ing the requirements of paragraph (1) of this subsection) applied by the board of review concerned under section 1553 of title 10, subject to review by the Secretary concerned, that such person would be awarded an upgraded discharge under such standards; and

"(B) such determination shall be made by such board, (i) on an expedited basis after notification by the Veterans' Administration to the Secretary concerned that such person has received, is in receipt of, or has applied for such benefits or after a written request is made by such person or such determination, (ii) on its own initiative within one year after the date of enactment of this paragraph in any case where a general or honorable discharge has been awarded on or prior to the date of enactment of this paragraph under revised standards referred to in clause (A) (i), (ii), or (iii) of this paragraph, or (iii) on its own initiative at the time a general or honorable discharge is so awarded in any case where a general or honorable discharge is awarded after such enactment date.

"If such board makes a preliminary determination that such person would not have been awarded an upgraded discharge under standards meeting the requirements of paragraph (1) of this subsection, such person shall be entitled to an appearance before the board, as provided for in section 1553(c) of title 10, prior to a final determination on such question and shall be given written notice by the board of such preliminary determination and of his or her right to such appearance. The Administrator shall, as soon as administratively feasible, notify the appropriate board of review of the receipt of benefits under laws administered by the Veterans' Administration, or the application for such benefits, by any person awarded an upgraded discharge

under revised standards referred to in clause (A) (i), (ii), or (iii) of this paragraph with respect to whom a favorable determination has not been made under this paragraph.".

(b)(1) The Secretary of Defense shall fully inform each person awarded a general or honorable discharge under revised standards for the review of discharges referred to in section 3103(e)(2)(A) (i), (ii), or (iii) of title 38, United States Code, as added by subsection (a)(2) of this section, of his or her right to obtain an expedited determination under section 3103(e)(2)(B)(i) of such title and of the implications of the provisions of this Act for each such person.

(2) Notwithstanding any other provision of law, the Secretary of Defense shall inform each person who applies to a board of review under section 1553 of title 10, United States Code, and who appears to have been discharged under circumstances which might constitute a bar to benefits

under section 3103(a) of title 38, United States Code, (A) that such person might possibly be administratively found to be entitled to benefits under laws administered by the Veterans' Administration only through the action of a board for the correction of military records under section 1552 of such title 10 or the action of the Administrator of Veterans' Affairs under section 3103 of such title 38, and (B) of the procedures for making application to such section 1552 board for such purpose and to the Administrator of Veterans' Affairs for such purpose (including the right to proceed concurrently under such sections 3103, 1552 and 1553).

Section 2. Notwithstanding any other provision of law, the Administrator of Veterans' Affairs shall provide the type of health care and related benefits authorized to be provided under chapter 17 of title 38, United States Code, for any disability incurred or aggravated during active military, naval, or air service in line of duty by a person other than a person barred from receiving benefits by section 3103(a) of such title, but shall not provide such health care and related benefits pursuant to this section for any disability incurred or aggravated during a period of service from which such person was discharged by reason of a bad conduct discharge.

Section 3. Paragraph (18) of section 101 of Title 38, United States Code, is amended to read as follows:

"(18) The term 'discharge or release' includes, (A) retirement from the active military, naval, or air service, and (B) the satisfactory completion of the period of active military, naval, or air service for which a person was obligated at the time of entry into such service in the case of a person who, due to enlistment or reenlistment, was not awarded a discharge or release from such period of service at the time of such completion thereof and who, at such time, would otherwise have been eligible for the award of a discharge or release under conditions other than dishonorable."

Section 4. In promulgating, or making any revisions of or amendments to, regulations governing the standards and procedures by which the Veterans' Administration determines whether a person was discharged or released from active military, naval, or air service under conditions other than dishonorable, the Administrator of Veterans' Affairs shall, in keeping with the spirit and intent of this Act, not promulgate any such regulations or revise or amend any such regulations for the purpose of, or having the effect of, (1) providing any unique or special advantage to veterans awarded general or honorable discharges under revised standards for the review of discharges described in section 3103(e)(2)(A) (i), (ii), or (iii) of

title 38, United States Code, as added by section 1(a)(2) of this Act, or (2) otherwise making any special distinction between such veterans and other veterans.

Section 5. This Act shall become effective on the date of its enactment, except that— (1) section 2 shall become effective on October 1, 1977, or on such enactment date, whichever is later; and

(2) the amendments made by section 1(a) shall apply retroactively to deny benefits under laws administered by the Veterans' Administration, except that, notwithstanding any other provision of law

(A) with respect to any person who, on such enactment date is receiving benefits under laws administered by the Veterans' Administration, (i) such benefits shall not be terminated under paragraph (2) of section 3103(e) of title 38, United States Code, as added by section 1(a)(2) of this Act, until, (I) the day on which a final determination not favorable to the person concerned is made on an expedited basis under paragraph (2) of such section 3103(e), (II) the day following the expiration of ninety days after a preliminary determination not favorable to such person is made under such paragraph, or (III) the day following the expiration of one hundred and eighty days after such enactment date, whichever day is the earliest, and (ii) the United States shall not make any claim to recover the value of any benefits provided to such person prior to such earliest day;

(B) with respect to any person awarded a general or honorable discharge under revised standards for the review of discharges referred to in clause (A) (i), (ii), or (iii) of such paragraph who has been provided any such benefits prior to such enactment date, the United States shall not make any claim to recover the value of any benefits so provided; and

(C) the amendments made by clause (1) of section 1(a) shall apply, (i) retroactively only to persons awarded general or honorable discharges under such revised standards and to persons who, prior to the date of enactment of this Act, had not attained general eligibility for such benefits by virtue of (I) a change in or new issuance of a discharge under section 1553 of title 10, United States Code, or (II) any other provision of law, and (ii) prospectively (on and after such enactment date) to all other persons. [44 FR 76509, Dec. 27, 1979]

725.507 President, duties and responsibilities.

725.508 Members in general, duties and responsibilities.

725.509 Counsel for the Physical Evaluation Board.

725.510 Counsel for the party.

725.511 Recorder, Central Physical Evaluation Board.

725.512 Fitness reports.

725.513 Board reporter, interpreter and orderly.

725.514 Informal hearing.

725.515 Personal appearance.

725.516 Formal hearing (full and fair). 725.517 Formal hearing procedures. 725.518 Recommended findings, members

on active duty for more than 30 days (other than for training under 10 U.S.C. section 270(b)).

725.519 Recommended findings, members on active duty for 30 days or less, or training duty under 10 U.S.C. section 270(b).

725.520 Recommended findings, inactive duty training.

725.521 Recommended findings, cases arising under 10 U.S.C. sections 1004 and 1163.

725.522 Recommended findings, cases arising under 10 U.S.C. section 6331. 725.523 Recommended findings, reevaluation of members on Temporary Disability Retired List.

725.1008 Fleet Reserve or Fleet Marine Corps Reserve members.

725.1009 Member with less than 20 years' active duty eligible for Fleet Reserve or Fleet Marine Corps Reserve. 725.1010 Reserve officer or enlisted

member who has completed 20 years' service under 10 U.S.C. 1332.

725.1011 Disposition when member does not consent to reappointment or reenlistment.

APPENDIX-LIST OF FORMS

AUTHORITY: 5 U.S.C. 301, 10 U.S.C. 1216, 5031. Interpret or apply 5 U.S.C. 500, 8301, 10 U.S.C. 266, 270, 1004, 1163, 1201-1215, 1217-1219, 1221, 1372, 1373, 1554, 6011, 6148, 6331, 6485, 26 U.S.C. 104, 37 U.S.C. 601-604, 38 U.S.C. 722.

SOURCE: 36 FR 21968, Nov. 18, 1971, unless otherwise noted.

Subpart A-Background, Purpose and Policy

$ 725.101 Background.

(a) At the beginning of the Civil War, it became evident that both the

Army and the Navy would be seriously handicapped by the lack of statutory authority to retire military personnel, who, because of advanced age, disease, or infirmity, were unfit to exercise command in the field or at sea. In 1861, the Congress approved an "Act for the Better Organization of the Military Establishment" (12 Stat. 287291). This law provided that when an officer had become incapable of performing the duties of his office, either he would be retired from active duty, or be wholly retired by the President. The purpose of this enactment and of subsequent disability retirement legislation was to give the military forces of the Nation a vital and fit membership and to establish an equitable system of retirement and compensation for those eligible members whose military careers must be terminated by reason of illness or injury.

(b) Disability retirement pay and severance pay, provided by 10 U.S.C. chapter 61, are benefits provided for members, who, if otherwise qualified, become unfit to perform duty because of physical disability acquired or aggravated while on active duty or inactive duty training. Such benefits are not provided for members or former members of the armed forces, who, after discharge or release from active duty or inactive duty training, may become unfit to perform their duties because of physical disability, even though the origin of the disability may be related to a period of active duty or inactive duty training. Individuals, who, during active duty, incur disabilities which do not preclude performance of full military duties, may be eligible for compensation under laws administered by the Veterans' Administration, even though they do not qualify for disability retirement or severance pay.

$ 725.102 Purpose.

The purpose of these regulations is to prescribe the administrative procedures and policies to be followed in implementing laws pertaining to discharge or retirement of members from the naval service because of physical disability.

§ 725.103 Policy.

(a) It is the policy of the Department of the Navy that laws pertaining to physical disability retirement or discharge be administered fairly, equitably, and with due regard for the interest of both the individual and the Government. Although these laws should be so administered as to protect the U.S. Government from assuming unwarranted responsibility for payment of disability and retirement benefits, reasonable doubt as to the entitlement of a member to such benefits will be resolved in favor of the individual.

(b) However, the fact that a member is determined to be unfit for duty while on active duty may not be sufficient to entitle him to disability retirement or severance pay. There must be a determination that this unfitness is due to a disability incurred or aggravated while entitled to receive basic pay. The fact that such member was accepted physically for active duty is not conclusive that the disability was incurred after such acceptance. It is one piece of evidence to be considered with all of the medical evidence. In addition to, and in conjunction with, all other pertinent medical evidence, due consideration and weight must be given to accepted medical principles, authenticated by medical authorities, in arriving at a final determination. It is not proper to exclude such accepted medical principles in making the aforesaid determination, even in cases where there is no other evidence that the disability existed prior to entrance upon active duty.

(h) VASRD-Veterans Administration Schedule for Rating Disabilities.

§ 725.202 Accepted medical principles.

(a) These principles are fundamental deductions, consistent with medical facts, and based upon the observation of a large number of cases. To constitute accepted medical principles, the deductions must be so reasonable and logical as to create a virtual certainty that they are correct.

(b) In accordance with these principles existence of a disease or injury prior to entrance into service may be presumed, and no further additional confirmation is needed. For example, notation or discovery during service of residual conditions such as scars, fibrosis of the lungs, atrophy following disease of the central or peripheral nervous system, healed fractures, absent, displaced, or resected parts or organs, supernumerary parts, or congenital malformations with no evidence of the pertinent antecedent active disease or injury during service, can be considered as established facts which are so convincing as to impel the conclusion that the residual condition existed prior to entrance into active service in the absence of further proof. Similarly, manifestation of lesions or symptoms of chronic disease from date of enlistment, or so close to that date that the disease could not have originated in so short a period, impels the conclusion that the disease existed prior to entrance into active service in the absence of further proof.

8725.203 Active duty.

Full-time duty in the active military service of the United States. It includes duty on the active list, full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. 10 U.S.C. 101(22).

8 725.204 Active duty for a period of more than 30 days.

Active duty under a call or order that does not specify a period of 30 days or less. 10 U.S.C. 101(23).