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(j) Hearing Examination. The process by which a designated officer of a DRB prepares a presentation for consideration by a DRB in accordance with regulations prescribed by the Secretary concerned.

(k) National Capital Region (NCR). The District of Columbia; Prince Georges and Montgomery Counties in Maryland; Arlington, Fairfax, Loudoun, and Prince William Counties in Virginia; and all cities and towns included within the outer boundaries of the foregoing counties.

(1) President, DRB. A person designated by the Secretary concerned and responsible for the supervision of the discharge review function and other duties as assigned.

appropriate documentation through the Office of the ASD(MRA&L) and the OSD Federal Register liaison officer to effect publication in the FEDERAL REGISTER.

(3) Maintain the DD Form 293, “Application for Review of Discharge or Separation from the Armed Forces of the United States," and republish as necessary with appropriate coordination of the other Military Departments and the Office of Management and Budget.

(4) Respond to all inquiries from private individuals, organizations, or public officials with regard to DRB matters. When the specific Military Service can be identified, refer such correspondence to the appropriate DRB for response or designate an appropriate activity to perform this task.

(5) Provide overall guidance and supervision to the Armed Forces Discharge Review/Correction Board Reading Room with staff augmentation, as required, by the Departments of the Navy and Air Force.

(6) Ensure that notice of the location, hours of operation, and similar types of information regarding the Reading Room is published in the FEDERAL REGISTER.

$70.4 Responsibilities.

(a) The Secretaries of the Military Departments have the authority for final decision and the responsibility for the operation for their respective discharge review programs under 10 U.S.C. 1553.

(b) The Assistant Secretary of Defense (Manpower, Reserve Affairs, and Logistics) (ASD(MRA&L) shall:

(1) Resolve all issues concerning DRBs that cannot be resolved among the Military Departments.

(2) Ensure uniformity among the Military Departments in the rights afforded applicants in discharge reviews.

(3) Modify or supplement the enclosures to this part.

(4) Maintain the index of decisions and provide for timely modification of index categories to reflect changes in discharge review policies, procedures, and standards issued by the OSD and the Military Departments.

(c) The Secretary of the Army, as the designated administrative focal point for DRB matters, shall:

(1) Effect necessary coordination with other governmental agencies regarding continuing applicability of this part and resolve administrative procedures relating thereto.

(2) Review suggested modifications to this part, including implementing documents; monitor the implementing documents of the Military Departments; resolve differences, when practicable; recommend specific changes; provide supporting rationale to the ASD(MRA&L) for decision; and include

870.5 Procedures.

(a) Discharge review procedures are prescribed in $ 70.8.

(b) Discharge Review Standards are prescribed in $70.9 and constitute the basic guidelines for the determination whether to grant or deny relief in a discharge review.

(c) Complaint Procedures about decisional documents are prescribed in 870.10. 870.6 Information requirements.

(a) Reporting requirements. (1) The reporting requirement prescribed in 870.8(n) is assigned Report Control Symbol DD-M(SA)1489.

(2) All reports must be consistent with DoD Directive 5000.11, “Data Elements and Data Codes Standardization Program,” December 7, 1964.

(b) Use of standard data elements. The data requirements prescribed by this part shall be consistent with DoD 5000.12-M, “DoD Manual for Standard Data Elements," December 1981. Any reference to a date should appear as (YYMMDD), while any name entry should appear as (Last name, first name, middle initial).

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$ 70.7 Effective date and imple enta

tion. This part is effective immediately for the purpose of preparing implementing documents. DoD Directive 1332.28, March 29, 1978, is officially canceled, effective November 27, 1982. This part applies to all discharge review proceedings conducted on or after November 27, 1982. $70.10 applies to all complaint proceedings conducted on or after Sep tember 28, 1982. Final action on complaints shall not be taken until September 28, 1982, unless earlier corrective action is requested expressly by the applicant (or the applicant's counsel) whose case is the subject of the decisional document. If earlier corrective action is requested, it shall be taken in accordance with $70.10.

870.8 Discharge review procedures.

(a) Application for review (1) General. Applications shall be submitted to the appropriate DRB on DD Form 293, “Application for Review of Discharge or Separation from the Armed Forces of the United States," with such other statements, affidavits, or documentation as desired. It is to the applicant's advantage to submit such documents with the application or within 60 days thereafter in order to permit a thorough screening of the case. The DD Form 293 is available at most DoD installations and regional offices of the Veterans Administration, or by writing to: DA Military Review Boards Agency, Attention: SFBA (Reading Room), Room 1E520, The Pentagon, Washington, DC 20310.

(2) Timing. A motion or request for review must be made within 15 years after the date of discharge or dismissal.

(3) Applicant's responsibilities. An applicant may request a change in the character of or reason for discharge (or both).

(i) Character of discharge. Block 7 of DD Form 293 provides an applicant an opportunity request a specific change in character of discharge (for example, General Discharge to Honorable Discharge; Other than Honorable

Discharge to General or Honorable Discharge). Only a person separated on or after 1 October 1982 while in an entry level status may request a change from Other than Honorable Discharge to Entry Level Separation. A request for review from an applicant who does not have an Honorable Discharge shall be treated as a request for a change to an Honorable Discharge unless the applicant requests a specific change to another character of discharge.

(ii) Reason for discharge. Block 7 of DD Form 293 provides an applicant an opportunity to request specific change in the reason for discharge. If an applicant does not request a specific change in the reason for discharge, the DRB shall presume that the request for review does not involve a request for change in the reason for discharge. Under its responsibility to examine the propriety and equity of an applicant's discharge, the DRB shall change the reason for discharge if such a change is warranted.

(iii) The applicant must ensure that issues submitted to the DRB are consistent with the request for change in discharge set forth in block 7 of the DD Form 293. If an ambiguity is created by a difference between an applicant's issue and the request in block 7, the DRB shall respond to the issue in the context of the action requested in block 7. In the case of a hearing, the DRB shall attempt to resolve the ambiguity under paragraph (a)(5) of this section.

(4) Request for consideration of specific issues. An applicant may request the DRB to consider specific issues which, in the opinion of the applicant, form a basis for changing the character of or reason for discharge, or both. In addition to the guidance set forth in this section, applicants should consult the other sections in this part (particularly paragraphs (c), (d), and (e) of this section and $$ 70.9 and 70.10 before submitting issues for consideration by the DRB.

(i) Submission of issues on DD Form 293. Issues must be provided to the DRB on DD Form 293 before the DRB closes the review process for deliberation.

(A) Issues must be clear and specific. An issue must be stated clearly and specifically in order to enable the DRB

to

or

to understand the nature of the issue clearly identifies as an issue to be adand its relationship to the applicant's dressed by the DRB, the DRB shall redischarge.

spond to such an issue under para(B) Separate listing of issues. Each graphs (d) and (e) of this section. issue submitted by an applicant should (E) Effective date of the new Form DD be listed separately. Submission of a 293. With respect to applications reseparate statement for each issue pro- ceived before November 27, 1982, the vides the best means of ensuring that DRB shall consider issues clearly and the full import of the issue is conveyed specifically stated in accordance with to the DRB.

the rules in eifect at the time of sub(C) Use of DD Form 293. DD Form 293 mission. With respect to applications provides applicants with a standard received on or after November 27, 1982, format for submitting issues to the if the applicant submits an obsolete DD DRB, and its use:

Form 293, the DRB shall accept the ap (1) Provides a means for an applicant plication, but shall provide the applito set forth clearly and specifically cant with a copy of the new form and those matters that, in the opinion of advise the applicant that it will only the applicant, provide a basis for respond to issues submitted on the new changing the discharge;

form in accordance with this part. (2) Assists the DRB in focusing on (ii) Relationship of issues to character those matters considered to be impor- of or reason for discharge. If the applicatant by an applicant;

tion applies to both character of and (3) Assists the DRB in distinguishing reason for discharge, the applicant is between a matter submitted by an ap- encouraged, but not required, to idenplicant in the expectation that it will tify the issue as applying to the charbe treated as a decisional issue under acter of or reason for discharge (or paragraph (e) of this section, and those both). Unless the issue is directed at matters submitted simply as back- the reason for scharge expressly ground or supporting materials;

by necessary implication, the DRB will (4) Provides the applicant with great- presume that it applies solely to the er rights in the event that the appli- character of discharge. cant later submits a complaint under (iii) Relationship of issues to the stand$70.10(a)(1)(iii) concerning the ards for discharge review. The DRB redecisional document;

views discharges on the basis of issues (5) Reduces the potential for dis- of propriety and equity. The standards agreement as to the content of an ap- used by the DRB are set forth in $70.9. plicant's issue.

The applicant is encouraged to review (D) Incorporation by reference. If the those standards before submitting any applicant makes an additional written issue upon which the applicant believes submission, such as a brief, in support a change in discharge should be based. of the application, the applicant may (A) Issues concerning the equity of the incorporate by reference specific issues discharge. An issue of equity is a matset forth in the written submission in ter that involves determination accordance with the guidance on DD whether a discharge should by changed Form 293. The reference shall be spe- under the equity standards of $70.9. cific enough for the DRB to identify This includes any issue, submitted by clearly the matter being submitted as the applicant in accordance with paraan issue. At a minimum, it shall iden- graph (a)(4)(i) of this section, that is tify the page, paragraph, and sentence addressed to the discretionary authorincorporated. Because it is to the appli- ity of the DRB. cant's benefit to bring such issues to (B) Issues concerning the propriety of a the DRB's attention as early as pos- discharge. An issue of propriety is a sible in the review, applicants who sub- matter that involves a determination mit a brief are strongly urged to set whether a discharge should be changed forth all such issues as a separate item under the propriety standards of $ 70.9. at the beginning of the brief. If it rea- This includes an applicant's issue, subsonably appears that the applicant in- mitted in accordance with paragraph advertently has failed expressly to in- (a)(4)(i) of this section, in which the apcorporate an issue which the applicant plicant's position is that the discharge

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must be changed because of an error in by the Armed Forces Discharge Review the discharge pertaining to a regula- Board/Corrective Board Reading tion, statute, constitutional provision, Room), applicants must provide the or other source of law (including a DRB with copies of such decisions or of matter that requires a determination the relevant portion of the treatise, whether, under the circumstances of manual, or similar source in which the the case, action by military authorities principles were discussed. At the appliwas arbitrary, capricious, or an abuse cant's request, such materials will be of discretion). Although a numerical returned. reference to the regulation or other (D) If the applicant fails to comply sources of law alleged to have been vio- with the requirements in paragraphs lated is not necessarily required, the (a)(4)(iv) (A), (B), and (C), the context of the regulation or a descrip

decisional document shall note the detion of the procedures alleged to have

fect, and shall respond to the issue been violated normally must be set

without regard to the citation. forth in order to inform the DRB ade

(5) Identification by the DRB of issues quately of the basis for the applicant's

submitted by an applicant. The appliposition.

cant's issues shall be identified in ac(C) The applicant's identification of an

cordance with this section after a reissue. The applicant is encouraged, but

view of the materials noted under paranot required, to identify an issue as

graph (c)(4), is made. pertaining to the propriety or the eq

(i) Issues on DD Form 293. The DRB uity to the discharge. This will assist

shall consider all items submitted as the DRB in assessing the relationship of the issue to propriety or equity

issues by an applicant on DD Form 293 under paragraph (e)(1)(iii) of this sec

(or incorporated therein) in accordance

with paragraph (a)(4)(i). With respect tion. (iv) Citation of matter from decisions.

to applications submitted before No

vember 27, 1982, the DRB shall consider The primary function of the DRB involves the exercise of dicretion on a

all issues clearly and specifically stat

ed in accordance with the rules in efcase-by-case basis. See $70.9(b)(3). Ap

fect at the time of the submission. plicants are not required to cite prior decisions as the basis for a change in

(ii) Amendment of issues. The DRB discharge. If the applicant wishes to

shall not request or instruct an applibring the DRB's attention to a prior

cant to amend or withdraw any matter decision as background or illustrative

submitted by the applicant. Any material, the citation should be placed

amendment or withdrawal of an issue in a brief or other supporting docu

by an applicant shall be confirmed in ments. If, however, it is the applicant's

writing by the applicant. Nothing in intention to submit an issue that sets

this provision: forth specific principles and facts from

(A) Limits the DRB's authority to a specific cited decision, the following

question an applicant as to the meanrequirements apply with respect to ap

ing of such matter; plications received on or after Novem- (B) Precludes the DRB from develop ber 27, 1982.

ing decisional issues based upon such (A) The issue must be set forth or ex- questions; pressly incorporated in the “Appli- (C) Prevents the applicant from cant's Issue” portion of DD Form 293. amending or withdrawing such matter

(B) If an applicant's issue cites a any time before the DRB closes the reprior decision (of the DRB, another view process for deliberation; or Board, an agency, or a court), the ap- (D) Prevents the DRB from presentplicant shall describe the specific prin- ing an applicant with a list of proposed ciples and facts that are contained in decisional issues and written informathe prior decision and explain the rel- tion concerning the right of the applievance of cited matter to the appli- cant to add to, amend, or withdraw the cant's case.

applicant's submission. The written in(C) To ensure timely consideration of formation will state that the appliprinciples cited from unpublished opin- cant's decision to take such action (or ions (including decisions maintained decline to do so) will not be used

against the applicant in the consideration of the case.

(iii) Additional issues identified during a hearing. The following additional procedure shall be used during a hearing in order to promote the DRB's understanding of

an

applicant's presentation. If, before closing the case for deliberation, the DRB believes that an applicant has presented an issue not listed on DD Form 293, the DRB may so inform the applicant, and the applicant may submit the issue in writing or add additional written issues at that time. This does not preclude the DRB from developing its own decisional issues.

(6) Notification of possible bar to benefits. Written notification shall be made to each applicant whose record indicates a reason for discharge that bars receipt of benefits under 38 U.S.C. 3103(a). This notification will advise the applicant that separate action by the Board for Correction of Military or Naval Records or the Veterans Administration may confer eligibility for VA benefits. Regarding the bar to benefits based upon the 180 days consecutive unauthorized absence, the following applies:

(1) Such absence must have been included as part of the basis for the applicant's discharge under other than honorable conditions.

(11) Such absence is computed without regard to the applicant's normal or adjusted expiration of term of service.

(b) Conduct of reviews. (1) Members. As designated by the Secretary concerned, the DRB and its panels, if any, shall consist of five members. One member of the DRB shall be designated as the president and may serve as a presiding officer. Other officers may be designated to serve as presiding officers for DRB panels under regulations prescribed by the Secretary concerned.

(2) Locations. Reviews by a DRB will be conducted in the NCR and such other locations as designated by the Secretary concerned.

(3) Types of review. An applicant, upon request, is entitled to:

(1) Record review. A review of the application, available service records, and additional documents (if any) submitted by the applicant.

(11) Hearing. A review involving an appearance before the DRB by the ap

plicant or counsel or representative (or both).

(4) Applicant's expenses. Unless otherwise specified by law or regulation, expenses incurred by the applicant, witnesses, councel or representative will not be paid by the Department of Defense.

(5) Withdrawal of application. An applicant shall be permitted to withdraw an application without prejudice at any time before the scheduled review.

(6) Failure to appear at a hearing or respond to a scheduling notice. (i) Except as otherwise authorized by the Secretary concerned, further opportunity for a hearing shall not be made available in the following circumstances to an applicant who has requested a hearing:

(A) When the applicant has been sent a letter containing the month and location of a proposed hearing and fails to make a timely response; or

(B) When the applicant, after being notified by letter of the time and place of the hearing, fails to appear at the appointed time, either in person or by representative, without having made a prior, timely request for a continuation, postponement, or withdrawal.

(ii) In such cases, the applicant shall be deemed to have waived the right to a hearing, and the DRB shall complete its review of the discharge. Further request for a hearing shall not be granted unless the applicant can demonstrate that the failure to appear or respond was due to circumstances beyond the applicant's control.

(7) Continuance and postponements. (i) A continuance of a discharge review hearing may be authorized by the president of the DRB or presiding officer of the panel concerned, provided that such continuance is of reasonable duration and is essential to achieving a full and fair hearing. When a proposal for continuance is indefinite, the pending application shall be returned to the applicant with the option to resubmit when the case is fully ready for review.

(ii) Postponements of scheduled reviews normally shall not be permitted other than for demonstrated good and sufficient reason set forth by the applicant in a timely manner, or for the convenience of the government.

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