ment of the Navy, he was paid at a rate at least equal to the minimum rate provided at the time for grade GS-13.

(3) Former military officers subsequently employed by defense prime contractors. A former officer, including a retired officer, of the Navy, Marine Corps, Naval Reserve, or Marine Corps Reserve, who served on extended active duty for at least 10 years and was serving in the grade of lieutenant commander, major, or above, at the time of retirement or release from or termination of extended active duty, shall file a form DD 1787, if:

(i) During any part of the fiscal year, he was employed by or performed, services for a defense prime contractor, as defined in paragraph (b)(2) of this § 722.3, at a salary rate of at least $15,000 per year;

(ii) Such defense prime contractor received at least $10 million of negotiated defense contracts during the fiscal year; and

(iii) The former or retired officer's extended active duty terminated not more than three years prior to the beginning of the fiscal year. (A retired military officer is subject to the reporting requirement, if otherwise applicable, even if his military retirement pay is waived). A Reserve officer, not on active duty who is not a "retired officer" is a "former officer" for the purpose of form DD 1787 even though he currently holds a commission in a Reserve component.

(b) Definitions—(1) Employed or employment is used in a broad sense in this part to include services performed, as a consultant or otherwise, either for a defense prime contractor or for a component of the Department of the Navy or DoD. This definition includes, among other services which might have been performed for a defense prime contractor, representing a contractor at a hearing, trial, appeal, or other action in which the United States was a party and which involved services and materials provided or to be provided to DoD by such contractor, and representing a contractor in any transaction with DoD involving services or materials provided or to be provided by such contractor to DoD.

(2) Defense prime contractor is used in this part to mean any individual, firm, corporation, partnership, association, or other legal entity that enters into a contract directly with DoD, or any component thereof, to furnish services or materials, including construction, to DoD or a component, and which is awarded $10 million or more of negotiated defense contracts (as distinguished from contracts awarded by formal advertising) during a given fiscal year. The definition thus excludes subcontractors, and excludes prime contractors that receive less than $10 million of negotiated defense contract awards in a fiscal year. Also, a subsidiary of a large corporation may be a separate entity and contract directly with DoD in its own name, in which case the "defense prime contractor" would be the subsidiary corporation, not the parent corporation. Therefore, only the dollar amount of negotiated contracts awarded by DoD components to a subsidiary contracting in its own name during a fiscal year would be considered in determining whether the subsidiary's employees or former employees may be required to file form DD 1787. A list of the "defense prime contractors" meeting the criteria of this definition for the preceding fiscal year is published each December (each September for fiscal years prior to FY 1976) in the FEDERAL REGISTER, appearing as an amendment of 32 CFR 166.11. Such a list will also be disseminated annually to all naval activities by a JAG Notice.

(3) Fiscal year means the period beginning on July 1, 1975, and ending on September 30, 1976, and, after the latter date, means a year beginning on October 1 and ending on September 30 of the following year. It is designated by the calendar year in which it endsfor example, FY 1977, begins on October 1, 1976 and ends on September 30, 1977.

(1 CFR 18.14, and Part 21, Subpart B) [41 FR 34745, Aug. 17, 1976, as amended at 45 FR 8599, Feb. 8, 1980]

§ 722.4 Filing and review procedures.

(a) Individuals required under § 722.3 to file reports of DoD and defense related employment (form DD

1787) shall submit such reports, in triplicate, in the format prescribed in form DD 1787 and the completion instruction which accompany the form, not later than January 15 following the close of the fiscal year to which the report pertains. The reports shall be submitted to the following officials:

(1) Active civilian personnel formerly employed by defense prime contractors: the Director of Civilian Manpower Management (Administrative Office (01B)), Department of the Navy,

Washington, D.C. 20390;

(2) Former civilian personnel subsequently employed by defense prime contractors: The Director of Civilian Manpower Management (Administrative Office (01B), Department of the Navy, Washington, D.C. 20390;

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(3) Former or retired Navy or Naval Reserve officers subsequently ployed by defense prime contractors: The Chief of Naval Personnel (Pers14), Department of the Navy, Washington, D.C. 20370;

(4) Former or retired Marine Corps or Marine Corps Reserve officers subsequently employed by defense prime contractors: The Commandant of the Marine Corps (Code MSPA-3), Department of the Navy, Washington, D.C. 20380.

(b) The Director of Civilian Manpower Management, Chief of Naval Personnel, and Commandant of the Marine Corps shall receive for the Secretary of the Navy, as provided in paragraph (a) of this § 722.4, all reports of DoD and defense related employment (form DD 1787) submitted by personnel and former personnel of the Department of the navy, and shall review each report in the manner prescribed in paragraph (d) of this § 722.4. Not later than February 15 each year, they shall forward to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) three copies of each form received by them, together with a listing of the names of individuals submitting the forms, segregated by the names of the defense prime contractors for which the individuals were employed or performed services. (RCS DD-M&RA(A) 1051 (5370).)

(c) Not later than February 28 each year, the Assistant Secretary of the

Navy (Manpower and Reserve Affairs) shall forward to the Assistant Secretary of Defense (Manpower and Reserve Affairs) three copies of each form received pursuant to paragraph (b) of this § 722.4, together with a composite listing, in triplicate, of the names of individuals submitting the forms, segregated by the names of the defense prime contractors concerned. (RCS DD-M&RA(A) 1051 (5370).) (Copies of the completed forms and listings are later provided by the Assistant Secretary of Defense (Manpower and Reserve Affairs) to the Congress and are filed for public inspection in the Office of the Secretary of Defense.)

(d) In conducting the review prescribed in paragraph (b) of this § 722.4, the Director of Civilian Manpower Management, Chief of Naval Personnel and Commandant of the Marine Corps, as appropriate, shall determine whether:

(1) Each form submitted is required under this part and 50 U.S.C. 1436;

(2) All required information has been furnished; and

(3) The information submitted indicates an apparent violation of a conflict-of-interests law or regulation cited or provided in Part 721 of this chapter. (For example, the fact that a former officer became employed by a defense prime contractor after terminating Government duties involving that contractor might indicate a possible violation of 18 U.S.C. 207 or 208(A), or the fact that a retired Regular officer represents a contractor in transactions or negotiations with DoD components might indicate a possible violation of 18 U.S.C. 281 or temporarily disentitle him from receiving military retirement pay under 31 U.S.C. 801(c).)

(e) If, upon review of a form, it is determined that the form was not required to be submitted or that all required information has not been furnished, appropriate corrective action shall be taken. If it is determined that a conflict-of-interests violation may have been committed, the form will be processed as provided in paragraph (b) of this § 722.4, but a copy of the form shall be forwarded, for such additional review, inquiry, advice, or further

§ 723.1 General provisions.

(a) Purpose. This part establishes procedures for making application, and the consideration of applications, for the correction of Navy and Marine Corps records (referred to in this part as naval records) by the Secretary of the Navy acting through the Board for Correction of Naval Records (hereinafter referred to in this part as the Board).

(b) Authority. Section 131 of the Legislative Reorganization Act of 1946 (2 U.S.C. 190g) provides that no private bill or resolution, and no amendment to any bill or resolution, authorizing or directing the correction of military or naval records, shall be received or considered in either the Senate or the House of Representatives. Section 207 of the same Act, as

amended, and as re-enacted and codified in 10 U.S.C. 1552, provides:

(a) The Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice. Under procedures prescribed by him, the Secretary of the Treasury may in the same manner correct any military record of the Coast Guard. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States.

(b) No correction may be made under subsection (a) unless the claimant or his heir or legal representative files a request therefor before October 26, 1961, or within three years after he discovers the error or injustice, whichever is later. However, a board established under subsection (a) may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice.

(c) The department concerned may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another's service in the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be. If the claimant is dead, the money shall be paid, upon demand, to his legal representative. However, if no demand for payment is made by a legal representative, the money shall be paid

(1) To the surviving spouse, heir, or beneficiaries, in the order prescribed by the law applicable to that kind of payment;

(2) If there is no such law covering order of payment, in the order set forth in section 2771 of this title; or

(3) As otherwise prescribed by the law applicable to that kind of payment.

A claimant's acceptance of a settlement under this section fully satisfies the claim concerned. This section does not authorize the payment of any claim compensated by private law before October 25, 1951.

(d) Applicable current appropriations are available to continue the pay, allowances, compensation, emoluments, and other pecuniary benefits of any person who was paid under subsection (c), and who, because of the correction of his military record, is entitled to those benefits, but for not longer than one year after the date when his record is corrected under this section if he is not reenlisted in, or appointed or reappoint

ed to, the grade to which those payments relate. Without regard to qualifications for reenlistment, or appointment or reappointment, the Secretary concerned may reenlist a person in, or appoint or reappoint him to, the grade to which payments under this section relate.

(e) No payment may be made under this section for a benefit to which the claimant might later become entitled under the laws and regulations administered by the Administrator of Veterans' Affairs.

[17 FR 10243, Nov. 11, 1952, as amended at 26 FR 12121, Dec. 19, 1961]

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

(a) Establishment and composition. Pursuant to the foregoing statutory authority, the Board for Correction of Naval Records is established in the Office of 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 of the Navy. Three members present shall constitute a quorum of the Board. The Secretary of the Navy will designate one member as Chairman. In the absence or incapacity of the Chairman, an Acting Chairman chosen by the Board shall act as Chairman for all purposes.

(b) Function. The function of the Board is to consider all applications properly before it for the purpose of determining the existence of an error or an injustice, and, when appropriate, to make recommendations to the Secretary.

(c) Jurisdiction. The Board shall have jurisdiction to review and determine all matters properly brought before it, consistent with existing law.

[17 FR 10243, Nov. 11, 1952, as amended at 26 FR 12121, Dec. 19, 1961; 42 FR 18277, Apr. 6, 1977]

§ 723.3 Application for correction.

(a) General Requirements. (1) The application for correction should be submitted on DD Form 149 (Application for Correction of Military or Naval Record) or exact facsimile thereof, and should be addressed to: Board for Correction of Naval Records, Department of the Navy, Washington, D.C. 20370. Forms and ex

planatory matter may be obtained upon request addressed to the Board.

(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 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, 1001.)

(3) When the record in question is that of a person who is incapable of making application himself, or whose whereabouts is unknown, or when such person is deceased, for the purpose of bringing the matter before the Board the application may be made by a spouse, parent, heir, or legal representative. Proof of proper interest shall be submitted as may be required by the Board.

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(b) Time Limit for Filing Application. A claimant, his heir, or legal representative, must file the application for correction of a record within 3 years after discovery of the alleged 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 claimant, his heir, or legal representative files an application mor than 3 years after he discovers the error or injustice, he must include in his application his reasons why the Board should find it is in the interest of justice to excuse his failure to file his application within the time prescribed above.

(c) Exhaustion of other remedies. No application will be considered until the applicant has exhausted all effective administrative remedies afforded him by existing lev or regulations, and such legal remedies as the Board shall determine are practical and appropriately available to the applicant.

(d) Other proceedings not stayed. The application to the Board for correction of a record shall not operate as a stay of any proceedings being taken with respect to the person involved.

(e) Consideration of Application. (1) Each application and the available military or naval records pertinent to the corrective action requested will be

reviewed to determine whether to authorize a hearing, recommend that the records be corrected without a hearing, or to deny the application without a hearing. The Board will make this determination in all cases except those in which the application has been denied administratively for the reason that the applicant has not exhausted all other effective administrative remedies available to him, or for the reason that the applicant did not file his application within 3 years after he discovered the alleged error or injustice and did not submit any reason why the Board should find it to be in the interest of justice to excuse the failure to file the application within the prescribed 3 years.

(2) The Board may deny any application if it determines that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice. The Board will not deny an application on the sole ground that 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 relevant evidence to demonstrate the existence of probable material error or injustice is without prejudice to further consideration in the event new and relevant evidence is submitted. The applicant will be informed of his privilege to submit newly discovered relevant evidence for consideration.

(3) All requests for further consideration may be initially screened by the staff of the Board to determine whether and evidence or other matter (including, but not limited to any factual allegations or any arguments why the relief should be granted) has beeen submitted by the applicant that was not in the reocord at the time of any prior Board consideration. If such evidence or other matter has been submitted, the request shall be forwarded to the Board for a determination in accordance with paragraph (e)(2) of this section. If no such evidence or other matter has been submitted, the applicant will be informed that his request was not considered by the Board be

cause it did not contain any evidence or other matter that was not in the record at the time of any previous Board consideration.

(4) 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.

(5) 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 claim 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 reasons for a discharge. Attached to the statement shall be any advisory staff opinion considered by the Board which is not fully set out in the statement, together with any minority opinion.

(6) The brief statement of the grounds for denial, together with all attachments, shall be furnished promptly to 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 contained in or attached to the statement of the grounds for denial may be deleted only if a written statement of the basis for the deletion is provided the applicant and counsel.

(7) Documents sent to each applicant in accordance with paragraph (e)(6) of this section, and § 723.8(d), and all other non-boiler-plate statements of findings and conclusions made on final determination of an application by the Board, the Secretary of his designee together with the record of votes of Board members, and required appendices, will be promptly indexed and 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, Washington, D.C. There will be deleted from such documents informa