action as may be warranted, to the Chief of Naval Material if involving a possible violation in connection with the procurement, acquistions, or disposal of property within the purview of SECNAVINST 4385.1B; or to the Judge Advocate General in any other case. §§ 722.5-722.6 [Reserved] § 722.7 Availability of forms. Supplies of form DD 1787 are available in the Forms and Publications Segment of the Navy Supply System under Stock Number 0102-Lf-0255090. § 723.1 General provisions. (a) Purpose. This part establishes procedures for making application, and the consideration of applications, for the correction of Navy and Marine Corps records (referred to in this part as naval records) by the Secretary of the Navy acting through the Board for Correction of Naval Records (hereinafter referred to in this part as the Board). (b) Authority. Section 131 of the Legislative Reorganization Act of 1946 (2 U.S.C. 190g) provides that no private bill or resolution, and no amendment to any bill or resolution, authorizing or directing the correction of military or naval records, shall be received or considered in either the Senate or the House of Representatives. Section 207 of the same Act, as Title 32-National Defense amended, and as re-enacted and codified in 10 U.S.C. 1552, provides: (a) The Secretary of a military department, under procedures established by him and approved by the Secretary of Defense, and acting through boards of civilians of the executive part of that military department, may correct any military record of that department when he considers it necessary to correct an error or remove an injustice. Under procedures prescribed by him, the Secretary of the Treasury may in the same manner correct any military record of the Coast Guard. Except when procured by fraud, a correction under this section is final and conclusive on all officers of the United States. (b) No correction may be made under subsection (a) unless the claimant or his heir or legal representative files a request therefor before October 26, 1961, or within three years after he discovers the error or injustice, whichever is later. However, a board established under subsection (a) may excuse a failure to file within three years after discovery if it finds it to be in the interest of justice. (c) The department concerned may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another's service in the Army, Navy, Air Force, Marine Corps, or Coast Guard, as the case may be. If the claimant is dead, the money shall be paid, upon demand, to his legal representative. However, if no demand for payment is made by a legal representative, the money shall be paid (1) To the surviving spouse, heir, or beneficiaries, in the order prescribed by the law applicable to that kind of payment; (2) If there is no such law covering order of payment, in the order set forth in section 2771 of this title; or (3) As otherwise prescribed by the law applicable to that kind of payment. A claimant's acceptance of a settlement under this section fully satisfies the claim concerned. This section does not authorize the payment of any claim compensated by private law before October 25, 1951. (d) Applicable current appropriations are available to continue the pay, allowances, compensation, emoluments, and other pecuniary benefits of any person who was paid under subsection (c), and who, because of the correction of his military record, is entitled to those benefits, but for not longer than one year after the date when his record is corrected under this section if he is not reenlisted in, or appointed or reappoint ed to, the grade to which those payments (e) No payment may be made under this [17 FR 10243, Nov. 11, 1952, as amended at §723.2 Establishment, function, and jurisdiction of the Board. (a) Establishment and composition. Pursuant to the foregoing statutory authority, the Board for Correction of Naval Records is established in the Office of the Secretary of the Navy. The Board consists of civilians of the executive part of the Department of the Navy in such number, not less than three, as may be appointed by the Secretary of the Navy. Three members present shall constitute a quorum of the Board. The Secretary of the Navy will designate one member as Chairman. In the absence or incapacity of the Chairman, an Acting Chairman chosen by the Board shall act as Chairman for all purposes. (b) Function. The function of the Board is to consider all applications properly before it for the purpose of determining the existence of an error or an injustice, and, when appropriate, to make recommendations to the Secretary. (c) Jurisdiction. The Board shall have jurisdiction to review and determine all matters properly brought before it, consistent with existing law. [17 FR 10243, Nov. 11, 1952, as amended at 26 FR 12121, Dec. 19, 1961; 42 FR 18277, Apr. 6, 1977] § 723.3 Application for correction. planatory matter may be obtained (2) Except as provided in paragraph (a) General Requirements. (1) The application for correction should be submitted on DD Form 149 (Application for Correction of Military or Naval Record) or exact facsimile thereof, and should be addressed to: Board for Correction of Naval Records, Department of the Navy, Washington, D.C. 20370. Forms and ex (3) When the record in question is that of a person who is incapable of making application himself, or whose whereabouts is unknown, or when such person is deceased, for the purpose of bringing the matter before the Board the application may be made by a spouse, parent, heir, or legal representative. Proof of proper interest shall be submitted as may be required by the Board. (b) Time Limit for Filing Application. A claimant, his heir, or legal representative, must file the application for correction of a record within 3 years after discovery of the alleged error or injustice. Failure to file within the time prescribed may be excused by the Board if it finds it would be in the interest of justice to do so. If the claimant, his heir, or legal representative files an application more than 3 years after he discovers the error or injustice, he must include in his application his reasons why the Board should find it is in the interest of justice to excuse his failure to file his application within the time prescribed above. (c) Exhaustion of other remedies. No application will be considered until the applicant has exhausted all effective administrative remedies afforded him by existing 1 v or regulations, and such legal remedies as the Board shall determine are practical and appropriately available to the applicant. (d) Other proceedings not stayed. The application to the Board for correction of a record shall not operate as a stay of any proceedings being taken with respect to the person involved. (e) Consideration of Application. (1) Each application and the available military or naval records pertinent to the corrective action requested will be reviewed to determine whether to authorize a hearing, recommend that the records be corrected without a hearing, or to deny the application without a hearing. The Board will make this determination in all cases except those in which the application has been denied administratively for the reason that the applicant has not exhausted all other effective administrative remedies available to him, or for the reason that the applicant did not file his application within 3 years after he discovered the alleged error or injustice and did not submit any reason why the Board should find it to be in the interest of justice to excuse the failure to file the application within the prescribed 3 years. (2) The Board may deny any application if it determines that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice. The Board will not deny an application on the sole ground that the record was made by or at the direction of the President or the Secretary in connection with proceedings other than proceedings of a Board for the correction of military or naval records. Denial of an application grounds of insufficient relevant evithe dence to demonstrate the existence of probable material error or injustice is without prejudice to further consideration in the event new and relevant evidence is submitted. The applicant will be informed of his privilege to submit newly discovered relevant evidence for consideration. on (3) All requests for further consideration may be initially screened by the staff of the Board to determine whether and evidence or other matter (including, but not limited to any factual allegations or any arguments why the relief should be granted) has beeen submitted by the applicant that was not in the reocord at the time of any prior Board consideration. If such evidence or other matter has been submitted, the request shall be forwarded to the Board for a determination in accordance with paragraph (e)(2) of this section. If no such evidence or other matter has been submitted, the applicant will be informed that his request was not considered by the Board be Title 32-National Defense cause it did not contain any evidence or other matter that was not in the record at the time of any previous Board consideration. (4) When an original application or a request for further consideration of a previously denied application is denied. without a hearing, the Board's determination shall be made in writing and include a brief statement of the grounds for denial. (5) The brief statement of the grounds for denial shall include the reasons for the determination that relief should not be granted, including the applicant's claim of constitutional, statutory and/or regulatory violations that were rejected, together with all the essential facts upon which the denial is based, including, if applicable, factors required by regulation to be considered for determination of the character of and reasons for a discharge. Attached to the statement shall be any advisory staff opinion considered by the Board which is not fully set out in the statement, together with any minority opinion. (6) The brief statement of the grounds for denial, together with all attachments, shall be furnished promptly to applicant and counsel, who shall also be informed that the name and final vote of each Board member will be furnished or made available upon request. Classified or privileged material contained in or attached to the statement of the grounds for denial may be deleted only if a written statement of the basis for the deletion is provided the applicant and counsel. (7) Documents sent to each applicant in accordance with paragraph (e)(6) of this section, and § 723.8(d), and all other non-boiler-plate statements of findings and conclusions made on final determination of an application by the Board, the Secretary of his designee together with the record of votes of Board members, and required appendices, will be promptly indexed and made available for public inspection and copying at the Armed Forces Discharge Review/Correction Boards Reading Room, located on the Concourse of The Pentagon Building, Washington, D.C. There will be deleted from such documents informa tion which would be a clearly unwarranted invasion of personal privacy. Privileged or classified material may be deleted only if a written statement of the basis for deletion is provided applicant and counsel. [17 FR 10243, Nov. 11, 1952, as amended at 26 FR 12121, Dec. 19, 1961; 34 FR 19195, Dec. 4, 1969; 42 FR 18277, Apr. 6, 1977; 43 FR 2170, Jan. 16, 1978] §723.4 General; notice; counsel; witnesses; access to records. (a) General. In each case in which the Board determines a hearing is warranted, the applicant will be entitled to appear before the Board either in person or by counsel of his own selection or in person with counsel. (b) Notice. (1) In each case in which a hearing is authorized, the Board will transmit to the applicant and counsel, if any, a written notice stating the time and place of hearing. The notice will be mailed to the applicant and counsel, if any, at least thirty days prior to the date of hearing, except that an earlier date may be set where the applicant waives his right to such notice in writing. (d) Witnesses. The applicant will be permitted to present witnesses in his behalf at hearings before the Board. It will be the responsibility of the applicant to notify his witnesses and to arrange for their appearance at the time and place set for hearing. (e) Access to Records. (1) The applicant shall have access to such official records as are deemed necessary to an adequate presentation of his case. It is the responsibility of the applicant to procure such evidence not contained in the official records of the Department of the Navy as he desires to present in support of his case. (2) Upon receipt of notice of hearing, the applicant will notify the Board in writing at least 15 days prior to the date set for hearing as to whether he will be present at the hearing and will indicate to the Board the name of counsel, if represented by counsel, and the names of such witnesses as he may intend to call in his behalf. Cases in which the applicant notifies the Board that he does not desire to be present at the hearing, will be considered in accordance with § 723.5(b)(2). (2) Classified or privileged matter shall not be disclosed or made available without express finding of the Chairman that such disclosure is required in the case and is not detrimental to the public interest. Such disclosure shall not be contrary to existing law and departmental regulations concerning privileged and classified material. When appropriate the applicant may be supplied only with a summary or extract of classified matter. (c) Counsel, definition of. As used in this part, the term "counsel" will be construed to include members in good standing of the Federal Bar or the Bar of any State, accredited representatives of veterans organizations recognized by the Administrator of Veterans' Affairs under Title 38, U.S. Code, Sec. 3402, and such other persons who, in the opinion of the Board, are considered to be competent to present equitably and comprehensively the request of the applicant for correction, unless barred by law. (3) This regulation does not authorize the furnishing of copies of official records by the Board. Requests for copies of official records should be submitted in accordance with regulations governing the release of information. [17 FR 10243, Nov. 11, 1952, as amended at 26 FR 12121, Dec. 19, 1961; 34 FR 19195, Dec. 4, 1969] § 723.5 Hearing. (a) Convening of Board. The Board will be convened at the call of the Chairman and will recess or adjourn at his order. (b) Conduct of hearing. (1) The hearing shall be conducted by the Chairman, and shall be subject to his rulings so as to insure a full and fair hearing. The Board shall not be limited by legal rules of evidence but shall maintain reasonable bounds of competency, relevancy, and materiality. (2) If the applicant, after being duly notified, has indicated to the Board that he does not desire to be present or to be represented by counsel at the hearing, the Board will consider the case on the basis of all the material before it, including, but not limited to, the application for correction filed by the applicant, any documentary evidence filed in support of such application, any brief submitted by or in behalf of the applicant, and all available pertinent records. (3) If the applicant, after being duly notified, has indicated to the Board that he will be present or be represented by counsel at the hearing, and without good cause and timely notice to the Board, he or his representative fails to appear at the time and place set for the hearing, the Board may consider the case in accordance with the provisions of paragraph (b)(2) of this section, or will make such other disposition of the case as is indicated under the circumstances. (4) All testimony before the Board shall be given under oath or affirmation. The proceedings of the Board and the testimony given before it will be recorded verbatim. (c) Continuance. The Board may continue a hearing on its own motion. A request for continuance by or in behalf of the applicant may be granted by the Board if a continuance appears necessary to insure a full and fair hearing. [17 FR 10243, Nov. 11, 1952] § 723.6 Action by the Board. (a) Deliberations, findings, and conclusions, and recommendations. (1) Only members of the Board and its staff shall be present during the deliberations of the Board. (2) Whenever, during the course of its review of the case, it appears to the Board's satisfaction that the facts have not been fully and fairly disclosed by the records or by the testimony and other evidence before the Board, the Board may require the applicant to obtain, or the Board may obtain, such further information as it may consider essential to a complete and impartial determination of the facts and issues. (3) Following a hearing, the Board determines to recommend that the record be corrected without a hearing, they will make written findings, conclusions, and recommendations. If denial of relief is recommended following a hearing, such written findings Title 32-National Defense and conclusions will include a statement of the grounds for denial as described in § 723.3(e)(5). The name and final vote of each Board member will be recorded. A majority vote of the members present on any matter before the Board will constitute the action of the Board and shall be so recorded. (4) Where the Board deems it necessary to submit comments or recommendations to the Secretary of the Navy as to matters arising from but not directly related to the issues of any case, such comments and recommendations shall be the subject of separate communication. (b) Minority report. In case of a disagreement between members of the Board a minority report may be submitted, either as to the findings, decision, or the recommendations or to all, including the reasons therefor. (c) Record of proceedings. When the Board has completed its determination, a record thereof shall be prepared. Such record shall indicate whether or not a quorum was present and the name and vote of each member present. The record shall include the application for relief, a transcript of any testimony, affidavits, papers, and documents considered by the Board, briefs and written arguments, advisory opinions, if any, minority reports, if any, the findings, conclusions, and recommendations of the Board where appropriate, and all other papers, documents, and reports necessary to reflect a true and complete history of the proceedings. The record so prepared will be certified by the Chairman or his designee as being true and complete. (d) Withdrawal. The Board may permit an applicant to withdraw his application without prejudice at any time before its proceedings are forwarded to the Secretary of the Navy. (e) Delegation of authority to correct certain military or naval records. (1) The Board for Correction of Naval Records is authorized to take final action on behalf of the Secretary of the Navy, under 10 U.S.C. 1552, in approv ing the correction of military or naval records, provided (1) The relief granted is completely in accord with that requested by the applicant, and |