[Federal Register: December 11, 2002 (Volume 67, Number 238)]
[Proposed Rules]
[Page 76142-76150]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11de02-14]
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DEPARTMENT OF TRANSPORTATION
Office of the Secretary
Coast Guard
33 CFR Part 52
[OST Docket No. 2002-13439; Notice 2002-1]
RIN-2105-AD19
Coast Guard Board for Correction of Military Records; Procedural
Regulation
AGENCY: Office of the Secretary, Coast Guard, DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department proposes to revise and reissue its procedural
regulations for the Coast Guard Board for Correction of Military
Records (Board). This action is taken on the Department's initiative in
order to clarify application procedures; to explain applicants' legal
rights and burden of proof; to allow applicants to change their
requests for relief, to submit evidence after their applications have
been docketed, or to request extensions of the time to respond to the
advisory opinion of the Coast Guard without filing a new application or
waiving their right to a timely decision; to provide for administrative
closure of cases without Board action when the Chair determines that an
application has been erroneously docketed; to facilitate Board
decisions when the advisory opinions of the Coast Guard are not timely
received; to increase the time provided for applicants to respond to
the advisory opinions; to facilitate the Board's review of privileged,
classified, and sensitive information; to clarify the Board's authority
to order the Coast Guard to convene medical boards to evaluate
applicants pursuant to applications for separations by reason of
disability; to clarify actions that may be taken by the delegate of the
Secretary; and to notify the public of the Board's reading room.
DATES: Comments must be submitted on or before January 27, 2003.
ADDRESSES: Anyone wishing to file a comment should refer to the OST
docket and notice numbers (OST Docket No. OST 2002-13439, Notice No.1
). You may submit your comments and related material by only one of the
following methods: You may mail your comments to the Docket Management
System, U.S. Department of Transportation, Room PL-401, 400 7th Street
SW., Washington, DC 20590-0001; or you may submit your comments
electronically through the Web site for the Docket Management System at
http://dms.dot.gov. For instructions on how to submit comments
electronically, visit the Docket Management System Web site and click
on the ``Help'' menu.
The Docket Management Facility maintains the public docket for this
rulemaking. Comments, and documents as indicated in this preamble, will
become part of this docket and will be available for inspection or
copying at room PL-401 on the plaza level of the Nassif Building at the
same address during regular business hours. You may also obtain access
to this docket on the Internet at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Dorothy J. Ulmer, Chair, Board for
Correction of Military Records of the Coast Guard, C-60, Office of the
General Counsel, U.S. Department of Transportation, 400 7th Street SW.,
Washington, DC 20590. Telephone: (202) 366-9335.
SUPPLEMENTARY INFORMATION: The Secretary of Transportation, acting
through the Department of Transportation Board for Correction of
Military Records of the Coast Guard, is authorized by section 1552 of
title 10 of the United States Code to correct the military records of
active duty, reserve, retired, and discharged Coast Guard military
personnel who apply for a correction of an error or injustice in their
records.
The Need for Revision
The Board's current rules at 33 CFR part 52 have become
disorganized over time by amendments and have several shortcomings that
may negatively affect the Board's applicants and the timeliness of the
Board's decisions. This proposed revision of 33 CFR part 52 is intended
to better organize the rules, notify applicants of their rights and
Board procedures, and remove other shortcomings as described below.
The current rules fail to inform the public of the following
important matters: The proper format for briefs in support of an
application; the need for a family member or legal representative to
submit proof of his or her proper interest before applying on behalf of
a deceased or incompetent veteran; the requirement that applicants
inform the Board of any change in their mailing address prior to final
action by the Board; the fact that applicants whose cases are processed
under the Whistleblower Protection Act and who are granted a hearing
may be entitled to representation by a Coast Guard law specialist in
accordance with 10 U.S.C. 1034(f)(3)(A); the presumption of regularity
accorded military records and the burden of proof borne by applicants;
the possible actions the delegate of the Secretary may take when
reviewing a recommended decision of the Board; the possible reduction
of monetary awards resulting from record corrections because of setoffs
required by law or regulation; and the availability of copies of the
Board's final decisions, redacted to protect the privacy of applicants,
for review in the Board's reading room and on a Web site. These are
matters that should be addressed in the Board's rules.
Furthermore, the current rule allows an applicant only 15 days to
respond to the written views of the Coast Guard on his or her
application. Sec. 52.82(d). In light of the underway schedules of some
of the Board's active duty applicants assigned to sea duty, 15 days is
insufficient time for some applicants to respond. No provision
addresses applicants' requests for extensions of that time in order to
consult counsel or gather more evidence. The current rule requires
members who submit evidence after submitting their applications to
waive their right to a final decision
[[Page 76143]]
within ten months and makes no provision for a new deadline. Sec.
52.61(c). Moreover, no provision addresses the consequences of an
applicant's decision to change his or her request for relief.
The current rule states that Board action is required before a
member can withdraw an application. Sec. 52.26. It also allows the
Chair to deny an application, without prejudice and without action by
the Board, if he or she believes that the evidence is insufficient or
that the application was untimely and lacks merit. Sec. 52.32.
The current rule does not address or facilitate the Board's access
to privileged, classified, and sensitive information, such as reports
of investigations, which is occasionally necessary for the Board to
determine whether an error or injustice has been committed. The current
rule also permits applicants to inspect the Board's record of
proceedings without expressly providing for the protection of
privileged, classified, and sensitive information. Sec. 52.66.
The current rule states that the Board shall consider any written
recommendation submitted by the Chief Counsel of the Coast Guard before
issuing a decision. Sec. 52.82(e). However, it provides no deadline
for the Chief Counsel's submission even though the Board must take
final action on each application within ten months. 14 U.S.C. 425.
Delayed submissions by the Chief Counsel's office can leave the Board
with little or no time to receive the applicant's response, issue a
final decision, and have it reviewed by the delegate of the Secretary
before the statutory ten-month deadline has expired. The current rule
also does not take into account written views submitted by a delegate
of the Commandant of the Coast Guard other than the Chief Counsel. In
addition, the current rule fails to require the Coast Guard to describe
what ``significant issue of Coast Guard policy'' is at stake when he or
she invokes review of a Board decision by the delegate of the
Secretary. Sec. 52.64(a)(2).
The current rule permits the Board to specify any correction of a
record in its order and to order the Coast Guard to take ``any other
action deemed necessary to carry out the Board's recommendation,'' but
it does not expressly permit the Board to order the Coast Guard to
convene medical boards to determine an applicant's disability rating so
that his or her separation can be corrected. Sec. 52.61(e). The
current rule also requires the delegate of the Secretary to review
cases in which the Board corrects a record to show that a member is
entitled to a medal or award contrary to the Coast Guard's
recommendation. In addition, the current rule does not address what the
Coast Guard should do if it finds that an order of the Board is
incomplete because of an oversight.
Section-by-Section Analysis of the Proposed Rule
Subpart A--Purpose and Authority
Section 52.1 Purpose.
This section remains unchanged under the proposal.
Section 52.2 Authority.
This section would be amended to reflect the codification of the
Board's ten-month deadline for issuing decisions under 14 U.S.C. 425
and to add a citation (10 U.S.C. 1552(a)(4)) for the finality and
conclusiveness of the Board's orders.
Subpart B--Establishment, Function, and Jurisdiction of Board
Section 52.11 Establishment and Composition
Throughout this section and all of the proposed rule, the term
Chair would be substituted for the term Chairman to establish gender
neutrality. This section would also be amended to remove a citation to
49 U.S.C. 108(a).
Section 52.12 Function
This section would be amended to reflect the fact that the Board
considers submissions from the Coast Guard and other Government offices
along with applications and military records in reaching its decisions.
Section 52.13 Jurisdiction
No changes are proposed for this section.
Subpart C--General Provisions Regarding Applications
Section 52.21 General Requirements
No changes are proposed for paragraph (a). Paragraph (b) would be
amended to inform family members and legal representatives that they
must submit proof of their proper interest before applying to the Board
for the correction of the military record of a deceased or incompetent
veteran. Paragraph (c) would be amended to reflect the fact that
applications are not docketed by the Board until they are complete and
to reflect the need for substantial evidence or information and all
military and medical records before an application is considered
complete. Paragraph (d) would be added to advise applicants of the
necessity of keeping the Board informed of any changes in mailing
address so that they will receive the Board's correspondence. Paragraph
(e) would be added to ensure that briefs submitted in support of
applications are readable, replicable, and not unduly lengthy.
Section 52.22 Time Limit for Filing Application
This section would be slightly reworded to clarify why an applicant
must provide reasons for submitting an application after the three-year
statute of limitations has passed.
Section 52.23 Counsel
Paragraph (a) would be added to inform applicants that they may be
represented by counsel at their own expense but that applicants whose
cases are processed under the Whistleblower Protection Act may be
entitled to representation by a law specialist at a hearing convened in
accordance with Subpart F. The previous text of this section would
appear in paragraph (b) and would be amended by updating two citations
and by making the Chair, rather than the Board, responsible for
deciding the competence of an applicant's chosen representative.
Section 52.24 Evidence and Burden of Proof
Paragraph (a) would be revised to encourage the timely submission
of evidence with the initial application and to direct attention toward
the new rule concerning late submissions of evidence in section 52.26.
Paragraph (b) would be added to inform applicants of the presumption of
regularity accorded military records and of the burden of proof they
must meet to be granted relief, which is the preponderance of the
evidence.
Section 52.25 Access to Official Records
This section would be amended to consolidate the sentences.
Section 52.26 Right to Timely Decision; Effect of Requests for
Extensions, Changes in Requests for Relief, and Late Submissions of
Evidence
This new section, which would incorporate the provisions in old
sections 52.68 and 52.61(c), would inform applicants of their right to
a final decision on their applications within ten months of the
completion of their applications. It would also permit applicants to
request extensions, submit evidence after their applications have been
docketed, and alter their requests for relief without waiving their
right to
[[Page 76144]]
a timely decision. It would provide that, if an applicant requests an
extension or unreasonably delays responding to a request from the
Board, the Board's ten-month deadline would be extended by the duration
of the extension or of the unreasonably delay. It would further provide
that, if in the determination of the Chair, an applicant has submitted
significant new evidence or has significantly altered his or her
request for relief after his or her application has been docketed, the
application would be considered newly completed and the applicant would
have the right to a final decision within ten months of the new date of
completion.
Section 52.27 Withdrawal of Application
This section (old Sec. 52.26) would be revised to allow the Chair
to permit an applicant to withdraw his or her application without Board
action.
Section 52.28 Stay of Proceedings
No changes are proposed for this section (old Sec. 52.33), apart
from its renumbering. It should be renumbered because it belongs better
under this Subpart C-General Provisions Regarding Applications than
where it was under Subpart D-Consideration of Application.
Subpart D--Consideration of Application and Administrative Closure
Section 52.31 Consideration of Application
This section would be amended to show that the Chair's initial
review of an application to determine whether it is complete occurs
before the application is docketed.
Section 52.32 Administrative Closure
This section would be renamed and expanded to clarify the
circumstances under which the Chair may close a case without prejudice
and without Board action. Paragraph (a) would permit the Chair to close
a case when he or she determines that the application was erroneously
documented because it was never completed, the Board lacks authority to
grant the requested relief, the applicant failed to exhaust an
administrative remedy before applying to the Board, or the Coast Guard
has already made the requested corrections. Paragraph (b) addresses how
applicants might reapply after their cases have been administratively
closed. Paragraph (c) would require the Chair to inform applicants of
their right to reapply whenever he or she administratively closes a
case.
Old section 52.33 Stay of proceedings. This old section would be
renumbered as section 52.28 under the proposed rule.
Subpart E--Submissions by the Coast Guard and Other Offices
This new Subpart E would embody old Subpart I--Miscellaneous
Provisions. It would be renamed and repositioned to better reflect its
contents and the order of the Board's procedures. Old Subpart E would
be included in Subpart F.
Section 52.41 Assistance
No changes are proposed for this section (old Sec. 52.81), apart
from its renumbering.
Section 52.42 Views of the Coast Guard
Paragraph (a) (old Sec. 52.82(a)) would be amended to reflect the
amendments to sections 52.21 and 52.32. Paragraphs (a) and (b) (old
Sec. 52.82(c)) would be amended to reflect the fact that the views of
the Coast Guard may be submitted in an advisory opinion by any delegate
of the Commandant. Paragraph (c) (old Sec. 52.82(e)) would be amended
to require the Board to consider the advisory opinion of the Coast
Guard only if it is submitted within 135 days of the date the
application is complete but to permit the Board to consider advisory
opinions submitted after the 135-day deadline has passed. The proposed
rule would facilitate timely decisions when submissions of advisory
opinions by the Coast Guard are delayed to the point where little or no
time would remain for the Board to receive the applicant's response to
the advisory opinion, issue a final decision, and have it reviewed by
the delegate of the Secretary before the statutory ten-month deadline
has expired. Paragraph (d) (old Sec. 52.82(d)) would increase the time
provided for the applicant's response to the advisory opinion from 15
to 30 days and allow the Chair to grant extensions of the time to
respond. Paragraph (e), which is new, would require advisory opinions
and applicants' briefs in response to advisory opinions to be readable,
replicable, and not unduly lengthy.
Section 52.43 Requests for Further Information; Submissions of
Classified, Privileged, and Sensitive Information
This section (old Sec. 52.82(b)) would be expanded to address the
Board's ability to seek information from applicants and from other
Government offices, as well as from the Coast Guard. It addresses how
the Board can receive and review classified, privileged, and sensitive
information from the Coast Guard or another Government office while
providing the applicant with a copy of any part of that information
that would be released to him or her if requested by the applicant from
the custodian of the information under 49 CFR parts 7 or 10.
Subpart F--Hearings
This subpart would incorporate both old Subpart E--Hearings and old
Subpart F--Procedure at Hearings because both concern hearings.
Section 52.51 General provision
No changes other than renumbering and substituting the term Chair
for the term Chairman are proposed for this section (old Sec. 52.41).
Section 52.52 Notice of Hearing
No changes other than renumbering, substituting the term Chair for
the term Chairman, and adding a comma for stylistic consistency are
proposed for this section (old Sec. 52.42).
Section 52.53 Witnesses
This section (old Sec. 52.43) would be renumbered and amended by
substituting the term Chair for the term Chairman, adding a comma for
stylistic consistency, and clarifying the language to indicate that the
applicant is only responsible for ensuring the appearance of his or her
own witnesses at a hearing.
Section 52.54 Expenses
This section (old Sec. 52.44) would be renumbered and amended to
inform applicants that they may be entitled to representation by a law
specialist if they are granted a hearing and their cases are processed
under the Whistleblower Protection Act.
Section 52.55 Nonappearance
No change is proposed for this section (old Sec. 52.45), apart
from its renumbering.
Section 52.56 Conduct of Hearing
No amendments other than renumbering, substituting the term Chair
for the term Chairman, and adding a comma for stylistic consistency are
proposed for this section (old Sec. 52.51).
Section 52.57 Record of Hearing
No change is proposed for this section (old Sec. 52.52), apart
from its renumbering.
Subpart G--Judgment and Disposition
Section 52.61 Deliberations and Decision
No amendments other than substituting the term Chair for the term
[[Page 76145]]
Chairman are proposed for paragraphs (a) and (b). Old paragraph (c)
would be amended and moved to proposed paragraphs 52.24(a) and
52.26(c). New paragraph (c) (old paragraph (d)) would be amended only
by substituting the term Chair for the term Chairman and by
capitalizing the letter b in Board for stylistic consistency. Paragraph
(d) (old paragraph (e)) would be revised to show that the Board's
authority to order the Coast Guard to take ``any other action deemed
necessary to carry out the Board's recommendation,'' as previously
provided, includes the authority to order the Coast Guard to convene
medical boards to help determine an applicant's proper disability
rating for a correction of his or her separation. No changes are
proposed for paragraph (e) (old paragraph (f)).
Section 52.62 Minority Report
No changes are proposed for this section.
Section 52.63 Record of Proceedings
Paragraph (a) would contain the existing, unamended text of this
section. Paragraph (b) would be added to provide for the return of
classified, privileged, or sensitive information reviewed by the Board
to the custodial Government office and the inclusion of the redacted
copy of the information that was provided to the applicant in the
Board's permanent record of proceedings after final action is taken.
Section 52.64 Final Action
Paragraph (a)(2) would be amended to require the delegate of the
Commandant of the Coast Guard to identify and describe in his or her
advisory opinion the significant issue of Coast Guard policy challenged
in an application that requires its review by the delegate of the
Secretary under paragraph (b) if the Board grants relief contrary to
the Coast Guard's advisory opinion or if the Board grants substantially
different relief than that recommended by the Coast Guard. Paragraph
(a)(2) would also be amended to make the Board's decision on an
application to receive a medal or award final unless the Coast Guard
describes a significant issue of Coast Guard policy that is challenged
in the application. Paragraph (b) would be amended to reflect the range
of actions the delegate of the Secretary may take in reviewing a
decision of the Board.
Section 52.65 Orders
No changes are proposed for this section.
Section 52.66 Notification
This section would be amended to make only the permanent record of
proceedings, as compiled in accordance with section 52.63(b), available
for the applicant's inspection.
Section 52.67 Reconsideration
In paragraphs (a), (b), and (e), the term Chair would be
substituted for the term Chairman. Paragraph (a)(1) would be amended
for clarification. Paragraph (c) would be amended to better explain who
can serve on a Board to reconsider a case. Paragraph (d) would be
amended to make applications for reconsideration subject to the
provisions in section 52.26 for permitting applicants to request
extensions, submit evidence late, and alter their requests for relief.
Old Section 52.68 Time Limit for Final Action
This old section would be incorporated in proposed section 52.26.
Subpart H--Payment of Claims and Implementation of Orders
Section 52.71 Authority to Pay
No changes are proposed for this section.
Section 52.72 Implementation of Orders
This section would be renamed for clarity and the words ``shall
transmit'' would be substituted for the word ``transmits.'' Paragraph
(b) would be amended to specify that applicants must furnish to the
Board or to the Coast Guard information needed to determine the proper
parties to a claim. Paragraph (c) would be amended to notify applicants
that monetary awards resulting from record corrections may be reduced
by setoffs required by law or regulation.
Section 52.73 Interpretation
This section would be amended to provide that the Coast Guard
should return a decision to the Board for clarification or technical
amendment if it believes that the Board's order is incomplete because
of an oversight.
Section 52.74 Report of Settlement
No changes are proposed for this section.
Subpart I--Public Access to Decisions
The old Subpart I--Miscellaneous Provisions would be repositioned
and renamed as Subpart E--Submissions by the Coast Guard and Other
Offices.
Section 52.81 Reading Room and Index
This new section would inform the public of the availability of
copies of its final decisions, redacted to protect the privacy of
applicants, for public review in the Board's reading room and on the
Web.
Regulatory Analyses and Notices
Executive Order 12866
This proposed rule does not constitute a significant rule under
Executive Order 12866 or the Department's Regulatory Policies and
Procedures. The costs of these procedural changes would be negligible,
their effect on industry would be negligible, and they are not of
general policy interest.
Regulatory Flexibility Act and Federalism
Under 5 U.S.C. 604, we certify that this proposed rule, if adopted,
would not have a significant economic impact on a substantial number of
small entities because it would affect only the procedures followed by
the Board, the Coast Guard, and applicants in the submission and
processing of applications for correction of individuals' personal
military records. There are no Federalism factors to warrant the
preparation of a Federalism assessment.
Paperwork Reduction Act
This NPRM does not propose any information collection requirements
subject to review under the Paperwork Reduction Act.
Lists of Subjects in 33 CFR Part 52
Military records.
Issued this 26th day of November 2002 at Washington, DC.
Norman Y. Mineta,
Secretary of Transportation.
For the reasons set forth in the preamble, the Department proposes
to revise 33 CFR Part 52 to read as follows:
PART 52--BOARD FOR CORRECTION OF MILITARY RECORDS OF THE COAST
GUARD
Subpart A--Purpose and Authority
Sec.
52.1 Purpose.
52.2 Authority.
Subpart B--Establishment, Function, and Jurisdiction of Board
52.11 Establishment and composition.
52.12 Function.
52.13 Jurisdiction.
[[Page 76146]]
Subpart C--General Provisions Regarding Applications
52.21 General requirements.
52.22 Time limit for filing application.
52.23 Counsel.
52.24 Evidence and burden of proof.
52.25 Access to official records.
52.26 Right to timely decision; effect of requests for extensions,
changes in requests for relief, and late submissions of evidence.
52.27 Withdrawal of application.
52.28 Stay of proceedings.
Subpart D--Consideration of Application and Administrative Closure
52.31 Consideration of application.
52.32 Administrative closure.
Subpart E--Submissions by the Coast Guard and Other Offices
52.41 Assistance.
52.42 Views of the Coast Guard.
52.43 Requests for further information; submissions of classified,
privileged, and sensitive information.
Subpart F--Hearings
52.51 General provision.
52.52 Notice of hearing.
52.53 Witnesses.
52.54 Expenses.
52.55 Nonappearance.
52.56 Conduct of hearing.
52.57 Record of hearing.
Subpart G--Judgment and Disposition
52.61 Deliberations and decision.
52.62 Minority report.
52.63 Record of proceedings.
52.64 Final action.
52.65 Orders.
52.66 Notification.
52.67 Reconsideration.
Subpart H--Payment of Claims and Implementation of Orders
52.71 Authority to pay.
52.72 Implementation of orders.
52.73 Interpretation.
52.74 Report of settlement.
Subpart I--Public Access to Decisions
52.81 Reading room and index.
Authority: 10 U.S.C. 1552, 14 U.S.C. 425.
Subpart A--Purpose and Authority
Sec. 52.1 Purpose.
This part establishes the procedure for application for correction
of military records of the Coast Guard, for consideration of
applications by the Department of Transportation Board for Correction
of Military Records of the Coast Guard (hereinafter ``the Board''), and
for settling claims or determining monetary benefits.
Sec. 52.2 Authority.
(a) The Secretary of Transportation, acting through boards of
civilians, is authorized to correct any military record of the Coast
Guard when the Secretary considers it necessary to correct an error or
remove an injustice. 10 U.S.C. 1552. The Secretary shall ensure that
final action on a complete application for correction is taken within
10 months of its receipt. 14 U.S.C. 425.
(b) Corrections made under this authority are final and conclusive
on all officers of the Government except when procured by fraud. 10
U.S.C. 1552(a)(4).
Subpart B--Establishment, Function, and Jurisdiction of Board
Sec. 52.11 Establishment and composition.
(a) Pursuant to 10 U.S.C. 1552, the Board for Correction of
Military Records of the Coast Guard is established in the Office of the
Secretary of Transportation.
(b) The Secretary appoints a panel of civilian officers or
employees of the Department of Transportation to serve as members of
the Board, and designates one such member to serve as Chair of the
Board. The Chair designates members from this panel to serve as the
Board for each case requiring consideration by a Board. The Board
consists of three members, and two members present constitute a quorum
of the Board.
(c) The Deputy Chair of the Board exercises the functions
prescribed by these regulations and such other duties as may be
assigned by the Chair.
Sec. 52.12 Function.
The function of the Board is to consider all applications properly
before it, together with all pertinent military records and any
submission received from the Coast Guard or other Government office
under subpart E, to determine:
(a) Whether an error has been made in the applicant's Coast Guard
military record, whether the applicant has suffered an error or
injustice as the result of an omission or commission in his or her
record, or whether the applicant has suffered some manifest injustice
in the treatment accorded him or her; and
(b) Whether the Board finds it necessary to change a military
record to correct an error or remove an injustice.
Sec. 52.13 Jurisdiction.
(a) The Board has jurisdiction to review and determine all matters
properly brought before it, consistent with existing law and such
directives as may be issued by the Secretary.
(b) No application shall be considered by the Board until the
applicant has exhausted all effective administrative remedies afforded
under existing law or regulations, and such legal remedies as the Board
may determine are practical, appropriate, and available to the
applicant.
Subpart C--General Provisions Regarding Applications
Sec. 52.21 General Requirements.
(a) An application for correction of a Coast Guard record shall be
submitted on DD Form 149 (Application for Correction of Military or
Naval Record) or an exact copy thereof, and shall be addressed to:
Chair, Board for Correction of Military Records of the Coast Guard (C-
60), United States Department of Transportation, Washington, DC 20590.
Forms and explanatory material may be obtained from the Chair of the
Board.
(b) The application shall be signed by the person alleging error or
injustice in his or her military record, except that an application may
be signed by a family member or legal representative with respect to
the record of a deceased, incapacitated, or missing person. The family
member or legal representative must submit proof of his or her proper
interest with the application.
(c) No application shall be docketed or processed until it is
complete. An application for relief is complete when all of the
following have been received by the Board:
(1) A signed DD Form 149, providing all necessary responses,
including a specific allegation of error or injustice, accompanied by
substantial evidence or information in support of such allegation;
(2) The military records of the applicant; and
(3) Any applicable military and Department of Veterans Affairs
medical records.
(d) It is the applicant's responsibility to include his or her
correct mailing address on the DD Form 149 and to inform the Chair in
writing of any subsequent change of address until the Board or the
Secretary takes final action on the application.
(e) Briefs in support of applications must be assembled in a manner
that permits easy reproduction and may not exceed twenty-five double-
spaced typewritten pages in a type size with no more than twelve
characters per inch. This limitation does not apply to supporting
documentary evidence. In complex cases, the Chair may waive this
limitation.
Sec. 52.22 Time limit for filing application.
An application for correction of a record must be filed within
three years after the applicant discovered or reasonably should have
discovered the alleged error or injustice. If an
[[Page 76147]]
application is untimely, the applicant shall set forth reasons in the
application why it is in the interest of justice for the Board to
consider the application. An untimely application shall be denied
unless the Board finds that sufficient evidence has been presented to
warrant a finding that it would be in the interest of justice to excuse
the failure to file timely.
Sec. 52.23 Counsel.
(a) Applicants may be represented by counsel at their own expense.
Applicants whose cases are processed under the Whistleblower Protection
Act and who are granted a hearing by the Board may be entitled to
representation by a Coast Guard law specialist. 10 U.S.C.
1034(f)(3)(A).
(b) As used in this part, the term ``counsel'' includes attorneys
who are members in good standing of any bar; accredited representatives
of veterans' organizations recognized by the Secretary of Veterans
Affairs pursuant to 38 U.S.C. 5902; and other persons who, in the
opinion of the Chair, are competent to represent the applicant for
correction. Whenever the term ``applicant'' is used in these rules,
except in Sec. 52.21(c), the term shall mean an applicant or his or
her counsel.
Sec. 52.24 Evidence and burden of proof.
(a) It is the responsibility of the applicant to procure and submit
with his or her application such evidence, including official records,
as the applicant desires to present in support of his or her case. All
such evidence should be submitted with the applicant's DD Form 149 in
accordance with Sec. 52.21(c)(1). Evidence submitted by an applicant
after an application has been filed and docketed shall be considered
late and its acceptance is subject to the provisions in Sec. Sec.
52.26(a)(4) and (c).
(b) The Board begins its consideration of each case presuming
administrative regularity on the part of Coast Guard and other
Government officials. The applicant has the burden of proving the
existence of an error or injustice by the preponderance of the
evidence.
Sec. 52.25 Access to official records.
The applicant shall have such access to official records or to any
information pertaining to the applicant which is in the custody of the
Coast Guard as is provided in 49 CFR parts 7 and 10.
Sec. 52.26 Right to timely decision; effect of requests for
extensions, changes in requests for relief, and late submissions of
evidence.
(a) Each applicant has a right to have final action taken on his or
her application within 10 months after all the elements of a complete
application, as defined in Sec. 52.21(c), have been received by the
Board, unless the applicant
(1) Submits a written request, which is granted by the Chair, for
an extension of a specific duration to seek counsel or additional
evidence;
(2) Submits a written request, which is granted by the Chair, for
an extension of the time provided for responding to the views of the
Coast Guard in accordance with Sec. 52.42(d);
(3) Submits a signed statement that is determined by the Chair to
significantly amend the applicant's request for relief after the
application has been docketed;
(4) Submits significant new evidence, as determined by the Chair,
after the application has been docketed; or
(5) Is found by the Chair to have unreasonably delayed responding
to a request for further information or evidence.
(b) If the applicant requests an extension in accordance with
paragraphs (a)(1) or (a)(2) of this section or unreasonably delays
responding to a request for further information or evidence in
accordance with paragraph (a)(5) of this section, he or she shall have
a right to have final action taken on the application for correction
within 10 months of the application's completion plus all periods of
extension granted to the applicant by the Chair and all periods of
unreasonable delay.
(c) If the applicant significantly amends his or her request for
relief or submits significant new evidence after the application has
been docketed, in accordance with paragraphs (a)(3) or (a)(4) of this
section, the application shall be considered newly complete as of the
date the amended request for relief or new evidence is received, in
which case the applicant shall have a right to have final action taken
on the application within 10 months of the date the Board receives the
amended request for relief or significant new evidence.
Sec. 52.27 Withdrawal of application.
The Chair may, at his or her discretion, permit the applicant to
withdraw his or her application at any time before final action is
taken under Sec. 52.64. Any further consideration by the Board of the
issues raised in the withdrawn application shall occur only upon the
filing of a new application.
Sec. 52.28 Stay of proceedings.
An application to the Board for correction of a military record
does not operate as a stay of any proceeding or administrative action
taken with respect to or affecting the applicant.
Subpart D--Consideration of Application and Administrative Closure
Sec. 52.31 Consideration of application.
Each application shall be reviewed by the Chair to determine
whether it meets the requirements of Sec. 52.21 before it is docketed.
The Chair shall decide in appropriate cases whether to grant a hearing
or to recommend disposition on the merits without a hearing.
Sec. 52.32 Administrative closure.
(a) The Chair may administratively close a case after it has been
docketed and at any time prior to its consideration by the Board if the
Chair determines that:
(1) The application was erroneously docketed because the
application did not meet the criteria under Sec. 52.21;
(2) Effective relief cannot be granted by the Board;
(3) The Board does not have jurisdiction to determine the issues
presented or the applicant has not exhausted an available
administrative remedy, as required under Sec. 52.13(b); or
(4) The Coast Guard has granted effective relief satisfactory to
the applicant.
(b) Administrative closure does not constitute a denial of relief.
Applicants who believe their cases should not have been
administratively closed by the Chair may resubmit their applications
with a request for further consideration and a statement explaining why
the applicant believes his or her case should be docketed and
considered by the Board. A request for further consideration shall be
regarded as a new application for the purposes of Sec. Sec. 52.21 and
52.26.
(c) If the Chair administratively closes a case, the applicant
shall be advised of the reason and of the right to resubmit his or her
application.
Subpart E--Submissions by the Coast Guard and Other Offices
Sec. 52.41 Assistance.
The Board may request such advice, opinion, assistance, or use of
the facilities of any other bureau, board, or office of the Department
of Transportation as the Board deems necessary.
Sec. 52.42 Views of the Coast Guard.
(a) The Board shall transmit to the Commandant of the Coast Guard
or his or her delegate a copy of each application for relief submitted
and docketed under subpart C of this part,
[[Page 76148]]
together with any briefs, memoranda, and documentary evidence submitted
or obtained in the case.
(b) The Commandant of the Coast Guard or his or her delegate may
forward to the Board a written advisory opinion presenting the views of
the Coast Guard on any case before the Board.
(c) An advisory opinion furnished by the Coast Guard under this
section shall not be binding upon the Board, but shall be considered by
the Board, along with all other information and material submitted in
the particular case, if it is received by the Board within 135 days of
the date the application is complete. The Chair may, in his or her
discretion, grant the Coast Guard an extension of the time provided for
submitting the advisory opinion.
(d) The Board shall promptly send a copy of each submission made by
the Coast Guard under this section to the applicant involved, subject
to the limitations in Sec. Sec. 52.42(c) and 52.43(c). Each applicant
has 30 days, from the date the Board sends the submission, to submit to
the Board a written rebuttal or response to the Coast Guard's advisory
opinion or a written request for an extension of the time to respond,
subject to the provisions in Sec. 52.26.
(e) Advisory opinions submitted by the Coast Guard and briefs
submitted by applicants in response to the advisory opinions of the
Coast Guard must be assembled in a manner that permits easy
reproduction and may not exceed fifteen double-spaced typewritten pages
in a type size with no more than twelve characters per inch. This
limitation does not apply to supporting documentary evidence. In
complex cases, the Chair may waive this limitation.
Sec. 52.43 Requests for further information; submissions of
classified, privileged, and sensitive information.
(a) The Chair or the Board may ask the applicant to submit
additional information not included in the application or response to
the advisory opinion.
(b) The Chair or the Board may ask the Coast Guard or other
Government office to submit any information, including reports of
investigations, that the Chair or the Board deems relevant to an
applicant's case.
(c) Whenever the Coast Guard or other Government office submits
classified, privileged, or sensitive information to the Board in
accordance with paragraph (b) of this section or Sec. 52.42(b), it
shall identify such information and also provide the Board with a copy
of that part of the information that would be released to the applicant
by the Coast Guard or other Government office if he or she requested it
under 49 CFR parts 7 and 10. The Board shall forward only this redacted
copy to the applicant.
Subpart F--Hearings
Sec. 52.51 General provision.
In each case in which the Chair determines that a hearing is
warranted, the applicant will be entitled to be heard orally in person,
by counsel, or in person with counsel.
Sec. 52.52 Notice of hearing.
(a) If the Chair determines that a hearing is warranted, the Chair
shall notify the applicant that a hearing has been granted.
(b) The date of hearing shall be not less than 21 days from the
date of this notification. Written notice stating the date, time, and
place of the hearing shall be given to the applicant and the Coast
Guard.
Sec. 52.53 Witnesses.
(a) In any case in which the Chair has granted a hearing, the
applicant shall have the right to present witnesses.
(b) It is the responsibility of the applicant to notify his or her
witnesses and to ensure their appearance at the date, time, and place
set for the hearing.
Sec. 52.54 Expenses.
No expenses of any nature whatsoever incurred by an applicant, his
or her counsel, witnesses, or others acting on behalf of the applicant
shall be paid by the Government, except that an applicant may be
entitled to representation by a Coast Guard law specialist if the case
has been processed under the Whistleblower Protection Act. 10 U.S.C.
1034(f)(3)(A).
Sec. 52.55 Nonappearance.
An applicant who fails without good cause to appear in person or by
counsel at the appointed date, time, and place for hearing, is deemed
to have waived the right to a hearing. The application is then
considered by the Board on the basis of all the material of record.
Sec. 52.56 Conduct of hearing.
(a) The Chair or the Chair's designee shall conduct a hearing so as
to ensure a full and fair presentation of the evidence.
(b) The hearing is not limited by legal rules of evidence, but
reasonable standards of competency, relevancy, and materiality are
observed for the receipt and consideration of evidence.
(c) All testimony shall be given under oath or affirmation.
Sec. 52.57 Record of hearing.
A hearing pursuant to this subpart in open session shall be
recorded verbatim and, at the discretion of the Board or direction of
the Secretary, shall be transcribed.
Subpart G--Judgment and Disposition
Sec. 52.61 Deliberations and decision.
(a) The Board is convened at the call of the Chair and its meetings
are recessed or adjourned by order of the Chair. Only members of the
Board and its staff may be present during the deliberations of the
Board. The Board's deliberations are conducted in executive session and
are not reported.
(b) When the Board finds that the facts have not been fully and
fairly disclosed by the records, testimony, and any other evidence
before the Board, the Board may request the applicant and/or the Coast
Guard to obtain and submit such further evidence as it considers
essential to a complete and impartial understanding of the facts and
issues.
(c) Following the receipt of all evidence, the Chair shall cause to
be prepared and shall submit to the Board for its consideration a draft
decision containing proposed findings and conclusions and a proposed
order. A majority vote of the members of the Board present at a meeting
on any matter relating to a draft decision before the Board shall
constitute the action of the Board. If a draft decision is approved by
the Board, it shall become a decision of the Board.
(d) The decision of the Board shall specify any change, correction,
or modification of records to be made by the Coast Guard, and any other
action deemed necessary to provide full and effective relief, which may
include directing the Coast Guard to convene medical boards.
(e) If the Board deems it necessary to submit a comment or
recommendation to the Secretary as to a matter arising from, but not
directly related to, the issues in a case, it does so by separate
communication.
Sec. 52.62 Minority report.
In case of disagreement among Board members, a minority report may
be submitted dissenting from or concurring with the decision of the
Board.
Sec. 52.63 Record of proceedings.
(a) The Board shall prepare a complete record of each proceeding.
The record shall include the application for relief; the written views
of the Coast Guard, if any; any transcript of testimony; affidavits and
documents considered by the Board; briefs and
[[Page 76149]]
written arguments filed in the case; the findings, decisions, and
recommendations of the Board; minority reports, if any; and all other
materials necessary to reflect a true and complete history of the
proceedings.
(b) After final action has been taken on an application in
accordance with Sec. 52.64, any classified, privileged, or sensitive
information in the record of proceedings that has been provided by the
Coast Guard or another Government office in accordance with Sec. Sec.
52.42 or 52.43 shall be returned by the Board to the office from which
it was received. Only a copy of the information provided by the Coast
Guard or other Government office for release to the applicant in
accordance with Sec. 52.43(c) shall be retained in the permanent
record of proceedings after final action is taken.
Sec. 52.64 Final action.
(a) The Board, provided that it acts unanimously, may take final
action on behalf of the Secretary, pursuant to 10 U.S.C. 1552, as
follows:
(1) The Board may deny an application for the correction of
military records.
(2) Unless the Coast Guard, in submitting its views pursuant to
Sec. 52.42(b), identifies and describes a significant issue of Coast
Guard policy challenged in the application, the Board may approve an
application for the correction of military records in any of the
following categories:
(i) An application to correct an enlistment or reenlistment
contract or agreement to extend an enlistment for the purpose of
effecting or increasing entitlement to a Selective Reenlistment Bonus;
(ii) An application to modify an election to participate in the
Survivor Benefit Plan;
(iii) An application to change a reenlistment eligibility code;
(iv) An application to correct the character of, or reason for, a
discharge or separation; or
(v) An application to receive a medal or award.
(3) The Board may approve any application for correction of
military records not included in one of the categories in paragraph
(a)(2) of this section, if the Coast Guard recommends the same or
substantially same relief as that requested by the applicant.
(b) Except in cases where the Board takes final action under
paragraph (a) of this section, the Board shall forward the record of
its proceedings to the Secretary, who may approve, disapprove, or
concur in the decision of the Board or the minority report, if any,
either in whole or in part, and amend the order of the Board
accordingly, or return the case to the Board for additional
consideration. After taking final action, the Secretary shall send any
such statement and the record of proceedings to the Board for
disposition.
Sec. 52.65 Orders.
(a) The Board shall issue such orders or directives as may be
necessary to carry out a final action.
(b) The Board may ask the Coast Guard to submit a written report to
the Board specifying the action taken and the date thereof with respect
to any final action.
(c) Unless doing so is likely to nullify the relief granted, copies
of the final decision shall be placed in the military record of the
applicant.
Sec. 52.66 Notification.
After final action is taken under Sec. 52.64, the Board shall send
a copy of the final decision to the applicant. The applicant may
inspect the permanent record of proceedings at Board offices.
Sec. 52.67 Reconsideration.
(a) Reconsideration of an application for correction of a military
record shall occur if an applicant requests it and the request meets
the requirements set forth in paragraph (a)(1) or (a)(2) of this
section.
(1) An applicant presents evidence or information that was not
previously considered by the Board and that could result in a
determination other than that originally made. Such new evidence or
information may only be considered if it could not have been presented
to the Board prior to its original determination if the applicant had
exercised reasonable diligence; or
(2) An applicant presents evidence or information that the Board,
or the Secretary as the case may be, committed legal or factual error
in the original determination that could have resulted in a
determination other than that originally made.
(b) The Chair shall docket a request for reconsideration of a final
decision if it meets the requirements of paragraph (a)(1) or (a)(2) of
this section. If neither of these requirements is met, the Chair shall
not docket such request.
(c) The Board shall consider each application for reconsideration
that has been docketed. None of the Board members who served on the
Board that considered an applicant's original application for
correction shall serve on the Board that decides the applicant's
application upon reconsideration.
(d) Action by the Board on a docketed application for
reconsideration is subject to Sec. Sec. 52.26 and 52.64(b).
(e) An applicant's request for reconsideration must be filed within
two years after the issuance of a final decision, except as otherwise
required by law. If the Chair dockets an applicant's request for
reconsideration, the two-year requirement may be waived if the Board
finds that it would be in the interest of justice to consider the
request despite its untimeliness.
Subpart H--Payment of Claims and Implementation of Orders
Sec. 52.71 Authority to pay.
(a) The Coast Guard is authorized to pay the claims of any person
as the result of any action heretofore or hereafter taken under 10
U.S.C. 1552.
(b) The Coast Guard is not authorized to pay any claim heretofore
compensated by Congress through enactment of private law, or to pay any
amount as compensation for any benefit to which the claimant might
subsequently become entitled under the laws and regulations
administered by the Secretary of Veterans Affairs.
Sec. 52.72 Implementation of orders.
(a) In each case the Board shall transmit a copy of its decision or
the Secretary's decision to the proper Coast Guard authority for
determination of monetary benefits due, if any, as a result of the
action of the Board and for corrections of the military record ordered
by the Board.
(b) Upon request, the claimant is required to furnish to the Board
or to the Coast Guard any information necessary to determine the proper
parties to the claim for payment under applicable provisions of law.
(c) Appropriate records shall be examined in light of the Board's
decision to determine all amounts which may be due. Amounts found due
are subject to setoff in the amount of any existing indebtedness to the
Government arising from Coast Guard service and to other setoffs
required by law or regulation.
(d) At the time of payment, the claimant shall be advised as to the
nature and amount of the various benefits represented by the total
settlement, and of the fact that acceptance of the settlement
constitutes a complete release by the claimant of any claim against the
United States on account of the correction of record ordered by the
Board.
Sec. 52.73 Interpretation.
If the intent or import of the final decision is not clear to the
Coast Guard, if the Coast Guard believes that executing all or part of
the order in the
[[Page 76150]]
final decision is beyond the Coast Guard's authority, or if the Coast
Guard believes that the order is incomplete because of an oversight,
the final decision shall be returned to the Board for clarification or
technical amendment.
Sec. 52.74 Report of settlement.
When payment is made pursuant to the order of the Board, the Board
may request the Coast Guard to notify it of the name of any person to
whom payment was made and of the amount of the payment.
Subpart I--Public Access to Decisions
Sec. 52.81 Reading room and index.
After deleting only so much personal information as is necessary to
prevent an unwarranted invasion of privacy of the applicant or other
persons mentioned in the final decision of the Board, a redacted copy
of each final decision shall be indexed by subject and made available
for review and copying at a public reading room. Final decisions
created on or after November 1, 1996, shall be made available by
electronic means. 5 U.S.C. 552.
[FR Doc. 02-30933 Filed 12-10-02; 8:45 am]
BILLING CODE 4910-15-P