[Code of Federal Regulations]
[Title 32, Volume 5]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR723.3]

[Page 226-227]
 
                       TITLE 32--NATIONAL DEFENSE
 
                   CHAPTER VI--DEPARTMENT OF THE NAVY
 
PART 723_BOARD FOR CORRECTION OF NAVAL RECORDS--Table of Contents
 
Sec. 723.3  Application for correction.

    (a) General requirements. (1) The application for correction must be 
submitted on DD 149 (Application for Correction of Military Record) or 
exact facsimile thereof, and should be addressed to: Board for 
Correction of Naval Records, Department of the Navy, 2 Navy Annex, 
Washington, DC 20370-5100. Forms and other explanatory matter may be 
obtained from the Board upon request.
    (2) Except as provided in paragraph (a)(3) of this section, the 
application shall be signed by the person requesting corrective action 
with respect to his/her record and will either be sworn to or will 
contain a provision to the effect that the statements submitted in the 
application are made with full knowledge of the penalty provided by law 
for making a false statement or claim. (18 U.S.C. 287 and 1001)
    (3) When the record in question is that of a person who is incapable 
of making application, or whose whereabouts is unknown, or when such 
person is deceased, the application may be made by a spouse, parent, 
heir, or legal representative. Proof of proper interest shall be 
submitted with the application.
    (b) Time limit for filing application. Applications for correction 
of a record must be filed within 3 years after discovery of the alleged 
error or injustice. Failure to file within the time prescribed may be 
excused by the Board if it finds it would be in the interest of justice 
to do so. If the application is filed more than 3 years after discovery 
of the error or injustice, the application must set forth the reason why 
the Board should find it in the interest of justice to excuse the 
failure to file the application within the time prescribed.
    (c) Acceptance of applications. An application will be accepted for 
consideration unless:
    (1) The Board lacks jurisdiction.
    (2) The Board lacks authority to grant effective relief.
    (3) The applicant has failed to comply with the filing requirements 
of paragraphs (a)(l), (a)(2), or (a)(3) of this section.
    (4) The applicant has failed to exhaust all available administrative 
remedies.
    (5) The applicant has failed to file an application within 3 years 
after discovery of the alleged error or injustice and has not provided a 
reason or reasons why the Board should find it in the interest of 
justice to excuse the failure to file the application within the 
prescribed 3-year period.
    (d) Other proceedings not stayed. Filing an application with the 
Board shall not operate as a stay of any other proceedings being taken 
with respect to the person involved.
    (e) Consideration of application. (1) Each application accepted for 
consideration and all pertinent evidence of record will be reviewed by a 
three member panel sitting in executive session, to determine whether to 
authorize a hearing, recommend that the records be corrected without a 
hearing, or to deny the application without a hearing. This 
determination will be made by majority vote.
    (2) The Board may deny an application in executive session if it 
determines that the evidence of record fails to demonstrate the 
existence of probable material error or injustice. The

[[Page 227]]

Board relies on a presumption of regularity to support the official 
actions of public officers and, in the absence of substantial evidence 
to the contrary, will presume that they have properly discharged their 
official duties. Applicants have the burden of overcoming this 
presumption but the Board will not deny an application solely because 
the record was made by or at the direction of the President or the 
Secretary in connection with proceedings other than proceedings of a 
board for the correction of military or naval records. Denial of an 
application on the grounds of insufficient evidence to demonstrate the 
existence of probable material error or injustice is final subject to 
the provisions for reconsideration contained in Sec. 723.9.
    (3) When an original application or a request for further 
consideration of a previously denied application is denied without a 
hearing, the Board's determination shall be made in writing and include 
a brief statement of the grounds for denial.
    (4) The brief statement of the grounds for denial shall include the 
reasons for the determination that relief should not be granted, 
including the applicant's claims of constitutional, statutory and/or 
regulatory violations that were rejected, together with all the 
essential facts upon which the denial is based, including, if 
applicable, factors required by regulation to be considered for 
determination of the character of and reason for discharge. Further the 
Board shall make a determination as to the applicability of the 
provisions of the Military Whistleblower Protection Act (10 U.S.C. 1034) 
if it is invoked by the applicant or reasonably raised by the evidence. 
Attached to the statement shall be any advisory opinion considered by 
the Board which is not fully set out in the statement. The applicant 
will also be advised of reconsideration procedures.
    (5) The statement of the grounds for denial, together with all 
attachments, shall be furnished promptly to the applicant and counsel, 
who shall also be informed that the name and final vote of each Board 
member will be furnished or made available upon request. Classified or 
privileged material will not be incorporated or attached to the Board 
statement; rather, unclassified or nonprivileged summaries of such 
material will be so used and written explanations for the substitution 
will be provided to the applicant and counsel.