§ 724.319 Secretarial review of naval discharge review decisions. (a) The decisions of the Naval Discharge Review Board are final, subject only to Secretarial review. (b) The following categories of discharge cases are subject to the review of the Secretary of the Navy: (1) All cases in which a minority of the Naval Discharge Review Board requests the recorded opinion be forwarded for consideration. (2) Selected cases as appropriate in order to provide information to the Secretary on specific aspects of the discharge function or of the discharge review function which are of interest to the Secretary of the Navy. (3) Any specific case which the Secretary has an interest. (4) Any case which the President, Naval Discharge Review Board in his sole discretion believes is of significant interest to the Secretary. (c) Material submitted prior to Secretarial review to correct alleged errors under the provisions of § 724.501(g) of this part, must be addressed to the President, Naval Discharge Review Board, and must be received within 25 days of the date on which the notification of the decision was mailed to the applicant. Requests or material received subsequent to that date shall not be considered unless a prior extension of time has been approved by the President, Naval Discharge Review Board, or for good cause shown as determined by the President, Naval Discharge Review Board. § 724.320 Scheduling of discharge reviews. (a) If an applicant requests a personal appearance discharge review, or to be represented in absentia, the Naval Discharge Review Board shall provide a hearing in the Washington, D.C. area or at another site within the forty-eight contiguous states. (b) The Naval Discharge Review Board shall subsequently notify the applicant and representative (if any) in writing of the personal appearance hearing time and place. This notice shall normally be mailed thirty to sixty days prior to the date of the hearing. if the applicant elects, this time limit may be waived and an earlier date set. (c) When an applicant requests a documentary review, the Naval Discharge Review Board shall undertake the review as soon as practicable. Normally, documentary reviews shall be conducted in the order in which they are received. § 724.321 Personal appearance discharge review sites. (a) The Naval Discharge Review Board shall be permanently located, together with its administrative staff, in the Washington, D.C. area. The Naval Discharge Review Board shall routinely conduct personal appearance discharge reviews and documentary reviews at this, its permanent office. Applicants located within a radius of three hundred miles from the Washington, D.C. area shall normally be required to present their cases in Washington, D.C. if they request a personal appearance review. (b) In addition, as permitted by available resources, Naval Discharge Review Board Panels shall travel to other selected sites within the contiguous 48 states for the purpose of conducting reviews. The selection of sites and the frequency of visits shall be predicated on the number of requests pending within a region and the availability of resources. Applicants located within the radius of three hundred miles from sites selected for Naval Discharge Review Board Panel reviews shall normally be required to present their cases at the selected sites, if they have requested a personal appearance 90-111 0-82--15 review. An exception shall be made if the applicant requests a personal appearance review in Washington, D.C. (c) If an applicant who has requested a personal appearance review declines without justifiable cause to present a case to the Naval Discharge Review Board Panel when it is sited within three hundred miles of the location in the application, the applicant shall be deemed to have forfeited any right to a personal appearance before a traveling panel. Instead, the Naval Discharge Review Board Panel shall conduct a documentary review of the discharge and its decision shall be based on that review. § 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 the Marine Corps, Chief of Naval Reserve, Commandants of the Naval Districts, and Directors of Marine Corps Districts, as appropriate. in (d) The administrative staff Washington shall undertake all arrangements for Naval Discharge Review Board Traveling Panel visits and shall process associated review documents. 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 1Charges 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). As defined in § 724.114. Discharge 8724.402 Naval Discharge Review Board. As defined in § 724.102. Review Board. Naval Discharge Discharge Supervises the Naval Review Board. (See Subpart J of this part.) 8724.404 Director, Naval Council of Personnel Boards. Exercises administrative control and oversight of the naval discharge review process. (See Subpart J of this part.) 8724.405 Commandant of the Marine Corps (Code M) and the Chief of Naval Personnel managers of the Marine Corps and the Navy; responsible for providing limited support to the Naval Discharge Review Board and for implementation of departmental discharge review decisions. (See Subpart K of this part.) § 724.406 Chief, Bureau of Medicine and Surgery. Custodian of Navy and Marine Corps health records. (See Subpart K of this part.) 8724.407 Chief of Naval Reserve. Manages Naval Reserve resources. Responsible for providing limited support within available resources to the Naval Discharge Review Board. (See Subpart K of this part.) § 724.408 Secretary of the Navy. The final authority within the Department of the Navy in 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 apdisplicant was administratively charged under other than honorable conditions. (See § 724.303.) (c) To have that review conducted by the Naval Discharge Review Board either in the Washington, D.C. area or (see locations other designated § 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 pro(See vided with copies of them. § 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 §§ 724.815 724.1003(g).) and personally (1) When appearing 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. (0) To have the applicant's discharge reviewed under the standards of Title 32-National Defense 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 dis charge, 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. that (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. circumstances (d) If it appears that the applicant was discharged under one or more of outlined in the § 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. |