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To deny entitlement to veterans' benefits to certain persons who would otherwise become So entitled Solely by virtue of the administrative upgrading under temporarily revised Standards of other than honorable discharges from Service during the Vietnam era; to require case-by-case review under uniform, historically consistent, generally appli cable Standards and procedures prior to the award of veterans’ benefits to perSons administratively discharged under other than honorable conditions from active military, naval, or air Service; and for other purposes.
Be it enacted by the Senate and the House of Representatives of the United States of America in Congress assembled, That (a) Section 3103 of Title 38, United States Code, is amended by—
(1) Inserting “or on the basis of an absence without authority from active duty for a continuous period of at least one hundred and eighty days if Such person was discharged under conditions other than honorable unless Such person demonstrates to the Satisfaction of the Administrator that there are compelling circumstances to warrant Such prolonged unauthorized absence.” after “deserter,” in SubSection (a), and by inserting a coma and “notwithstanding any action Subsequent to the date of Such discharge by a board established pursuant to Section 1553
of title 10” before the period at the end of Such SubSection; and (2) Adding at the end of such section the following new SubSection: “(e)(1) Notwithstanding any other proviSion of law, (A) no benefits under laws administered by the Veterans' Administration shall be provided, as a result of a change in or new issuance of a discharge under Section 1553 of title 10, except upon a case-by-case review by the board of review concerned, Subject to review by the Secretary concerned, under such Section, of all the evidence and factors in each Case under published uniform Standard (which shall be historically consistent with criteria for determining honorable Service and shall not include any criterion for automatically granting or denying Such change or issuance) and procedures generally applicable to all persons administratively discharged or released from active military, naval, or air Service under Other than honorable conditons: and (B) any such person Shall be afforded an opportunity to apply for Such review under Such Section 1553 for a period of time terminating not leSS than One year after the date on which Such uniform Standards and procedures are promulgated and published. “(2) Notwithstanding any other provision of law— “(A) No person discharged or released from active military, naval, or air Service under other than honorable conditions who has been awarded a general or honorable discharge under revised Standards for the review of discharges, (i) as implemented by the President’s directive of January 19, 1977, initiating further action with respect to the President’s Proclamation 4313 of September 16, 1974, (ii) as implemented on or after April 5, 1977, under the Department of Defense’s Special discharge review program, Or (iii) aS implemented Subsequent to April 5, 1977, and not made applicable to all perSons administratively discharged or released from active military, naval, or air Service under other than honorable conditions, shall be entitled to benefits under laws administered by the Veterans' Administration except upon a determination, based on a Case-by-Case review, under Standards (meeting the requirements of paragraph (1) of this subsection) applied by the board of review concerned under Section 1553 of title 10, Subject to review by the Secretary concerned, that such person would be awarded an upgraded discharged under Such standards; “(B) Such determination shall be made by Such board, (i) on an expedited basis after notification by the Veterans' Administration to the Secretary concerned that Such person has received, is in receipt of, or has applied for such benefits or after a written request is made by such person or such determination, (ii) on its own initiative within one year after the date of enactment of this paragraph in any case where a general or honorable discharge has been awarded on or prior to the date of enactment of this paragraph under revised standards referred to in clause (A) (i), (ii), or (iii) of this paragraph, or (iii) On its own initiative at the time a general or honorable discharge is so awarded in any Case where a general or honorable discharge is awarded after such enactment date. “If such board makes a preliminary determination that such person would not have been awarded an upgraded discharge under Standards meeting the requirements of paragraph (1) of this SubSection, Such personal shall be entitled to an appearance before the board, as provided for in section 1553(c) of title 10, prior to a final determination on such question and shall be given written notice by the board of Such preliminary determination and of his or her right to Such appearance. The Administrator Shall, as Soon as administratively feasible, notify the appropriate board of review of the receipt of benefits under laws administered by the Veterans' Administration, or the application for such benefits, by any person awarded an upgraded discharge under revised Standards referred to in clause (A) (1), (ii), or (iii) of this paragraph with respect to whom a favorable determination has not been made under this paragraph.”. (b)(1) The Secretary of Defense shall fully inform each person awarded a general or honorable discharge under revised Standards for the review of discharges referred to in Section 3103(e)(2)(A) (i), (ii), or (iii) of title 38, United States Code, a S added by SubSection (a)(2) of this Section of his or her right to obtain an expedited determination under Section 3103(e)(2)(B)(i) of Such title and of the implications of the provisions of this Act for each Such person. (2) Notwithstanding any other provision of law, the Secretary of Defense Shall inform each person who applies to a board of review under Section 1553 of title 10, United States Code, and who appears to have been discharged under circumstances which might Constitute a bar to benefits under Section 3103(a), of title 38, United States Code, (A) that such person might possibly be administratively found to be entitled to benefits under laws administered by the Veterans’ Administration only through the action of a board for the correction of military records under Section 1552 of Such title 10 or the action of the Administrator of Veterans' Affairs under Section 3103 of Such title 38, and (B) of the procedures for making application to Such Section 1552 board for Such purpose and to the Administrator of Veterans' Affairs for Such purpose (including the right to proceed concurrently under Such Sections 3103, 1552 and 1553). Section 2. Notwithstanding any other provision of law, the Administrator of Veterans’ Affairs shall provide the type of health Care
and related benefits authorized to be provided under chapter 17 of title 38, United States Code, for any disability incurred or aggravated during active military, naval, or air Service in line of duty by a person other than a person barred from receiving benefits by Section 3103(a) of Such title, but shall not provide Such health care and related benefits pursuant to this section for any disability incurred or aggravated during a period of Service from which such person was disCharged by reason of a bad conduct disCharge. Section 3. Paragraph (18) of Section 101 of Title 38, United States Code, is amended to read a S follows: “(18) The term ‘discharge or release' includes, (A) retirement from the active milltary, naval, or air Service, and (B) the Satisfactory completion of the period of active military, naval, or air Service for which a person was obligated at the time of entry into Such Service in the Case of a person who, due to enlistment or reenlistment, was not awarded a discharge or release from Such period of service at the time of such completion thereof and who, at Such time, would Otherwise have been eligible for the award of a discharge or release under conditions other than dishonorable.” Section 4. In promulgating, or making any revisions of or amendments to, regulations governing the Standards and procedures by which the Veterans' Administration determines whether a perSon was discharged or released from active military, naval, or air Service under conditions other than dishonOrable, the Administrator of Veterans' Affairs Shall, in keeping with the Spirit and intent of this Act, not promulgate any Such regulations or revise or annend any Such regulations for the purpose of, or having the effect of, (1) providing any unique or special advantage to veterans awarded general or honorable discharges under revised Standards for the review of discharges described in Section 3103(e)(2)(A) (1), (ii), or (iii) of title 38, United States Code, as added by Section 1(a)(2) of this Act, or (2) otherwise making any Special distinction between Such veteranS and other veterans. Section 5. This Act, Shall become effective On the date of its enactment, except that— (1) Section 2 Shall become effective on October 1, 1977, or On Such enactment date, whichever is later; and (2) The amendments made by Section 1(a) Shall apply retroactively to deny benefits under laws administered by the Veterans’ Administration, except that, notwithstanding any other provision of law. (A) With respect to any person who, on Such enactment date is receiving benefits under laws administered by the Veterans’ Administration, (1) Such benefits Shall not be terminated under paragraph (2) of Section 3103(e) of title 38, United States Code, as added by Section 1(a)(2) of this Act, until, (I) the day on which a final determination not favorable to the person concerned is made on an expedited basis under paragraph (2) of Such section 3103(e), (II) the day following the expiration of ninety days after a preliminary determination not favorable to such person is made under such paragraph, or (III) the day following the expiration of one hundred and eighty days after Such enactment date, whichever day is the earliest, and (ii) the United States Shall not make any claim to recover the value of any benefits provided to Such person prior to Such earliest day; (B) With respect to any perSon awarded a general or honorable discharge under revised Standards for the review of discharges referred to in clause (A) (i), (ii), or (iii) of Such paragraph who has been provided any such benefits prior to Such enactment date, the United States shall not make any claim to recover the value of any benefits So provided; and (C) The amendments made by Clause (1) of Section 1(a) shall apply, (i) retroactively only to persons awarded general or honorable discharges under such revised Standards and to persons who, prior to the date of enactment of this Act, had not attained general eligibility to Such benefitS by virtue of (I) a change in or new issuance of a discharge under Section 1553 of title 10, United States Code, or (II) any other provision of law, and (ii) prospectively (on and after Such enactment date) to all other perSonS.
This instruction implements 32 CFR part 97 regarding the release of official Department of the Navy (DON) information and provision of testimony by DON personnel for litigation purposes, and prescribes conduct of DON personnel in response to a litigation request Or demand. It restates the information Contained in Secretary of the Navy Instruction 5820.8A of 27 August 19911, and is intended to conform in all respects with the requirements of that instruction.
(a) It is DON policy that official factual information, both testimonial and documentary, should be made reasonably available for use in Federal Courts, State Courts, foreign courts, and Other governmental proceedings unless that information is classified, privileged, or otherwise protected from public disclosure. (b) DON personnel, as defined in § 725.4(b), however, shall not provide Such official information, testimony, or documents, submit to interview, or permit, a view or visit, without the authorization required by this part. (c) DON personnel shall not provide, With Or without compensation, opinion Or expert testimony Concerning Official DON or Department of Defense (DOD) information, Subjects, personnel, or activities, except. On behalf of the United States or a party represented by the Department of Justice, or with the written Special authorization required by this part. (d) Section 725.2(b) and (c) constitute a regulatory general order, applicable to all DON personnel individually, and need no further implementation. A violation of those provisions is punishable under the Uniform Code of Military Justice for military personnel and is the basis for appropriate administrative procedures with respect to Civilian employees. Moreover, violations of this instruction by DON personnel may, under certain circumstances, be actionable under 18 U.S.C. 207.
1 Copies may be obtained, if needed, from
the Naval Publications and Forms Directorate, Attn: Code 301, 5801 Tabor Avenue, Philadelphia, PA 19120–5099.
(e) Upon a showing by a requester of exceptional need or unique Circumstances, and that the anticipated testimony will not be adverse to the interests of the DON, DOD, or the United States, the General Counsel of the Navy, the Judge Advocate General of the Navy, or their respective delegates may, in their sole discretion, and pursuant to the guidance contained in this instruction, grant such written Special authorization for DON personnel to appear and testify as expert Or Opinion witnesses at no expense to the United States.
§ 725.3 Authority to act.
(a) The General Counsel of the Navy, the Judge Advocate General of the Navy, and their respective delegates [hereafter “determining authorities” described in $725.4(a), shall respond to litigation requests or demands for offiCial DOD information or testimony by DON personnel as witnesses.
(b) If required by the scope of their respective delegations, determining authorities’ responses may include: ConSultation and coordination with the Department of Justice or the appropriate United States Attorney as required; referral of matters proprietary to another DOD Component to that component; determination whether of ficial information originated by the Navy may be released in litigation; and determination whether DOD personnel assigned to or affiliated with the Navy may be interviewed, contacted, or used as witnesses concerning official DOD information or a S expert Or Opinion witnesses. Following coordination with the appropriate Commander, a response may further include whether installations, facilities, ships, or aircraft may be visited or inspected; what, if any, conditions will be imposed upon any release, interview, Contact, testimony, visit, or inspection; what, if any, fees shall be charged or waived for access under the fee assessment considerations set forth in § 725.11; and what, if any, claims of privilege, pursuant to this instruction, may be invoked before any tribunal.
§ 725.4 Definitions.
(a) Determining authority. The cognizant DON or DOD official designated
to grant or deny a litigation request. In all cases in which the United States is, or might reasonably become, a party, or in which expert testimony is requested, the Judge Advocate General or the General Counsel of the Navy, depending on the subject matter of the request, will act as determining authority. In all other cases, the responsibility to act as determining authority has been delegated to all officers exercising general Court-martial Convening authority, or to their subordinate commands, and to other Commands and activities indicated in $725.6. (b) DON personnel. Active duty and former military personnel of the naval service including retirees; personnel of other DOD components serving with a DON component; Naval Academy midshipmen; present and former civilian employees of the DON including nonappropriated fund activity employees; non-U.S. nationals performing Services Overseas for the DON under provisions of status of forces agreements; and other specific individuals or entities hired through contractual agreements by or on behalf of DON, or performing services under such agreements for DON (e.g., consultants, contractors and their employees and personnel). (c) Factual and expert or opinion testimony. DON policy favors disclosure of factual information if disclosure does not violate the criteria. Stated in § 725.8. The distinction between factual matters, and expert Or Opinion matters (where DON policy favors non-disclosure), is not always clear. The considerations set forth below pertain. (1) Naval personnel may merely be percipient witnesses to an incident, in which event their testimony would be purely factual. On the other hand, they may be involved with the matter only through an after-the-event investigation (e.g., JAGMAN investigation). Describing the manner in which they conducted their investigation and asking them to identify factual conclusions in their report would likewise Constitute factual matters to which they might testify. In contrast, asking them to adopt or reaffirm their findings of fact, opinions, and recommendations, or asking them to form or express any other opinion—particularly one based upon matters Submitted by counsel or going to the ultimate issue of causation or liability—would clearly constitute precluded testimony under the above policy. (2) Naval personnel, by virtue of their training, often form opinions because they are required to do so in the course of their duties. If their opinions are formed prior to, or contemporaneously with, the matter in issue, and are routinely required of them in the course of the proper performance of their profesSional duties, they constitute essentially factual matters (i.e., the Opinion they previously held). Opinions formed after the event in question, including responses to hypothetical questions, generally constitute the Sort of opinion or expert testimony which this instruction is intended to Severely restrict. (3) Characterization of expected testimony by a requester as fact, Opinion, or expert is not binding on the determining authority. When there is doubt as to whether or not expert Or Opinion (as opposed to factual) testimony is being sought, advice may be obtained informally from, or the request forwarded, to the Deputy Assistant Judge Advocate General (General Litigation) or the Associate General Counsel (Litigation) for resolution. (d) Litigation. All pretrial, trial, and post-trial stages of all existing or reasonably anticipated judicial or administrative actions, hearings, investigations, or Similar proceedings before civilian Courts, Commissions, boards (including the Armed Services Board of Contract Appeals), or other tribunals, foreign and domestic. This term includes responses to discovery requests, depositions, and other pretrial proceedings, as well as responses to formal or informal requests by attorneys or others in situations involving, or reasonably anticipated to involve, civil or criminal litigation. (e) Official information. All information of any kind, however stored, in the custody and control of the DOD and its components including the DON; relating to information in the custody and control of DOD or its components; or acquired by DOD personnel or its Component personnel as part of their official duties or because of their official Status within DOD or its components,
while such personnel were employed by Or on behalf of the DOD or on active duty with the United States Armed Forces (determining whether “official information” is sought, as opposed to non-DOD information, rests with the determining authority identified in $725.6, rather than the requester).
(f) Request or demand (legal process). Subpoena, order, or other request by a federal, state, or foreign court of competent jurisdiction, by any administrative agency thereof, or by any party or Other person (Subject to the exceptions Stated in § 725.5) for production, discloSure, or release of Official DOD information or for appearance, deposition, or testimony of DON personnel as witIleSSéS.
(a) This instruction applies to all present and former civilian and military personnel of the DON whether employed by, or assigned to, DON temporarily or permanently. Affected personnel are defined more fully in § 725.4(b).
(b) This instruction applies only to Situations involving existing or reasonably anticipated litigation, as defined in $725.4(d), when DOD information or witnesses are sought, whether or not the United States, the DOD, or its components are parties thereto. It does not apply to formal or informal requests for information in Other Situations.
(c) This instruction provides guidance only for DON operation and activities of its present and former perSonnel in responding to litigation requests. It is not intended to, does not, and may not be relied upon to, create any right Or benefit, Substantive Or procedural, enforceable at law or equity against the United States, DOD, Or DON.
(d) This instruction is not intended to infringe upon or displace the responSibilities committed to the Department of Justice in conducting litigation on behalf of the United States.
(e) This instruction does not superSede or modify existing laws, DOD or DON regulations, directives, or instructions governing testimony of DON perSonnel or release of Official DOD or DON information during grand jury proceedings.