[Federal Register Volume 75, Number 187 (Tuesday, September 28, 2010)]
[Rules and Regulations]
[Pages 59613-59616]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-24118]
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DEPARTMENT OF DEFENSE
Department of the Air Force
32 CFR Part 865
[Docket No. USAF-2008-0002]
RIN 0701-AA74
Personnel Review Boards
AGENCY: Department of the Air Force, DoD.
ACTION: Final rule.
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SUMMARY: The Department of the Air Force is amending its regulations
concerning the Air Force Board for Correction of Military Records. The
regulations being revised establish procedures for the consideration of
applications for the correction of military records and provides
guidance to applicants and others interested in the process. This
revision incorporates format changes and clarifies various minor
provisions of the subpart.
DATES: Effective Date: This rule is effective October 28, 2010.
FOR FURTHER INFORMATION CONTACT: Mr Algie Walker Jr. at (240) 857-5380,
[email protected].
SUPPLEMENTARY INFORMATION: The proposed rule was published in the
Federal Register on July 15, 2009 (74 FR 34279-34283). No comments were
received.
Executive Order 12866, ``Regulatory Planning and Review''
It has been determined that 32 CFR part 865 is not a significant
regulatory action. This rule does not:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of the
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.
Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)
It has been certified the 32 CFR part 865 does not contain a
Federal Mandate that may result in the expenditure by State, local and
tribal governments, in aggregate, or by the private sector, of $100
million or more in any one year.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
It has been determined that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities.
Public Law 95-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been certified that 32 CFR part 865 does not impose any
additional reporting or recordkeeping requirements under the Paperwork
Reduction Act of 1995 (44 U.S.C. Chapter 35). Existing reporting and
recordkeeping requirements approved under OMB Control Number 0704-0003,
Application for Correction of Military Record Under the Provisions of
Title 10, U.S. Code, Section 1552, will be used.
Federalism (Executive Order 13132)
It has been certified that 32 CFR part 865 does not have federalism
implications, as set forth in Executive Order 13132. This rule does not
have substantial direct effects on:
(1) The States;
(2) The relationship between the National Government and the
States; or
(3) The distribution of power and responsibilities among the
various levels of government.
List of Subjects in 32 CFR Part 865
Administrative practices and procedures, Military personnel,
Records.
0
Accordingly, 32 CFR part 865 is amended as follows:
PART 865--PERSONNEL REVIEW BOARDS
0
1. The authority citation for 32 CFR part 865 continues to read as
follows:
Authority: 10 U.S.C. 1034, 1552.2.
0
2. Revise Subpart A to read as follows:
Subpart A--Air Force Board for Correction of Military Records
Sec.
865.0 Purpose.
865.1 Setup of the Board.
865.2 Board responsibilities.
865.3 Application procedures.
865.4 Board actions.
865.5 Decision of the Secretary of the Air Force.
865.6 Reconsideration of applications.
856.7 Action after final decision.
865.8 Miscellaneous provisions.
Subpart A--Air Force Board for Correction of Military Records
Sec. 865.0 Purpose.
This subpart sets up procedures for correction of military records
to remedy error or injustice. It tells how to apply for correction of
military records and how the Air Force Board for Correction of Military
Records (AFBCMR, or the Board) 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. System of Records notice F035 SAFCB A,
Military Records Processed by the Air Force Correction Board, applies.
Sec. 865.1 Setup of the Board.
The AFBCMR operates within the Office of the Secretary of the Air
Force according to 10 U.S.C. 1552. The Board consists of civilians in
the executive part of the Department of the Air Force who are appointed
and serve at the pleasure of the Secretary of the Air Force. Three
members constitute a quorum of the Board.
Sec. 865.2 Board responsibilities.
(a) Considering applications. The Board considers all individual
[[Page 59614]]
applications properly brought before it. In appropriate cases, it
directs correction of military records to remove an error or injustice,
or recommends such correction.
(b) Recommending action. When an applicant alleges reprisal under
the Military Whistleblowers Protection Act, 10 U.S.C. 1034, the Board
may recommend to the Secretary of the Air Force that disciplinary or
administrative action be taken against those responsible for the
reprisal.
(c) Deciding cases. The Board normally decides cases on the
evidence of the record. It is not an investigative body. However, the
Board may, in its discretion, hold a hearing or call for additional
evidence or opinions in any case.
Sec. 865.3 Application procedures.
(a) Who may apply:
(1) In most cases, the applicant is a member or former member of
the Air Force, since the request is personal to the applicant and
relates to his or her military records.
(2) An applicant with a proper interest may request correction of
another person's military records when that person is incapable of
acting on his or her own behalf, is missing, or is deceased. Depending
on the circumstances, a child, spouse, civilian employee or former
civilian employee, former spouse, parent or other close relative, an
heir, or a legal representative (such as a guardian or executor) of the
member or former member may be able to show a proper interest.
Applicants will send proof of proper interest with the application when
requesting correction of another person's military records. An
application may be returned when proper interest has not been shown.
(3) A member, former member, employee or former employee,
dependent, and current or former spouse may apply to correct a document
or other record of any other military matter that affects them (This
does not include records pertaining to civilian employment matters).
Applicants will send proof of the effect of the document or record upon
them with the application when requesting a correction under this
provision.
(b) Getting forms. Applicants may get a DD Form 149, ``Application
for Correction of Military Record Under the Provisions of Title 10
U.S.C. 1552,'' and Air Force Pamphlet 36-2607, ``Applicants' Guide to
the Air Force Board for Correction of Military Records (AFBCMR),''
from:
(1) Any Air Force Military Personnel Flight (MPF) or publications
distribution office.
(2) Most veterans' service organizations.
(3) The Air Force Review Boards Office, SAF/MRBR, 550 C Street
West, Suite 40, Randolph AFB TX 78150-4742.
(4) The AFBCMR, 1535 Command Drive, EE Wing 3rd Floor, Andrews AFB
MD 20762-7002.
(5) Thru the Internet at http://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd0149.pdf (DD Form 149) and http://www.e-publishing.af.mil/shared/media/epubs/AFPAM36-2607.pdf (Air Force
Pamphlet 36-2607).
(c) Preparation. Before applying, applicants should:
(1) Review Air Force Pamphlet 36-2607.
(2) Discuss their concerns with MPF, finance office, or other
appropriate officials. Errors can often be corrected administratively
without resort to the Board.
(3) Exhaust other available administrative remedies (otherwise the
Board may return the request without considering it).
(d) Submitting the application. Applicants should complete all
applicable sections of the DD Form 149, including at least:
(1) The name under which the member served.
(2) The member's social security number or Air Force service
number.
(3) The applicant's current mailing address.
(4) The specific records correction being requested.
(5) Proof of proper interest if requesting correction of another
person's records.
(6) The applicant's original signature.
(e) Applicants should mail the original signed DD Form 149 and any
supporting documents to the Air Force address on the back of the form.
(f) Meeting time limits. Ordinarily, applicants must file an
application within 3 years after the error or injustice was discovered,
or, with due diligence, should have been discovered. In accordance with
federal law, time on active duty is not included in the 3 year period.
An application filed later is untimely and may be denied by the Board
on that basis.
(1) The Board may excuse untimely filing in the interest of
justice.
(2) If the application is filed late, applicants should explain why
it would be in the interest of justice for the Board to waive the time
limits.
(g) Stay of other proceedings. Applying to the AFBCMR does not stay
other proceedings.
(h) Counsel representation. Applicants may be represented by
counsel, at their own expense.
(1) The term ``counsel'' includes members in good standing of the
bar of any state, accredited representatives of veterans' organizations
recognized under by the Secretary of Veterans Affairs pursuant to 38
U.S.C. 5902(a)(1), and other persons determined by the Executive
Director of the Board to be competent to represent the interests of the
applicant.
(2) See DoDD 7050.06, Military Whistleblower Protection \1\ and AFI
90-301, Inspector General Complaints Resolution, for special provisions
for counsel in cases processed under 10 U.S.C. 1034.
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\1\ Available via the Internet at http://www.dtic.mil/whs/directives/corres/pdf/705006p.pdf.
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(i) Page limitations on briefs. Briefs in support of applications:
(1) May not exceed 25 double-spaced typewritten pages.
(2) Must be typed on one side of a page only with not more than 12
characters per inch.
(3) Must be assembled in a manner that permits easy reproduction.
(4) Responses to advisory opinions must not exceed 10 double-spaced
typewritten pages and meet the other requirements for briefs.
(5) These limitations do not apply to supporting documentary
evidence.
(6) In complex cases and upon request, the Executive Director of
the Board may waive these limitations.
(j) Withdrawing applications. Applicants may withdraw an
application at any time before the Board's decision. Withdrawal does
not stay the 3-year time limit.
(k) Authority to reject applications. The Executive Director may
return an application without action, if, after consultation with legal
counsel, he or she determines that the application is clearly
frivolous, or the remedy that is requested is beyond the authority of
the Board. This authority may not be delegated.
Sec. 865.4 Board actions.
(a) Board information sources. The applicant has the burden of
providing sufficient evidence of material error or injustice. However,
the Board:
(1) May get additional information and advisory opinions on an
application from any Air Force organization or official.
(2) May ask the applicant to furnish additional information
regarding matters before the Board.
(b) Applicants will be given an opportunity to review and comment
on
[[Page 59615]]
advisory opinions and additional information obtained by the Board.
They will also be provided with a copy of correspondence to or from the
Air Force Review Boards Agency with an entity outside the Air Force
Review Boards Agency in accordance with the provisions of 10 U.S.C.
1556.
(c) Consideration by the Board. A panel consisting of at least
three board members considers each application. One panel member serves
as its chair. The panel's actions and decisions constitute the actions
and decisions of the Board.
(d) The panel may decide the case in executive session or authorize
a hearing. When a hearing is authorized, the procedures in Sec.
865.4(f), of this part, apply.
(e) Board deliberations. Normally only members of the Board and
Board staff will be present during deliberations. The panel chair may
permit observers for training purposes or otherwise in furtherance of
the functions of the Board.
(f) Board hearings. The Board in its sole discretion determines
whether to grant a hearing. Applicants do not have a right to a hearing
before the Board.
(1) The Executive Director will notify the applicant or counsel, if
any, of the time and place of the hearing. Written notice will be
mailed 30 days in advance of the hearing unless the notice period is
waived by the applicant. The applicant will respond not later than 15
days before the hearing date, accepting or declining the offer of a
hearing and, if accepting, provide information pertaining to counsel
and witnesses. The Board will decide the case in executive session if
the applicant declines the hearing or fails to appear.
(2) When granted a hearing, the applicant may appear before the
Board with or without counsel and may present witnesses. It is the
applicant's responsibility to notify witnesses, arrange for their
attendance at the hearing, and pay any associated costs.
(3) The panel chair conducts the hearing, maintains order, and
ensures the applicant receives a full and fair opportunity to be heard.
Formal rules of evidence do not apply, but the panel observes
reasonable bounds of competency, relevancy, and materiality. Witnesses
other than the applicant will not be present except when testifying.
Witnesses will testify under oath or affirmation. A recorder will
record the proceedings verbatim. The chair will normally limit hearings
to 2 hours but may allow more time if necessary to ensure a full and
fair hearing.
(4) Additional provisions apply to cases processed under 10 U.S.C.
1034. See DoDD 7050.06, Military Whistleblower Protection \2\, and AFI
90-301, Inspector General Complaints Resolution.
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\2\ Copies may be obtained via the Internet at http://www.dtic.mil/whs/directives/corres/pdf/705006p.pdf.
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(g) The Board will not deny or recommend denial of an application
on the sole ground that the issue already has been decided by the
Secretary of the Air Force or the President of the United States in
another proceeding.
(h) Board decisions. The panel's majority vote constitutes the
action of the Board. The Board will make determinations on the
following issues in writing:
(1) Whether the provisions of the Military Whistleblowers
Protection Act apply to the application. This determination is needed
only when the applicant invokes the protection of the Act, or when the
question of its applicability is otherwise raised by the evidence.
(2) Whether the application was timely filed and, if not, whether
the applicant has demonstrated that it would be in the interest of
justice to excuse the untimely filing. When the Board determines that
an application is not timely, and does not excuse its untimeliness, the
application will be denied on that basis.
(3) Whether the applicant has exhausted all available and effective
administrative remedies. If the applicant has not, the application will
be denied on that basis.
(4) Whether the applicant has demonstrated the existence of a
material error or injustice that can be remedied effectively through
correction of the applicant's military record and, if so, what
corrections are needed to provide full and effective relief.
(5) In Military Whistleblowers Protection Act cases only, whether
to recommend to the Secretary of the Air Force that disciplinary or
administrative action be taken against any Air Force official whom the
Board finds to have committed an act of reprisal against the applicant.
Any determination on this issue will not be made a part of the Board's
record of proceedings and will not be given to the applicant, but will
be provided directly to the Secretary of the Air Force under separate
cover (Sec 865.2b, of this part).
(i) Record of proceedings. The Board staff will prepare a record of
proceedings following deliberations which will include:
(1) The name and vote of each Board member.
(2) The application.
(3) Briefs and written arguments.
(4) Documentary evidence.
(5) A hearing transcript if a hearing was held.
(6) Advisory opinions and the applicant's related comments.
(7) The findings, conclusions, and recommendations of the Board.
(8) Minority reports, if any.
(9) Other information necessary to show a true and complete history
of the proceedings.
(j) Minority reports. A dissenting panel member may prepare a
minority report which may address any aspect of the case.
(k) Separate communications. The Board may send comments or
recommendations to the Secretary of the Air Force as to administrative
or disciplinary action against individuals found to have committed acts
of reprisal prohibited by the Military Whistleblowers Protection Act
and on other matters arising from an application not directly related
to the requested correction of military records. Such comments and
recommendations will be separately communicated and will not be
included in the record of proceedings or given to the applicant or
counsel.
(l) Final action by the Board. The Board acts for the Secretary of
the Air Force and its decision is final when it:
(1) Denies any application (except under 10 U.S.C. 1034).
(2) Grants any application in whole or part when the relief was
recommended by the official preparing the advisory opinion, was
unanimously agreed to by the panel, and does not affect an appointment
or promotion requiring confirmation by the Senate, and does not affect
a matter for which the Secretary of the Air Force or his or her delegee
has withheld decision authority or required notification before final
decision.
(3) The Board sends the record of proceedings on all other
applications to the Secretary of the Air Force or his or her designee
for final decision.
(m) The Board may identify DoD or Air Force policies, instructions,
guidance or practices that are leading to, or likely to lead to unsound
business decisions, unfair results, waste of government funds or public
criticism. The Board will forward such observations directly to the
appropriate offices of the Secretariat and/or Air Staff for review and
evaluation. Such observations will not be included in the record of
proceedings.
Sec. 865.5 Decision of the Secretary of the Air Force.
(a) The Secretary may direct such action as he or she deems
appropriate
[[Page 59616]]
on each case, including returning the case to the Board for further
consideration. Cases returned to the Board for further reconsideration
will be accompanied by a brief statement of the reasons for such
action. If the Secretary does not accept the Board's recommendation,
the Secretary's decision will be in writing and will include a brief
statement of the grounds for his/her final decision.
(b) Decisions in cases under the Military Whistleblowers Protection
Act. The Secretary will issue decisions on such cases within 180 days
after receipt of the case and will, unless the full relief requested is
granted, inform applicants of their right to request review of the
decision by the Secretary of Defense (SecDef). Applicants will also be
informed:
(1) Of the name and address of the official to whom the request for
review must be submitted.
(2) That the request for review must be submitted within 90 days
after receipt of the decision by the Secretary of the Air Force.
(3) That the request for review must be in writing and include the
applicant's name, address, and telephone number; a copy of the
application to the AFBCMR and the final decision of the Secretary of
the Air Force; and a statement of the specific reasons the applicant is
not satisfied with the decision of the Secretary of the Air Force.
(4) That the request must be based on the Board record; requests
for review based on factual allegations or evidence not previously
presented to the Board will not be considered under this paragraph but
may be the basis for reconsideration by the Board under Sec. 865.6.
(c) In cases under Sec. 865.5(b) of this part which involve
additional issues not cognizable under that paragraph, the additional
issues may be considered separately by the Board under Sec. 865.3 and
Sec. 865.4 of this part. The special time limit in Sec. 865.5 (b)
does not apply to the decision concerning these additional issues.
(d) Decisions in high profile or sensitive cases. Prior to taking
final action on a BCMR application that has generated, or is likely to
generate, significant public or Congressional interest, the Secretarial
designee will provide the case record of proceedings through
Secretarial channels to OSAF so that the Secretary can determine
whether to decide the case personally or take other action the
Secretary deems appropriate.
Sec. 865.6 Reconsideration of applications.
(a) The Board may reconsider an application if the applicant
submits newly discovered relevant evidence that was not reasonably
available when the application was previously considered. The Executive
Director or Team Chiefs will screen each request for reconsideration to
determine whether it contains new evidence. New arguments about, or
analysis of, evidence already considered, and additional statements
which are cumulative to those already in the record of proceedings will
not be considered new evidence.
(b) If the request contains new evidence, the Executive Director or
his/her designee will refer it to a panel of the Board for a decision.
The Board will decide the relevance and weight of any new evidence,
whether it was reasonably available to the applicant when the
application was previously considered, and whether it was submitted in
a timely manner. The Board may deny reconsideration if the request does
not meet the criteria for reconsideration. Otherwise the Board will
reconsider the application and decide the case either on timeliness or
merit as appropriate.
(c) If the request does not contain new evidence, the Executive
Director or his/her designee will return it to the applicant without
referral to the Board.
Sec. 856.7 Action after final decision.
(a) Action by the Executive Director. The Executive Director or
his/her designee will inform the applicant or counsel, if any, of the
final decision on the application. If any requested relief was denied,
the Executive Director will advise the applicant of reconsideration
procedures and, for cases processed under the Military Whistleblowers
Protection Act, review by the SecDef. The Executive Director will send
decisions requiring corrective action to the Chief of Staff, U.S. Air
Force, for necessary action.
(b) Settlement of claims. The Air Force is authorized, under 10
U.S.C. 1552, to pay claims for amounts due to applicants as a result of
correction of military records.
(1) The Executive Director will furnish the Defense Finance and
Accounting Service (DFAS) with AFBCMR decisions potentially affecting
monetary entitlement or benefits. DFAS will treat such decisions as
claims for payment by or on behalf of the applicant.
(2) DFAS settles claims on the basis of the corrected military
record. Computation of the amount due, if any, is a function of DFAS.
Applicants may be required to furnish additional information to DFAS to
establish their status as proper parties to the claim and to aid in
deciding amounts due.
(3) Earnings received from civilian employment during any period
for which active duty pay and allowances are payable will be deducted
from the settlement. Amounts found due will be offset by the amount of
any existing indebtedness to the government in compliance with the Debt
Collection Act of 1982 or successor statutes.
(c) Public access to decisions. After deletion of personal
information, AFBCMR decisions will be made available for review and
copying at an electronic public reading room.
Sec. 865.8 Miscellaneous provisions.
(a) At the request of the Board, all Air Force activities and
officials will furnish the Board with:
(1) All available military records pertinent to an application.
(2) An advisory opinion concerning an application. The advisory
opinion will include an analysis of the facts of the case and of the
applicant's contentions, a statement of whether or not the requested
relief can be done administratively, and a recommendation on the
timeliness and merit of the request. Regardless of the recommendation,
the advisory opinion will include instructions on specific corrective
action to be taken if the Board grants the application.
(b) Access to records. Applicants will have access to all records
considered by the Board, except those classified or privileged. To the
extent practicable, applicants will be provided unclassified or
nonprivileged summaries or extracts of such records considered by the
Board.
(c) Payment of expenses. The Air Force has no authority to pay
expenses of any kind incurred by or on behalf of an applicant in
connection with a correction of military records under 10 U.S.C. 1034
or 1552.
(d) Form adopted: DD Form 149.
Bao-Anh Trinh,
Air Force Federal Register Liaison Officer.
[FR Doc. 2010-24118 Filed 9-27-10; 8:45 am]
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