ferral with a brief statement of reasons therefor.

(i) In a case where there is no action of the PRC as such, because each of the members is in disagreement with the others, and following consultation by the members it appears that such disagreement is irreconcilable, the case shall, if the party has had a formal hearing or has waived same, be referred to the NPDRB with the proposed action of each member with a statement of reasons for each such action, and the party or his counsel shall be given notice of such referral, the proposed actions, and the reasons therefor; otherwise, the case shall be referred directly to a PEB for a formal hearing.

When the party concerned has been notified of proposed substitute findings by the PRC, in accordance with § 725.605(d), he or his counsel shall be allowed 5 days, excluding Saturdays, Sundays, and holidays, to file a rebuttal after receipt of notification. The notification transmitted to the party by the PRC of its proposed substitute findings shall include a brief statement of the reasons for such proposed findings and, if any, conflicting proposed substitute findings made by an individual member of the PRC. In cases with two or more sets of proposed substitute findings, the statement in rebuttal shall specify the findings not concurred in, setting forth the factual and legal basis for nonconcurrence. The party may also propose alternate findings acceptable to the party or some other relief. Failure to submit a statement in rebuttal within the time allowed shall be construed to mean that the PRC's substitute findings are acceptable to the party. The record must contain proof that the party or his legal representative received notification of action under § 725.605(d) or evidence that a reasonable effort was made to provide such notification. For reasonable cause upon request, the time for filing a rebuttal may be extended at the discretion of the PRC.

$ 725.607 Preparation and authentication of records.

Action by the PRC on the record of proceedings of PEB's shall be prepared in appropriate form and shall be signed by all members acting on the case and the Recorder.

$ 725.608 Procedure in Servicemen's Readjustment Act cases.

The PRC shall act in cases arising under 10 U.S.C. section 1554 in advisory capacity only and, in such capacity, shall recommend to the Secretary of the Navy that the findings of a board established under such act be approved or disapproved, or that orders be issued in the case. In the event that other than approval is recommended, the reasons therefor shall be stated. The action of the PRC shall otherwise be prepared in appropriate form and shall be signed by each member acting on the case and by the Recorder. It shall be promptly transmitted to the Judge Advocate General.

§ 725.609 Expedited disability separation. (a) In cases processed under § 725.313 the PRC must insure that the following criteria are met:

(1) The party is unfit for duty and not likely to return to a duty status.

(2) The party's disability was incurred in line of duty and is not due to his own misconduct.

(3) The party's condition is of such nature that functional impairment will be ratable at 30 percent or more.

(4) Unless the functional impairment as it exists at the time of adjudication is 100 percent, the party shall not be permanently retired under the provisions of § 725.313 but his name shall be placed on the TDRL.

Subpart G-Naval Physical Disability Review Board

§ 725.701 Convening authority.

The Secretary of the Navy shall convene the Naval Physical Disability Review Board.

§ 725.702 Function and jurisdiction.

The NPDRB is constituted to review and report upon cases referred to it,

pursuant to § 725.605, and cases arising under the provisions of Title 10 of the United States Code, section 1554. The Board shall have the same powers as exercised by, or vested in, the Board whose action is being reviewed. The Board shall consider the issues before it, in conformity with accepted medical principles, pertinent law and regulation, and established personnel policies.

§ 725.703 Composition.

The NPDRB shall consist of five commissioned officers as members, three of whom shall be nonmedical officers and two of whom shall be medical officers, plus a Recorder. In addition, except in cases arising under 10 U.S.C. 1554, there shall be designated a counsel for the Board and appellate counsel for the party. The counsel and appellate counsel will be required to act, however, only in cases where their services are requested by the president, or by the party whose case is being considered.

§ 725.704 Qualifications.

Each member of the NPDRB shall be carefully selected for his competence, maturity, experience, and soundness of judgment. The Recorder may be either a commissioned officer or a civilian in the employ of the Government. When the party whose case is being considered is a member or former member of the Navy, the nonmedical members shall be officers of the Navy. When the party is a member or former member of the Marine Corps, the nonmedical members shall be officers of the Marine Corps. When the party is a member or former member of a Reserve component, at least a majority of the members of the Board present and acting in the case shall be Reserve officers unless otherwise authorized by the Secretary of the Navy. The appointing order convening the NPDRB may list more than five members, in which case the following provision shall be included in the order: "Only five members of this Board, three of whom shall be nonmedical members and two of whom shall be medical members, are empowered to act in any one case."

The senior officer shall act as president.

§ 725.705 Rank of members.

Although any commissioned officer is eligible for appointment to the NPDRB, care should be taken to avoid great disparity in rank and experience. In no event may rank be permitted either to inhibit or influence junior members in expressing their opinions or in voting.

§ 725.706 Seniority.

Whenever practical, at least a majority of the Board who act on a case shall be senior to the party. In the absence of objection by the party, the seniority of the members of the Board shall be considered as waived.

$ 725.707 Limitation on members.

(a) No medical officer shall act as a member of the NPDRB who has had direct charge of the case of the party or who was a member of the Medical Board which reported on the party. No member of a PEB, the PRC, Naval Retiring Board, or Board of Medical Survey, which acted in the case of the party, shall act as a member of the NPDRB in the same case.

(b) Officers of the Dental Corps, Medical Service Corps, or Nurse Corps are not eligible for membership as medical members of the NPDRB. They may be appointed and sit as nonmedical members only when the party before the Board is a member of the same Corps.

§ 725.708

Counsel for the Board.

When counsel for the Board is required as provided in § 725.703, he shall be a competent, mature, commissioned officer of sound judgment. He shall be a member of the bar of a Federal court or of the highest court of a State. He must be familiar with Board procedures and with the laws, regulations, and instructions governing physical disability retirement and separation and physical standards.

§ 725.709 Appellate counsel for the party.

(a) Appellate counsel for the party shall be a member of the bar of a Federal court or of the highest court of a

State and shall be selected on the basis of his competence, maturity, experience, and soundness of judgment, as well as his knowledge of the laws, regulations, and instructions governing retirement or separation for physical disability.

(b) In proceedings before the NPDRB the party concerned may be represented by civilian counsel, if provided by himself or his representative at no expense to the Government or by military counsel of his own choice, if personally available. In such case, the designated appellate counsel for the party, unless assistance is requested by the party or his chosen counsel, shall not act in the case.

$ 725.710 Procedure.

(a) In cases arising under 10 U.S.C. 1554, the NPDRB will review and report upon the findings and decisions or recommendations of any PEB, Naval Retiring Board, or Board of Medical Survey because of which any person, while serving as an officer of che naval service, has been retired or released from active duty without pay for disability. The Chief of Naval Personnel or the Commandant of the Marine Corps, as appropriate, will report to the Board the cases of personnel requesting and entitled to eview in accordance with § 725.711. Upon receipt of authorization for eview, the Recorder of the Board shall assemble all records available in he case and notify party and counsel if any) of the time and place of hearng. Such notice shall be placed in the nails at least 30 days in advance of the scheduled time of hearing. The proceedings of the Board under this paragraph shall be conducted in accordance with the instructions and regulations which governed the proceedings of the Board whose action is being reviewed, except that:

(1) Physical examination of the individual is not mandatory; (2) the Board will not make a preliminary report; (3) he medical members will not be subect to examination; and (4) the medical members will not submit a report. The Board will meet in open session For the hearing of a case and, at the conclusion thereof, shall meet in closed session for its deliberations and

determinations. Party shall be entitled to appear in person before the Board during open sessions of the Board. He shall be entitled to be represented by counsel of his own choosing, except that no expense thereto will be borne by the Government. A party who, after due notification of the time and place of hearing, fails to appear at the appointed time, is deemed to have waived his right to appear. Party or counsel for the party may waive in writing his right of appearance.

(b) In cases referred to the NPDRB pursuant to § 725.605, the Board shall initially review each case on the record submitted to it. If the Board arrives at prima facie findings which concur in findings of the PEB, and such findings of the PEB have not been rebutted by the party, such findings are to be considered not detrimental to the rights of the party and shall, without further proceedings, be forwarded for final action of the Secretary (JAG). If the prima facie findings of the Board are in any way detrimental to the rights of the party (see § 725.237), the party shall be so apprised thereof and of his right to a hearing before the Board. Where the party then requests to be present, either personally at no expense to the Government, or through counsel, a hearing shall be held. A party who, after due notification of the time and place of the hearing, fails to appear at the appointed time, is deemed to have waived his right to appear. Party or counsel for the party may waive in writing his right of appearance. At such hearing, the Board will receive such relevant evidence, either written or oral, as the party desires to offer. In the event that the party does not desire a hearing, he may submit such additional evidence, arguments, or briefs as he may desire, which will then be considered along with all the other evidence of record. Upon concurrence of the majority of the membership, the Board may cause a record to be returned to a medical board or a PEB for the same reasons that it may be returned by the PRC.

(c) Whenever a case referred to the NPDRB, pursuant to § 725.605, is received within 30 days or less of an impending mandatory separation or retirement date, the Board shall expedi