipulation of Dismissal of the

lawsuit by the Urban Law Institute of Antioch College required that the

Board make a brief written statement of the grounds for its

determination to grant or deny relief. The Board is in compliance with

this requirement and addresses issues raised by the applicant in the

level of detail which, in the Board's opinion, they warrant.

Accordingly, the recommendations that the rule be amended as

suggested in the above were not adopted.

The Department of the Air Force has determined that this 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, because this rule 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 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 individual

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 the 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 36-2607, ``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 organizations.

(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 36-2607.

(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 three 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

[[Page 16048]]

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 (DoDD) 7050.6,

Whistleblower Protection Act, 3 September 1992,1 for special

provisions for counsel in cases processed under 10 U.S.C. 1034.

\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 twenty-five double-spaced typewritten pages.

(2) Must be typed on one side of a page only with not more than

twelve characters per inch.

(3) Must be assembled in a manner that permits easy reproduction.

(j) Responses to advisory opinions must not exceed ten 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 three-year time limit.

Sec. 865.4 Board actions.

(a) Board information sources. The applicant has the burden of

providing sufficient evidence of probable material 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 thirty days in advance of the hearing unless the notice period

is waived by the applicant. The applicant will respond not later than

fifteen 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 two 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\

\2\ See footnote 1.

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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 a

material 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 the applicant's 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

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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 the 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 ninety

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 section but

may be the basis for reconsideration by the Board under Sec. 865.6.

(c) Decisions in cases filed under Section 507, Public Law 103-160.

The Secretary will issue a decision within 60 days of receipt of the

case of an officer who:

(1) Was offered the opportunity to be discharged or separated from

active duty under the Voluntary Separation Incentive (VSI) or Special

Separation Benefit (SSB) programs,

(2) Elected not to accept such discharge or separation,

(3) Was thereafter discharged or separated from active duty, after

September 30, 1990, as a result of selection by a board convened to

select officers for early separation (a ``RIF board''),

(4) Files an application with the Board within two years of the

date of separation or discharge, or one year after March 1, 1996,

whichever is later, alleging that the officer was not effectively

counseled, before electing not to accept discharge or separation under

the VSI/SSB programs, concerning the officer's vulnerability to

selection for involuntary discharge or separation (``RIF''), and

(5) Requests expedited consideration under this section.

(d) Upon finding of ineffective counseling, the Secretary will

provide the officer with an opportunity to participate, at the

officer's option, in the VSI or SSB programs or, if eligible, in an

early retirement program.

(e) In cases under Secs. 865.5(b) and 865.5(c) which involve

additional issues not cognizable under those sections, the additional

issues may be considered separately by the Board under Secs. 865.3 and

865.4. The special time limits in Secs. 865.5(b) and 865.5(c) do not

apply to the decision concerning these additional issues.

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 procedures 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, U.S. 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, D.C. 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:

[[Page 16050]]

(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. 96-8697 Filed 4-10-96; 8:45 am]

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