[Code of Federal Regulations]

[Title 32, Volume 1]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 32CFR70.8]



[Page 399-415]

 

                       TITLE 32--NATIONAL DEFENSE

 

              CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE

 

PART 70_DISCHARGE REVIEW BOARD (DRB) PROCEDURES AND STANDARDS--Table 

of Contents

 

Sec.  70.8  Discharge review procedures.



    (a) Application for review--(1) General. Applications shall be 

submitted to the appropriate DRB on DD Form 293, ``Application for 

Review of Discharge or Separation from the Armed Forces of the United 

States,'' with such other statements, affidavits, or documentation as 

desired. It is to the applicant's advantage to submit such documents 

with the application or within 60 days thereafter in order to permit a 

thorough screening of the case. The DD Form 293 is available at most DoD 

installations and regional offices of the Veterans Administration, or by 

writing to: DA Military Review Boards Agency, Attention: SFBA (Reading 

Room), Room 1E520, The Pentagon, Washington, DC 20310.

    (2) Timing. A motion or request for review must be made within 15 

years after the date of discharge or dismissal.

    (3) Applicant's responsibilities. An applicant may request a change 

in the character of or reason for discharge (or both).

    (i) Character of discharge. Block 7 of DD Form 293 provides an 

applicant an opportunity to request a specific change in character of 

discharge (for example, General Discharge to Honorable Discharge; Other 

than Honorable Discharge to General or Honorable Discharge). Only a 

person separated on or after 1 October 1982 while in an entry level 

status may request a change from Other than Honorable Discharge to Entry 

Level Separation. A request for review from an applicant who does not 

have an Honorable Discharge shall be treated as a request for a change 

to an Honorable Discharge unless the applicant requests a specific 

change to another character of discharge.

    (ii) Reason for discharge. Block 7 of DD Form 293 provides an 

applicant an opportunity to request a specific change in the reason for 

discharge. If an applicant does not request a specific change in the 

reason for discharge, the DRB shall presume that the request for review 

does not involve a request for change in the reason for discharge. Under 

its responsibility to examine the propriety and equity of an applicant's 

discharge, the DRB shall change the reason for discharge if such a 

change is warranted.

    (iii) The applicant must ensure that issues submitted to the DRB are 

consistent with the request for change in discharge set forth in block 7 

of the DD Form 293. If an ambiguity is created by a difference between 

an applicant's issue and the request in block 7, the



[[Page 400]]



DRB shall respond to the issue in the context of the action requested in 

block 7. In the case of a hearing, the DRB shall attempt to resolve the 

ambiguity under paragraph (a)(5) of this section.

    (4) Request for consideration of specific issues. An applicant may 

request the DRB to consider specific issues which, in the opinion of the 

applicant, form a basis for changing the character of or reason for 

discharge, or both. In addition to the guidance set forth in this 

section, applicants should consult the other sections in this part 

(particularly paragraphs (c), (d), and (e) of this section and 

Sec. Sec.  70.9 and 70.10 before submitting issues for consideration by 

the DRB.

    (i) Submission of issues on DD Form 293. Issues must be provided to 

the DRB on DD Form 293 before the DRB closes the review process for 

deliberation.

    (A) Issues must be clear and specific. An issue must be stated 

clearly and specifically in order to enable the DRB to understand the 

nature of the issue and its relationship to the applicant's discharge.

    (B) Separate listing of issues. Each issue submitted by an applicant 

should be listed separately. Submission of a separate statement for each 

issue provides the best means of ensuring that the full import of the 

issue is conveyed to the DRB.

    (C) Use of DD Form 293. DD Form 293 provides applicants with a 

standard format for submitting issues to the DRB, and its use:

    (1) Provides a means for an applicant to set forth clearly and 

specifically those matters that, in the opinion of the applicant, 

provide a basis for changing the discharge;

    (2) Assists the DRB in focusing on those matters considered to be 

important by an applicant;

    (3) Assists the DRB in distinguishing between a matter submitted by 

an applicant in the expectation that it will be treated as a decisional 

issue under paragraph (e) of this section, and those matters submitted 

simply as background or supporting materials;

    (4) Provides the applicant with greater rights in the event that the 

applicant later submits a complaint under Sec.  70.10(d)(1)(iii) 

concerning the decisional document;

    (5) Reduces the potential for disagreement as to the content of an 

applicant's issue.

    (D) Incorporation by reference. If the applicant makes an additional 

written submission, such as a brief, in support of the application, the 

applicant may incorporate by reference specific issues set forth in the 

written submission in accordance with the guidance on DD Form 293. The 

reference shall be specific enough for the DRB to identify clearly the 

matter being submitted as an issue. At a minimum, it shall identify the 

page, paragraph, and sentence incorporated. Because it is to the 

applicant's benefit to bring such issues to the DRB's attention as early 

as possible in the review, applicants who submit a brief are strongly 

urged to set forth all such issues as a separate item at the beginning 

of the brief. If it reasonably appears that the applicant inadvertently 

has failed expressly to incorporate an issue which the applicant clearly 

identifies as an issue to be addressed by the DRB, the DRB shall respond 

to such an issue under paragraphs (d) and (e) of this section.

    (E) Effective date of the new Form DD 293. With respect to 

applications received before November 27, 1982, the DRB shall consider 

issues clearly and specifically stated in accordance with the rules in 

effect at the time of submission. With respect to applications received 

on or after November 27, 1982, if the applicant submits an obsolete DD 

Form 293, the DRB shall accept the application, but shall provide the 

applicant with a copy of the new form and advise the applicant that it 

will only respond to issues submitted on the new form in accordance with 

this part.

    (ii) Relationship of issues to character of or reason for discharge. 

If the application applies to both character of and reason for 

discharge, the applicant is encouraged, but not required, to identify 

the issue as applying to the character of or reason for discharge (or 

both). Unless the issue is directed at the reason for discharge 

expressly or by necessary implication, the DRB will presume that it 

applies solely to the character of discharge.



[[Page 401]]



    (iii) Relationship of issues to the standards for discharge review. 

The DRB reviews discharges on the basis of issues of propriety and 

equity. The standards used by the DRB are set forth in Sec.  70.9. The 

applicant is encouraged to review those standards before submitting any 

issue upon which the applicant believes a change in discharge should be 

based.

    (A) Issues concerning the equity of the discharge. An issue of 

equity is a matter that involves a determination whether a discharge 

should by changed under the equity standards of Sec.  70.9. This 

includes any issue, submitted by the applicant in accordance with 

paragraph (a)(4)(i) of this section, that is addressed to the 

discretionary authority of the DRB.

    (B) Issues concerning the propriety of a discharge. An issue of 

propriety is a matter that involves a determination whether a discharge 

should be changed under the propriety standards of Sec.  70.9. This 

includes an applicant's issue, submitted in accordance with paragraph 

(a)(4)(i) of this section, in which the applicant's position is that the 

discharge must be changed because of an error in the discharge 

pertaining to a regulation, statute, constitutional provision, or other 

source of law (including a matter that requires a determination whether, 

under the circumstances of the case, action by military authorities was 

arbitrary, capricious, or an abuse of discretion). Although a numerical 

reference to the regulation or other sources of law alleged to have been 

violated is not necessarily required, the context of the regulation or a 

description of the procedures alleged to have been violated normally 

must be set forth in order to inform the DRB adequately of the basis for 

the applicant's position.

    (C) The applicant's identification of an issue. The applicant is 

encouraged, but not required, to identify an issue as pertaining to the 

propriety or the equity to the discharge. This will assist the DRB in 

assessing the relationship of the issue to propriety or equity under 

paragraph (e)(1)(iii) of this section.

    (iv) Citation of matter from decisions. The primary function of the 

DRB involves the exercise of dicretion on a case-by-case basis. See 

Sec.  70.9(b)(3). Applicants are not required to cite prior decisions as 

the basis for a change in discharge. If the applicant wishes to bring 

the DRB's attention to a prior decision as background or illustrative 

material, the citation should be placed in a brief or other supporting 

documents. If, however, it is the applicant's intention to submit an 

issue that sets forth specific principles and facts from a specific 

cited decision, the following requirements apply with respect to 

applications received on or after November 27, 1982.

    (A) The issue must be set forth or expressly incorporated in the 

``Applicant's Issue'' portion of DD Form 293.

    (B) If an applicant's issue cites a prior decision (of the DRB, 

another Board, an agency, or a court), the applicant shall describe the 

specific principles and facts that are contained in the prior decision 

and explain the relevance of cited matter to the applicant's case.

    (C) To ensure timely consideration of principles cited from 

unpublished opinions (including decisions maintained by the Armed Forces 

Discharge Review Board/Corrective Board Reading Room), applicants must 

provide the DRB with copies of such decisions or of the relevant portion 

of the treatise, manual, or similar source in which the principles were 

discussed. At the applicant's request, such materials will be returned.

    (D) If the applicant fails to comply with the requirements in 

paragraphs (a)(4)(iv) (A), (B), and (C), the decisional document shall 

note the defect, and shall respond to the issue without regard to the 

citation.

    (5) Identification by the DRB of issues submitted by an applicant. 

The applicant's issues shall be identified in accordance with this 

section after a review of the materials noted under paragraph (c)(4), is 

made.

    (i) Issues on DD Form 293. The DRB shall consider all items 

submitted as issues by an applicant on DD Form 293 (or incorporated 

therein) in accordance with paragraph (a)(4)(i). With respect to 

applications submitted before November 27, 1982, the DRB shall consider 

all issues clearly and specifically stated in accordance with the rules 

in effect at the time of the submission.



[[Page 402]]



    (ii) Amendment of issues. The DRB shall not request or instruct an 

applicant to amend or withdraw any matter submitted by the applicant. 

Any amendment or withdrawal of an issue by an applicant shall be 

confirmed in writing by the applicant. Nothing in this provision:

    (A) Limits the DRB's authority to question an applicant as to the 

meaning of such matter;

    (B) Precludes the DRB from developing decisional issues based upon 

such questions;

    (C) Prevents the applicant from amending or withdrawing such matter 

any time before the DRB closes the review process for deliberation; or

    (D) Prevents the DRB from presenting an applicant with a list of 

proposed decisional issues and written information concerning the right 

of the applicant to add to, amend, or withdraw the applicant's 

submission. The written information will state that the applicant's 

decision to take such action (or decline to do so) will not be used 

against the applicant in the consideration of the case.

    (iii) Additional issues identified during a hearing. The following 

additional procedure shall be used during a hearing in order to promote 

the DRB's understanding of an applicant's presentation. If, before 

closing the case for deliberation, the DRB believes that an applicant 

has presented an issue not listed on DD Form 293, the DRB may so inform 

the applicant, and the applicant may submit the issue in writing or add 

additional written issues at that time. This does not preclude the DRB 

from developing its own decisional issues.

    (6) Notification of possible bar to benefits. Written notification 

shall be made to each applicant whose record indicates a reason for 

discharge that bars receipt of benefits under 38 U.S.C. 3103(a). This 

notification will advise the applicant that separate action by the Board 

for Correction of Military or Naval Records or the Veterans 

Administration may confer eligibility for VA benefits. Regarding the bar 

to benefits based upon the 180 days consecutive unauthorized absence, 

the following applies:

    (i) Such absence must have been included as part of the basis for 

the applicant's discharge under other than honorable conditions.

    (ii) Such absence is computed without regard to the applicant's 

normal or adjusted expiration of term of service.

    (b) Conduct of reviews--(1) Members. As designated by the Secretary 

concerned, the DRB and its panels, if any, shall consist of five 

members. One member of the DRB shall be designated as the president and 

may serve as a presiding officer. Other officers may be designated to 

serve as presiding officers for DRB panels under regulations prescribed 

by the Secretary concerned.

    (2) Locations. Reviews by a DRB will be conducted in the NCR and 

such other locations as designated by the Secretary concerned.

    (3) Types of review. An applicant, upon request, is entitled to:

    (i) Record review. A review of the application, available service 

records, and additional documents (if any) submitted by the applicant.

    (ii) Hearing. A review involving an appearance before the DRB by the 

applicant or counsel or representative (or both).

    (4) Applicant's expenses. Unless otherwise specified by law or 

regulation, expenses incurred by the applicant, witnesses, counsel or 

representative will not be paid by the Department of Defense.

    (5) Withdrawal of application. An applicant shall be permitted to 

withdraw an application without prejudice at any time before the 

scheduled review.

    (6) Failure to appear at a hearing or respond to a scheduling 

notice. (i) Except as otherwise authorized by the Secretary concerned, 

further opportunity for a hearing shall not be made available in the 

following circumstances to an applicant who has requested a hearing:

    (A) When the applicant has been sent a letter containing the month 

and location of a proposed hearing and fails to make a timely response; 

or

    (B) When the applicant, after being notified by letter of the time 

and place of the hearing, fails to appear at the appointed time, either 

in person or by representative, without having made a prior, timely 

request for a continuation, postponement, or withdrawal.



[[Page 403]]



    (ii) In such cases, the applicant shall be deemed to have waived the 

right to a hearing, and the DRB shall complete its review of the 

discharge. Further request for a hearing shall not be granted unless the 

applicant can demonstrate that the failure to appear or respond was due 

to circumstances beyond the applicant's control.

    (7) Continuance and postponements. (i) A continuance of a discharge 

review hearing may be authorized by the president of the DRB or 

presiding officer of the panel concerned, provided that such continuance 

is of reasonable duration and is essential to achieving a full and fair 

hearing. When a proposal for continuance is indefinite, the pending 

application shall be returned to the applicant with the option to 

resubmit when the case is fully ready for review.

    (ii) Postponements of scheduled reviews normally shall not be 

permitted other than for demonstrated good and sufficient reason set 

forth by the applicant in a timely manner, or for the convenience of the 

government.

    (8) Reconsideration. A discharge review shall not be subject to 

reconsideration except:

    (i) When the only previous consideration of the case was on the 

motion of the DRB;

    (ii) When the original discharge review did not involve a hearing 

and a hearing is now desired, and the provisions of paragraph (b)(6) of 

this section do not apply;

    (iii) When changes in discharge policy are announced after an 

earlier review of an applicant's discharge, and the new policy is made 

expressly retroactive;

    (iv) When the DRB determines that policies and procedures under 

which the applicant was discharged differ in material respects from 

policies and procedures currently applicable on a Service-wide basis to 

discharges of the type under consideration, provided that such changes 

in policies or procedures represent a substantial enhancement of the 

rights afforded a respondent in such proceedings;

    (v) When an individual is to be represented by a counsel or 

representative, and was not so represented in any previous consideration 

of the case by the DRB;

    (vi) When the case was not previously considered under uniform 

standards published pursuant to Pub. L. 95-126 and such application is 

made within 15 years after the date of discharge; or

    (vii) On the basis of presentation of new, substantial, relevant 

evidence not available to the applicant at the time of the original 

review. The decision whether evidence offered by an applicant in support 

of a request for reconsideration is in fact new, substantial, relevant, 

and was not available to the applicant at the time of the original 

review will be based on a comparison of such evidence with the evidence 

considered in the previous discharge review. If this comparison shows 

that the evidence submitted would have had a probable effect on matters 

concerning the propriety or equity of the discharge, the request for 

reconsideration shall be granted.

    (9) Availability of records and documents. (i) Before applying for 

discharge review, potential applicants or their designated 

representatives may obtain copies of their military personnel records by 

submitting a General Services Administration Standard Form 180, 

``Request Pertaining to Military Records,'' to the National Personnel 

Records Center (NPRC), 9700 Page Boulevard, St. Louis, MO 62132. Once 

the application for discharge review (DD Form 293) is submitted, an 

applicant's military records are forwarded to the DRBs where they cannot 

be reproduced. Submission of a request for an applicant's military 

records, including a request under the Freedom of Information Act (32 

CFR part 286) or Privacy Act (32 CFR part 286a) after the DD Form 293 

has been submitted, shall result automatically in the temporary 

suspension of processing of the application for discharge review until 

the requested records are sent to an appropriate location for copying, 

are copied, and are returned to the headquarters of the DRB. Processing 

of the application shall then be resumed at whatever stage of the 

discharge review process is practicable. Applicants are encouraged to 

submit any request for their military records before applying for 

discharge review rather than after submitting DD Form 293, to avoid 

delays



[[Page 404]]



in processing of applications and scheduling of reviews. Applicants and 

their counsel also may examine their military personnel records at the 

site of their scheduled review before the hearing. DRBs shall notify 

applicants of the dates the records are available for examination in 

their standard scheduling information.

    (ii) If the DRB is not authorized to provide copies of documents 

that are under the cognizance of another government department, office, 

or activity, applications for such information must be made by the 

applicant to the cognizant authority. The DRB shall advise the applicant 

of the mailing address of the government department, office, or activity 

to which the request should be submitted.

    (iii) If the official records relevant to the discharge review are 

not available at the agency having custody of the records, the applicant 

shall be so notified and requested to provide such information and 

documents as may be desired in support of the request for discharge 

review. A period of not less than 30 days shall be allowed for such 

documents to be submitted. At the expiration of this period, the review 

may be conducted with information available to the DRB.

    (iv) A DRB may take steps to obtain additional evidence that is 

relevant to the discharge under consideration beyond that found in the 

official military records or submitted by the applicant, if a review of 

available evidence suggests that it would be incomplete without the 

additional information, or when the applicant presents testimony or 

documents that require additional information to evaluate properly. Such 

information shall be made available to the applicant, upon request, with 

appropriate modifications regarding classified material.

    (A) In any case heard on request of an applicant, the DRB shall 

provide the applicant and counsel or representative, if any, at a 

reasonable time before initiating the decision process, a notice of the 

availability of all regulations and documents to be considered in the 

discharge review, except for documents in the official personnel or 

medical records and any documents submitted by the applicant. The DRB 

shall also notify the applicant or counsel or representative:

    (1) Of the right to examine such documents or to be provided with 

copies of the documents upon request;

    (2) Of the date by which such requests must be received; and

    (3) Of the opportunity to respond within a reasonable period of time 

to be set by the DRB.

    (B) When necessary to acquaint the applicant with the substance of a 

classified document, the classifying authority, on the request of the 

DRB, shall prepare a summary of or an extract from the document, 

deleting all references to sources of information and other matters, the 

disclosure of which, in the opinion of the classifying authority, would 

be detrimental to the national security interests of the United States. 

Should preparation of such summary be deemed impracticable by the 

classifying authority, information from the classified sources shall not 

be considered by the DRB in its review of the case.

    (v) Regulations of a Military Department may be obtained at many 

installations under the jurisdiction of the Military Department 

concerned or by writing to the following address: DA Military Review 

Boards Agency, Attention: SFBA (Reading Room), room 1E520, Washington, 

DC 20310.

    (10) Recorder/Secretary or Assistant. Such a person shall be 

designated to assist in the functioning of each DRB in accordance with 

the procedures prescribed by the Secretary of the Military Department 

concerned.

    (11) Hearings. Hearings (including hearing examinations) that are 

conducted shall recognize the rights of the individual to privacy. 

Accordingly, presence at hearings of individuals other than those 

required shall be limited to persons authorized by the Secretary 

concerned or expressly requested by the applicant, subject to reasonable 

limitations based upon available space. If, in the opinion of the 

presiding officer, the presence of other individuals could be 

prejudicial to the interests of the applicant or the government, 

hearings may be held in closed session.



[[Page 405]]



    (12) Evidence and testimony. (i) The DRB may consider any evidence 

obtained in accordance with this part.

    (ii) Formal rules of evidence shall not be applied in DRB 

proceedings. The presiding officer shall rule on matters of procedure 

and shall ensure that reasonable bounds of relevancy and materiality are 

maintained in the taking of evidence and presentation of witnesses.

    (iii) Applicants undergoing hearings shall be permitted to make 

sworn or unsworn statements, if they so desire, or to introduce 

witnesses, documents, or other information on their behalf, at no 

expense to the Department of Defense.

    (iv) Applicants may also make oral or written arguments personally 

or through counsel or representatives.

    (v) Applicants who present sworn or unsworn statements and witnesses 

may be questioned by the DRB. All testimony shall be taken under oath or 

affirmation unless the applicant specifically requests to make an 

unsworn statement.

    (vi) There is a presumption of regularity in the conduct of 

governmental affairs. This presumption can be applied in any review 

unless there is substantial credible evidence to rebut the presumption.

    (c) Decision process. (1) The DRB or the DRB panel, as appropriate, 

shall meet in plenary session to review discharges and exercise its 

discretion on a case-by-case basis in applying the standards set forth 

in Sec.  70.9.

    (2) The presiding officer is responsible for the conduct of the 

discharge review. The presiding officer shall convene, recess, and 

adjourn the DRB panel as appropriate and shall maintain an atmosphere of 

dignity and decorum at all times.

    (3) Each DRB member shall act under oath or affirmation requiring 

careful, objective consideration of the application. DRB members are 

responsible for eliciting all facts necessary for a full and fair 

hearing. They shall consider all information presented to them by the 

applicant. In addition, they shall consider available Military Service 

and health records, together with other records that may be in the files 

of the Military Department concerned and relevant to the issues before 

the DRB, and any other evidence obtained in accordance with this part.

    (4) The DRB shall identify and address issues after a review of the 

following material obtained and presented in accordance with this part 

and the implementing instructions of the DRB: Available official 

records, documentary evidence submitted by or on behalf of an applicant, 

presentation of a hearing examination, testimony by or on behalf of an 

applicant, oral or written arguments presented by or on behalf of an 

applicant, and any other relevant evidence.

    (5) If an applicant who has requested a hearing does not respond to 

a notification letter or does not appear for a scheduled hearing, the 

DRB may complete the review on the basis of material previously 

submitted.

    (6) Application of standards. (i) When a DRB determines that an 

applicant's discharge was improper (Sec.  70.9(b)), the DRB will 

determine which reason for discharge should have been assigned based 

upon the facts and circumstances before the discharge authority, 

including the Service regulations governing reasons for discharge at the 

time the applicant was discharged. Unless it is also determined that the 

discharge was inequitable (Sec.  70.9(c)), the provisions as to 

characterization in the regulation under which the applicant should have 

been discharged will be considered in determining whether further relief 

is warranted.

    (ii) When the DRB determines that an applicant's discharge was 

inequitable (see Sec.  70.9(c)), any change will be based on the 

evaluation of the applicant's overall record of service and relevant 

regulations of the Military Service of which the applicant was a member.

    (7) Voting shall be conducted in closed session, a majority of the 

five members' votes constituting the DRB decision. Voting procedures 

shall be prescribed by the Secretary of the Military Department 

concerned.

    (8) Details of closed session deliberations of a DRB are privileged 

information and shall not be divulged.

    (9) There is no requirement for a statement of minority views in the 

event of a split vote. The minority, however, may submit a brief 

statement



[[Page 406]]



of its views under procedures established by the Secretary concerned.

    (10) DRBs may request advisory opinions from staff officers of their 

Military Departments. These opinions are advisory in nature and are not 

binding on the DRB in its decision-making process.

    (11) The preliminary determinations required by 38 U.S.C. 3103(e) 

shall be made upon majority vote of the DRB concerned on an expedited 

basis. Such determination shall be based upon the standards set forth in 

Sec.  70.9 of this part.

    (12) The DRB shall: (i) Address items submitted as issues by the 

applicant under paragraph (d) of this section;

    (ii) Address decisional issues under paragraph (e) of this section; 

and

    (iii) Prepare a decisional document in accordance with paragraph (h) 

of this section.

    (d) Response to items submitted as issues by the applicant--(1) 

General guidance. (i) If an issue submitted by an applicant contains two 

or more clearly separate issues, the DRB should respond to each issue 

under the guidance of this paragraph as if it had been set forth 

separately by the applicant.

    (ii) If an applicant uses a ``building block'' approach (that is, 

setting forth a series of conclusions on issues that lead to a single 

conclusion purportedly warranting a change in the applicant's 

discharge), normally there should be a separate response to each issue.

    (iii) Nothing in this paragraph precludes the DRB from making a 

single response to multiple issues when such action would enhance the 

clarity of the decisional document, but such response must reflect an 

adequate response to each separate issue.

    (2) Decisional issues. An item submitted as an issue by an applicant 

in accordance with this part shall be addressed as a decisional issue 

under paragraph (e), in the following circumstances:

    (i) When the DRB decides that a change in discharge should be 

granted, and the DRB bases its decision in whole or in part on the 

applicant's issue; or

    (ii) When the DRB does not provide the applicant with the full 

change in discharge requested, and the decision is based in whole or in 

part on the DRB's disagreement on the merits with an issue submitted by 

the applicant.

    (3) Response to items not addressed as decisional issues. (i) If the 

applicant receives the full change in discharge requested (or a more 

favorable change), that fact shall be noted and the basis shall be 

addressed as a decisional issue. No further response is required to 

other issues submitted by the applicant.

    (ii) If the applicant does not receive the full change in discharge 

requested with respect to either the character of or reason for 

discharge (or both), the DRB shall address the items submitted by the 

applicant under paragraph (e) of this section (decisional issues) unless 

one of the following responses is applicable:

    (A) Duplicate issues. The DRB may state that there is a full 

response to the issue submitted by the applicant under a specified 

decisional issue. This response may be used only when one issue clearly 

duplicates another or the issue clearly requires discussion in 

conjunction with another issue.

    (B) Citations without principles and facts. The DRB may state that 

the applicant's issue, which consists of a citation to a decision 

without setting forth any principles and facts from the decision that 

the applicant states are relevant to the applicant's case, does not 

comply with the requirements of paragraph (a)(4)(iv)(A).

    (C) Unclear issues. The DRB may state that it cannot respond to an 

item submitted by the applicant as an issue because the meaning of the 

item is unclear. An issue is unclear if it cannot be understood by a 

reasonable person familiar with the discharge review process after a 

review of the materials considered under paragraph (c)(4) of this 

section.

    (D) Nonspecific issues. The DRB may state that it cannot respond to 

an item submitted by the applicant as an issue because it is not 

specific. A submission is considered not specific if a reasonable person 

familiar with the discharge review process after a review of the 

materials considered under paragraph (c)(4) of this section, cannot 

determine the relationship between the applicant's submission and the 

particular



[[Page 407]]



circumstances of the case. This response may be used only if the 

submission is expressed in such general terms that no other response is 

applicable. For example, if the DRB disagrees with the applicant as to 

the relevance of matters set forth in the submission, the DRB normally 

will set forth the nature of the disagreement under the guidance in 

paragraph (e) of this section, with respect to decisional issues, or it 

will reject the applicant's position on the basis of paragraphs 

(d)(3)(ii)(A) or (d)(3)(ii)(B) of this section. If the applicant's 

submission is so general that none of those provisions is applicable, 

then the DRB may state that it cannot respond because the item is not 

specific.

    (e) Decisional issues--(1) General. Under the guidance in this 

section, the decisional document shall discuss the issues that provide a 

basis for the decision whether there should be a change in the character 

of or reason for discharge. In order to enhance clarity, the DRB should 

not address matters other than issues relied upon in the decision or 

raised by the applicant.

    (i) Partial change. When the decision changes a discharge, but does 

not provide the applicant with the full change in discharge requested, 

the decisional document shall address both the issues upon which change 

is granted and the issues upon which the DRB denies the full change 

requested.

    (ii) Relationship of issue to character of or reason for discharge. 

Generally, the decisional document should specify whether a decisional 

issue applies to the character of or reason for discharge (or both), but 

it is not required to do so.

    (iii) Relationship of an issue to propriety or equity. (A) If an 

applicant identifies an issue as pertaining to both propriety and 

equity, the DRB will consider it under both standards.

    (B) If an applicant identifies an issue as pertaining to the 

propriety of the discharge (for example, by citing a propriety standard 

or otherwise claiming that a change in discharge is required as a matter 

of law), the DRB shall consider the issue solely as a matter of 

propriety. Except as provided in paragraph (e)(1)(iii)(D) of this 

section, the DRB is not required to consider such an issue under the 

equity standards.

    (C) If the applicant's issue contends that the DRB is required as a 

matter of law to follow a prior decision by setting forth an issue of 

propriety from the prior decision and describing its relationship to the 

applicant's case, the issue shall be considered under the propriety 

standards and addressed under paragraph (e)(2) or (e)(3) of this 

section.

    (D) If the applicant's issue sets forth principles of equity 

contained in a prior DRB decision, describes the relationship to the 

applicant's case, and contends that the DRB is required as a matter of 

law to follow the prior case, the decisional document shall note that 

the DRB is not bound by its discretionary decisions in prior cases under 

the standards in Sec.  70.9. However, the principles cited by the 

applicant, and the description of the relationship of the principles to 

the applicant's case, shall be considered under the equity standards and 

addressed under paragraph (e)(5) or (e)(6) of this section.

    (E) If the applicant's issue cannot be identified as a matter of 

propriety or equity, the DRB shall address it as an issue of equity.

    (2) Change of discharge: issues of propriety. If a change in the 

discharge is warranted under the propriety standards in Sec.  70.9 the 

decisional document shall state that conclusion and list the errors of 

expressly retroactive changes in policy that provide a basis for the 

conclusion. The decisional document shall cite the facts in the record 

that demonstrate the relevance of the error or change in policy to the 

applicant's case. If the change in discharge does not constitute the 

full change requested by the applicant, the reasons for not granting the 

full change shall be addressed under the guidance in paragraph (e)((3) 

or (e)(6) of this section.

    (3) Denial of the full change requested: issues of propriety. (i) If 

the decision rejects the applicant's position on an issue of propriety, 

or if it is otherwise decided on the basis of an issue of propriety that 

the full change in discharge requested by the applicant is not 

warranted, the decisional document shall note that conclusion.



[[Page 408]]



    (ii) The decisional document shall list reasons for its conclusion 

on each issue of propriety under the following guidance:

    (A) If a reason is based in whole or in part upon a regulation, 

statute, constitutional provision, judicial determination, or other 

source of law, the DRB shall cite the pertinent source of law and the 

facts in the record that demonstrate the relevance of the source of law 

to the particular circumstances in the case.

    (B) If a reason is based in whole or in part on a determination as 

to the occurrence or nonoccurrence of an event or circumstance, 

including a factor required by applicable Service regulations to be 

considered for determination of the character of and reason for the 

applicant's discharge, the DRB shall make a finding of fact for each 

such event or circumstance.

    (1) For each such finding, the decisional document shall list the 

specific source of the information relied upon. This may include the 

presumption of regularity in appropriate cases. If the information is 

listed in the service record section of the decisional document, a 

citation is not required.

    (2) If a finding of fact is made after consideration of 

contradictory evidence in the record (including information cited by the 

applicant or otherwise identified by members of the DRB), the decisional 

document shall set forth the conflicting evidence and explain why the 

information relied upon was more persuasive than the information that 

was rejected. If the presumption of regularity is cited as the basis for 

rejecting such information, the decisional document shall set forth the 

basis for relying on the presumption of regularity and explain why the 

contradictory evidence was insufficient to overcome the presumption. In 

an appropriate case, the explanation as to why the contradictory 

evidence was insufficient to overcome the presumption of regularity may 

consist of a statement that the applicant failed to provide sufficient 

corroborating evidence, or that the DRB did not find the applicant's 

testimony to be sufficiently credible to overcome the presumption.

    (C) If the DRB disagrees with the position of the applicant on an 

issue of propriety, the following guidance applies in addition to the 

guidance in paragraphs (e)(3)(ii) (A) and (B) of this section:

    (1) The DRB may reject the applicant's position by explaining why it 

disagrees with the principles set forth in the applicant's issue 

(including principles derived from cases cited by the applicant in 

accordance with paragraph (e)(4)(iv) of this section).

    (2) The DRB may reject the applicant's position by explaining why 

the principles set forth in the applicant's issue (including principles 

derived from cases cited by the applicant in accordance with paragraph 

(a)(4)(iv) of this section) are not relevant to the applicant's case.

    (3) The DRB may reject an applicant's position by stating that the 

applicant's issue of propriety is not a matter upon which the DRB grants 

a change in discharge, and by providing an explanation for this 

position. When the applicant indicates that the issue is to be 

considered in conjunction with one or more other specified issues, the 

explanation will address all such specified issues.

    (4) The DRB may reject the applicant's position on the grounds that 

other specified factors in the case preclude granting relief, regardless 

of whether the DRB agreed with the applicant's position.

    (5) If the applicant takes the position that the discharge must be 

changed because of an alleged error in a record associated with the 

discharge, and the record has not been corrected by the organization 

with primary responsibility for corrective action, the DRB may respond 

that it will presume the validity of the record in the absence of such 

corrective action. If the organization empowered to correct the record 

is within the Department of Defense, the DRB should provide the 

applicant with a brief description of the procedures for requesting 

correction of the record. If the DRB on its own motion cites this issue 

as a decisional issue on the basis of equity, it shall address the issue 

under paragraph (d)(5) or (d)(6) of this section.

    (6) When an applicant's issue contains a general allegation that a 

certain course of action violated his or her



[[Page 409]]



constitutional rights, the DRB may respond in appropriate cases by 

noting that the action was consistent with statutory or regulatory 

authority, and by citing the presumption of constitutionality that 

attaches to statutes and regulations. If, on the other hand, the 

applicant makes a specific challenge to the constitutionality of the 

action by challenging the application of a statute or regulation in a 

particular set of circumstances, it is not sufficient to respond solely 

by citing the presumption of constitutionality of the statute or 

regulation when the applicant is not challenging the constitutionality 

of the statute or regulation. Instead, the response must address the 

specific circumstances of the case.

    (4) Denial of the full change in discharge requested when propriety 

is not at issue. If the applicant has not submitted an issue of 

propriety and the DRB has not otherwise relied upon an issue of 

propriety to change the discharge, the decisional document shall contain 

a statement to that effect. The DRB is not required to provide any 

further discussion as to the propriety of the discharge.

    (5) Change of discharge: issues of equity. If the DRB concludes that 

a change in the discharge is warranted under the equity standards in 

Sec.  70.9 the decisional document shall list each issue of equity upon 

which this conclusion is based. The DRB shall cite the facts in the 

record that demonstrate the relevance of the issue to the applicant's 

case. If the change in discharge does not constitute the full change 

requested by the applicant, the reasons for not giving the full change 

requested shall be discussed under the guidance in paragraph (e)(6) of 

this section.

    (6) Denial of the full change in discharge requested: issues of 

equity. (i) If the DRB rejects the applicant's position on an issue of 

equity, or if the decision otherwise provides less than the full change 

in discharge requested by the applicant, the decisional document shall 

note that conclusion.

    (ii) The DRB shall list reasons for its conclusion on each issue of 

equity under the following guidance:

    (A) If a reason is based in whole or in part upon a regulation, 

statute, constitutional provision, judicial determination, or other 

source of law, the DRB shall cite the pertinent source of law and the 

facts in the record that demonstrate the relevance of the source of law 

to the exercise of discretion on the issue of equity in the applicant's 

case.

    (B) If a reason is based in whole or in part on a determination as 

to the occurrence or nonoccurrence of an event or circumstance, 

including a factor required by applicable Service regulations to be 

considered for determination of the character of and reason for the 

applicant's discharge, the DRB shall make a finding of fact for each 

such event or circumstance.

    (1) For each such finding, the decisional document shall list the 

specific source of the information relied upon. This may include the 

presumption of regularity in appropriate cases. If the information is 

listed in the service record section of the decisional document, a 

citation is not required.

    (2) If a finding of fact is made after consideration of 

contradictory evidence in the record (including information cited by the 

applicant or otherwise identified by members of the DRB), the decisional 

document shall set forth the conflicting evidence and explain why the 

information relied upon was more persuasive than the information that 

was rejected. If the presumption of regularity is cited as the basis for 

rejecting such information, the decisional document shall set forth the 

basis for relying on the presumption of regularity and explain why the 

contradictory evidence was insufficient to overcome the presumption. In 

an appropriate case, the explanation as to why the contradictory 

evidence was insufficient to overcome the presumption of regularity may 

consist of a statement that the applicant failed to provide sufficient 

corroborating evidence, or that the DRB did not find the applicant's 

testimony to be sufficiently credible to overcome the presumption.

    (C) If the DRB disagrees with the position of the applicant on an 

issue of equity, the following guidance applies in addition to the 

guidance in paragraphs (e)(6)(ii) (A) and (B) of this section:

    (1) The DRB may reject the applicant's position by explaining why it



[[Page 410]]



disagrees with the principles set forth in the applicant's issue 

(including principles derived from cases cited by the applicant in 

accordance with paragraph (a)(4)(iv) of this section).

    (2) The DRB may reject the applicant's position by explaining why 

the principles set forth in the applicant's issue (including principles 

derived from cases cited by the applicant) are not relevant to the 

applicant's case.

    (3) The DRB may reject an applicant's position by explaining why the 

applicant's issue is not a matter upon which the DRB grants a change in 

discharge as a matter of equity. When the applicant indicates that the 

issue is to be considered in conjunction with other specified issues, 

the explanation will address all such specified issues.

    (4) The DRB may reject the applicant's position on the grounds that 

other specified factors in the case preclude granting relief, regardless 

of whether the DRB agreed with the applicant's position.

    (5) If the applicant takes the position that the discharge should be 

changed as a matter of equity because of an alleged error in a record 

associated with the discharge, and the record has not been corrected by 

the organization with primary responsibility for corrective action, the 

DRB may respond that it will presume the validity of the record in the 

absence of such corrective action. However, the DRB will consider 

whether it should exercise its equitable powers to change the discharge 

on the basis of the alleged error. If it declines to do so, it shall 

explain why the applicant's position did not provide a sufficient basis 

for the change in the discharge requested by the applicant.

    (D) When the DRB concludes that aggravating factors outweigh 

mitigating factors, the DRB must set forth reasons such as the 

seriousness of the offense, specific circumstances surrounding the 

offense, number of offenses, lack of mitigating circumstances, or 

similar factors. The DRB is not required, however, to explain why it 

relied on any such factors unless the applicability or weight of such a 

factor is expressly raised as an issue by the applicant.

    (E) If the applicant has not submitted any issues and the DRB has 

not otherwise relied upon an issue of equity for a change in discharge, 

the decisional document shall contain a statement to that effect, and 

shall note that the major factors upon which the discharge was based are 

set forth in the service record portion of the decisional document.

    (f) The recommendation of the DRB President--(1) General. The 

president of the DRB may forward cases for consideration by the 

Secretarial Reviewing Authority (SRA) under rules established by the 

Secretary concerned. There is no requirement that the President submit a 

recommendation when a case is forwarded to the SRA. If the president 

makes a recommendation with respect to the character of or reason for 

discharge, however, the recommendation shall be prepared under the 

guidance in paragraph (f)(2) of this section.

    (2) Format for recommendation. If a recommendation is provided, it 

shall contain the president's views whether there should be a change in 

the character of or reason for discharge (or both). If the president 

recommends such a change, the particular change to be made shall be 

specified. The recommendation shall set forth the president's position 

on decisional issues and issues submitted by the applicant under the 

following guidance:

    (i) Adoption of the DRB's decisional document. The recommendation 

may state that the president has adopted the decisional document 

prepared by the majority. The president shall ensure that the decisional 

document meets the requirements of this section.

    (ii) Adoption of the specific statements from the majority. If the 

President adopts the views of the majority only in part, the 

recommendation shall cite the specific matter adopted from the majority. 

If the president modifies a statement submitted by the majority, the 

recommendation shall set forth the modification.

    (iii) Response to issues not included in matter adopted from the 

majority. The recommendation shall set forth the following if not 

adopted in whole or in part from the majority:

    (A) The issues on which the president's recommendation is based. 

Each such decisional issue shall be addressed



[[Page 411]]



by the president under paragraph (e) of this section,

    (B) The president's response to items submitted as issues by the 

applicant under paragraph (d) of this section.

    (C) Reasons for rejecting the conclusions of the majority with 

respect to decisional issues which, if resolved in the applicant's 

favor, would have resulted in greater relief for the applicant than that 

afforded by the president's recommendation. Suh issues shall be 

addressed under the principles in paragraph (e) of this section.

    (g) Secretarial reviewing authority (SRA)--(1) Review by the SRA. 

The Secretarial Reviewing Authority (SRA) is the Secretary concerned or 

the official to whom Secretary's discharge review authority has been 

delegated.

    (i) The SRA may review the following types of cases before issuance 

of the final notification of a decision:

    (A) Any specific case in which the SRA has an interest.

    (B) Any specific case that the president of the DRB believes is of 

significant interest to the SRA.

    (ii) Cases reviewed by the SRA shall be considered under the 

standards set forth in Sec.  70.9.

    (2) Processing the decisional document. (i) The decisional document 

shall be transmitted by the DRB president under paragraph (e) of this 

section.

    (ii) The following guidance applies to cases that have been 

forwarded to the SRA except for cases reviewed on the DRB's own motion 

without the participation of the applicant or the applicant's counsel:

    (A) The applicant and counsel or representative, if any, shall be 

provided with a copy of the proposed decisional document, including the 

DRB president's recommendation to the SRA, if any. Classified 

information shall be summarized.

    (B) The applicant shall be provided with a reasonable period of 

time, but not less than 25 days, to submit to the SRA a rebuttal. An 

issue in rebuttal consists of a clear and specific statement by the 

applicant in support of or in opposition to the statements of the DRB or 

DRB president on decisional issues and other clear and specific issues 

that were submitted by the applicant in accordance with paragraph 

(a)(4)(i) of this section. The rebuttal shall be based solely on matters 

in the record before when the DRB closed the case for deliberation or in 

the president's recommendation.

    (3) Review of the decisional document. If corrections in the 

decisional document are required, the decisional document shall be 

returned to the DRB for corrective action. The corrected decisional 

document shall be sent to the applicant (and counsel, if any), but a 

further opportunity for rebuttal is not required unless the correction 

produces a different result or includes a substantial change in the 

discussion by the DRB (or DRB president) of the issues raised by the 

majority or the applicant.

    (4) The Addendum of the SRA. The decision of the SRA shall be in 

writing and shall be appended as an addendum to the decisional document 

under the guidance in this subsection.

    (i) The SRA's decision. The addendum shall set forth the SRA's 

decision whether there will be a change in the character of or reason 

for discharge (or both); if the SRA concludes that a change is 

warranted, the particular change to be made shall be specified. If the 

SRA adopts the decision recommended by the DRB or the DRB president, the 

decisional document shall contain a reference to the matter adopted.

    (ii) Discussion of issues. In support of the SRA's decision, the 

addendum shall set forth the SRA's position on decisional issues, items 

submitted as issues by an applicant in accordance with paragraph 

(a)(4)(i) of this section, and issues raised by the DRB and the DRB 

president in accordance with the following guidance:

    (A) Adoption of the DRB president's recommendation. The addendum may 

state that the SRA has adopted the DRB president's recommendation.

    (B) Adoption of the DRB's proposed decisional document. The addendum 

may state that the SRA has adopted the proposed decisional document 

prepared by the DRB.

    (C) Adoption of specific statements from the majority or the DRB 

president. If the SRA adopts the views of the DRB or



[[Page 412]]



the DRB president only in part, the addendum shall cite the specific 

statements adopted. If the SRA modifies a statement submitted by the DRB 

or the DRB president, the addendum shall set forth the modification.

    (D) Response to issues not included in matter adopted from the DRB 

or the DRB president. The addendum shall set forth the following if not 

adopted in whole or in part from the DRB or the DRB president:

    (1) A list of the issues on which the SRA's decision is based. Each 

such decisional issue shall be addressed by the SRA under paragraph (e) 

of this section. This includes reasons for rejecting the conclusion of 

the DRB or the DRB president with respect to decisional issues which, if 

resolved in the applicant's favor, would have resulted in change to the 

discharge more favorable to the applicant than that afforded by the 

SRA's decision. Such issues shall be addressed under the principles in 

paragraph (e) of this section.

    (2) The SRA's response to items submitted as issues by the applicant 

under paragraph (d) of this section.

    (iii) Response to the rebuttal. (A) If the SRA grants the full 

change in discharge requested by the applicant (or a more favorable 

change), that fact shall be noted, the decisional issues shall be 

addressed under paragraph (e) of this section, and no further response 

to the rebuttal is required.

    (B) If the SRA does not grant the full change in discharge requested 

by the applicant (or a more favorable change), the addendum shall list 

each issue in rebuttal submitted by an applicant in accordance with this 

section, and shall set forth the response of the SRA under the following 

guidance:

    (1) If the SRA rejects an issue in rebuttal, the SRA may respond in 

accordance with the principles in paragraph (e) of this section.

    (2) If the matter adopted by the SRA provides a basis for the SRA's 

rejection of the rebuttal material, the SRA may note that fact and cite 

the specific matter adopted that responds to the issue in rebuttal.

    (3) If the matter submitted by the applicant does not meet the 

requirements for rebuttal material in paragraph (b)(2)(ii)(B) of this 

section.

    (iv) Index entries. Appropriate index entries shall be prepared for 

the SRA's actions for matters that are not adopted from the DRB's 

proposed decisional document.

    (h) The decisional document. A decisional document shall be prepared 

for each review. At a minimum, this document shall contain:

    (1) The circumstances and character of the applicant's service as 

extracted from available service records, including health records, and 

information provided by other Government authorities or the applicant, 

such as, but not limited to:

    (i) Information concerning the discharge at issue in the review, 

including:

    (A) Date (YYMMDD) of discharge.

    (B) Character of discharge.

    (C) Reason for discharge.

    (D) The specific regulatory authority under which the discharge was 

issued.

    (ii) Date (YYMMDD) of enlistment.

    (iii) Period of enlistment.

    (iv) Age at enlistment.

    (v) Length of service.

    (vi) Periods of unauthorized absence.

    (vii) Conduct and efficiency ratings (numerical or narrative).

    (viii) Highest rank received.

    (ix) Awards and decorations.

    (x) Educational level.

    (xi) Aptitude test scores.

    (xii) Incidents of punishment pursuant to Article 15, Uniform Code 

of Military Justice (including nature and date (YYMMDD) of offense or 

punishment).

    (xiii) Convictions by court-martial.

    (xiv) Prior military service and type of discharge received.

    (2) A list of the type of documents submitted by or on behalf of the 

applicant (including a written brief, letters of recommendation, 

affidavits concerning the circumstances of the discharge, or other 

documentary evidence), if any.

    (3) A statement whether the applicant testified, and a list of the 

type of witnesses, if any, who testified on behalf of the applicant.

    (4) A notation whether the application pertained to the character of 

discharge, the reason for discharge, or both.



[[Page 413]]



    (5) The DRB's conclusions on the following:

    (i) Whether the character of or reason for discharge should be 

changed.

    (ii) The specific changes to be made, if any.

    (6) A list of the items submitted as issues on DD Form 293 or 

expressly incorporated therein and such other items submitted as issues 

by the applicant that are identified as inadvertently omitted under 

paragraph (a)(4)(i)(D) of this section. If the issues are listed 

verbatim on DD Form 293, a copy of the relevant portion of the Form may 

be attached. Issues that have been withdrawn or modified with the 

consent of the applicant need not be listed.

    (7) The response to the items submitted as issues by the applicant 

under the guidance in paragraph (d) of this section.

    (8) A list of decisional issues and a discussion of such issues 

under the guidance in paragraph (e) of this section.

    (9) Minority views, if any, when authorized under rules of the 

Military Department concerned.

    (10) The recommendation of the DRB president when required by 

paragraph (f) of this section.

    (11) The addendum of the SRA when required by paragraph (g) of this 

section.

    (12) Advisory opinions, including those containing factual 

information, when such opinions have been relied upon for final decision 

or have been accepted as a basis for rejecting any of the applicant's 

issues. Such advisory opinions or relevant portions thereof that are not 

fully set forth in the discussion of decisional issues or otherwise in 

response to items submitted as issues by the application shall be 

incorporated by reference. A copy of opinions incorporated by reference 

shall be appended to the decision and included in the record of 

proceedings.

    (13) A record of the voting, including:

    (i) The number of votes for the DRB's decision and the number of 

votes in the minority, if any.

    (ii) The DRB member's names (last name, first name, M.I.) and votes. 

The copy provided to the applicant may substitute a statement that the 

names and votes will be made available to the applicant at the 

applicant's request.

    (14) Index entries for each decisional issue under appropriate 

categories listed in the index of decisions.

    (15) An authentication of the document by an appropriate official.

    (i) Issuance of decisions following discharge review. The applicant 

and counsel or representative, if any, shall be provided with a copy of 

the decisional document and of any further action in review. The 

applicant (and counsel, if any) shall be notified of the availability of 

the complaint process under Sec.  70.10. Final notification of decisions 

shall be issued to the applicant with a copy to the counsel or 

representative, if any, and to the Military Service concerned.

    (1) Notification to applicants, with copies to counsel or 

representatives, shall normally be made through the U.S. Postal Service. 

Such notification shall consist of a notification of decision, together 

with a copy of the decisional document.

    (2) Notification to the Military Services shall be for the purpose 

of appropriate action and inclusion of review matter in personnel 

records. Such notification shall bear appropriate certification of 

completeness and accuracy.

    (3) Actions on review by superior authority, when occurring, shall 

be provided to the applicant and counsel or representative in the same 

manner as the notification of the review decision.

    (j) Record of DRB proceedings. (1) When the proceedings in any 

review have been concluded, a record thereof will be prepared. Records 

may include written records, electromagnetic records, videotape 

recordings, or a combination thereof.

    (2) At a minimum, the record will include the following:

    (i) The application for review;

    (ii) A record of the testimony in verbatim, summarized, or recorded 

form at the option of the DRB concerned;

    (iii) Documentary evidence or copies thereof, considered by the DRB 

other than the Military Service record;

    (iv) Briefs and arguments submitted by or on behalf of the 

applicant;

    (v) Advisory opinions considered by the DRB, if any;



[[Page 414]]



    (vi) The findings, conclusions, and reasons developed by the DRB;

    (vii) Notification of the DRB's decision to the cognizant custodian 

of the applicant's records, or reference to the notification document;

    (viii) Minority reports, if any;

    (ix) A copy of the decisional document.

    (k) Final disposition of the Record of Proceedings. The original 

record of proceedings and all appendices thereto shall in all cases be 

incorporated in the Military Service record of the applicant and the 

Military Service record shall be returned to the custody of the 

appropriate records holding facility. If a portion of the original 

record of the proceedings cannot be stored with the Military Service 

record, the Military Service record shall contain a notation as to the 

place where the record is stored. Other copies shall be filed and 

disposed of in accordance with appropriate Military Service regulations.

    (l) Availability of Discharge Review Board documents for inspection 

and copying. (1) A copy of the decisional document prepared in 

accordance with paragraph (d) of this section shall be made available 

for public inspection and copying promptly after a notice of final 

decision is sent to the applicant.

    (2) To prevent a clearly unwarranted invasion of personal privacy, 

identifying details of the applicant and other persons will be deleted 

from documents made available for public inspection and copying.

    (i) Names, addresses, social security numbers, and Military Service 

numbers must be deleted. Written justification shall be made for all 

other deletions and shall be available for public inspection.

    (ii) Each DRB shall ensure that there is a means for relating a 

decisional document number to the name of the applicant to permit 

retrieval of the applicant's records when required in processing a 

complaint under Sec.  70.10.

    (3) Any other privileged or classified material contained in or 

appended to any documents required by this part to be furnished the 

applicant and counsel or representative or made available for public 

inspection and copying may be deleted therefrom only if a written 

statement of the basis for the deletions is provided the applicant and 

counsel or representative and made available for public inspection. It 

is not intended that the statement be so detailed as to reveal the 

nature of the withheld material.

    (4) DRB documents made available for public inspection and copying 

shall be located in the Armed Forces Discharge Review/Correction Board 

Reading Room. The documents shall be indexed in a usable and concise 

form so as to enable the public, and those who represent applicants 

before the DRBs, to isolate from all these decisions that are indexed, 

those cases that may be similar to an applicant's case and that indicate 

the circumstances under or reasons for (or both) which the DRB or the 

Secretary concerned granted or denied relief.

    (i) The reading file index shall include, in addition to any other 

items determined by the DRB, the case number, the date, character of, 

reason and authority for the discharge. It shall also include the 

decisions of the DRB and reviewing authority, if any, and the issues 

addressed in the statement of findings, conclusions, and reasons.

    (ii) The index shall be maintained at selected permanent locations 

throughout the United States. This ensures reasonable availability to 

applicants at least 30 days before a traveling panel review. A list of 

these locations shall be published in the Federal Register by the 

Department of the Army. The index shall also be made available at sites 

selected for traveling panels or hearing examinations for such periods 

as the DRB or a hearing examiner is present and in operation. An 

applicant who has requested a traveling panel review or a hearing 

examination shall be advised in the notice of such review of the 

permanent index locations.

    (iii) The Armed Forces Discharge Review/Correction Board Reading 

Room shall publish indexes quarterly for all DRBs. All DRBs shall be 

responsible for timely submission to the Reading Room of individual case 

information required for update of the indexes. In addition, all DRBs 

shall be responsible for submission of new index categories based upon 

published changes in policy, procedures, or standards. These indexes 

shall be available for public inspection



[[Page 415]]



or purchase (or both) at the Reading Room. When the DRB has accepted an 

application, information concerning the availability of the index shall 

be provided in the DRB's response to the application.

    (iv) Copies of decisional documents will be provided to individuals 

or organizations outside the NCR in response to written requests for 

such documents. Although the Reading Room shall try to make timely 

responses to such requests, certain factors such as the length of a 

request, the volume of other pending requests, and the impact of other 

responsibilities of the staff assigned to such duties may cause some 

delays. A fee may be charged for such documents under appropriate DoD 

and Department of the Army directives and regulations. The manual that 

accompanies the index of decisions shall notify the public that if an 

applicant indicates that a review is scheduled for a specific date, an 

effort will be made to provide requested decisional documents before 

that date. The individual or organization will be advised if that cannot 

be accomplished.

    (v) Correspondence relating to matters under the cognizance of the 

Reading Room (including requests for purchase of indexes) shall be 

addressed to: DA Military Review Boards Agency, Attention: SFBA (Reading 

Room), Room 1E520, The Pentagon, Washington, DC 20310.

    (m) Privacy Act information. Information protected under the Privacy 

Act is involved in the discharge review functions. The provisions of 

part 286a of this title shall be observed throughout the processing of a 

request for review of discharge or dismissal.

    (n) Information requirement. Each Military Department shall provide 

the Deputy Assistant Secretary of Defense (Military Personnel and Force 

Management) DASD (MP&FM), Office of the ASD (MRA&L), with a semiannual 

report of discharge review actions in accordance with Sec.  70.11.



[47 FR 37785, Aug. 26, 1982, as amended at 48 FR 9855, Mar. 9, 1983; 48 

FR 35644, Aug. 5, 1983]