tiously review such case on the record submitted to it and any other evidence received prior to the time of review, forwarding its findings as soon thereafter as possible.

8725.711 Request for review of retirement or separation without pay for physical disability.

Any officer or former officer retired or released from active service for physical disability without pay pursuant to the recommendation of a PEB or Board of Medical Survey, desiring a review of his case, may request such review. Such a request for review shall be in writing and shall be submitted to the Chief of Naval Personnel or the Commandant of the Marine Corps, as appropriate. No request for review will be granted under these regulations unless received in the Department of the Navy within 15 years after the date of retirement or separation. Upon receipt of a request for review, the Chief of Naval Personnel or the Commandant of the Marine Corps, as appropriate, shall note thereon the time of receipt and will, when it appears that the NPDRB has jurisdiction to review the case, transmit the request for review and any supporting documents to the president of the Board with the authorization for review.

$ 725.712 Oath.

Members of the NPDRB convened to act in any case presented to it by proper authority shall be sworn as follows: "You, and each of you, do solemnly swear (or affirm) that you will honestly and impartially examine and report upon the case of

about to be examined by the Board. So help you God" (The sentence "So help you God" is omitted in affirmation).

§ 725.713 Challenges.

No challenge to the members of the NPDRB, other than a challenge for cause, will be entertained by the Board. Procedure for challenging shall be the same as for members of a Court of Inquiry.

8725.714 Evidence.

The NPDRB shall consider all documentary evidence transmitted to it by proper authority. The Board, in addi

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tion, may require and examine such records as may be in the files of the Department of the Navy which relate to the issues before the Board. All evidence having a probative value as to the determination of issues before the Board may be considered without limitation by the restriction of the technical rules of evidence. The Board shall receive any additional relevant evidence party may present. Witnesses shall be permitted to present evidence either in person or by affidavit. All witnesses before the Board shall be subject to cross-examination by party, his counsel, or counsel for the Board. Members of the Board may question witnesses. Party may submit a statement, either oral or in writing, to the Board, may take the stand as a witness, or may be called as a witness by the Board. All oral testimony shall be taken under oath or affirmation administered by the Recorder in the manner set forth in Appendix "A." Not less than 3 days prior to the date set for hearing, all records and papers pertaining to the case shall be made available to party or his counsel, as appropriate, who shall have the right to inspect such records and papers, to have copies made if practicable, and to make notes therefrom. Party or his counsel in writing may waive the right to such 3-day inspection period. Party, if available, may be examined physically by the medical members of the Board or by a medical officer detailed by the Chief, Bureau of Medicine and Surgery. The report of such examination, either oral or in writing, may be placed before the Board in the same manner as other evidence.

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 the 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 review in accordance with § 725.711. Upon receipt of authorization for review, the Recorder of the Board shall assemble all records available in the case and notify party and counsel (if any) of the time and place of hearing. Such notice shall be placed in the mails 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) the medical members will not be subject 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

tiously review such case on the record submitted to it and any other evidence received prior to the time of review, forwarding its findings as soon thereafter as possible.

$ 725.711 Request for review of retirement or separation without pay for physical disability.

Any officer or former officer retired or released from active service for physical disability without pay pursuant to the recommendation of a PEB or Board of Medical Survey, desiring a review of his case, may request such review. Such a request for review shall be in writing and shall be submitted to the Chief of Naval Personnel or the Commandant of the Marine Corps, as appropriate. No request for review will be granted under these regulations unless received in the Department of the Navy within 15 years after the date of retirement or separation. Upon receipt of a request for review, the Chief of Naval Personnel or the Commandant of the Marine Corps, as appropriate, shall note thereon the time of receipt and will, when it appears that the NPDRB has jurisdiction to review the case, transmit the request for review and any supporting documents to the president of the Board with the authorization for review.

$ 725.712 Oath.

Members of the NPDRB convened to act in any case presented to it by proper authority shall be sworn as follows: "You, and each of you, do solemnly swear (or affirm) that you will honestly and impartially examine and report upon the case of

about to be examined by the Board. So help you God" (The sentence "So help you God" is omitted in affirmation).

§ 725.713 Challenges.

No challenge to the members of the NPDRB, other than a challenge for cause, will be entertained by the Board. Procedure for challenging shall be the same as for members of a Court of Inquiry.

$ 725.714 Evidence.

The NPDRB shall consider all documentary evidence transmitted to it by proper authority. The Board, in addi

tion, may require and examine such records as may be in the files of the Department of the Navy which relate to the issues before the Board. All evidence having a probative value as to the determination of issues before the Board may be considered without limitation by the restriction of the technical rules of evidence. The Board shall receive any additional relevant evidence party may present. Witnesses shall be permitted to present evidence either in person or by affidavit. All witnesses before the Board shall be subject to cross-examination by party, his counsel, or counsel for the Board. Members of the Board may question witnesses. Party may submit a statement, either oral or in writing, to the Board, may take the stand as a witness, or may be called as a witness by the Board. All oral testimony shall be taken under oath or affirmation administered by the Recorder in the manner set forth in Appendix "A." Not less than 3 days prior to the date set for hearing, all records and papers pertaining to the case shall be made available to party or his counsel, as appropriate, who shall have the right to inspect such records and papers, to have copies made if practicable, and to make notes therefrom. Party or his counsel in writing may waive the right to such 3-day inspection period. Party, if available, may be examined physically by the medical members of the Board or by a medical officer detailed by the Chief, Bureau of Medicine and Surgery. The report of such examination, either oral or in writing, may be placed before the Board in the same manner as other evidence.

statement showing whether the decisions or recommendations of the board being reviewed are affirmed or reversed. The findings or opinions and decisions or recommendations of the NPDRB shall be made in closed session in each case. Findings, opinions, recommendations, or decisions, as appropriate, shall be made in accordance with phraseology prescribed at the time of the officer's retirement or release.

§ 725.717 Review of PEB action.

(a) In cases arising under 10 U.S.C. 1554, phraseology as required under § 725.519 to § 725.525, as appropriate, shall be used. However, the recommended findings shall relate to the date of retirement or release from active service and the record shall so state. In the event a case is referred to the NPDRB by competent authority wherein an officer or former officer was retired or separated prior to October 1, 1949, the phraseology shall conform to that required by regulations existing at the time of such retirement or separation.

(b) In cases referred to the NPDRB pursuant to § 725.605, the Board shall render an advisory opinion for the Secretary of the Navy as to the appropriate recommended findings upon which it considers that final disposition should rest.

§ 725.718 Minority opinions, findings, recommendations, or decisions.

Any dissenting member of the NPDRB shall make a minority report on those particulars in which he dissents. Such report shall be included in the record of proceedings of the Board.

§ 725.719 Proceedings of the Board.

(a) The proceedings of the NPDRB shall be conducted in accordance with instructions set forth in this chapter and in accordance with the JAG Manual, ch. IV, insofar as is practicable.

(b) The officer senior in precedence among the members of the NPDRB considering any one case shall act as the presiding officer of the Board. He shall take appropriate action to preserve order in all sessions of the Board

and to insure that the proceedings are conducted in a dignified and judicial manner. He will rule upon all interlocutory questions except challenges. His ruling or interlocutory questions may be objected to by any other member of the Board (and such objections will be decided by a majority vote of the Board members in closed sessions of the Board), and he will speak for the Board in announcing its recommended findings and the result of any vote upon challenge or other interlocutory question.

§ 725.720 Preparation of record of proceedings.

The record of proceedings of the NPDRB shall be prepared as prescribed for Courts of Inquiry in the JAG Manual, insofar as practicable. The record shall include verbatim transcript of the testimony of all witnesses, all arguments by counsel, and such original documents (or certified copies thereof) presented to the Board as evidence. In those cases where a full and fair hearing is held, a copy of the notification of such hearing shall be appended to the record. The record of proceedings shall be authenticated by the Recorder and by the senior member of the Board in that order, except that in the absence of the senior member the record may be authenticated by any other member who acted in the case.

§ 725.721 Forwarding of record of proceedings.

The record of proceedings of the NPDRB in cases arising under 10 U.S.C. 1554 shall be forwarded promptly to the Judge Advocate General for transmission to the Secretary. In cases considered pursuant to § 725.605, the record of proceedings shall be promptly forwarded to the Secretary of the Navy (JAG).

Subpart H-Final Action, Relief From Final Action, and Other Actions on the Record

§ 725.801 Final action.

(a) The findings and the recommendations authorized to be made by these regulations have no legal effect

until approved by the Secretary of the Navy. The administrative finalization of each case processed under these regulations will be effected in accordance with the final disposition directed by the Secretary and promulgated by the Judge Advocate General.

(b) No findings, recommendations, decisions or modifications thereof, made under this Manual, shall be considered as conclusive or final, or not subject to modification by competent authority, until final disposition of the case pursuant to action of the Secretary has been effected. However, the recommended findings of a formal PEB, or by the NPDRB after a formal hearing, based on observation or the testimony of witnesses adduced at the hearing, will not normally be modified on any review (other than by the Secretary) without further evidence unless clearly erroneous, and due regard shall be given to the opportunity of the board members to observe the party and judge the credibility of witnesses.

§ 725.802 Action by the Secretary of the Navy.

(a) Excepting those cases acted upon pursuant to the authority delegated in § 725.803, all cases processed under these regulations shall be promptly referred to the Secretary for consideration and direction of final disposition. Generally, the Secretary, in his discretion, may approve findings and direct disposition consistent with the findings approved; disapprove findings and direct disposition appropriate under the circumstances; make independent determinations and direct disposition consistent with the determinations made; direct further proceedings without approving or disapproving findings; or direct final disposition appropriate under the circumstances without approving or disapproving findings. Action upon a case being processed under 10 U.S.C. 1554 will be in accord with the actions which could have been taken upon the proceedings being reviewed.

(b) Each case referred to the Secretary will be reviewed by the Judge Advocate General for an opinion as to whether the proceedings were conducted in accordance with applicable

regulations, the party was accorded all the rights to which he was legally entitled, and the findings of record are legally supportable.

§ 725.803 Delegation of authority to act for the Secretary.

(a) Excluding cases arising under 10 U.S.C. 1554 and cases processed solely for the purpose of making an election under former section 411 of the Career Compensation Act of 1949, the Judge Advocate General, the Deputy Judge Advocate General, or any Assistant Judge Advocate General, acting for the Secretary, may approve the findings of the PRC or the NPDRB and direct final disposition consistent with the findings approved when:

(1) The PRC concurs in the unanimous or the majority findings of a PEB;

(2) The PRC makes substitute findings which are not substantially detrimental to the party;

(3) The PRC makes substitute findings which are acceptable to the party;

(4) The PRC makes findings or concurs in findings which result in the temporary retirement of a party in terminal cases (see § 725.312);

(5) The NPDRB (or a majority thereof) concurs in the findings of the PRC;

(6) The NPDRB (or a majority thereof) concurs in the unanimous or the majority findings of the PEB which are acceptable to the party.

(b) The Judge Advocate General, the Deputy Judge Advocate General, or any Assistant Judge Advocate General, acting for the Secretary, may direct final disposition of a case without approval or disapproval of findings when:

(1) The PRC has recommended that no action be taken in order that the party may be continued on active duty in a limited duty status; or

(2) The PRC has recommended that no action be taken in order that the party may be retired or separated for reasons other than because of physical disability.

(c) The authority delegated in paragraphs (a) and (b) of this section will not be exercised unless review of the case discloses that the proceedings