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§ 724.322 Naval Discharge Review Board support and augmentation by Regular and Reserve activities.

(a) When a Naval Discharge Review Board Panel travels for the purpose of conducting hearings, it shall normally select as review sites Navy and Marine Corps installations in the area visited.

(b) The Naval Discharge Review Board Traveling Panel shall normally consist of members from Washington and augmentees from Regular and Reserve Navy and Marine Corps sources, as required.

(c) Naval and Marine Corps activities in the geographical vicinity of selected review sites shall provide administrative support and augmentation to a Naval Discharge Review Board Panel during its visit where such assistance can be undertaken without interference with mission accomplishment. The Naval Discharge Review Board shall coordinate requests for augmentees and administrative support through the Commandant of Marine Corps, Chief of Naval Reserve, Commandants of the Naval Districts, and Directors of Marine Corps Districts, as appropriate.

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(d) The administrative staff in Washington shall undertake all arrangements for Naval Discharge Review Board Traveling Panel visits and shall process associated review documents.

§ 724.323 Court-martial specifications,

presumption concerning.

(a) Relevant and material facts stated in a court-martial specification,

shall be presumed by the Naval Discharge Review Board Panel as established facts unless there is substantial credible evidence to rebut this presumption if the applicant was found guilty and the finding was not subsequently overturned by a reviewing authority.

(b) Relevant and material facts stated in a court-martial specification, in the face of which the applicant requested a discharge for the good of the service to avoid trial by court-martial, shall be considered in accordance with the following:

(1) If the accused was required to admit the facts contained in the charge sheet, or if the discharge authority was required to find that the facts stated therein were true, then the Discharge Review Board can presume the truth of such facts, unless there is substantial credible evidence to rebut this presumption; or

(2) If the discharge in lieu of courtmartial only required a valid preferral,' the Discharge Review Board may presume that the signer either had personal knowledge of, or had investigated the matters set forth therein, and that the charges were true in fact to the best of the signer's knowledge and belief. The weight to be given this presumption in determining whether the facts stated in the charge sheet are true is a matter to be determined by the Discharge Review Board. To the extent that the discharge proceeding reflects:

(i) An official determination that the facts stated in the charge sheet are true; (ii) that the accused admitted the facts stated in the charge sheet; or (iii) that the accused admitted guilt of the offense(s), then the presumption is strengthened. In accordance with § 70.5(b)(12)(vi) of Title 32 Code of

'Charges may be preferred by any person subject to the Uniform Code of Military Justice. The charges must be signed and sworn to before a commissioned officer authorized to administer oaths, and shall state: (1) That the signer has personal knowledge of, or has investigated the matters set forth therein; and (2) that the charges are true in fact to the best of the signer's knowledge and belief. 10 U.S.C. 830 (1976) (Art. 39 Uniform Code of Military Justice).

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Subpart E-Procedural Rights of the Applicant and Administrative Actions Preliminary to Discharge Review

§ 724.501 Procedural rights of the applicant.

Each applicant has the following procedural rights:

(a) Within 15 years after the date of discharge, to make a written request for review of the applicant's discharge if the discharge was other then the result of a general court-martial. The request may include such other statements, affidavits, or documentation as desired. (See §§ 724.302 and 724.303.)

(b) Prior to January 1, 1980, without regard to the date of discharge, to request review of the applicant's discharge if the discharge has not been reviewed previously under the procedures and standards set forth in Subparts H and I of this part and the applicant was administratively charged under other than honorable conditions. (See § 724.303.)

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(c) To have that review conducted by the Naval Discharge Review Board either in the Washington, D.C. area or other designated locations (see § 724.321), when a personal appearance discharge review is desired.

(d) To appear before the Naval Discharge Review Board in person with or without counsel/representative; with counsel/representative concurrence, to have counsel/representative present the applicant's case in the absence of the applicant; or to have the review conducted based on records and any additional documentation submitted by the applicant or counsel/representative.

(e) To request copies of any documents or other evidence to be considered by the Naval Discharge Review Board in the review of the applicant's discharge or dismissal other than the documents or evidence contained in the official record or submitted by the applicant prior to the conduct of the formal review and to be afforded an opportunity to examine such other documents or evidence or to be provided with copies of them. (See § 724.310.)

(f) To withdraw the request for discharge review without prejudice at any time prior to the scheduled review, except that failure to appear for a scheduled hearing shall not be construed or accepted as a withdrawal. (See § 724.314.)

(g) To request a continuance of the review when the continuance is of a reasonable duration and essential to achieving a full and fair hearing. The request must indicate the reason why the continuance is required. (See § 724.316.)

(h) To request postponement of the discharge review for good and sufficient reason set forth in a timely manner. (See § 724.316.)

(i) To request reconsideration of the discharge review under the conditions set forth in § 724.315.

(j) To have access to the information to be considered by the Naval Discharge Review Board prior to the actual review of the applicant's case. (See § 724.310.)

(k) To have the applicant's right to privacy protected in any review conducted by the Naval Discharge Review Board. (See §§ 724.815 and 724.1003(g).)

(1) When appearing personally before the Naval Discharge Review Board:

(1) To introduce witnesses, documents, sworn or unsworn testimony. (See §§ 724.311 and 724.312.)

(2) To present oral or written arguments personally or through counsel/ representative.

(m) To submit documents, affidavits, briefs or arguments in writing. When the counsel/representative appears in person before the Naval Discharge Review Board, arguments may be presented orally.

(n) To state clearly and specifically the contentions or issues which the applicant desires the Naval Discharge Review Board to answer in writing. These should be presented in writing by the applicant or counsel/representative. Although applicants are encouraged to state contentions/issues in writing, they may be stated orally at personal appearance hearings.

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equity and propriety outlined in Subpart I of this part.

(p) To be provided with a written decision on the applicant's review.

(q) If the case is to be forwarded for Secretarial review, to present a timely statement rebutting any findings, conclusions, or reasons of the Naval Discharge Review Board or the President, Naval Discharge Review Board, which are alleged to be erroneous on the facts, against the substantial weight of the evidence, or contrary to law or governing regulations, prior to that Secretarial review.

§ 724.502 Actions to be taken by the applicant preliminary to discharge review. (a) Application for Review of Discharge or Dismissal From the Armed Forces of the United States, DD Form 293 (See Appendix D of this Part) is to be used in requesting a discharge review. DD Form 293 is available at most military installations and regional offices of the Veterans' Administration. This form is to be signed personally by the applicant. In the event the discharged individual is deceased or incompetent, the form must be signed by an authorized individual as discussed in § 724.113.

(b) The application is to be accompanied by:

(1) A copy of the certificate of discharge, if available;

(2) A copy of the Armed Forces of the United States Report of Transfer or Discharge (DD-214), if available;

(3) Certification of death, incompetency and evidence of relationship in applicable cases (§ 724.113);

(4) Statements by the applicant specifically presenting contentions/issues of fact, law, or discretion, if any, which form the basis for the request;

(5) Other statements, affidavits, depositions, documents and information desired by the applicant to be considered by Naval Discharge Review Board.

(c) Correspondence relating to review of naval discharges should be addressed to:

Naval Discharge Review Board, Suite 905, 801 North Randolph Street, Arlington, VA 22203, telephone No. (202) 696-4881.

§ 724.503 Naval Discharge Review Board response to application for discharge review.

(a) The Naval Discharge Review Board shall acknowledge receipt of the application.

(b) In the event a documentary review is requested, the applicant shall normally receive no further communication from the Naval Discharge Review Board until notified of the decision in the case.

(c) In the event a personal appearance discharge review is requested, the applicant shall be notified of the time and place of this review and shall be advised of the availability of the official documents to be considered by the Naval Discharge Review Board.

(d) A copy of Naval Discharge Review Board correspondence to an applicant shall be sent to the representative of record, if any.

§ 724.504 Naval Discharge Review Board actions preliminary to discharge review.

(a) When each application for discharge review is received by the Naval Discharge Review Board, the service record and health record of the applicant will be requested from the appropriate record custodian, usually the National Personnel Record Center, St. Louis, Missouri.

(b) Upon receipt, each record of service will be reviewed to determine whether or not the applicant appears to have been discharged under circumstances which might act as a bar to Veterans' Administration benefits under section 3103, Title 38, United States Code. These circumstances of discharge are:

(1) Discharge or dismissal by reason of the sentence of a general court-martial.

(2) Discharge as a conscientious objector who refused to perform military duty, to wear the uniform or otherwise to comply with lawful orders of competent military authority.

(3) Discharge as a deserter.

(4) Discharge on the basis, or as part of the basis, of an absence without authority from active duty for a continuous period of at least 180 days if such discharge was under conditions other than honorable. Additionally, such ab

sence is computed without regard to the applicant's normal or adjusted expiration of term of service.

(5) Discharge or dismissal of an officer based on acceptance of the officer's resignation for the good of the service.

(6) Discharge, on his own application, during a period of hostilities, as an alien.

(c) If it appears that the applicant was not discharged under the circumstances noted in § 724.504(b), the discharge review will continue.

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(d) If it appears that the applicant was discharged under one or more of the outlined in § 724.504(b), a written notification will be sent which informs the applicant that:

(1) An initial service record review reveals that the discharge may have been awarded under circumstances which make the applicant ineligible for receipt of Veterans' Administration benefits regardless of an action taken by the Naval Discharge Review Board.

(2) Separate action by the Board for Correction of Naval Records (BCNR) and/or the Veterans' Administration, in case of 180 days consecutive unauthorized absence disqualification, may confer eligibility for Veterans' Administration benefits.

(3) Provides instructions for making application to Board for Correction of Naval Records and for contacting the Veterans' Administration.

(4) Indicates that the discharge review will continue if the applicant so requests.

(5) Provides 45 days for the applicant to inform the Naval Discharge Review Board whether or not the applicant wishes the discharge review to continue.

(e) If the applicant does not respond within the allotted 45 days, or if in replying within 45 days the applicant requests a discharge review, the discharge review will continue.

(f) If the applicant replies within 45 days and requests the discharge review not take place, the case will be closed without further action and the records will be returned to storage.

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The Naval Discharge Review Board is a component of the Naval Council of Personnel Boards and has its offices located in the Washington, D.C. area. The Naval Discharge Review Board conducts documentary reviews and personal appearance reviews, in the Washington, D.C. area and, on a traveling basis, at selected sites within the 48 contiguous states. Regional site selection is predicated on the number of pending applications accumulated from a given geographical area and the resources available to support distant personal appearance reviews. The Naval Discharge Review Board does not maintain facilities other than at its Washington D.C. area offices.

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(5) Chief of Naval Reserve;

(6) Chief, Bureau of Medicine and Surgery;

(7) Veterans' service organizations;

(8) Discharge review boards of the other services, using the Army Discharge Review Board as a focal point for service coordination.

(h) Protect the privacy of individuals whose records are reviewed.

(i) Maintain for public access a reading file and associated index of records of Naval Discharge Review Board proceedings in all reviews undertaken subsequent to July 1, 1975. (See § 724.814.)

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(a) Presiding officers of the Naval Discharge Review Board shall normally be Navy or Marine Corps officers in the grade of Captain/Colonel or above.

(b) The remaining Naval Discharge Review Board membership shall normally be not less than the grade of Lieutenant Commander/Major with preference being given to senior grades.

(c) Naval Discharge Review Board members shall be designated from the following sources:

(1) Officers performing duty with the Naval Council of Personnel Boards;

(2) Officers nominated by the Commandant of the Marine Corps;

(3) Officers nominated by the Chief of Naval Reserve, on request;

(4) Officers nominated by Director of Marine Corps Districts, on request; (5) Officers nominated by the Commandants of the Naval Districts.

(d) At least three of the five members of the Naval Discharge Review Board shall belong to the service from

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