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level for decisions to deny the request for return. (b) The Commandant of the Marine Corps (CMC) for requests involving Marine Corps members and their family members who are not employees. The CMC may delegate this authority within his headquarters, not below the 0–6 level for routine matters and no lower that the general officer level for deciSions to deny the request for return. (c) The local Commanding officer or Officer in charge for requests involving employees and their family members who are not active duty military memberS. (d) The Assistant Secretary Of the Navy (Manpower and Reserve Affairs) (ASN(M&RA)) for requests not covered by §§ 720.44 (a) through (c).

§ 720.45 Procedures.

(a) If the request pertains to a felony or to contempt involving the unlawful or contemptuous removal of a child from the jurisdiction of a court or the custody of a parent or another person awarded custody by Court Order, and the matter cannot be resolved with the Court without the respondent returning to the United States: (1) For members: The responsible of ficial shall direct the Commanding Officer or Officer in charge to Order the member to return to the United States. Failure to comply will normally be the basis for disciplinary action against the member. (2) For employees, military and civilian family members: The responsible official shall strongly encourage the respondent to comply. Failure to Comply may subject employees to adverse action, to include removal from the Federal service, and subject military and civilian family members to withdrawal of command sponsorship. (b) For all other requests when the matter cannot be resolved with the court without returning the respondent to the United States, the responsible official shall take the action described in this instruction when deemed appropriate with the facts and Circumstances of each particular case, following Consultation with legal staff. (c) When a member’s return is inconSistent with mission requirements, the provisions of applicable international

agreements, or ongoing DoD investigations and courts-martial, the Department of the Navy will ask DoD to approve denial of the request for the military members’s return. To initiate this action, there must be an affirmative Showing of articulable harm to the unit’s mission or violation of an international agreement. (d) When a responsible Official has determined a request for return is apparently based on an order issued by a Court of Competent jurisdiction, the reSponsible official shall complete action On the request for return within 30 days of receipt of the request for return by the responsible official, unless a delay is authorized by the ASNOM&RA). (e) When a delay to complete the action is warranted, the ASNOM&RA) will grant a 45 day delay, and provide a Copy of that approval to the Assistant Secretary of Defense (Force Management & Personnel (ASD(FM&P)) and the General Counsel, DOD. The 45 day period begins upon request by the reSponsible official of the request for return. Conditions which, when accompanied by full Supporting justification, will warrant the granting Of the 45 day delay are: (1) Efforts are in progress to resolve the matter to the satisfaction of the court without the respondent’s return to the United States. (2) To provide sufficient time for the respondent to provide evidence to show legal efforts to resist the request or to show legitimate cause for noncompli8,IlC62. (3) To provide Commanding Officers an opportunity to detail the Specific effect on Command mission and Operational readiness anticipated from the loss of the member or Department of the Navy employee, and to present facts relating to any international agreement, or Ongoing DoD investigation or Courts-martial. (f) A Commanding Officer or officer in charge who receives a request for the return of, or other action affecting, a member, family member, or employee not of his/her command will forward the request to the appropriate Commanding Officer or officer in charge,

copy to the responsible official, and advise both of them by message that a request for return or other action has been forwarded to them. (g) A commanding officer or officer in charge who receives a request for the return of, or other action affecting, a member, family member, or employee of his/her command will: (1) Notify the respondent of the right to provide evidence to show legal efforts to resist the request, or to show legitimate cause for noncompliance for inclusion in the Submission to the responsible official. (2) For members and their family members who are not employees, forward the request immediately to the appropriate responsible official, together with: (i) Any information the individual desires to provide to show legal efforts to resist the request, Or Otherwise to show legitimate cause for noncompli8,IlC62. (ii) Facts detailing the Specific impacts on Command missions and readiness anticipated from loss of the member. (iii) Facts relating to any international agreements or Ongoing DoD investigations or Courts-martial involving the respondent. (iv) Information regarding conditions expected to interfere with a member’s return to the Command after completion Of proceedings. If, in the Opinion of the Commanding Officer, there are Compelling reasons for the member to be returned to the United States PCS, provide full justification to support that recommendation to the cognizant Officer. (3) If a delay in processing is warranted under $720.42 or $720.45(e), make a recommendation with Supporting justification to the responsible Official. (4) Monitor, and update as necessary, information provided to the responSible Official. (h) The responsible official shall: (1) Determine whether the request is based on an order issued by a court of apparent competent jurisdiction and if So, complete action on the request no later than 30 days after its receipt by the responsible official. If a conflicts of law issue is presented between Competing State interests, or between a State

and a foreign host-nation, or between two different foreign nations, the matter Shall be referred to . the ASN(M&RA) on the first issue and to the Judge Advocate General (Code 10) On the second and third issues. (2) Encourage the respondent to attempt to resolve the matter to the satisfaction of the Court or other requesting authority without return of or other action affecting the member, employee, or family member. (3) When a delay to complete action under this section is warranted, request the delay from ASNOM&RA) with full Supporting justification. (4) Examine all information the reSpondent desires to provide to Show legal efforts to resist the request, or otherwise to show legitimate cause for noncompliance. (5) Requests for exception from the requirements of this instruction shall be submitted, with Supporting justification, to the ASNOM&RA) for Submission to the ASD(FM&P). (6) If a member will be Ordered to return to the United States, determine if the member will be Ordered TAD or PCS and advise the member's commanding officer of the determination. (7) If a member will be Ordered to return to an appropriate port of entry to Comply with a request, ensure: (i) The requesting officer has given Official notification to the responsible official that the requesting official or other appropriate party will initiate action with the receiving jurisdiction to secure the member's delivery/extradition, as appropriate, per chapter 6 of the Manual of the Judge Advocate General, and provide for all costs incident thereto, including any eSCOrt if desired. (ii) If applicable, the necessary acCounting data are provided to the Commanding officer of the member or orders are issued. (iii) The member has arranged Satisfactory foster care for any lawful minor dependents who will be left unaccompanied overseas upon the member’s return to the United States. (8) Notify the requesting official at least 10 days before the member’s return to the selected port of entry. (9) In the case of an employee or of a family member, the Commanding officer or officer in charge of the activity to which the family member’s sponsor is attached, or by which the employee is employed, Will carry out the following Steps: (i) An employee shall be strongly encouraged to Comply with the court order or other request for return. Failure to comply may be the basis for adverse action to include removal from Federal Service. Adverse action should only be taken after coordination with the cognizant Civilian personnel Office and legal counsel and in compliance with Civilian Personnel Instruction 752. (ii) If a family member of either a member or an employee is the subject of a request for return, the family member shall be strongly encouraged to comply with the court order. Failure to respond may be the basis for withdrawal of command sponsorship of the family member. (10) Report promptly to the ASN(M&RA) any actions taken under $720.45 (a) or (b). (i) The ASNOM&RA): (1) May grant delays of up to 45 days from the date of a request for delay in accordance with $720.45(e). (2) Will report promptly all delays of requests for the return of members to the ASD(FM&P) and to the General Counsel of the Department of Defense. (3) Will request from the ASD(FM&P), when warranted, exception to the policies and procedures of DoD Directive 5525.9 of December 27, 1988. (4) Consolidate and forward reports of action taken under § 720.45 (a) Or (b) to the ASD(FM&P) and the General CounSel, DoD as required by DoD Directive 5525.9 of December 27, 1988.

$720.46 Overseas screening programs.

The Chief of Naval Operations (CNO) and the CMC shall incorporate procedures requiring members and employees to certify they have legal custody of all minor dependents accompanying them outside the United States into Service OverSeaS Screening programs.

$720.47 Report.

The report requirement in this instruction is exempt from reports Control by SECNAVINST 5214.2B.

PARTS 721–722 [RESERVED]

PART 723–BOARD FOR CORRECTION OF NAVAL RECORDS

Sec.

723.1 General provisionS.

723.2 Establishment, function and jurisdiction of the Board.

723.3 Application for correction.

723.4 Appearance before the board; notice; counsel; witnesses; access to records.

723.5 Hearing.

723.6 Action by the Board.

723.7 Action by the Secretary.

723.8 Staff action.

723.9 Reconsideration.

723.10 Settlement of claims.

723.11 Miscellaneous provisions.

AUTHORITY: 10 U.S.C. 1034, 1552.

SOURCE: 62 FR 8166, Feb. 24, 1997, unless Otherwise noted.

$723.1 General provisions.

This part sets up procedures for Correction of naval and marine records by the Secretary of the Navy acting through the Board for Correction of Naval Records (BCNR or the Board) to remedy error or injustice. It describes how to apply for correction of naval and marine records and how the BCNR, considers applications. It defines the Board's authority to act on applications. It directs collecting and maintaining information Subject to the Privacy Act of 1974 authorized by 10 U.S.C. 1034 and 1552.

$723.2 Establishment, function and jurisdiction of the Board.

(a) Establishment and composition. Under 10 U.S.C. 1034 and 1552, the Board for Correction of Naval Records is established by 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 and who shall serve at the pleasure of the Secretary. Three members present Shall constitute a quorum of the Board. The Secretary of the Navy will designate one member as Chair. In the absence or incapacity of the Chair, an Acting Chair chosen by the Executive Director shall act as Chair for all purposes.

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(b) Function. The Board is not an investigative body. Its function is to consider applications properly before it for the purpose of determining the existence of error or injustice in the naval records of current and former members of the Navy and Marine Corps, to make recommendations to the Secretary or to take corrective action on the Secretary’s behalf when authorized.

(c) Jurisdiction. The Board shall have jurisdiction to review and determine all matters properly brought before it, consistent with existing law.

$723.3 Application for correction.

(a) General requirements. (1) The application for Correction must be Submitted on DD 149 (Application for Correction of Military Record) Or exact facsimile thereof, and should be addressed to: Board for Correction of Naval Records, Department of the Navy, 2 Navy Annex, Washington, DC 20370– 5100. Forms and Other explanatory matter may be obtained from the Board upon request. (2) Except as provided in paragraph (a)(3) of this section, the application shall be signed by the perSOn requesting corrective action with respect to his/her record and will either be Sworn to or will contain a provision to the effect that the Statements Submitted in the application are made with full knowledge of the penalty provided by law for making a false statement or claim. (18 U.S.C. 287 and 1001) (3) When the record in question is that of a person who is incapable of making application, or whose whereaboutS is unknown, or when Such person is deceased, the application may be made by a spouse, parent, heir, or legal representative. Proof of proper interest shall be submitted with the application. (b) Time limit for filing application. Applications for correction of a record must be filed 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 application is filed more than 3 years after discovery of the error or injustice, the application must set forth the reason why the Board should find it in the interest of

justice to excuse the failure to file the application within the time prescribed. (c) Acceptance of applications. An application will be accepted for consideration unless: (1) The Board lacks jurisdiction. (2) The Board lacks authority to grant effective relief. (3) The applicant has failed to comply With the filing requirements of paragraphs (a)(1), (a)(2), or (a)(3) of this section. (4) The applicant has failed to exhaust all available administrative remedies. (5) The applicant has failed to file an application within 3 years after discovery of the alleged error or injustice and has not provided a reason or reasons why the Board should find it in the interest of justice to excuse the failure to file the application within the preScribed 3-year period. (d) Other proceedings not stayed. Filing an application with the Board shall not Operate as a stay of any other proceedings being taken with respect to the person involved. (e) ComSideration of application. (1) Each application accepted for consideration and all pertinent evidence of record will be reviewed by a three member panel Sitting in executive sesSion, to determine whether to authorize a hearing, recommend that the records be corrected without a hearing, or to deny the application without a hearing. This determination will be made by majority vote. (2) The Board may deny an application in executive SeSSion if it determines that the evidence of record fails to demonstrate the existence of probable material error or injustice. The Board relies on a presumption of regularity to Support the official actions of public Officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties. AppliCantS have the burden of overcoming this presumption but the Board will not deny an application solely because 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 on the grounds of insufficient evidence to demonstrate the existence of probable material error or injustice is final subject to the provisions for reconsideration contained in $723.9. (3) 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. (4) 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 claims 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 reason for discharge. Further the Board shall make a determination as to the applicability of the provisions of the Military Whistleblower Protection Act (10 U.S.C. 1034) if it is invoked by the applicant or realsonably raised by the evidence. Attached to the statement shall be any advisory opinion considered by the Board which is not fully Set Out in the Statement. The applicant will also be advised of reconsideration procedures. (5) The statement of the grounds for denial, together with all attachments, shall be furnished promptly to the 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 will not be incorporated or attached to the Board Statement; rather, unclassified or nonprivileged Summaries of such material will be SO used and written expla– nations for the substitution will be provided to the applicant and counsel.

$723.4 Appearance before the board; 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/her selection or in person with counsel. Additional pro

Visions apply to cases processed under the Military Whistleblower Protection Act (10 U.S.C. 1034). (b) Notice. (1) In each case in which a hearing is authorized, the Board's staff will transmit to the applicant a written notice Stating the time and place of hearing. The notice will be mailed to the applicant, at least 30 days prior to the date of hearing, except that an earlier date may be set where the applicant waives his/her right to such notice in writing. (2) Upon receipt of the 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/ She 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/she intends to Call. Cases in which the applicant notifies the Board that he/she does not desire to be present at the hearing will be considered in accordance with $723.5(b)(2). (c) Counsel. 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 Secretary Of Veterans Affairs under 38 U.S.C. 3402, or 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. Representation by counsel will be at no cost to the government. (d) Witnesses. The applicant will be permitted to present witnesses in his/ her behalf at hearings before the Board. It will be the responsibility of the applicant to notify his/her witneSSes and to arrange for their appearance at the time and place Set for hearing. Appearance of witnesses will be at no COSt to the government. (e) Access to records. (1) 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/she desires to present in Support of his/her case. (2) Classified or privileged information may be released to applicants only

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