[Code of Federal Regulations]
[Title 32, Volume 6]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR865.4]

[Page 174-175]
 
                        TITLE 32-NATIONAL DEFENSE
 
                CHAPTER VII--DEPARTMENT OF THE AIR FORCE
 
PART 865_PERSONNEL REVIEW BOARDS--Table of Contents
 
      Subpart A_Air Force Board for Correction of Military Records
 
Sec. 865.4  Board actions.

    (a) Board information sources. The applicant has the burden of 
providing sufficient evidence of probable 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 require the applicant to furnish additional information 
necessary to decide the case.
    (b) Applicants will normally be given an opportunity to review and 
comment on advisory opinions and additional information obtained by the 
Board.
    (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 paragraph (f) 
of this section 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.
    (g) The Executive Director will notify the applicant or counsel, if 
any, of the time and place of the hearing. Written notice will be mailed 
thirty days in advance of the hearing unless the notice period is waived 
by the applicant. The applicant will respond not later than fifteen 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.
    (h) When granted a hearing, the applicant may appear before the 
Board in person, represented by counsel, or in person with 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.
    (i) 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 two 
hours but may allow more time if necessary to ensure a full and fair 
hearing.
    (j) Additional provisions apply to cases processed under 10 U.S.C. 
1034. See DoDD 7050.6.\2\
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    \2\ See footnote 1.
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    (k) 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.
    (l) Board decisions. The panel's majority vote constitutes the 
action of the Board. The Board's decision will be in writing and will 
include determinations on the following issues:
    (1) Whether the provisions of the Military Whistleblowers Protection

[[Page 175]]

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. 865.2(b)).
    (m) 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.
    (n) Minority reports. A dissenting panel member may prepare a 
minority report which may address any aspect of the case.
    (o) 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.
    (p) 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 involve an appointment 
or promotion requiring confirmation by the Senate.
    (q) 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.