Normally the Naval Discharge Review Board shall function without the immediate attendance of legal counsel. In the event that a legal advisory opinion is deemed appropriate by the Naval Discharge Review Board, such shall be obtained routinely by reference to the senior Judge Advocate assigned to the Office of the Director, Naval Council of Personnel Boards. In unusual cirumstances, the Naval Discharge Review Board Traveling Panel may request advice from the Officer-in-Charge of the nearest Naval Legal Service Office. In addition, the Naval Discharge Review Board may request advisory opinions from staff offices of the Department of the Navy, including, but not limited to the General Counsel and the Judge Advocate General.

Subpart H-Procedures of the Naval Discharge Review Board

§ 724.801 Material to be considered in discharge review.

In the process of its review of discharges, the Naval Discharge Review Board shall examine available records and pertinent regulations of the Department of the Navy, together with such information as may be presented by the applicant and/or representative, normally to include:

(a) The application for discharge review;

(b) Statements, affidavits or documentation, if any, accompanying the application or presented during hearings;

(c) Testimony, if any, presented during hearings;

(d) Service and health records;

(e) A brief of pertinent facts extracted from the service and health records, prepared by the Naval Discharge Review Board recorder, using NAVSO Form 1900/5C (Appendix D of this part).

(a) Applicant must state clearly and specifically their contentions, and/or the issues of fact, law, or discretion for written determination to be made in accordance with § 724.810.

(b) In addition to contentions/issues considered by the Naval Discharge Review Board under § 724.802(a), the Naval Discharge Review Board shall consider such issues of fact, law, or discretion as are discerned by them in the discharge review process.

(c) The Naval Discharge Review Board shall state its findings and conclusions and reasons with respect to the contentions and issues as required by § 724.810.

(d) Except as provided in § 724.802(d)(4), all matters that appear to be contentions/issues submitted by an applicant or counsel shall be listed verbatim in the decisional document and appended thereto. The Naval Discharge Review Board must provide findings, conclusions, and reasons only for contentions/issues submitted that are stated clearly and specifically. The Naval Discharge Review Board shall

prepare decisional documents in the following manner, with respect to applicant's contentions/issues:

(1) If contentions/issues are stated clearly and specifically by an applicant or counsel, and they are not subsequently amended by the applicant or counsel, these contentions/issues shall be listed verbatim in the decisional document or appended thereto: (See § 724.810(h));

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(2) If there are no clearly and specifically stated contentions/issues presented by an applicant or counsel, but contentions/issues are discerned by the Naval Discharge Review Board from an application to the Naval Discharge Review Board for review of discharge, those portions of the application from which the contentions/ issues were discerned shall be listed verbatim in the decisional document or appended thereto, and the decisional documents shall note that "THE APPLICANT FAILED PROVIDE CLEARLY AND SPECIFICALLY STATED CONTENTIONS/ ISSUES. IN THE ABSENCE OF SUCH SPECIFICITY THE BOARD DISCERNED THE FOLLOWING CONTENTIONS/ISSUES USING INFORMATION FROM THE APPLICANT'S STATEMENT:". Whether or not the Board discerns any contentions/issues from the applicant's statement, however, if the entire applicant's statement is included on the Form DD 293, this statement shall be quoted verbatim in the summary of applicant's statement portion of the decisional document;

(3) If no applicant contentions/ issues are discernible from an application but the Naval Discharge Review Board determines that there are issues that can be addressed, the lack of applicant contentions/issues and the existence of Naval Discharge Review Board contentions/issues must be noted on the decisional document. Issues which are raised by the Naval Discharge Review Board must also be noted on the decisional document in addition to any listed applicant contentions/issues; and

(4) An applicant or counsel shall not be required to amend a contention/ issue. If an applicant or counsel at a personal appearance hearing decides

§ 724.803 Summary of evidence to be displayed in records of review proceedings.

The Naval Discharge Review Board shall summarize the evidence considered in each discharge review. This shall include:

(a) The date, type and reason of the discharge and the discharge regulation under which it was issued;

(b) The circumstances and character of the applicant's service as extracted from service records, health records and information provided by other Government authority or the applicant;

(c) The relevant evidence developed from testimony, when the review involves a personal appearance;

(d) Reference to applicant's written brief, if any. Factual information and/ or advice from applicant's brief relied upon for final decision shall normally be set forth verbatim. In lieu thereof, a copy of the applicant's brief may be appended.

(e) Reference to advisory opinions, if any. Factual information and/or advice from advisory opinions relied upon for final decision shall normally be set forth verbatim. In lieu thereof, a copy of the advisory opinion(s) may be appended. Care must be taken to ensure that the summary of evidence also includes those factors required by applicable service regulations to be considered for the determination of the type and reason/basis for the discharge in question.

§ 724.807 Decision process.

(a) Naval Discharge Review Board Panels shall meet in plenary session to review discharges and exercise their discretion on a case-by-case basis in applying the standards set forth in Subpart I of this part.

(b) The presiding officer is responsible for the conduct of the discharge review. The presiding officer shall convene, recess, and adjourn the Naval Discharge Review Board panel as appropriate and shall maintain an atmosphere of dignity and decorum at all times.

(c) Each Naval Discharge Review Board member shall act under oath or affirmation requiring careful, objective consideration of the application. Naval Discharge Review Board members are responsible for eliciting all facts necessary for a full and fair hearing. They shall consider all information presented to them by the appli

cant. In addition, they shall consider available service and health records, together with such other records as may be in the files of the Department of the Navy and relevant to the issues before the Naval Discharge Review Board, and any other evidence obtained in accordance with Part 70, Title 32, Code of Federal Regulations or this part.

(d) If the applicant does not appear in person and the designated counsel/ representative does not appear in the applicant's behalf, the Naval Discharge Review Board shall review the discharge on the basis of available records, documentary evidence submitted by or on behalf of the applicant and any other relevant evidence obtained in accordance with Part 70, Title 32, Code of Federal Regulations or this part.

(e) If the applicant appears in person or the designated counsel/representative appears before the Naval Discharge Review Board in the applicant's behalf, the Naval Discharge Review Board shall review the application on the basis of testimony on behalf of the applicant, available official records, documentary evidence submitted by or on behalf of the applicant and any other relevant evidence obtained in accordance with Part 70, Title 32, Code of Federal Regulations or this part.

(f) Application of standards. (1) When the Naval Discharge Review Board determines that an applicant's discharge was improper (§ 724.902), the Naval Discharge Review Board will determine which reason/basis for discharge should have been assigned based upon the facts and circumstances properly before the discharge authority in view of the service regulations governing reasons/bases for discharge at the time the applicant was discharged. Unless it is also determined that the discharge was inequitable (§ 724.903), the provisions in the discharge regulations as to the type of discharge under which the applicant should have been discharged will be considered in determining whether further relief is warranted.

(2) When the Naval Discharge Review Board determines that an applicant's discharge was inequitable

(§ 724.903), any change will be based on the evaluation of the applicant's overall record of service and relevant Department of the Navy regulations.

(g) Voting shall be conducted in closed session, a majority of the five members' votes constituting the Naval Discharge Review Board decision. The presiding officer shall have a single vote. Decisions shall be reached by formal voting.

(h) Details of closed session deliberations of a Naval Discharge Review Board are privileged information and shall not be divulged.

(i) Minority written opinions, while not required, may be submitted by any minority member(s) and shall contain statements of findings, conclusions and reasons for only those contentions/issues on which the minority disagrees with the majority. The minority's written statement of findings, conclusions and reasons are also required to meet the standards of §§ 724.804 and 724.805. If the minority disagrees with the majority decision/ recommendation and writes an opinion as just described, that opinion shall contain the minority's decision/recommendation and the specific authority

for

that decision/recommendation. (See § 724.806.) In all cases, in which a minority of the Naval Discharge Review Board requests Secretarial review, the entire case, including the majority and minority written opinions will be forwarded to the Secretary of the Navy via the President, Naval Discharge Review Board. The President, Naval Discharge Review Board's recommendations to the Secretary of the Navy will be attached to the majority and minority written opinions and will include findings, conclusions and reasons, in the form earlier described herein.

(j) The Naval Discharge Review Board may request advisory opinions from staff officers of the Department of the Navy. The opinions are advisory in nature and are not binding on the Naval Discharge Review Board in its decision-making process.

§ 724.808 Issuance of decisions following discharge review.

The applicant and counsel/representative, if any, shall be provided

with a copy of the decisional document and of any further action in review. Final notification of decisions shall be issued to the applicant with a copy to the counsel/representative, if any, and to the Service Personnel Manager.

(a) Notification to applicants, with copies to counsel/representatives, shall normally be made through the United States Postal Service. Such notification shall consist of a notification of decision, together with a copy of the decisional document, Form NAVSO 1900/5C (Appendix D of this part).

(b) Notification to the Commandant of the Marine Corps (Code M) and the Chief of Naval Personnel shall be for the purpose of appropriate action and inclusion of review matter in personnel records. Such notification shall normally be issued en bloc and shall bear the personal signature of the Executive Secretary of the Naval Discharge Review Board in certification of completeness and accuracy. Delivery of en bloc notifications shall normally be via interoffice mail.

(c) Actions on review by the Secretary of the Navy, when occurring, shall be provided to the applicant and counsel/representative in the same manner as the notification of the review decision.

§ 724.809 Conduct of personal appearance discharge reviews.

(a) Personal appearance discharge reviews shall be conducted with a recognition of the individual's rights to privacy. Accordingly, presence at hearings of individuals other than those whose presence is required will be limited to persons authorized by the Secretary of the Navy, President of the Naval Discharge Review Board, Presiding Officer of the Naval Discharge Review Board Panel or expressly requested by the applicant, subject to reasonable limitations based upon available space. If, in the opinion of the President of the Naval Discharge Review Board or Presiding Officer of the Naval Discharge Review Board Panel, the presence of other individuals would be prejudicial to the interests of the applicant or the Govern

ment, such reviews may be held in closed session.

(b) Personal appearance discharge reviews shall be conducted with the objective of eliciting all the facts bearing on the case. Naval Discharge Review Board members shall attempt to elicit all the facts necessary for a full and fair hearing, whether or not the applicant is accompanied by a representative.

(c) Each board member shall act under the oath or affirmation as set forth in Appendix C of this part.

(d) Evidence and testimony. (1) The Naval Discharge Review Board may consider any evidence obtained in accordance with Part 70, Title 32 Code of Federal Regulations or this part.

(2) Formal rules of evidence shall not be applied in Naval Discharge Review Board proceedings. The presiding officer shall rule on matters of procedure and shall insure that reasonable bounds of relevancy and materiality are maintained in the taking of evidence and presentation of wit

nesses.

(3) Applicants having personal appearance reviews shall be permitted to introduce witnesses, documents, sworn or unsworn statements or other information on their behalf, all at no expense to the Department of Defense.

(4) Applicants may present oral or written arguments personally and/or through counsel/representatives.

(5) Applicants who present sworn or unsworn statements and witnesses may be questioned by the Naval Discharge Review Board. All testimony shall be taken under oath or affirmation unless the applicant specifically requests to make an unsworn statement.

§ 724.810 Decisional document.

A decisional document shall be prepared for each review conducted by the Naval Discharge Review Board. See copy in Appendix D of this part (Record of Review of Discharge, NAVSO 1900/5C). At a minimum this document shall contain:

(a) The date, type and reason/basis for the discharge issued to the applicant upon separation from the naval service, including the specific dis

charge regulation under which the discharge was issued.

(b) The circumstances and character of the applicant's service as extracted from service records, health records and information provided by other Government authority or the applicant, such as, but not limited to: (1) Date of enlistment. (2) Period of enlistment. (3) Age at enlistment. (4) Length of service.

(5) Periods of unauthorized absence. (6) Conduct and efficiency ratings (numerical or narrative).

(7) Highest rank achieved.
(8) Awards and decorations.
(9) Educational level.

(10) Aptitude test scores.

(11) Incidents of punishment pursuant to Article 15, Uniform Code of Military Justice (including nature and date of offense or punishment).

(12) Convictions by court-martial. (13) Prior military service and type of discharge received.

(c) Reference to the written brief, documentary evidence, and testimony presented to the Naval Discharge Review Board by or on behalf of the applicant.

(d) Statements of findings, conclusions, and reasons consisting of: (1) Findings, conclusions, and reasons on all issues of fact, law, or discretion upon which the decision on the application is based, including those factors required by naval service regulations to be considered for determination of the type of and reason/basis for the discharge in question.

(2) Findings, conclusions, and reasons on all other issues of fact, law, or discretion raised by the applicant in accordance with § 724.802, including claims by the applicant that statutory, regulatory, and/or constitutional provisons were violated, and such other claims made by the applicant, which in the opinion of the Naval Discharge Review Board would have warranted greater relief than that afforded the applicant by the Naval Discharge Review Board decision if resolved in the applicant's favor. If the applicant has clearly and specifically stated a contention/issue, which in the opinion of the Naval Discharge Review would not have warranted