Army Board for Correction of Military Records

DEPARTMENT OF DEFENSE

Department of the Army

32 CFR Part 581

[AR 15-185]

Army Board for Correction of Military Records

AGENCY: Assistant Secretary of the Army for Manpower and Reserve

Affairs, DOD.

ACTION: Proposed rule.

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SUMMARY: The Department of the Army proposes to amend its regulation on

Army Board for Correction of Military Records to bring it in line with

changes to Army Regulation 15-185, with the same title. This proposal

updates the policies and procedures for consideration of applications,

and corrections of the military records process. The section implements

portions of Title 10, U.S. Code 1034, and Department of Defense (DOD)

Directive 7050.6, Military Whistleblower Protection, that pertain to

actions by the Army Board for Correction of Military Records. It also

implements DoD Instruction 1336.6 Correction of Military Records and

streamlines portions of the application process by transferring the

information into a Department of the Army Pamphlet.

DATES: Comments must be received not later than October 29, 1998.

ADDRESSES: Comments may be sent to The Army Review Boards Agency, ATTN:

SFMR-RBR, 1941 Jefferson Davis Highway, Arlington, VA 22202-4508.

FOR FURTHER INFORMATION CONTACT: Ms. Gale Thomas, Military Personnel

Management Specialist, (703) 607-2044.

SUPPLEMENTARY INFORMATION: Section 581.3 contained in 32 CFR part 581

provides Department of the Army policy, criteria and administrative

instructions regarding an applicant's request for the correction of a

military record.

Executive Order 12866

This proposed rule is not a significant regulatory action pursuant

to Executive Order 12866, Regulatory Planning and Review, dated

September 30, 1993.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 601, et seq, the

proposed rule will not have an annual effect on the economy of $100

million or have a significant impact on a substantial number of small

entities. The proposed rule only concerns the release of information

that pertains to Federal records.

Paperwork Reduction Act

In compliance with The Paperwork Reduction Act, information

collection is required on Department of Defense Form 149 titled

``Application for Correction of Military Record''. The form is

necessary to identify specific types of information in support of the

Army Board requirements. The form was approved previously by the Office

of Management Budget (OMB) and assigned OMB Control No. 0704-0003.

List of Subjects in 32 CFR Part 581

Administrative practice and procedure, Archives and Records,

Military Personnel.

Accordingly, part 581 is proposed to be amended as follows:

1. The authority citation for 581 continues to read as follows:

Authority: 10 U. S. C. 1552, 1553, 1554, 3012; 38 U. S. C.

3103a.

2. Section 581.3 is proposed to be revised to read as follows:

Sec. 581.3 Army Board for Correction of Military Records.

(a) General.--(1) Purpose. This section prescribes the policies and

procedures for correction of military records by the Secretary of the

Army, acting through the Army Board for Correction of Military Records

(ABCMR).

(2) Statutory authority. Title 10 U. S. C. Section 1552, Correction

of Military Records: Claims Incident Thereto (10 U. S. C. 1552), is the

statutory authority for this section.

(b) Responsibilities.--(1) The Secretary of the Army. The Secretary

of the Army will oversee the operations of the ABCMR. The Secretary

will take final action on applications as appropriate.

(2) The ABCMR Director. The ABCMR Director will manage the ABCMR's

day-to-day operations.

(3) The Chair. The Chair of a given ABCMR panel will preside over

the ABCMR panel, conduct a hearing, maintain order, ensure the

applicant receives a full and fair opportunity to be heard and certify

the written record of proceedings in pro forma and formal hearings as

being true and correct.

(4) The ABCMR members. The ABCMR members will--

(i) Review all applications properly before them, to determine the

existence of error or injustice.

(ii) If persuaded that probable material error or injustice exists,

and sufficient evidence exist on the record, direct or recommend

changes in military records to correct the error or injustice.

(iii) Recommend a hearing when appropriate in the interest of

justice.

(iv) Deny applications where the alleged error or injustice is not

adequately supported by the evidence, and a hearing is not deemed

proper.

(v) Deny applications where the application is not timely filed,

and it is not in the interest of justice to excuse the failure to

timely file.

(5) The Army records holding agency. The Army records holding

agency will--

(i) Take appropriate action on routine issues that may be

administratively corrected under authority inherent in the custodian of

the records and do not require ABCMR action.

(ii) Furnish all requested Army military records to the ABCMR.

(iii) Request additional information from the applicant, if needed,

to assist the ABCMR in conducting a full and fair review of the matter.

(iv) Take corrective action directed by the ABCMR or the Secretary

of the Army.

(v) Inform the Defense Finance and Accounting Service (DFAS), when

appropriate, the applicant, his or her counsel, if any, and interested

Members of Congress, if any, after a correction is complete.

(vi) Return original records of the soldier or former soldier

obtained from the Department of Veterans Affairs (VA).

(6) The Army staff agencies and commands. The Army staff agencies

and commands will--

(i) Furnish advisory opinions on matters within their areas of

expertise upon request of the ABCMR, within a timely manner.

(ii) Obtain additional information or documentation as needed

before providing the opinions to the ABCMR.

(iii) Provide records, investigations, information, and

documentation upon request of the ABCMR.

(iv) Provide additional assistance upon request of the ABCMR.

(v) Take corrective action directed by the ABCMR or the Secretary

of the Army.

(7) DFAS. The ABCMR staff will request that DFAS--

(i) Furnish advisory opinions on matters within its area of

expertise upon request.

(ii) Obtain additional information or documentation as needed

before providing the opinions.

(iii) Provide financial records upon request.

(iv) Settle claims on behalf of the Army based on ABCMR final

actions.

(v) Report quarterly on the monies expended as a result of ABCMR

action, and the names of the payees, to the ABCMR Director.

(c) ABCMR establishment and functions.--(1) ABCMR Establishment.

The ABCMR operates pursuant to law (10 U. S. C. 1552) within the Office

of the Secretary of the Army. The ABCMR consists of civilians regularly

employed in the executive part of the Department of the Army (DA), who

are appointed by the Secretary of the Army, and who

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serve on the ABCMR as an additional duty. Three members constitute a

quorum.

(2) ABCMR Functions. (i) The ABCMR considers individual

applications properly brought before it. In appropriate cases, it

directs or recommends correction of military records to remove an error

or injustice.

(ii) When an applicant has suffered reprisal under the Military

Whistleblower Protection Act (10 U. S. C. 1034 and Department of

Defense Directive (DODD) 7050.6), the ABCMR may recommend to the

Secretary of the Army that disciplinary or administrative action be

taken against any Army official who committed an act of reprisal

against the applicant.

(iii) The ABCMR will decide cases on the evidence of record. It is

not an investigative body. The ABCMR may, in its discretion, hold a

hearing (sometimes referred to as an evidentiary hearing or an

administrative hearing in 10 U. S. C. 1034 and DODD 7050.6), or call

for additional evidence or opinions.

(d) Application procedures.--(1) Who may apply. The ABCMR's

jurisdiction under 10 U. S. C. 1552 extends to any military record of

the DA. It is the nature of the record, and/or the status of the

applicant, that defines the ABCMR's jurisdiction.

(i) Usually applicants are soldiers or former soldiers of the

active Army, the U.S. Army Reserve (USAR), and in certain cases, the

Army National Guard (ARNG), and other military and civilian individuals

affected by an Army military record. Requests are personal to the

applicant and relate to military records. Requests are submitted on

Department of Defense (DD) Form 149, Application for Correction of

Military Record. Soldiers in an active or reserve status need not

submit applications via their chain of command.

(ii) 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 legal representative (such as a guardian or executor) of

the soldier or former soldier may be able to show a proper interest.

Applicants must send proof of proper interest with the application when

requesting correction of another person's military records.

(2) Time limits. Applicants must file an application within 3 years

after the alleged error or injustice was discovered or should have been

discovered. The ABCMR may deny an untimely application. The ABCMR may

excuse untimely filing in the interest of justice.

(3) Administrative remedies. The ABCMR will not consider an

application until the applicant has exhausted all administrative

remedies to correct the alleged error or injustice.

(4) Stay of other proceedings. Applying to the ABCMR does not stay

other proceedings.

(5) Counsel. (i) Applicants may be represented by counsel, at their

own expense.

(ii) See DODD 7050.6 for provisions for counsel in cases processed

under 10 U. S. C. 1034.

(e) Application processing. (1) Actions by the ABCMR Director and

staff. The ABCMR staff will review each application to determine if it

meets the criteria for consideration by the ABCMR. The application may

be returned without action if:

(i) The applicant fails to complete and sign the application.

(ii) The applicant has not exhausted all other administrative

remedies.

(iii) The ABCMR does not have jurisdiction to grant the requested

relief.

(iv) No new evidence was submitted with a request for

reconsideration.

(2) Burden of proof. The ABCMR begins its consideration of each

case with the presumption of administrative regularity. The applicant

has the burden of proving an error or injustice by a preponderance of

the evidence.

(3) ABCMR consideration. (i) A panel consisting of at least three

ABCMR members shall consider each application properly brought before

it. One panel member serves as its chair.

(ii) The panel may consider the case on the merits in executive

session or authorize a hearing.

(iii) Each application will be reviewed to determine:

(A) Whether the preponderance of the evidence shows that an error

or injustice exists.

(1) If so, what relief is appropriate.

(2) If not, deny relief.

(B) Whether to authorize a hearing.

(C) If the application is filed outside the statute of limitations,

whether to deny based on untimeliness or to waive the statute in the

interest of justice.

(f) ABCMR hearings. Applicants do not have a right to a hearing

before the ABCMR. The Director or the ABCMR may grant a formal hearing

whenever justice requires.

(g) Disposition of applications. (1) ABCMR decisions. The panel's

majority vote constitutes the action of the ABCMR. The ABCMR's

findings, recommendations, and, in the case of a denial, the rationale

will be in writing.

(2) ABCMR final action. (i) The ABCMR acts for the Secretary of the

Army and its decision is final when it:

(A) Denies any application (except under 10 U.S.C. 1034).

(B) Grants any application in whole or in part without a hearing

when:

(1) The relief is as recommended by the proper staff agency in an

advisory opinion; and

(2) Is unanimously agreed to by the ABCMR panel; and

(3) Does not involve an appointment or promotion requiring

confirmation by the Senate.

(ii) The ABCMR will forward the decisional document to the

Secretary of the Army for final decision in any case where:

(A) A hearing was held.

(B) The facts involve reprisals under the Military Whistleblower

Protection Act confirmed by the Department of Defense Inspector General

(DODIG) under 10 U.S.C. 1034 and DODD 7050.6.

(C) The ABCMR recommends relief, but is not authorized to act for

the Secretary of the Army on the application.

(3) Decision of the Secretary of the Army. (i) The Secretary of the

Army may direct such action as he or she deems proper on each case.

Cases returned to the Board for further consideration will be

accompanied by a brief statement of the reasons for such action. If the

Secretary does not accept the ABCMR's recommendation, or adopts a

minority position, or fashions an action that he or she deems proper

and supported by the record, that decision will be in writing and will

include a brief statement of the grounds for denial or revision.

(ii) The Secretary of the Army will issue decisions on cases

covered by the Military Whistleblower Protection Act (10 U.S.C. 1034

and DODD 7050.6). In cases where the DODIG concluded that there was

reprisal, these decisions will be made within 180 days after receipt of

the application and the investigative report by the DODIG, the

Department of the Army Inspector General (DAIG), or other Inspector

General (IG) offices. Unless the full relief requested is granted,

these applicants will be informed of their right to request review of

the decision by the Secretary of Defense.

(4) Reconsideration of applications. An applicant may ask the ABCMR

to reconsider its decision under the following circumstances:

(i) If the ABCMR receives the request within 1 year of the ABCMR's

action, and the ABCMR has not previously reconsidered the matter, the

ABCMR staff will review the request to

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determine if it includes evidence (including, but not limited to, any

facts or arguments as to why relief should be granted) that was not in

the record at the time of the ABCMR's prior consideration. If new

evidence has been submitted, the request will be submitted to the ABCMR

for its determination of whether new evidence exists sufficient to show

probable material error or injustice. If no new evidence is found, the

ABCMR staff will return the application to the applicant without

action.

(ii) If the ABCMR receives the request more than 1 year after the

ABCMR's action, or after the ABCMR has already considered one request

for reconsideration, the ABCMR staff will review the request to

determine if substantial relevant evidence is submitted showing fraud,

mistake of law, mathematical miscalculation, manifest error, or the

existence of substantial, relevant new evidence discovered

contemporaneously or within a short time after the ABCMR's original

consideration. If the ABCMR staff finds such evidence, it will be

submitted to the ABCMR for its determination of whether a material

error or injustice exists, and if so, the proper remedy. If the ABCMR

staff does not find such evidence, the application will be returned to

the applicant without action.

(h) Claims/Expenses.--(1) Authority. (i) The Army, by law, may pay

claims for amounts due to applicants as a result of correction of

military records.

(ii) The Army may not pay any claim previously compensated by

Congress through enactment of a private law.

(iii) The Army may not pay for any benefit to which the applicant

might later become entitled under the laws and regulations managed by

the VA.

(2) Settlement of claims. (i) The ABCMR will furnish DFAS copies of

decisions potentially affecting monetary entitlement or benefits. DFAS

will treat such decisions as claims for payment by or on behalf of the

applicant.

(ii) DFAS will settle claims on the basis of the corrected military

record. DFAS will compute the amount due, if any. DFAS may require

applicants to furnish additional information to establish their status

as proper parties to the claim and/or to aid in deciding amounts due.

Earnings received from civilian employment during any period for which

active duty pay and allowances are payable will be deducted. The

applicant's acceptance of a settlement fully satisfies the claim

concerned.

(3) Payment of expenses. The Army may not pay attorney's fees or

other expenses incurred by or on behalf of an applicant in connection

with an application for correction of military records under 10 U.S.C.

1034 or 1552.

(i) Miscellaneous provisions.--(1) Special standards. (i) Pursuant

to the November 27, 1979 order of the United States District Court for

the District of Columbia in Giles v. Secretary of the Army (Civil

Action No. 77-0904), a former Army service member is entitled to an

honorable discharge if a less than honorable discharge was issued to

the service member, on or before November 27, 1979, in an

administrative proceeding in which the Army introduced evidence

developed by or as a direct or indirect result of compelled urinalysis

testing administered for the purpose of identifying drug abusers

(either for the purposes of entry into a treatment program or to

monitor progress through rehabilitation or follow-up).

(ii) Applicants who believe that they fall within the scope of

paragraph (i) (1)(i) of this section should place the word CATEGORY

``G'' in block 11, (DD Form 149) Application for Correction of Military

or Naval Record. Such applications should be viewed expeditiously by a

designated official who will either send the individual an honorable

discharge certificate if the individual falls within the scope of

paragraph (i) (1)(i) of this section, or forward the application to the

Discharge Review Board if the individual does not fall within the scope

of paragraph (i) (1)(i) of this section. The action of the designated

official shall not constitute an action or decision by the Board for

Correction of Military Records.

(2) Public access to decisions. (i) After deletion of personal

information, a redacted copy of each decision will be indexed by

subject and made available for review and copying at a public reading

room at Crystal Mall 4, 1941 Jefferson Davis Highway, Arlington,

Virginia. The index will be in a usable and concise form so as to

indicate the topic considered and the reasons for the decision. Under

the Freedom of Information Act, 5 U.S.C. 552, records created on or

after November 1, 1996 shall be available by electronic means.

(ii) Under the Freedom of Information Act, 5 U.S.C. 552, and the

Privacy Act of 1974, 5 U.S.C. 552(a), the ABCMR will not furnish to

third parties information submitted with or about an application unless

specific written authorization is received from the applicant, or as

otherwise authorized by law.

Loren G. Harrell,

Director, Army Board for Correction of Military Records.

[FR Doc. 98-25863 Filed 9-28-98; 8:45 am]

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