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tion which would be a clearly unwarranted invasion of personal privacy. Privileged or classified material may be deleted only if a written statement of the basis for deletion is provided applicant and counsel.

[17 FR 10243, Nov. 11, 1952, as amended at 26 FR 12121, Dec. 19, 1961; 34 FR 19195, Dec. 4, 1969; 42 FR 18277, Apr. 6, 1977; 43 FR 2170, Jan. 16, 1978]

§ 723.4 General; 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 own selection or in person with counsel.

(b) Notice. (1) In each case in which a hearing is authorized, the Board will transmit to the applicant and counsel, if any, a written notice stating the time and place of hearing. The notice will be mailed to the applicant and counsel, if any, at least thirty days prior to the date of hearing, except that an earlier date may be set where the applicant waives his right to such notice in writing.

(2) Upon receipt of 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 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 may intend to call in his behalf. Cases in which the applicant notifies the Board that he does not desire to be present at the hearing, will be considered in accordance with § 723.5(b)(2).

(c) Counsel, definition of. 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 Administrator of Veterans' Affairs under Title 38, U.S. Code, Sec. 3402, and 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.

(d) Witnesses. The applicant will be permitted to present witnesses in his behalf at hearings before the Board. It will be the responsibility of the applicant to notify his witnesses and to arrange for their appearance at the time and place set for hearing.

(e) Access to Records. (1) The applicant shall have access to such official records as are deemed necessary to an adequate presentation of his case. 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 desires to present in support of his case.

(2) Classified or privileged matter shall not be disclosed or made available without express finding of the Chairman that such disclosure is required in the case and is not detrimental to the public interest. Such disclosure shall not be contrary to existing law and departmental regulations concerning privileged and classified material. When appropriate the applicant may be supplied only with a summary or extract of classified matter.

(3) This regulation does not authorize the furnishing of copies of official records by the Board. Requests for copies of official records should be submitted in accordance with regulations governing the release of information.

[17 FR 10243, Nov. 11, 1952, as amended at 26 FR 12121, Dec. 19, 1961; 34 FR 19195, Dec. 4, 1969]

§ 723.5 Hearing.

(a) Convening of Board. The Board will be convened at the call of the Chairman and will recess or adjourn at his order.

(b) Conduct of hearing. (1) The hearing shall be conducted by the Chairman, and shall be subject to his rulings so as to insure 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, has indicated to the Board that he 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, has indicated to the Board that he will be present or be represented by counsel at the hearing, and without good cause and timely notice to the Board, he or his representative fails to appear at the time and place set for the hearing, the Board may consider the case in accordance with the provisions of paragraph (b)(2) of this section, or will make such other disposition of the case as is indicated 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.

[17 FR 10243, Nov. 11, 1952]

§ 723.6 Action by the Board.

(a) Deliberations, findings, and 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 the case, 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 the Board, the Board may require the applicant to obtain, or the Board may obtain, such further information as it may consider essential to a complete and impartial determination of the facts and issues.

(3) Following a hearing, the Board determines to recommend that the record be corrected without a hearing, they 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 § 723.3(e)(5). 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 of the Navy 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.

(b) Minority report. In case of a disagreement between members of the Board a minority report may be submitted, either as to the findings, decision, or the recommendations or to all, including the reasons therefor.

(c) Record of proceedings. When the Board has completed its determination, a record thereof shall 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 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. The record so prepared will be certified by the Chairman or his designee as being true and complete.

(d) Withdrawal. The Board may permit an applicant to withdraw his application without prejudice at any time before its proceedings are forwarded to the Secretary of the Navy.

(e) Delegation of authority to correct certain military or naval records. (1) The Board for Correction of Naval Records is authorized to take final action on behalf of the Secretary of the Navy, under 10 U.S.C. 1552, in approving the correction of military or naval records, provided

(1) The relief granted is completely in accord with that requested by the applicant, and

(ii) Such action has (A) been recommended by the proper naval authority; (B) is agreed to by the Board; and (C) falls into one of the following categories:

(1) Restoration of leave unduly charged to applicants.

(2) Promotion retroactively of applicants who would have been promoted during regular promotion cycles but were inadvertently or improperly excluded from consideration during such cycles; and adjustment of their pay accounts accordingly.

(3) Adjustment of enlisted grades and promotion of applicants to grades held immediately prior to reenlistment who were inadvertently or improperly reenlisted in a lower grade.

(4) Awards of basic allowance for subsistence, family separation allowance, dislocation allowance and travel allowance to applicants entitled there

to.

(5) Authorizing participation, declination, or modification of an election under the Retired Serviceman's Family Protection Plan and/or the Survivor Benefit Plan where failure to elect to participate, decline to participate, or to make an appropriate election was due to inadvertence, misunderstanding or through no fault of the service member.

(6) Placement in a temporary or permanent disability retired status, including appropriate percentage of disability, of applicants who were clearly physically unfit and were inadvertently or improperly separated.

(7) Award of variable reenlistment bonus, proficiency pay, enlistment and/or reenlistment bonus to applicants clearly entitled thereto.

(8) Change of home of record where upon entry on duty applicants erroneously reported other than actual home.

(9) Award of reserve participation credit in computation of years of satisfactory servic where such service was improperly or erroneously credited.

(2) The Executive Secretary of the Board, after assuring compliance with the above conditions, will announce the final action on applications processed under this paragraph.

[42 FR 18277, Apr. 6, 1977]

§ 723.7 Action by the Secretary.

The record of proceedings of the Board, except in cases finalized by the Board under the authority delegated in paragraph (e) of § 723.6 or those denied by the Board without a hearing, will be forwarded to the Secretary of the Navy who will direct such action in each case as he determines to be appropriate, which may include the return of the record to the Board for further consideration when deemed necessary. Those cases returned for further consideration shall be accompanied by a brief statement setting out the reasons for such action and any specific instructions. If the Secretary's decision is to deny relief, such decision shall be in writing and, unless he expressly adopts in whole or in part the findings, conclusions and recommendation of the Board, shall include a brief statement of the grounds for denial. See paragraph (e)(5) of § 723.3. [42 FR 18278, Apr. 6, 1977]

§ 723.8 Staff action.

(a) Upon final action by the Secretary of the Navy, the record of proceedings shall be returned to the Board for disposition. The Board shall transmit the decision previously submitted and approved by the Secretary of the Navy to the proper naval authority for appropriate action.

(b) The addresses of such decisions shall report compliance therewith to the Chairman of the Board.

(c) The Board shall transmit a copy of the record of proceedings to theproper naval authority for filing in the service record of the subject of the application except where the effect of such action would be to nullify the relief granted. In such cases no reference 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 by it retained in a confidential file maintained for the purpose. Access to such file shall be had only upon written order of the Secretary of the Navy.

(d) Upon receipt of the record of proceedings after final action by the Secretary of the Navy, or by the Board acting under the authority con

tained in paragraph (e) of § 723.6, the Board shall communicate the decision to the applicant and counsel.

(1) If the recommendation of the Board was to deny relief or if the final decision of the Secretary or the Board was to deny relief, the following material will be made available to the applicant and counsel:

(i) A statement of the findings conclusions, and recommendations made by the Board;

(ii) Any advisory staff opinions considered by the Board or the reviewing authority;

(iii) Any minority reports; and

(iv) Any material prepared by the Secretary of the Navy as required in § 723.7. Moreover, applicant and counsel shall also be informed that the name and final vote of each Board member will be furnished or made available upon request. To the extent that any of the above material consists of classified or otherwise privileged matters, delections may be made only if a written statement of the basis therefor is provided the applicant and counsel.

(2) If the final decision was other than to deny relief, the applicant and counsel are entitled, upon request, to receive a copy of the Board's findings, conclusions and recommendations.

[17 FR 10243, Nov. 11, 1952, as amended at 26 FR 12122, Dec. 19, 1961; 42 FR 18278, Apr. 6, 1977]

§ 723.9 Reconsideration.

After final adjudication further consideration will be granted only upon presentation by the applicant of newly discovered relevant evidence not previously considered by the Board and then only upon recommendation of the Board and approval by the Secretary of the Navy.

[34 FR 19196, Dec. 4, 1969]

§ 723.10 Settlement of claims.

(a) Authority. (1) The Department of the Navy is authorized to pay claims in accordance with 10 U.S. Code 1552, which is quoted in § 723.1(b).

(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 Administrator 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 of his legal representative, his heirs at law, or his beneficiaries. Such claim for settlement and payment may be filed as a separate part of the application for correction of the record.

(2) In case 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. Code 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 recommendations of the Board, as approved by the Secretary of the Navy. 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 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 regulations, 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 as to

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 Chairman of the Board.

[17 FR 10243, Nov. 11, 1952, as amended at 26 FR 12122, Dec. 19, 1961; 34 FR 19196, Dec. 4, 1969; 42 FR 18278, Apr. 6, 1977)

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(a) Staff assistance. The facilities of all bureaus, offices, and boards of the Navy Department shall be made available to the Board to assist it in the performance of its function.

(b) Expenses. No expenses of any nature whatsoever voluntarily incurred by the applicant, his counsel, his witnesses, or by any other person in his behalf, will be paid by the Government.

(c) Changes in procedures. The Board may initiate recommendations for such changes in procedures as established herein as may be considered necessary for the proper functioning of the Board. Such changes will be subject to the approval of the Secretary of the Navy and of the Secretary of Defense.

(d) Publication in the "Federal Register." These regulations and any amendments thereto will be published in the FEDERAL REGISTER.

(e) Indexing of decisions. (1) Documents sent to each applicant and counsel in with

accordance

§ 723.3(e)(6) and § 723.8(d), 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 of the Navy 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, Washington, D.C.

(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 of the Navy 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, Washington, D.C. Inquiries concerning the index or the reading room may be addressed to the Armed Forces Discharge Review/Correction Boards Reading Room, The Pentagon Concourse, Washington, D.C. 20301.

(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 may result in a clearly unwarranted invasion of personal privacy or 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.

[17 FR 10243, Nov. 11, 1952, as amended at 26 FR 12122, Dec. 19, 1961; 42 FR 18278, Apr. 6, 1977; 43 FR 2170, Jan. 16, 1978]

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