board's report. Such report shall contain a verbatim record of the board's findings and recommendations, and, where required by the convening authority, a verbatim record of the board's opinions.

(i) The report of the board shall be based upon the concurrence of the majority of the voting members. If a member does not concur in the findings, opinions, or recommendations of the majority, he shall append his minority report to the record and state explicitly the parts of the majority report with which he disagrees and the reasons therefor. The minority report may also include additional findings of fact, opinions, or recommendations.

(ii) All concurring members shall sign the report of the board immediately under the findings of fact, opinions, and recommendations. In the case of a minority report, all members concurring therein shall sign the report in a manner similar to the signing of the majority report.

(3) See paragraph (g)(6) of this section with regard to the respondent's right to a copy of the board's report, or the board's proceedings, or any endorsements thereon.

(4) See paragraph (g)(7) of this section with regard to the notification to a respondent of the recommendations made by an administrative discharge board in his case.

(e) Recommendations by the board. The recommendations of the board, as required by paragraph (d)(2) of this section, will include a recommendation for one of the following alternative dispositions of the respondent.

(1) Retention, or

(2) Discharge: If the respondent's discharge is recommended, the general and specific bases therefor (e.g. by reason of unfitness because of an established pattern showing dishonorable failure to pay just debts), and the character and type of the discharge (e.g. lished pattern showing dishonorable with an undesirable discharge), will be specified. If the respondent's discharge is recommended, it is not appropriate for the board to further recommend that the discharge be suspended on probation, that nonjudicial

punishment be imposed, or that courtmartial proceedings be instituted.

(f) Counsel for a respondent. (1) Where, in an appropriate case, a member has not waived a hearing before an administrative discharge board or the right to be represented by counsel before that board, and the member is, under the provisions of this subpart, entitled to a board hearing, he is entitled to be represented by military counsel who shall be a lawyer within the meaning of article 27(b)(1) of the Uniform Code of Military Justice, unless the officer empowered to convene an administrative discharge board having jurisdiction over the member's case certifies in the permanent record the nonavailability of a lawyer so qualified and sets forth the qualifications of the substituted nonlawyer counsel. See § 730.50(e)(10). Where such officer (convening authority) does not possess general courtmartial jurisdiction over the respondent, he shall, before certifying the nonavailability of lawyer counsel, as contemplated herein, effect appropriate liaison with the officer who exercises general court-martial jurisdiction over the respondent. In every case where a certification of the nonavailability of lawyer counsel is made, such certification will include the reasons for the determination of nonavailability.

(2) Where the respondent desires to be represented by civilian counsel or is represented by military counsel of his choice, he may excuse any appointed military counsel.

(3) If the respondent desires to be represented by civilian counsel, the convening authority shall cause it to be clearly explained to the respondent that civilian counsel will not be provided at any expense to the Government. The respondent will be given a reasonable opportunity to obtain civilian counsel without unduly delaying the administrative discharge board proceedings. If undue delay appears likely, the convening authority may require the respondent to proceed without the desired civilian counsel. In this latter event, the convening authority will set forth the full circumstances thereof in the record, and will appoint available military counsel for

the respondent, or will permit the respondent to be represented by reasonably available military counsel of the respondent's choice.

(4) Where the respondent requests a specific military counsel of his own selection, whether or not such counsel is a lawyer within the meaning of article 27(b)(1), Uniform Code of Military Justice, and if the requested military counsel is reasonably available within the convening authority's command, such requested military counsel will normally be provided the respondent. Where requested military counsel is a member of a Marine Corps command not under the command of the convening authority, the convening authority will forward the respondent's request to the commanding officer of such requested military counsel, who will provide the requested counsel if he is reasonably available, or who will notify the convening authority of the unavailability of the requested counsel and the reasons therefor.

(5) In determining if lawyer counsel is reasonably available to be appointed to represent the respondent, the same standards will be applied as are applicable when an accused, who is to be tried by special court-martial, requests to be represented by lawyer counsel. In determining if a specific military counsel of the respondent's own choice is reasonably available, the same standards will be applied as are applicable when an accused, who is to be tried by special court-martial, requests to be represented by a specific military counsel. In determining whether undue delay in administrative discharge board proceedings appears likely to result from either the respondent's efforts to obtain a civilian counsel, or from the availability of such civilian counsel only at a future date which would unduly delay the board's proceedings, the same standards will be applied as are applicable when an accused to be tried by special court-martial desires to be represented by civilian counsel.

(6) Any necessary expenses incident to the authorized travel or per diem of a respondent's military counsel will be born by the operation and maintenance allotment of the convening authority.

(7) If counsel for the respondent is absent, the board shall not proceed until his return, or until new counsel for the respondent is retained by the respondent or appointed by the convening authority. However, the respondent may waive his right to have counsel present at the board's proceedings, provided the respondent understands his right to counsel and the effect of the waiver. The explanation of this right and any waiver thereof shall be reflected in the record.

(g) Additional rights of the respondent. In addition to the rights of the respondent which are specifically listed elsewhere in this subpart, a respondent who has not waived a hearing before an administrative discharge board, and whose case is presented to such board, has the following rights:

(1) Subject to his availability, i.e., not in civil confinement or on unauthorized absence, he may appear in person, with or without counsel, or in his absence be represented by counsel, at all open proceedings of the board. However, where the respondent has been on continuous unauthorized absence for more than 1 year, this provision is not applicable, since no administrative discharge board is required in such cases.

(2) He or his counsel, if any, will be notified a reasonable time in advance of the hearing before the board of the time and place of the board's meetings; of the names of all witnesses who are expected to be called to testify against him; and will be given an opportunity to examine all documents, reports, and other evidence which it is expected that the board will consider. This latter examination will be permitted to the same extent that a defense counsel representing an accused before a court-martial is permitted to examine the files and other material in the hands of the prosecution.

(3) He has the right, at his option, to submit or not submit to examination by the board. The provisions of article 31, Uniform Code of Military Justice, will apply. See paragraph (c)(5) of this section. However, if he elects to testify on his own behalf, he will be considered to have waived the protection accorded him by article 31 and he may be examined by the recorder or by the

board on any matters which are relevant to the board's proceedings, regardless of whether or not he testified to these matters on direct examination. Subject to the foregoing and the provisions of paragraph (c)(2) of this section, he may make or submit to the board any statements, sworn or unsworn, oral or written, on his own behalf.

(4) Subject to his availability and the provisions of paragraph (c)(14) of this section, he has the right to examine all witnesses personally appearing before the board to testify on his behalf, and the right to be confronted by and cross-examine all witnesses who personally appear before the board and testify against him. He or his counsel will be given a reasonable opportunity to cross-examine all absent witnesses whose statements are considered against him. This cross-examination may be accomplished by deposition, affidavit, correspondence, or any other means which will elicit answers or statements from the absent witness in a form acceptable to the board. While the reasonable opportunity for such cross-examination must be provided, the fact that an absent witness cannot be located, or is dead or physically incapacitated, or refuses to submit to such cross-examination, or does not reply to communications from the respondent or his counsel, will not, by itself, be a bar to the board's consideration of the absent witness' statements already in its possession. However, if the respondent or his counsel is not given a reasonable opportunity to cross-examine absent witness whose statement is adverse to him because the witness is an unidentified informant whose name or location an investigative agency refuses to divulge to the respondent or his counsel, then neither the board nor the convening or Discharge Authority will consider the witness' statement in connection with the respondent's case. See paragraph (c)(13)(ii) of this section.

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(5) He may at any time before the board convenes, or during the proceedings, introduce or submit any evidence, answer, deposition, sworn, or unsworn statement, affidavit, certificate, or stipulation. This includes but is not

limited to depositions of witnesses not deemed to be reasonably available or witnesses unwilling to appear voluntarily.

(6) He shall not be entitled, as a matter of right, to a copy of the board's proceedings, or report, or any endorsements thereon. However, the convening authority or Discharge Authority may authorize the delivery to and retention by a respondent of a copy of the board's proceedings or report, or any endorsements thereon, or any part or summary thereof.

(7) Except as otherwise specifically provided herein, or except as otherwise directed by the convening authority or by the Discharge Authority, he shall not, as a matter of right, be entitled to be notified of the recommendations made in his case by an administrative discharge board or by the convening authority thereof.

(h) Subsequent administrative discharge board proceedings. (1) No member will be subjected to administrative discharge board action based upon conduct which has previously been the subject of administrative discharge board proceedings when the evidence before the subsequent board Iwould be the same as the evidence before the previous board, except in those cases where the findings of the previous board favorable to the respondent are determined by the Discharge Authority to have been obtained by fraud or collusion, or except in those cases wherein the Discharge Authority finds legal prejudice to the substantial rights of the respondent. Evidence before a subsequent board is not the same as evidence before a previous board where it includes acts or omissions on the part of the member which have not been considered by the previous board, or where it includes administrative or judicial determinations made with regard to the member which have not been considered by the previous board and which are, pursuant to the provisions of this paragraph, competent for the subsequent board to consider.

(2) Conduct is considered to have previously been the subject of administrative discharge board proceedings when the previous board has submitted the record of its proceedings to the

Discharge Authority, which record includes one of the recommendations prescribed by paragraph (e) of this section.

(3) When a subsequent board is convened, no voting member of the subsequent board shall have served on a previous board as a voting member or have been the recorder or assistant recorder of a previous board which considered the same matter. However, the recorder and/or the assistant recorder of the previous board may serve as the recorder and/or assistant recorder of the subsequent board.

(4) The record of the proceedings and report of the previous board may be furnished the subsequent board. However, the subsequent board will not be furnished the findings, opinions or recommendations of the previous board, nor the matter contained in the previous board which was considered by the Discharge Authority to have been prejudicial to the substantial rights of the respondents, nor any matter determined by the Discharge Authority to have been obtained by fraud or collusion, nor the specific comments of the convening authority or Discharge Authority concerning the previous board. Such excluded matter should, however, be furnished the recorder of the subsequent board in order that he may ensure that such matter is not permitted to be injected into the subsequent proceedings. The subsequent board shall submit its findings, opinions (if required by the convening authority), and recommendations, de novo. However, the subsequent board may, in an appropriate case, base its findings of fact, opinions, and recommendations solely upon the evidence properly considered by the previous board, i.e., in cases in which the evidence before the subsequent board is the same as that before the previous board except for the evidence excluded as a result of the Discharge Authority's finding of legal prejudice to the substantial rights of the respondent, or his determination that the findings of the previous board were obtained by fraud or collusion.

(5) When a Discharge Authority sets aside the findings and recommendations of a previous board, pursuant to the provisions of this paragraph, and

appoints a subsequent board to hear the respondent's case, no further action is required prior to the subsequent board's hearing of the respondent's case other than the appointment of the subsequent board; notifying the respondent and his counsel of the appointment of the subsequent board and the reasons for setting aside the findings and recommendations of the previous board; and giving the respondent and his counsel timely notice of the time and place of the subsequent board hearing, of the witnesses to be heard, and of the evidence to be considered before the subsequent

board.

(6) Subject to the foregoing, the subsequent board's proceedings, and the rights of the respondent thereat, will be the same as if the subsequent board was initially hearing the respondent's case. The subsequent board's proceedings and report will be prepared, forwarded and acted upon in the same manner as if the subsequent board was initially hearing the respondent's case.

(7) If the Discharge Authority sets aside the findings and recommendations of an administrative discharge board because he finds legal prejudice to the substantial rights of the respondent and refers the case to a subsequent administrative discharge board, the Discharge Authority may not approve findings or recommendations of the subsequent board which are less favorable to the respondent than those rendered by the previous board. Where the Discharge Authority sets aside the findings and recommendations of a previous board because he determines that the findings thereof favorable to the respondent were obtained by fraud or collusion, and orders subsequent board proceedings, he is not bound to approve findings or recommendations of the subsequent board which are as favorable or more favorable to the respondent than those rendered by the previous board. In the latter case, however, the Discharge Authority will comply with the provisions of paragraph (i) of this section.

(i) Action by the convening authority/discharge authority. (1) The record of proceedings and the report of the board will be submitted to the conven

ing authority. Where the convening authority is not the appropriate Discharge Authority, he will take such action with respect to the board's report as is prescribed in

§ 730.66(h)(1).

(2) Upon the receipt of the record of proceedings and report of the board, the Discharge Authority will refer such record and report to his staff legal officer for written review prior to taking his action thereon. See § 730.76. Upon completion of the foregoing, the Discharge Authority may take one of the following actions:

(i) Approve the board's recommendations and direct their execution.

(ii) Approve the board's recommendation for discharge and the general and specific bases therefor, but direct a change in the type and character of discharge recommended by the board to a more creditable one. For example, he may approve the board's recommendation that the respondent be discharged for the general basis of unfitness and for the specific basis of an established pattern of shirking, but disapprove the recommended undesirable discharge and direct the respondent's discharge with a general or honorable discharge. Except as provided by §§ 730.52 and 730.53, the Discharge Authority, in upgrading a recommended undesirable discharge, will not normally direct discharge with any more creditable type of discharge than is otherwise warranted by the respondent's military record. Under no circumstances shall the Discharge Authority direct the respondent's discharge with a less creditable type of discharge than that recommended by the board, e.g., he may not direct the respondent's discharge with a general discharge when the board has recommended discharge with an honorable discharge.

(iii) When the record indicates that such action would be appropriate, approve the board's recommendations for the respondent's discharge with the type and character of discharge recommended but direct that the general and specific bases of the recommended discharge be changed. See § 730.50(e)(13)(ii). For example, he may approve the board's recommendation that the respondent be dis

charged with a general discharge, but disapprove the recommendation that the general basis of the discharge be misconduct and that the specific basis for the discharge be conviction by civil authorities of an offense involving moral turpitude, and he may direct that the general basis of the discharge be changed to discharge for the convenience of the Government and that the specific basis for the discharge be changed to substandard personal behavior which reflects discredit upon the service.

(a) It is desirable that the Discharge Authority, in directing a change to the bases for a recommended discharge, specify both the general and specific bases therefor and the specific section, paragraph or subparagraph of this subpart applicable to the type of discharge he directs (e.g., discharge for the convenience of the Government because of substandard personal behavior-§ 730.61(a)(5) and SECNAV Instruction 1910.3, paragraph 3b(5)). However, where there is no specific subparagraph of this subpart which is applicable to the specific basis for the discharge, the Discharge Authority may merely specify the applicable general paragraph. For example, if the board recommends the respondent's discharge with a general discharge for the general basis of misconduct and for the specific basis of conviction by civil authorities of an offense involving moral turpitude, the Discharge Authority may direct the respondent's discharge with a general discharge, but may change the general basis therefor from misconduct to unsuitability and not specify a specific basis for the discharge. In this case, the authority cited for the discharge may be simply the general paragraph citation: § 730.65, since a conviction by civil authorities of an offense involving moral turpitude does not fall within the specific purview of any of the provisions of § 730.65(a)(1) through (7).

(b) The Discharge Authority may not direct a change in the general basis of the recommended discharge which is less favorable to the respondent, e.g., he may not direct that the general basis for the respondent's discharge be changed to unfitness or misconduct when the board has recom