Board for Correction of Naval Records

DEPARTMENT OF DEFENSE

Department of the Navy

32 CFR Part 723

Board for Correction of Naval Records

AGENCY: Department of the Navy, DoD.

ACTION: Final rule.

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SUMMARY: The Department of the Navy is amending the Procedures for the

Board for Correction of Naval Records. This revision incorporates

format changes and clarifies various minor provisions of the part.

DATES: Effective date: February 24, 1997.

FOR FURTHER INFORMATION CONTACT: W. Dean Pfeiffer, Executive Director,

Board for Correction of Naval Records, 2 Navy Annex, Washington, DC

20370-5100, (703) 614-1402.

SUPPLEMENTARY INFORMATION: The Department of the Navy 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 Navy (Manpower and Reserve Affairs) 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 Navy use. The proposed rule

was published for comment on October 12, 1995, at 60 FR 53153. No

comments or objections to the proposed rule were received. The final

rule contains no substantive changes from the proposed rule.

List of Subjects in 32 CFR Part 723

Administrative practice and procedure, Claims, Military personnel.

Accordingly, part 723 of chapter VI of title 32 of the Code of

Federal Regulations is revised as follows:

PART 723--BOARD FOR CORRECTION OF NAVAL RECORDS

Sec.

723.1 General provisions.

723.2 Establishment, function and jurisdiction of the Board.

723.3 Application for correction.

723.4 Appearance before the board; notice; counsel; witnesses;

access to records.

723.5 Hearing.

723.6 Action by the Board.

723.7 Action by the Secretary.

723.8 Staff action.

723.9 Reconsideration.

723.10 Settlement of claims.

723.11 Miscellaneous provisions.

Authority: 10 U.S.C. 1034, 1552.

Sec. 723.1 General Provisions.

This part sets up procedures for correction of naval and marine

records by the Secretary of the Navy acting through the Board for

Correction of Naval Records (BCNR or the Board) to remedy error or

injustice. It describes how to apply for correction of naval and marine

records and how the BCNR 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.

Sec. 723.2 Establishment, function and jurisdiction of the Board.

(a) Establishment and composition. Under 10 U.S.C. 1034 and 1552,

the Board for Correction of Naval Records is established by the

Secretary of the Navy. The Board consists of civilians of the executive

part of the Department of the Navy in such number, not less than three,

as may be appointed by the Secretary and who shall serve at the

pleasure of the Secretary. Three members present shall constitute a

quorum of the Board. The Secretary of the Navy will designate one

member as Chair. In the absence or incapacity of

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the Chair, an Acting Chair chosen by the Executive Director shall act

as Chair for all purposes.

(b) Function. The Board is not an investigative body. Its function

is to consider applications properly before it for the purpose of

determining the existence of error or injustice in the naval records of

current and former members of the Navy and Marine Corps, to make

recommendations to the Secretary or to take corrective action on the

Secretary's behalf when authorized.

(c) Jurisdiction. The Board shall have jurisdiction to review and

determine all matters properly brought before it, consistent with

existing law.

Sec. 723.3 Application for correction.

(a) General requirements. (1) The application for correction must

be submitted on DD 149 (Application for Correction of Military Record)

or exact facsimile thereof, and should be addressed to: Board for

Correction of Naval Records, Department of the Navy, 2 Navy Annex,

Washington, DC 20370-5100. Forms and other explanatory matter may be

obtained from the Board upon request.

(2) Except as provided in paragraph (a)(3) of this section, the

application shall be signed by the person requesting corrective action

with respect to his/her record and will either be sworn to or will

contain a provision to the effect that the statements submitted in the

application are made with full knowledge of the penalty provided by law

for making a false statement or claim. (18 U.S.C. 287 and 1001)

(3) When the record in question is that of a person who is

incapable of making application, or whose whereabouts is unknown, or

when such person is deceased, the application may be made by a spouse,

parent, heir, or legal representative. Proof of proper interest shall

be submitted with the application.

(b) Time limit for filing application. Applications for correction

of a record must be filed within 3 years after discovery of the alleged

error or injustice. Failure to file within the time prescribed may be

excused by the Board if it finds it would be in the interest of justice

to do so. If the application is filed more than 3 years after discovery

of the error or injustice, the application must set forth the reason

why the Board should find it in the interest of justice to excuse the

failure to file the application within the time prescribed.

(c) Acceptance of applications. An application will be accepted for

consideration unless:

(1) The Board lacks jurisdiction.

(2) The Board lacks authority to grant effective relief.

(3) The applicant has failed to comply with the filing requirements

of paragraphs (a)(l), (a)(2), or (a)(3) of this section.

(4) The applicant has failed to exhaust all available

administrative remedies.

(5) The applicant has failed to file an application within 3 years

after discovery of the alleged error or injustice and has not provided

a reason or reasons why the Board should find it in the interest of

justice to excuse the failure to file the application within the

prescribed 3-year period.

(d) Other proceedings not stayed. Filing an application with the

Board shall not operate as a stay of any other proceedings being taken

with respect to the person involved.

(e) Consideration of application. (1) Each application accepted for

consideration and all pertinent evidence of record will be reviewed by

a three member panel sitting in executive session, to determine whether

to authorize a hearing, recommend that the records be corrected without

a hearing, or to deny the application without a hearing. This

determination will be made by majority vote.

(2) The Board may deny an application in executive session if it

determines that the evidence of record fails to demonstrate the

existence of probable material error or injustice. The Board relies on

a presumption of regularity to support the official actions of public

officers and, in the absence of substantial evidence to the contrary,

will presume that they have properly discharged their official duties.

Applicants have the burden of overcoming this presumption but the Board

will not deny an application solely because the record was made by or

at the direction of the President or the Secretary in connection with

proceedings other than proceedings of a board for the correction of

military or naval records. Denial of an application on the grounds of

insufficient evidence to demonstrate the existence of probable material

error or injustice is final subject to the provisions for

reconsideration contained in Sec. 723.9.

(3) When an original application or a request for further

consideration of a previously denied application is denied without a

hearing, the Board's determination shall be made in writing and include

a brief statement of the grounds for denial.

(4) The brief statement of the grounds for denial shall include the

reasons for the determination that relief should not be granted,

including the applicant's claims of constitutional, statutory and/or

regulatory violations that were rejected, together with all the

essential facts upon which the denial is based, including, if

applicable, factors required by regulation to be considered for

determination of the character of and reason for discharge. Further the

Board shall make a determination as to the applicability of the

provisions of the Military Whistleblower Protection Act (10 U.S.C.

1034) if it is invoked by the applicant or reasonably raised by the

evidence. Attached to the statement shall be any advisory opinion

considered by the Board which is not fully set out in the statement.

The applicant will also be advised of reconsideration procedures.

(5) The statement of the grounds for denial, together with all

attachments, shall be furnished promptly to the applicant and counsel,

who shall also be informed that the name and final vote of each Board

member will be furnished or made available upon request. Classified or

privileged material will not be incorporated or attached to the Board

statement; rather, unclassified or nonprivileged summaries of such

material will be so used and written explanations for the substitution

will be provided to the applicant and counsel.

Sec. 723.4 Appearance before the board; notice; counsel; witnesses;

access to records.

(a) General. In each case in which the Board determines a hearing

is warranted, the applicant will be entitled to appear before the Board

either in person or by counsel of his/her selection or in person with

counsel. Additional provisions apply to cases processed under the

Military Whistleblower Protection Act (10 U.S.C. 1034).

(b) Notice. (1) In each case in which a hearing is authorized, the

Board's staff will transmit to the applicant a written notice stating

the time and place of hearing. The notice will be mailed to the

applicant, at least 30 days prior to the date of hearing, except that

an earlier date may be set where the applicant waives his/her right to

such notice in writing.

(2) Upon receipt of the notice of hearing, the applicant will

notify the Board in writing at least 15 days prior to the date set for

hearing as to whether he/she will be present at the hearing and will

indicate to the Board the name of counsel, if represented by counsel,

and the names of such witnesses as he/she intends to call. Cases in

which the applicant notifies the Board that he/she does not desire to

be present at the hearing will be considered in accordance with

Sec. 723.5(b)(2).

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(c) Counsel. As used in this part, the term ``counsel'' will be

construed to include members in good standing of the federal bar or the

bar of any state, accredited representatives of veterans' organizations

recognized by the Secretary of Veterans Affairs under 38 U.S.C. 3402,

or such other persons who, in the opinion of the Board, are considered

to be competent to present equitably and comprehensively the request of

the applicant for correction, unless barred by law. Representation by

counsel will be at no cost to the government.

(d) Witnesses. The applicant will be permitted to present witnesses

in his/her behalf at hearings before the Board. It will be the

responsibility of the applicant to notify his/her witnesses and to

arrange for their appearance at the time and place set for hearing.

Appearance of witnesses will be at no cost to the government.

(e) Access to records. (1) It is the responsibility of the

applicant to procure such evidence not contained in the official

records of the Department of the Navy as he/she desires to present in

support of his/her case.

(2) Classified or privileged information may be released to

applicants only by proper authorities in accordance with applicable

regulations.

(3) Nothing in this part authorizes the furnishing of copies of

official records by the Board. Requests for copies of these records

should be submitted in accordance with applicable regulations governing

the release of information. The BCNR can provide a requestor with

information regarding procedures for requesting copies of these records

from the appropriate retention agency.

Sec. 723.5 Hearing

(a) Convening of board. The Board will convene, recess and adjourn

at the call of the Chair or Acting Chair.

(b) Conduct of hearing. (1) The hearing shall be conducted by the

Chair or Acting Chair, and shall be subject to his/her rulings so as to

ensure a full and fair hearing. The Board shall not be limited by legal

rules of evidence but shall maintain reasonable bounds of competency,

relevancy, and materiality.

(2) If the applicant, after being duly notified, indicates to the

Board that he/she does not desire to be present or to be represented by

counsel at the hearing, the Board will consider the case on the basis

of all the material before it, including, but not limited to, the

application for correction filed by the applicant, any documentary

evidence filed in support of such application, any brief submitted by

or in behalf of the applicant, and all available pertinent records.

(3) If the applicant, after being duly notified, indicates to the

Board that he/she will be present or be represented by counsel at the

hearing, and without good cause and timely notice to the Board, the

applicant or representative fails to appear at the time and place set

for the hearing or fails to provide the notice required by

Sec. 723.4(b)(2), the Board may consider the case in accordance with

the provisions of paragraph (b)(2) of this section, or make such other

disposition of the case as is appropriate under the circumstances.

(4) All testimony before the Board shall be given under oath or

affirmation. The proceedings of the Board and the testimony given

before it will be recorded verbatim.

(c) Continuance. The Board may continue a hearing on its own

motion. A request for continuance by or in behalf of the applicant may

be granted by the Board if a continuance appears necessary to insure a

full and fair hearing.

Sec. 723.6 Action by the Board.

(a) Deliberations, findings, conclusions, and recommendations. (1)

Only members of the Board and its staff shall be present during the

deliberations of the Board.

(2) Whenever, during the course of its review of an application, it

appears to the Board's satisfaction that the facts have not been fully

and fairly disclosed by the records or by the testimony and other

evidence before it, the Board may require the applicant or military

authorities to provide such further information as it may consider

essential to a complete and impartial determination of the facts and

issues.

(3) Following a hearing, or where the Board determines to recommend

that the record be corrected without a hearing, the Board will make

written findings, conclusions and recommendations. If denial of relief

is recommended following a hearing, such written findings and

conclusions will include a statement of the grounds for denial as

described in Sec. 723.3(e)(4). The name and final vote of each Board

member will be recorded. A majority vote of the members present on any

matter before the Board will constitute the action of the Board and

shall be so recorded.

(4) Where the Board deems it necessary to submit comments or

recommendations to the Secretary as to matters arising from but not

directly related to the issues of any case, such comments and

recommendations shall be the subject of separate communication.

Additionally, in Military Whistleblower Protection Act cases, any

recommendation by the Board to the Secretary that disciplinary or

administrative action be taken against any Navy official based on the

Board's determination that the official took reprisal action against

the applicant will not be made part of the Board's record of

proceedings or furnished the applicant but will be transmitted to the

Secretary as a separate communication.

(b) Minority report. In case of a disagreement between members of

the Board a minority report will be submitted, either as to the

findings, conclusions or recommendation, including the reasons

therefor.

(c) Record of proceedings. Following a hearing, or where the Board

determines to recommend that the record be corrected without a hearing,

a record of proceedings will be prepared. Such record shall indicate

whether or not a quorum was present, and the name and vote of each

member present. The record shall include the application for relief, a

verbatim transcript of any testimony, affidavits, papers and documents

considered by the Board, briefs and written arguments, advisory

opinions, if any, minority reports, if any, the findings, conclusions

and recommendations of the Board, where appropriate, and all other

papers, documents, and reports necessary to reflect a true and complete

history of the proceedings.

(d) Withdrawal. The Board may permit an applicant to withdraw his/

her application without prejudice at any time before its record of

proceedings is forwarded to the Secretary.

(e) Delegation of authority to correct certain naval records. (1)

With respect to all petitions for relief properly before it, the Board

is authorized to take final corrective action on behalf of the

Secretary, unless:

(i) Comments by proper naval authority are inconsistent with the

Board's recommendation;

(ii) The Board's recommendation is not unanimous; or

(iii) It is in the category of petitions reserved for decision by

the Secretary of the Navy.

(2) The following categories of petitions for relief are reserved

for decision by the Secretary of the Navy:

(i) Petitions involving records previously reviewed or acted upon

by the Secretary wherein the operative facts remained substantially the

same;

(ii) Petitions by former commissioned officers or midshipmen to

change the character of, and/or the reason for, their discharge; or,

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(iii) Such other petitions as, in the determination of Office of

the Secretary or the Executive Director, warrant Secretarial review.

(3) The Executive Director after ensuring compliance with this

section, will announce final decisions on applications decided under

this section.

Sec. 723.7 Action by the Secretary.

(a) General. The record of proceedings, except in cases finalized

by the Board under the authority delegated in Sec. 723.6(e), and those

denied by the Board without a hearing, will be forwarded to the

Secretary who will direct such action as he or she determines to be

appropriate, which may include the return of the record to the Board

for further consideration. Those cases returned for further

consideration shall be accompanied by a brief statement setting out the

reasons for such action along with any specific instructions. If the

Secretary's decision is to deny relief, such decision shall be in

writing and, unless he or she expressly adopts in whole or in part the

findings, conclusions and recommendations of the Board, or a minority

report, shall include a brief statement of the grounds for denial. See

Sec. 723.3(e)(4).

(b) Military Whistleblower Protection Act. The Secretary will

ensure that decisions in cases involving the Military Whistleblower

Protection Act are issued 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.

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 Navy.

(3) That the request for review must be in writing and include:

(i) The applicant's name, address and telephone number;

(ii) A copy of the application to the Board and the final decision

of the Secretary of the Navy; and

(iii) A statement of the specific reasons the applicant is not

satisfied with the decision of the Secretary of the Navy.

(4) That the request must be based on the Board record; request 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. 723.9.

Sec. 723.8 Staff action.

(a) Transmittal of final decisions granting relief. (1) If the

final decision of the Secretary is to grant the applicant's request for

relief the record of proceedings shall be returned to the Board for

disposition. The Board shall transmit the finalized record of

proceedings to proper naval authority for appropriate action. Similarly

final decisions of the Board granting the applicant's request for

relief under the authority delegated in Sec. 723.6(e), shall also be

forwarded to the proper naval authority for appropriate action.

(2) The Board shall transmit a copy of the record of proceedings to

the proper naval authority for filing in the applicant's service record

except where the effect of such action would be to nullify the relief

granted. In such cases no reference to the Board's decision shall be

made in the service record or files of the applicant and all copies of

the record of proceedings and any related papers shall be forwarded to

the Board and retained in a file maintained for this purpose.

(3) The addressees of such decisions shall report compliance

therewith to the Executive Director.

(4) Upon receipt of the record of proceedings after final action by

the Secretary, or by the Board acting under the authority contained in

Sec. 723.6(e), the Board shall communicate the decision to the

applicant. The applicant is entitled, upon request, to receive a copy

of the Board's findings, conclusions and recommendations.

(b) Transmittal of final decisions denying relief. If the final

decision of the Secretary or the Board is to deny relief, the following

materials will be made available to the applicant:

(1) A statement of the findings, conclusions, and recommendations

made by the Board and the reasons therefor;

(2) Any advisory opinions considered by the Board;

(3) Any minority reports; and

(4) Any material prepared by the Secretary as required in

Sec. 723.7. Moreover, applicant shall also be informed that the name

and final vote of each Board member will be furnished or made available

upon request and that he/she may submit new and material evidence or

other matter for further consideration.

Sec. 723.9 Reconsideration.

After final adjudication, further consideration will be granted

only upon presentation by the applicant of new and material evidence or

other matter not previously considered by the Board. New evidence is

defined as evidence not previously considered by the Board and not

reasonably available to the applicant at the time of the previous

application. Evidence is material if it is likely to have a substantial

effect on the outcome. All requests for further consideration will be

initially screened by the Executive Director of the Board to determine

whether new and material evidence or other matter (including, but not

limited to, any factual allegations or arguments why the relief should

be granted) has been submitted by the applicant. If such evidence or

other matter has been submitted, the request shall be forwarded to the

Board for a decision. If no such evidence or other matter has been

submitted, the applicant will be informed that his/her request was not

considered by the Board because it did not contain new and material

evidence or other matter.

Sec. 723.10 Settlement of claims.

(a) Authority. (1) The Department of the Navy is authorized under

10 U.S.C. 1552 to pay claims for amounts due to applicants as a result

of corrections to their naval records.

(2) The Department of the Navy is not authorized to pay any claim

heretofore compensated by Congress through enactment of a private law,

or to pay any amount as compensation for any benefit to which the

claimant might subsequently become entitled under the laws and

regulations administered by the Secretary of Veterans Affairs.

(b) Application for settlement. (1) Settlement and payment of

claims shall be made only upon a claim of the person whose record has

been corrected or legal representative, heirs at law, or beneficiaries.

Such claim for settlement and payment may be filed as a separate part

of the application for correction of the record.

(2) When the person whose record has been corrected is deceased,

and where no demand is presented by a duly appointed legal

representative of the estate, payments otherwise due shall be made to

the surviving spouse, heir or beneficiaries, in the order prescribed by

the law applicable to that kind of payment, or if there is no such law

covering order of payment, in the order set forth in 10 U.S.C. 2771; or

as otherwise prescribed by the law applicable to that kind of payment.

(3) Upon request, the applicant or applicants shall be required to

furnish requisite information to determine their status as proper

parties to the claim for purposes of payment under applicable

provisions of law.

(c) Settlement. (1) Settlement of claims shall be upon the basis of

the decision and recommendation of the

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Board, as approved by the Secretary or his designee. Computation of the

amounts due shall be made by the appropriate disbursing activity. In no

case will the amount found due exceed the amount which would otherwise

have been paid or have become due under applicable laws had no error or

injustice occurred. Earnings received from civilian employment, self

employment or any income protection plan for such employment during any

period for which active duty pay and allowances are payable will be

deducted from the settlement. To the extent authorized by law and

regulation, amounts found due may be reduced by the amount of any

existing indebtedness to the Government arising from military service.

(2) Prior to or at the time of payment, the person or persons to

whom payments are to be made shall be advised by the disbursing

activity of the nature and amount of the various benefits represented

by the total settlement and shall be advised further that acceptance of

such settlement shall constitute a complete release by the claimants

involved of any claim against the United States on account of the

correction of the record.

(d) Report of settlement. In every case where payment is made, the

amount of such payment and the names of the payee or payees shall be

reported to the Executive Director.

Sec. 723.11 Miscellaneous provisions.

(a) Expenses. No expenses of any nature whatsoever voluntarily

incurred by the applicant, counsel, witnesses, or by any other person

in the applicant's behalf, will be paid by the Government.

(b) Indexing of decisions. (1) Documents sent to each applicant and

counsel in accordance with Sec. 723.3(e)(5) and Sec. 723.8(a)(4),

together with the record of the votes of Board members and all other

statements of findings, conclusions and recommendations made on final

determination of an application by the Board or the Secretary will be

indexed and promptly made available for public inspection and copying

at the Armed Forces Discharge Review/Correction Boards Reading Room

located on the Concourse of the Pentagon Building in Room 2E123,

Washington, DC.

(2) All documents made available for public inspection and copying

shall be indexed in a usable and concise form so as to enable the

public to identify those cases similar in issue together with the

circumstances under and/or reasons for which the Board and/or Secretary

have granted or denied relief. The index shall be published quarterly

and shall be available for public inspection and distribution by sale

at the Reading Room located on the Concourse of the Pentagon Building

in Room 2E123, Washington, DC. Inquiries concerning the index or the

Reading Room may be addressed to the Chief, Micromation Branch/Armed

Forces Discharge Review/Correction Boards Reading Room, Crystal Mall 4,

1941 Jefferson Davis Highway, Arlington, Virginia 22202.

(3) To the extent necessary to prevent a clearly unwarranted

invasion of personal privacy, identifying details of the applicant and

other persons will be deleted from the documents made available for

public inspection and copying. Names, addresses, social security

numbers and military service numbers must be deleted. Deletions of

other information which is privileged or classified may be made only if

a written statement of the basis for such deletion is made available

for public inspection.

Dated: January 30, 1997.

D.E. Koenig, Jr.,

LCDR, JAGC, USN, Federal Register Liaison Officer.

[FR Doc. 97-4390 Filed 2-21-97; 8:45 am]

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