to be considered that he has demanded a formal hearing. The Central PEB Recorder shall immediately be notified of such nonelection, and the party shall be directed to appear before a formal PEB to insure that his legal rights are effectively preserved. Upon request from the DESC, the Central PEB Recorder may authorize a limited extension of time for the party to make his election when such action would be in the best interests of all concerned. Normally a reasonable extension will be granted when requested and needed by the party to consult with legal counsel.

§ 725.515 Personal appearance.

(a) Orders for a personal appearance before a formal PEB shall be issued by the authority which referred a case into the Disability Evaluation System upon notification from the Director, ONDE, that such appearance has been requested by the party or that a formal hearing is in the best interests of the party and the Government. Personnel who are in a patient status shall be transferred from hospital to hospital for formal (full and fair) PEB appearance in accordance with U.S. Navy travel instructions. Transportation through facilities of the Armed Services Medical Regulating Office (ASMRO) shall be utilized to the fullest extent possible.

(b) When the party concerned demands a formal hearing, he shall appear personally before a PEB for a formal hearing, unless there is an opinion by a medical board or a determination by the PEB that to do so would be detrimental to his health. In addition to the fact that it may constitute a military offense, failure to appear when so directed or authorized shall be considered as a waiver of the right of the party concerned to appear before the board unless it is reasonably shown that such failure was through no fault of the party. However, the board may, at its discretion, waive the appearance of the party, if so requested in writing by the party concerned. Such request shall be appended to the record of proceedings of the board.

§ 725.516 Formal hearing (full and fair).

(a) General-The purpose of a formal hearing is to accord the party his right to a full and fair hearing, as provided in 10 U.S.C. section 1214. For the purpose of this Manual, the rights of the party shall include, but not be limited to:

(1) Personal presence, unless injurious to his health;

(2) Representation by qualified counsel during all stages of the proceedings until final action on the case is effected;

(3) Challenge of members for cause; (4) Presentation of evidence in his own behalf;

(5) Securing witnesses, records, depositions, affidavits, and statements on relevant issues, insofar as practicable;

(6) Cross-examination of witnesses; (7) Presentation of arguments in his behalf;

(8) Having the issues in his case decided only on evidence adduced and presented in the hearing; and

(9) Filing a rebuttal to the recommended findings of the PEB, and, in certain circumstances, to filing a rebuttal to the recommended substitute findings of the Physical Review Council.

(b) A formal hearing shall be conducted: (1) When the party (legal representative) demands it;

(2) When the party fails or refuses to indicate an election following an informal hearing;

(3) When the president, Central PEB, determines that a formal hearing is necessary in the best interests of the party or the Government (e.g., to document the testimony of witnesses or to clarify the official records);

(4) When directed by the Director, ONDE, or other competent authority;

or

(5) Whenever otherwise required under this Manual.

(c) Preliminary actions-The president of the PEB will establish the date and time of the hearing, subject to the following rules:

(1) Not less than 3 days prior to the date a hearing is to be held, the party, his counsel and/or legal representative, as appropriate under paragraph (h) of this section, will be allowed to

inspect all records assembled for the hearing, to have copies of same made, if practicable, and to make necessary notes in preparation of his case;

(2) The party may waive this period or any portion thereof;

(3) If additional time is required to prepare his case, a written request for extension of time will be forwarded to the president of the PEB, who, in turn, will endorse the request to the party through his counsel indicating approval or disapproval and the date and time of the rescheduled hearing; and

(4) In instances where the party is incompetent, ample time for travel will be allowed if the legal representative desires to be present at the hearing.

(d) The counsel for the PEB shall carry out the duties and responsibilities set forth in § 725.509 in every formal hearing.

(e) Failure of party to appear for formal hearing-When a party (except in mentally incompetent, deleterious to health, or absentia type cases) fails to appear, after having elected to do so, the president of the PEB will suspend the hearing and determine the reason for the party's absence. If there appears to be no reasonable excuse for the absence, the hearing will proceed and the president will inIclude in the record a statement of circumstances. Should the party later appear before the hearing is concluded, the president may recess the hearing and permit the counsel to brief the party on the proceedings up to that point.

(f) Waiver of appearance by the party-A party may waive in writing his personal appearance at a formal hearing. In such a case, the appointed counsel, or individually selected counsel if there is one, must be present and represent the party during all open sessions of the hearing and perform the duties of counsel during post-hearing actions.

(g) Representation by counsel-Each party shall be represented by counsel at a formal hearing. His duties and responsibilities are set forth in § 725.510.

(h) Availability of records to party— All records assembled for use during the hearing, including those furnished

by the Director, ONDE, and by other official sources, and requested by the party, shall be made available to the party and his counsel for review. In cases involving mental incompetence or when disclosure to the party of information relative to his mental or physical health would be injurious to mental or physical well-being, only the counsel and, if present, the legal representative may examine the records. The party (legal representative) and counsel may make any notes from the records necessary for proper preparation of the party's case and have copies of same made to the extent practicable. All official reference material used by the PEB shall be made available to the party (legal representative) and his counsel.

§ 725.517 Formal hearing procedures.

(a) Appendix A, a procedural guide, shall be used by all formal PEB's. The verbatim record of all matters of business before the board in open session will be attached to NAVSO 6100/16.

(b) Challenges.-(1) Any member of a PEB may be challenged at any time during the hearing for cause stated to the PEB. The board will not receive a challenge to more than one member at a time. After disclosing grounds for challenge, the party may examine the member of the board. This examination may or may not be under oath at the discretion of the challenging party but, in either event, shall be recorded verbatim. The counsel for the board may cross-examine the challenged member. After such examination and cross-examination any other evidence bearing on the member's fitness to serve shall be heard. If the challenged member is to be examined under oath as to his fitness to serve, the counsel for the board shall administer the oath or affirmation as set forth in Appendix A.

(2) The burden of establishing the challenge is on the party who made the challenge. The challenged member shall withdraw when the board is closed to vote upon the challenge. A unanimous vote (or a majority vote of a five-member board) is sufficient to sustain the challenge; a tie vote shall serve to disqualify the challenged

member. The board shall decide the challenge according to the preponderance of the evidence. When a challenge reduces the board below the required number of members, alternate members will be called by the president (or senior member) of the board.

(c) Administering oaths.-The prescribed oaths or affirmation for the president and board members, the reporter, and the counsels for the board and the party, as set forth in appendix A, shall be administered to each board (see JAG Manual, sec. 0111). If the form of affirmation is used, the closing sentence of adjuration will be omitted. The counsel for the board shall administer the oath in the form set forth in Appendix A to each party and witness before he first testifies.

(d) Evidence.-(1) Before taking testimony, the counsel for the board will, for the record, present all papers pertaining to the case to the board in open session. These papers may be inspected by the party and his counsel during the hearing. The party or his counsel may cross-examine the author of the document, record, or statement by calling him as a witness, if he is located at the installation at which the PEB is located or otherwise reasonably available, or by taking his deposition.

(2) A PEB shall consider all documentary evidence transmitted to it by proper authority. The board, in addition, may require and examine such records as may be in the files of the Department of the Navy that relate to the issues before the board. All evidence having a probative value as to the determination of issues before the board shall be considered. In consideration of the weight or probative value to be accorded evidence, the members of the board are expected to utilize their background and experience, their common sense, and their knowledge of human nature and behavior. In every case, the testimony of the party concerned shall be considered in connection with all the evidence adduced and given such weight as the board may believe it merits. When the testimony presented at the hearing indicates that the party claims to have disabilities not disclosed by the official medical records or presents evidence

sharply in conflict with official medical records, and the issue thus drawn is not one that can be readily resolved by the observation of the board, there shall be further development of the case by requesting further physical examination, special studies, or further investigation by appropriate agencies; and the hearing shall be adjourned until such development has been accomplished. Recommended findings of the board shall be based upon evidence consistent with a reasonable probability of truth.

(e) Party testimony.-A party appearing for a formal hearing will be advised by the board that, if he so desires, he may:

(1) Testify as a witness, under oath, in his own behalf; in which case, he may be cross-examined as any other witness;

(2) Introduce witnesses, sworn statements, documents, or other evidence in his own behalf and cross-examine witnesses examined by the board;

(3) Make an unsworn statement, personally or through counsel, or both, oral and/or written, without being subject to cross-examination;

(4) Make an oral argument and/or file a written argument (appended to the record of proceedings), personally or through counsel, or both; or

(5) Remain silent.

The party is not required to make any statement relating to the origin, incurrence, or aggravation of any disease or injury he may have, unless the party opens up such matters on his direct testimony before the PEB. (See 10 U.S.C. 1219)

(f) Witnesses.-The presence of witnesses at every hearing is not required. The board may summon military witnesses whose presence is requested by the party or his counsel, if the witnesses are reasonably available and if, in the opinion of the board, their testimony is essential or contributes materially to the case. Article 49, UCMJ (10 U.S.C. 849), is used in determining reasonable availability of witnesses. The use of affidavits or depositions to obtain testimony of witnesses is encouraged. The board may summon military witnesses considered necessary to complete its recommendations

and to comply with the legal requirements of a full and fair hearing. To assure the attendance of a military witness, the president of the board will request the proper commander to make the necessary arrangements for the timely presence of the witness, provided he is reasonably available. It is the responsibility of the party and his counsel to make the necessary arrangements for the attendance of a civilian witness appearing on behalf of the party.

(g) Objections.-Objections may be made to any action (other than a challenge) taken or proposed to be taken by the board, as well as to the admission of testimony. Objections, when made, are recorded as part of the proceedings. The board must note in the record its ruling on any objections that may be offered. Ordinarily, the objections are passed upon by the president of the board. However, if any other member dissents from the president's ruling, the objection is ruled upon by the board in closed session. The ruling is the decision of the majority of the board and is announced on the reopening of the hearing.

(h) Continuance of hearing.-The board may continue a formal hearing on its own motion. A formal hearing may also, for reasonable cause, be continued at the request of the counsel for the board, the party, or his counsel.

(i) Recommended findings.—Upon completion of the presentation of the case, the board will be closed for deliberation. No person, other than the voting members, will be present during closed sessions. The voting members then arrive at the recommended findings as prescribed in this chapter. Upon completion of the deliberations, the board will reopen and the findings will be announced to the party or counsel.

(j) Minority report.-Each recommended finding made pursuant to this chapter, which is concurred in by a majority of the board, shall constitute the action of the board. Any dissenting member of the board shall make a minority report concerning those particulars in which he does not agree with the action of the board. The

report will be attached as part of the record of proceedings. Reference will be made to the attachment in the space provided for minority findings on NAVSO 6100/16.

(k) Action prior to final adjournment.-The board, upon its own motion at any time prior to forwarding the record of proceedings, may set aside its previous recommended findings, consider further evidence, and make new recommended findings.

§ 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)).

(a) Upon completion of a formal hearing the voting members shall meet in closed session and, after having considered and deliberated upon all the evidence before it, the PEB shall announce, through the president, the board's recommended findings. The recommended findings shall be made as prescribed in this chapter. The board shall determine:

(1) That the party is fit or unfit because of physical disability;

(2) If the party is unfit, that such disability was (incurred) (aggravated) while the party was entitled to receive basic pay;

(3) That such disability (is) (is not) the result of intentional misconduct or willful neglect, and whether such disability (was) and (was not) incurred during a period of unauthorized absence;

(4) (i) That such disability (is) (is not) the proximate result of active duty (because of aggravation) (when applicable), or

(ii) That such disability (was) (was not) incurred in line of duty, in time of war or National emergency, or

(iii) That the party has over 8 years of active service;

(5) That accepted medical principles indicate that such disability (is) (may be) permanent; and

(6) That such disability is ratable at (percentage) in accordance with the standard Schedule for Rating Disabilities in current use by the Veterans' Administration.

(b) If, for any reason, the PEB is unable to make the foregoing determi

nations because of insufficient information, the case will be promptly returned to the commanding officer of the referring hospital for clarification. The reason for its return will be clearly stated in the letter of transmittal. Examples of reasons are as follows:

(1) Further physical examination or the preparation of additional records. (2) Further information and description by the medical board of the party's defects and their effect on his functional ability or his ability to perform duty;

(3) Further hospitalization for observation, evaluation, and reconsideration by a medical board; and

(4) Correction or explanation of apparent errors, omissions, or inconsistencies in case records or supporting documents.

(c) Finding One: Fit/Unfit: (1) If it is considered that the party concerned is fit to perform the duties of his office, grade, rank, or rating, the PEB shall make the following recommendation only: "It is recommended that (name of party) be found fit for duty."

(2) If it is considered that the party concerned is unfit to perform the duties of his office, grade, rank, or rating, solely because of a condition or defect not a physical disability, the PEB shall make the following recommended finding only: "It is recommended that (name of party) be found unfit to perform the duties of his office, grade, rank, or rating because of (specify condition or defect)."

(3) If it is considered that the party concerned is unfit to perform the duties of his office, grade, rank, or rating because of physical disability, the PEB shall make the following recommended finding: "It is recommended that (name of party) be found unfit to perform the duties of his office, grade, rank, or rating because of physical disability," namely:

(i) List diagnosis and ICDA number of each disability contributing to the party's unfitness. The primary diagnosis rendering the party unfit shall be listed first. The remaining diagnoses shall be listed in order of importance and degree of impairment caused.

NOTE: In any case in which the party found unfit by reason of physical disability, has more than one condition, the board

shall submit recommended findings with respect to each condition causing physical disability which the party presents.

(4) Discussion: (i) "Unfit because of physical disability" is defined in § 725.229, supra. To become eligible for disability benefits under 10 U.S.C. ch. 61, it must be determined that a party is unfit to perform the duties of his office, grade, rank, or rating because of physical disability. Therefore, this is the first determination that must be made. A party is considered unfit because of physical disability when he is unable, because of disease or injury, to perform the duties of his office, grade, rank, or rating in such a manner as to reasonably fulfill the purpose of his employment on active duty. A party who is not physically qualified to perform full and unrestricted duty is unfit because of physical disability. A party may be unfit because of a defect, or from the combined effect of two or more defects, even though one of them alone would not cause unfitness.

(ii) Although a party may have disabilities which are ratable in accordance with the Veterans Administration Schedule for Rating Disabilities, such disabilities do not necessarily render him unfit for naval service. In each case considered, it is necessary to correlate the nature and degree of functional impairment produced by physical disability with the requirements of the duties to which the party may reasonably expect to be assigned by virtue of his office, grade, rank, or rating (excluding special hazardous duty, such as duty involving flying, etc., but giving due consideration to the requirements of other potential sea, field, or combat assignments).

(iii) A party who has a condition which is likely to render him unfit in the near future will be considered to be unfit for duty, even though he may be physically capable of performing all of his duties at the moment. On the other hand, a party who remains hospitalized or who is convalescing with a prognosis for a return to duty in the near future will be considered to be fit for duty.

(iv) In each case, the overall effect of all defects present must be considered, both from the standpoint of the