(1) Copies of medical records or reports received from sources other than the Armed Services of the United States shall not be furnished parties with mental disorders or to parties imprisoned or confined to correctional institutions.

(2) Copies of medical records shall not be furnished parties when such records contain information which may be deleterious to the party's physical or mental health.

(c) Assembly of the record of proceedings shall be as indicated in Table 5-1. Pages of the transcript will be numbered consecutively beginning with page 1.

(d) Transmittal of case record of proceedings to the ONDE will be by the most expeditious means available, preferably by Pouch Air Mail.

(e) The foregoing, however, shall not preclude the review of these records by the counsel for the party. The recipient of such copy of the record of proceedings shall give a dated receipt therefor. The record of proceedings forwarded to the ONDE shall include party's signed and dated statement of intention, his statement in rebuttal (if one was filed), and/or a properly executed registered mail return receipt for party's copy of the proceedings. The PEB shall indicate when a party has not been provided a copy of the proceedings or, when only part of the proceedings was provided the party, indicate what part of the record was not provided. The PEB shall request the party to indicate a mailing address where he can be most expeditiously reached. If these documents are not received by the PEB within ten (10) working days after transmittal of party's copy of the proceedings, the proceedings shall be forwarded to the ONDE with notification concerning nonreceipt.

(f) A copy of the record of proceedings having been furnished to party or his counsel, a charge of $0.25 per page will be made for any subsequent copy requested.

§ 725.528 Proceedings in revision and new hearings.

In the event that a PEB is directed to conduct a new hearing, such hearing shall be conducted and the record

prepared in the same manner as if the board were meeting in the first instance. The record of proceedings in such case shall be prefixed to the original record. A board directed to convene for a hearing in revision shall, when practicable, consist of the same members who previously acted upon the case and shall proceed as instructed by the referring authority. A board conducting a hearing de novo (a new hearing) shall consist of different members than those who previously acted upon the case.

§ 725.529 Action subsequent to forwarding the record.

In the event any cognizant authority shall receive information, subsequent to the forwarding of a record of proceedings of a PEB and prior to final action thereon, that the party concerned, following his hearing before such board, has:

(a) Committed an offense or offenses such as are believed by the cognizant authority to have a possible bearing on the case and should therefore be brought to the attention of the Office of Naval Disability Evaluation;

(b) Incurred disability in addition to that presented at the time of his hearing; or

(c) Suffered an increase in the disability that was evaluated; or that his status has changed in any respect which might affect final action on the record of proceedings, such authority shall immediately forward this information to the ONDE by message, with information copies to the Chief of Naval Personnel or the Commandant of the Marine Corps (Code DMD), as appropriate, the Judge Advocate General, and the Chief, Bureau of Medicine and Surgery. Such message shall be followed as soon as practicable by a complete report of the matter, together with recommendations, concerning the action to be taken. Upon a change in his status occurring subsequent to his hearing before a PEB and prior to final action thereon, which, in his opinion, might affect final action, the party concerned may forward information of such change in the manner provided above.

§ 725.530 Processing time.

In order to provide information concerning the processing time at the various stages of disability evaluation proceedings, the Director, ONDE, shall provide a form to be appended to each record of proceedings in duplicate for recording the chronology of each such proceedings from the date the medical records are received from the Bureau of Medicine and Surgery to the date of final action (See Appendix "B," NAVSO 6100/9 or 6100/9a, as appropriate).

§ 725.531 Counseling.

(a) General. Each party or his legal representative will be counseled throughout the course of disability evaluation processing. The purpose of counseling is to enable the party fully to understand the significance of the findings and recommendations made by the medical board, PEB, PRC, and, if involved, the NPDRB, and his rights with respect to options available to him. Counseling is initially the responsibility of the Disability Evaluation System Counselor (DESC) of the medical treatment facility which conducts the medical board on the member. If, upon advisement of the Central PEB's findings and recommendations, the member demands a formal hearing, the DESC will immediately notify the Recorder of the Central PEB, who will arrange for orders to be issued for such appearance. The counsel for the party, located at the formal board, shall assume the counseling responsibility for all activity connected with that board. After a formal hearing, and the party has returned to the hospital where the medical board originated, or to the administrative command holding the party's Service Record, the counseling responsibility shall be again assumed by the DESC in that geographic area, except counseling which relates to the formal PEB proceedings shall be under supervision of the counsel for the party (See § 725.510(d)). In any event, counseling will be based on the circumstances of the case and designed to serve the party's best interests. Parties under treatment are often most concerned over their eventual disposition. They frequently will have

questions about medical board and PEB procedures, about the possibilities for remaining on active duty in spite of their disabilities, and similar questions, to which answers are not readily available. Such questions should be answered so far as available information permits. Generally, the answer to such questions will be to describe procedures used in handling disability cases. In these circumstances, parties will be reassured that they will be counseled from time to time as their cases progress, and they should be encouraged to ask questions whenever they wish. Unless a DESC is a member of a bar of a Federal court or of the highest court of a State, it is not his function to give legal advice to a party or his legal representative. For this purpose the Navy Law Center in said geographic area or if not practicable, a nearby Naval activity therein which renders legal assistance, shall make available at least one officer who is qualified as prescribed in § 725.510(a) for providing legal advice to parties and their legal representatives referred by the DESC or otherwise asking for such advice.

(b) Stages of counseling. In particular, counseling will be provided at the following stages of disability evaluation processing:

(1) When the findings and recommendations of the medical board are made known to the party or his legal representative;

(2) When the findings and recommendations of the Central PEB are made known to the party or his legal representative;

(3) When the party's case is to be considered by a formal PEB;

(4) When the findings and recommendations of a formal PEB are announced;

(5) When the findings and recommendations of the PRC are made known to the party or his legal representative; and

(6) When the findings and recommendations of the NPDRB are made known to the party or his legal representative.

(c) Scope of counseling. The scope of counseling may vary with the circumstances of the party's case; however, it must include, as a minimum, each of

the matters listed below, to the extent that they are raised by the findings and recommendations:

(1) Statutory rights. The party will be advised that:

(i) No member of the naval service may be separated for physical disability without a full and fair hearing, if he demands it.

(ii) If he is a Reservist, he has the right to at least one Reserve voting member on the PEB considering his case.

(iii) He may not be discharged or released from the naval service by reason of disability until he has executed or refused to execute a claim for compensation, pension, or hospitalization to be filed with the Veterans Administration.

(iv) He cannot be required to sign a statement relating to the origin, incurrence, or aggravation of a disease or injury he has, and that any such statement against his interests, signed by him, is invalid.

(2) Findings and recommendations. Each of the several findings and recommendations made by the appropriate board or PRC must be explained in meaningful, understandable language to the party, together with the effect the recommended findings and recommendations will have on his status.

(3) Pay. Based on the available data, estimate the amount of retired pay or severance pay the member may expect to receive, if the findings or recommendations are approved and show how pay is computed under the several formulae that may apply. Income tax exemptions that may apply under current tax laws and rulings of the Internal Revenue Service and also estimated withholding tax should be explained. The fact that an election made under the Retired Serviceman's Family Protection Plan will result in a deduction from retired pay, and its amount, should be made known to the party. If temporary retirement is recommended, it is to be emphasized that the subsequent changes that may occur in the compensable percentage of disability as the result of periodic reexaminations will not result in an increase or decrease in the amount of party's retired pay, so long as his

name is retained on the Temporary Disability Retired List.

(4) Grade determination. The party must be told that the grade in which he will be retired will be based upon the provisions of applicable law, and that determination of highest grade satisfactorily held will be made by the Secretary of the Navy or Secretary of the Armed Service in which previous service was performed.

(5) Deduction of severance pay from Veterans Administration compensation. It should be made clear to the party that any disability severance pay he may receive will be deducted from any compensation for the same disability to which he may become entitled from the Veterans Administration, and it is thus important for a party who receives disability severance pay promptly to file a claim with the Veterans Administration so that this amortization by the Veterans Administration or disability severance pay will commence as soon as possible. Otherwise, if he defers filing a claim with the Veterans Administration, at some future date when his need for compensation from the Veterans Administration may be great, its receipt will be delayed while his disability severance pay is recouped.

(6) Veterans Administration. (i) Whenever possible, arrangements should be made for a party being retired or separated, because of physical disability, to have a personal interview with the Veterans Administration representative, serving his hospital or installation, concerning his entitlement to Veterans Administration benefits. If, for any reason, this is not feasible, the party shall be counseled as indicated in the following paragraph.

(ii) The party will be advised of his right to apply to the Veterans Administration for disability benefits before separation, or subsequent thereto, or not at all, as he elects. Notwithstanding an election to the contrary, he should be urged to file a claim before separation whether or not he finally decides to avail himself of the Veterans Administration benefits. It must be pointed out that greater monetary benefits may be available from the Veterans Administration, and, although there is no assurance that Vet

erans Administration benefits will be greater, the party is not bound in any case to accept them. All parties should be especially urged to initiate a claim with the Veterans Administration, because the Veterans Administration benefits may be substantially greater, depending on the party's grade, severity of the disability, and his dependency status. The party will be shown how disability compensation paid by the Veterans Administration relates to retired or severance pay. Other potential benefits, such as past service life insurance, survivors' benefits, medical care, and hospitalization, will be pointed out. It will be emphasized in all cases that the Veterans Administration makes its own determination with respect to entitlements and administration of rights and benefits arising under laws it administers and that the Veterans Administration is not bound by determinations made by the naval service.

(7) Temporary Disability Retired List (TDRL). If it has been recommended that the party's name be placed on the TDRL, he will be advised of the effect of such a disposition. He (or his legal representative) will be counseled that he must undergo periodic reexamination when so directed by the Chief of Naval Personnel or the Commandant of the Marine Corps, as appropriate, or his retired pay may be suspended. He will be advised that he must notify the Chief of Naval Personnel (B84) or the Commandant of the Marine Corps (Code DGH), as appropriate, of any change in residence. The party must be informed that the maximum time he is entitled to retirement pay as a result of his TDRL status is 5 years and that final disposition may be made at an earlier date, whenever a report of periodic reexamination discloses that his condition has sufficiently stabilized. He will be informed that changes in the degree of severity of his disability will not affect his retired pay while he is on the TDRL, but that his final disposition may result in permanent retirement, with the same, a greater, or lesser percentage of disability; separation with or without severance pay; or an opportunity to reenter the naval service.

(8) The DESC shall insure that each party counseled has been furnished with a copy of the pamphlet, "Disability Separation" (NAVPERS 1586E/ NAVMC 1117-PD).

(9) Review at Departmental level. Each member will be informed of the review procedures that take place at the Departmental level. He will be told that the PRC, and the NPDRB if a case is referred to them, are authorized to recommend changes or modify PEB findings and recommendations, and he will be advised of the rights and elections available to him in such event.

(10) Legal advice. Each party or his legal representative will be informed of his right to seek legal advice from an officer so designated from a Navy Law Center (or other activity). To this end, the DESC will assist him in making arrangements for such consultation.

§ 725.532 Counseling required by other directives.

The counseling required by the preceding paragraphs applies to disability evaluation cases and does not replace further separation counseling required by other directives.

§ 725.533 Action on cases of parties on the Temporary Disability Retired List.

(a) Upon receipt of a report of a periodic physical examination of a party on the TDRL, or a report of other current medical examinations acceptable to the ONDE, the Central PEB shall evaluate such report and take one of the following actions:

(1) If the party's 5-year period on the TDRL will not soon terminate, and the Central PEB considers that no change in his status is indicated, he will be so informed by the Chief of Naval Personnel or the Commandant of the Marine Corps, as appropriate.

(2) If the party's 5-year period on the TDRL will soon terminate, or if the Central PEB considers that a change in the party's status is indicated, the Central PEB will take action in accordance with § 725.523, and, unless the party has already indicated his concurrence in such action, he or his legal representative will be notified of

such action by the president of the Central PEB.

(b) When a party or his legal representative is notified under paragraph (a)(2) of this section, he shall be further informed that he has 5 days, exclusive of Saturdays, Sundays, and holidays, after receipt of notification to demand a formal hearing. After such period (which may be extended by the president of the Central PEB), if a formal hearing has not been demanded, the record of proceedings of the Central PEB shall be forwarded to the PRC. Otherwise, the case shall be referred to a formal PEB for further consideration and action as provided for in this chapter.

§ 725.534 Action when party fails to report for final periodic physical examination. (a) If the party fails to report for his final physical examination, or otherwise fails to arrange for an acceptable current medical examination, the Central PEB, upon request, shall consider all available records pertaining to the physical condition of the party concerned and, on the basis thereof, recommend to the Secretary (JAG) via the Physical Review Council one of the following final determinations:

(1) That assuming that the party may have undergone maximum improvement consonant with accepted medical principles, he may be considered as fit for duty at the expiration of 5 years after the date his name was placed on the TDRL; or

(2) That, based on the available evidence and accepted medical principles, the party is considered unfit for duty as of the expiration of 5 years after the date his name was placed on the TDRL because of the physical disability for which he was temporarily retired ratable at least at ( ) percent under the standard Schedule for Rating Disabilities in current use by the Veterans Administration.

(b) In the case of a party who has failed to report for a final periodic physical examination, upon a final determination by the Secretary (JAG) as set forth in paragraph (a)(1) of this section, his name shall be administratively removed from the TDRL at the termination of 5 years on such list or as soon thereafter as practicable. How

ever, if the final determination by the Secretary (JAG) is as set forth in paragraph (a)(2) of this section, the party will be permanently retired or separated under 10 U.S.C. sections 1210(c)-(e), as appropriate. The foregoing does not affect any statutory rights if it is subsequently shown that proper notification was not received or that there was just cause for his failure to report. 10 U.S.C. 1210(a).

(c) Action under this paragraph shall be prepared by the Central PEB in such form as its president may prescribe and shall be signed by each member acting on the case and by the Recorder. It shall be transmitted to the Secretary (JAG) via the PRC not earlier than 60 days prior to the end of the 5-year period during which the name of the party is carried on the TDRL.

The Director, ONDE, shall convene a PRC, composed of:

One senior Navy officer provided by the Chief of Naval Personnel;

One senior Marine Corps officer provided by the Commandant of the Marine Corps; One senior Medical Corps officer designated by the Chief, Bureau of Medicine and Surgery; and

One senior Judge Advocate of the Navy or Marine Corps designated by the Judge Advocate General; as members.

In addition to the members enumerated above, an officer shall be assigned by the Director, ONDE, to act as the Recorder for the PRC. The officers assigned to the ONDE for duty on the PRC shall be fully cognizant of the policies in their areas of responsibility or technical specialty. The Commandant of the Marine Corps, the Chief of Naval Personnel, the Chief, Bureau of Medicine and Surgery, and the Judge Advocate General shall furnish the Director, ONDE, with the names of senior Navy and Marine Corps officers (as appropriate to their area of responsibility) to act as alternates on the PRC, in the absence of the permanently assigned members.

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