were conducted in accordance with applicable regulations; the party was accorded all the rights to which he was legally entitled; and the findings to be approved are legally supportable. If review discloses a material defect, the record of proceedings will be returned promptly to the PRC (or the NPDRB) for such further proceedings as are appropriate in the circumstances.

(d) The authority conferred by paragraphs (a) and (b) of this section is permissive and shall not prevent the referral of any case to the Secretary for consideration and direction of final disposition.

§ 725.804 Referred to NPDRB by JAG.

Whenever the Judge Advocate General, in reviewing a case pursuant to the authority delegated in this chapter, considers that the basis for the recommended action or actions is not sufficiently certain to justify the making of determinations on the case for the Secretary, he may refer the case to the NPDRB for consideration, advice, and recommendation.

$ 725.805 Effective date of retirement.

(a) Unless the final disposition directed in a case specifies an effective date of retirement pursuant to the authority contained in 10 U.S.C. 1221, the effective date of retirement because of physical disability (either temporary or permanent) shall be specified by the Chief of Naval Personnel or the Commandant of the Marine Corps, as appropriate. The date specified by the Chief of Naval Personnel or the Commandant of the Marine Corps, as appropriate, shall be the date upon which all administrative procedures incident to retirement are completed, but shall be no later than the first day of the month following the month during which final disposition was directed.

(b) The Judge Advocate General, the Deputy Judge Advocate General, and any Assistant Judge Advocate General is hereby authorized, except as the Secretary of the Navy may otherwise direct, to take action for the Secretary under the provisions of § 725.312 to specify an effective date for the retirement for permanent physical disability or placement on the TDRL of par

ties of the naval service earlier than the date otherwise provided, as recommended by the PRC pursuant to the provisions of this Manual.

§ 725.806 Retirement for other reasons.

A member (who meets all qualifications for retirement because of physical disability but who is also qualified for retirement or separation for other reasons), prior to the effective date of his retirement pursuant to these regulations, may request that no action be taken on his retirement because of physical disability in order that he may be retired or separated for other reasons. Such a request will be addressed to the Secretary and forwarded via the PRC for comment and recommendation. Normally a member will not be retired because of physical disability if he is eligible for retirement or separation for other reasons and makes a timely request for retirement or separation and fully understands the consequences of his election.

§ 725.807 Withdrawal of retirement proceedings.

The Chief of Naval Personnel, Commandant of the Marine Corps, or Chief, Bureau of Medicine and Surgery, may, for good and sufficient reason and with the consent of the party concerned, withdraw any case from the DES. However, if a party's appearance before a PEB has been specifically ordered by the Chief of Naval Personnel or the Commandant of the Marine Corps, the case may be withdrawn only upon approval of the Chief of Naval Personnel or the Commandant of the Marine Corps, as appropriate.

§ 725.808 Relief from final action.

Relief from the executed final disposition directed in a case processed under these regulations may be granted only upon the grounds and in the manner hereafter set forth:

(a) Errors of promulgation. Clerical errors in the promulgation of the final disposition directed in a case may be corrected by the Judge Advocate General, the Deputy Judge Advocate General, or any Assistant Judge Advocate

General, at any time, upon his own initiative, upon the petition of the individual concerned (or his legal representative), or upon the petition of any cognizant authority of the Naval Establishment. If the correction intended does not change the nature of the disposition directed or the percentage of disability applicable for purpose of computing retired pay, correction may be made without notice. Otherwise, the individual concerned (or his legal representative) must be given reasonable notice of the correction intended and afforded an opportunity to submit a statement or other evidence in rebuttal. A petition under this subparagraph should be addressed to the Judge Advocate General and should set forth the alleged error with a statement of the correction desired. No notice is required if the intended correction is beneficial to the party.

(b) Relief involving the cancellation of orders. (1) Mistake of law is a basis for relief from final action. This includes: A failure to grant the party a full and fair hearing if the party made a timely demand for such a hearing; a directed disposition, even though executed, which was without authority; or a decision which, although executed, is contrary to the great weight of the evidence of record. Fraud or misrepresentation of a material fact affecting the final disposition of the case and substantial new evidence are also grounds for relief.

(2) A showing that the disability suffered by an individual, in fact, was different from that reflected by the record of proceedings conducted in his case does not, in itself, affect the validity of the retirement proceedings or the orders based thereon.

(c) Relief involving only a change in the nature or degree of disability reflected by an order of retirement. An otherwise valid order of retirement may be modified to the extent that the percentage of disability contained therein may be changed upon a showing that the nature or degree of disability suffered by a party at the time of his retirement was, in fact, other than that reflected by the record of proceedings conducted in his case. Relief of this nature may be granted upon a petition supported by evidence;

which by due diligence could not have been presented prior to final disposition; which relates to a fact in existence at the time of final disposition; which is not merely cumulative or corroborative of matter considered at the time of final disposition; and which would have warranted the assignment of a higher percentage of disability if presented prior to final disposition.

(d) Procedure for seeking relief. Request for relief on the grounds set forth in paragraphs (b) and (c) of this section may be made by the individual concerned, by his legal representative or counsel, or by any cognizant authority of the Naval Establishment. Request will be by petition filed within 5 years from the effective date of the disposition complained of (except when discharge has been executed, in which case petition should be directed to the Board for Correction of Naval Records) addressed to the Secretary of the Navy, and forwarded via the PRC. No particular form is required. However, the petition must set forth the grounds for requesting relief and the relief desired; and, if the petition is based upon evidence which is not of record in the Department of the Navy, the evidence upon which it is based must be forwarded as an enclosure.

(e) Action by the PRC. All petitions submitted pursuant to paragraph (d) of this section will be considered by the PRC for the purpose of making recommendations relative to whether the relief requested (or any other relief) should be granted. If a petition to be considered was not submitted by the individual concerned (or his legal representative or counsel), the individual concerned (or his legal representative or counsel) will be given reasonable notice of the matter presented by the petition and afforded the opportunity to submit a statement or other evidence in rebuttal. All petitions considered and the action of the PRC thereon will be promptly forwarded to the Judge Advocate General for review and action or for referral to the Secretary.

(f) Action by the Judge Advocate General. The Judge Advocate General will review each petition considered by the PRC and either will take action

for the Secretary or will refer the matter to the Secretary for action with comments and recommendations.

(g) Delegation of authority to act for the Secretary of the Navy. The Judge Advocate General, the Deputy Judge Advocate General, or any Assistant Judge Advocate General, in his discretion, may take action for the Secretary on petitions submitted pursuant to paragraph (d) of this section, if he concurs in the unanimous recommendations made by the PRC. All other cases will be referred to the Secretary for action. The authority herein conferred is permissive only and will not preclude the referral of a case to the Secretary for action incident to the specific direction of the Secretary or the election of the Judge Advocate General.

(h) Action by the Secretary of the Navy. In acting on a petition referred for consideration, the Secretary, in his discretion, may deny relief, set aside the final disposition directed in a case and direct further disability evaluation proceedings, or direct such action as is necessary to effect the relief requested or any other relief deemed appropriate.

(i) Effect of filing a petition for relief and action thereon. The filing of a petition for relief shall not affect the directed disposition of an individual or suspend its operation until and unless the Secretary of the Navy (or authority acting for the Secretary) shall so direct. Neither the action of the Secretary of the Navy (or authority acting for the Secretary) upon a petition for relief, nor any action taken by him pursuant to the proceedings on the reopening of a case, shall operate to extend the time for application for review of the original disposition by a statutory board.

with appropriate assignment limitation. A member continued on active duty in accordance with the provisions of this chapter must be unfit because of physical disability with a basically stabilized condition, or one in which accepted medical principals indicate a slow progression of the disabling condition. He must be able to maintain himself in a normal military environment, without adversely affecting his health or the health of other members, or without requiring an inordinate amount of medical care. In addition, the member must request in writing that he be retained.

(b) Members, particularly those with over 20 years of active service, will not be continued on active duty solely to increase their monetary benefits, nor will they be continued unless their employment is justified as being of value to the naval service.

(c) The medical member of the PRC shall advise whether duty in a limited assignment status will or will not jeopardize the member's health or that of other members of the Service. Further, the officer assigned as a member of the PRC by the Chief of Naval Personnel or the Commandant of the Marine Corps, as appropriate, shall certify (for the Chief of Naval Personnel or the Commandant of the Marine Corps) whether the member's services can or cannot be utilized in a limited assignment status, and, if so, whether his services can or cannot be considered to contribute to the effectiveness of the Service. The PRC shall recommend to the Secretary whether to retain the member in a limited duty assignment.

(d) Consideration similar to that given members on active duty shall be afforded members of the Naval and Marine Corps Reserve on inactive duty, except that the certification of the nonmedical member of the PRC shall refer to the utilization of the member in an effective limited assignment under mobilization conditions.

§ 725.902 Disposition of physically restricted members.

A member continued under these provisions shall be closely observed to assure that further continuance, or

conversely separation, is consonant with the best interests of the Service and the member. When a member becomes unable to perform his duties in a limited duty assignment, he shall be admitted to a Naval Hospital for observation, treatment, and appropriate disposition.

Subpart J-Disposition of Members

Whose Names Are Carried on the
Temporary Disability Retired List

§ 725.1001 Periodic physical examination.

(a) The law provides that the maximum time that a member's name can be carried on the TDRL in a pay status is 5 years. A member's name can be removed from the TDRL at any time, whenever a report of physical examination indicates that maximum improvement has been achieved or that the disability is of a permanent nature and not likely to undergo a significant change. Further, the law requires that members, whose names have been placed on the TDRL, shall be given physical examinations at least once every 18 months. The Chief of Naval Personnel or the Commandant of the Marine Corps, as appropriate, will issue appropriate orders for such examinations.

(b) Failure of a member to report for any periodic physical examination, unless he furnishes a report of a current acceptable medical examination, may result in the termination of his disability retired pay and may later be considered as showing an intent on the member's part to abandon benefits. If the member shows good cause for failure to report, the payments may be reinstated and may be made retroactive for a period of not over 1 year.

(c) First notification to report for a scheduled periodic physical examination may be by regular mail. However, when the party fails to report as directed, and a second notification must be forwarded, certified or registered mail (with return receipt) shall be used and the member shall be specifically informed in such second notification that failure to report may prejudice his disability retired pay and may later be considered as manifesting an intent to abandon benefits, resulting

in removal of his name from the TDRL.

(d) Members who have waived retired pay, in order to receive compensation from the Veterans' Administration, are still members of the naval service, and are required to undergo periodic physical examinations when ordered by the Chief of Naval Personnel or the Commandant of the Marine Corps, as appropriate. Failure to report for physical examinations as ordered may result in the suspension of their retired pay account. His retired pay account, once so suspended, will not automatically be reopened when the member later wishes to reelect to receive retired pay because of a decrease in, or termination of, his Veterans' Administration compensation.

(e) Members who are ordered to submit to a physical examination will be reimbursed for travel performed upon submission of a claim and presentation of their orders properly endorsed.

(f) The periodic physical examination should be conducted with the same scrupulous care and thoroughness as the examinations accomplished preliminary to appearance before a Medical Board. This examination should include an evaluation of any disabilities, which have been incurred or become manifest since temporary retirement, as well as the disabilities for which temporarily retired.

(g) Whenever inpatient observation is desirable or necessary for a proper evaluation, admission and retention as an inpatient for a period of 10 days is authorized. This length of inpatient observation may be extended upon the authorization of the Chief of Naval Personnel or the Commandant of the Marine Corps, as appropriate. It is particularly important that admission as an inpatient be effected for proper evaluation or neuropsychiatric cases.

(h) The report of periodic physical examination shall be prepared in letter or narrative summary form. It should contain an accurate interval history and a report of all clinical evaluations and laboratory studies. This report of periodic physical examination need not contain a review of all previous examinations, since these are already matter of record. However,

pertinent previous evaluations may be referenced and attention invited to them.

(i) The report of periodic physical examination should contain a statement as to whether personal appearance of the member before a PEB would be deleterious to his physical or mental health, and whether disclosure of information to the member relative to his physical or mental condition would adversely affect his physical or mental health.

(j) The report of periodic physical examination requires only signature by the medical officer designated to conduct the examination and, unless the orders for the examination otherwise direct, should be transmitted to the ONDE via the commanding officer.

§ 725.1002 Reevaluation of members detained by civil authorities.

The procedures contained in this Manual are subject to modification whenever the party is undergoing confinement by civil authorities or is hospitalized in an institution under State or local control. The following procedures may be utilized whenever the circumstances of the member's confinement or hospitalization indicate that he will be unable to respond to the orders calling for his appearance for physical examination or PEB hearing:

(a) The report of the medical officer or medical assistant serving the confinement facility or institution in which the member is hospitalized may be submitted for the periodic physical examination.

(b) The party will be informed by a notice in writing that his case will be considered by a PEB 30 days from the date of said notice; that unless he waives his right to a formal hearing he will be afforded such hearing on that date but, in the event he fails or is unable to appear on that date, such hearing will be held in his absence with representation by counsel; i.e., by the appointed counsel named in the notice or by civilian counsel of his choice provided at his own expense. In the case of a party who is found to be mentally incompetent, the provisions of §§ 725.510 and 725.517 apply.

§ 725.1003 Termination of temporary disability retirement.

(a) If, as a result of any periodic physical examination, it is determined that the disability of the member concerned has become stabilized; i.e., that no further improvement or deterioration of the disability may normally be expected within the period the member can be carried on the TDRL, one of the following recommendations as to the member's disposition will be made:

(1) Permanent retirement;

(2) Discharge with or without severance pay; or

(3) Fit for return to duty.

(b) In the event the member is to be retained on the TDRL, he will continue to be examined at intervals of 18 months. However, he must be finally reevaluated before the end of the 5year period when final disposition must be made of his status.

(c) If his disability is ratable at less than 30 percent but continues to render him unfit for duty, and if the member has served less than 20 years of active duty (and will not be entitled to retired pay or retainer pay by other provisions of law), he will be discharged with severance pay.

(d) If the member has recovered from his disability to a degree that he is fit to perform his duties, the following may apply:

(1) An enlisted member of a Regular component, subject to his consent, will be reenlisted in his Regular component; an officer in a Regular component, subject to his consent, will be recalled to active duty and, as soon as practicable, be reappointed to the active list of his Regular component, even if this means that there will be a temporary increase in the number of officers authorized for his grade.

(2) A member of a Reserve component, subject to his consent, will be reappointed or reenlisted, as the case may be, in his Reserve component.