[Title 32 CFR 724]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Subtitle A - Department of Defense (Continued)]
[Chapter Vi - DEPARTMENT OF THE NAVY]
[Subchapter C - PERSONNEL]
[Part 724 - NAVAL DISCHARGE REVIEW BOARD]
[From the U.S. Government Printing Office]
32NATIONAL DEFENSE52002-07-012002-07-01falseNAVAL DISCHARGE REVIEW BOARD724PART 724NATIONAL DEFENSEDepartment of Defense (Continued)DEPARTMENT OF THE NAVYPERSONNEL
PART 724--NAVAL DISCHARGE REVIEW BOARD--Table of Contents
Subpart A--Definitions
Sec.
724.101 Naval Service.
724.102 Naval Discharge Review Board.
724.103 NDRB panel.
724.104 NDRB Traveling Panel.
724.105 President of the NDRB.
724.106 Presiding Officer, NDRB Panel.
724.107 Discharge.
724.108 Administrative discharge.
724.109 Types of administrative discharges.
[[Page 230]]
724.110 Reason/basis for administrative discharge.
724.111 Punitive discharge.
724.112 Clemency discharge.
724.113 Application.
724.114 Applicant.
724.115 Next of kin.
724.116 Council/representative.
724.117 Discharge review.
724.118 Documentary discharge review.
724.119 Personal appearance discharge review.
724.120 National Capital Region (NCR).
724.121 Decisional document.
724.122 Recorder, NDRB Panel.
724.123 Complainant.
Subpart B--Authority/Policy for Departmental Discharge Review
724.201 Authority.
724.202 Statutory/Directive Authority.
724.203 Broad objectives of naval discharge review.
724.204 Eligibility for naval discharge review.
724.205 Authority for review of naval discharges; jurisdictional
limitations.
724.206 Jurisdictional determinations.
724.207 Disposition of applications for discharge review.
724.208 Implementation of NDRB decisions.
724.209 Evidence supporting applications.
724.210 Review action in instances of unavailable records.
724.211 Regularity of government affairs.
724.212 Availability of records.
724.213 Attendance of witnesses.
724.214 Applicant's expenses.
724.215 Military representation.
724.216 Failure to appear at a hearing or respond to a scheduling
notice.
724.217 Limitation--Reconsiderations.
724.218 Limitation--Continuance and Postponements.
724.219 Withdrawal of application.
724.220 Review on motion of the NDRB.
724.221 Scheduling of discharge reviews.
724.222 Personal appearance discharge hearing sites.
724.223 NDRB support and augmentation by regular and reserve activities.
724.224 Court-martial specifications, presumption concerning.
Subpart C--Director, Naval Council of Personnel Boards and President
Naval Discharge Review Board; Responsibilities in Support of the Naval
Discharge Review Board
724.301 Mission.
724.302 Functions: Director, Naval Council of Personnel Boards.
724.303 Functions: President, Naval Discharge Review Board.
724.304 Responsibility for Department of the Navy suppport of the Naval
Discharge Review Board.
724.305 Functions of the CMC and CNO.
724.306 Functions of the Commander, Naval Medical Command.
724.307 Functions of the Commander, Naval Reserve Force.
Subpart D--Principal Elements of the Navy Department Discharge Review
System
724.401 Applicants.
724.402 Naval Discharge Review Board.
724.403 President, Naval Discharge Review Board.
724.404 Director, Naval Council of Personnel Boards.
724.405 Commandant of the Marine Corps or the Commander, Naval Military
Personnel Command.
724.406 Commander, Naval Medical Command.
724.407 Commander, Naval Reserve Force.
724.408 Secretary of the Navy.
Subpart E--Procedural Rights of the Applicant and Administrative Actions
Preliminary to Discharge Review
724.501 Procedural rights of the applicant.
724.502 Actions to be taken by the applicant preliminary to discharge
review.
724.503 NDRB response to application for discharge review.
724.504 NDRB actions preliminary to discharge review.
Subpart F--Naval Discharge Review Board Mission and Functions
724.601 General.
724.602 Mission.
724.603 Functions.
Subpart G--Organization of the Naval Discharge Review Board
724.701 Composition.
724.702 Executive management.
724.703 Legal counsel.
Subpart H--Procedures of the Naval Discharge Review Board
724.801 Matters to be considered in discharge review.
724.802 Applicant's responsibilities.
724.803 The decisional document.
724.804 Decision process.
724.805 Response to items submitted as issues by the applicant.
724.806 Decisional issues.
724.807 Record of NDRB proceedings.
724.808 Issuance of decisions following discharge review.
[[Page 231]]
724.809 Final disposition of the record of proceedings.
724.810 Availability of Naval Discharge Review Board documents for
public inspection and copying.
724.811 Privacy Act information.
724.812 Responsibilities of the Reading Room.
724.813 The recommendation of the NDRB president.
724.814 Secretarial Review Authority (SRA).
724.815 Complaints.
Subpart I--Standards for Discharge Review
724.901 Objective of discharge review.
724.902 Propriety of the discharge.
724.903 Equity of the discharge.
Appendix A to Part 724--Policy Statement by the Secretary of Defense--
Addressing Certain Categories of Discharges
Appendix B to Part 724--Oath or Affirmation to be Administered to
Discharge Review Board Members
Appendix C to Part 724--Samples of Formats Employed by the Naval
Discharge Review Board
Appendix D to Part 724--Veterans' Benefits
Authority: 5 U.S.C. 301; 10 U.S.C. 1553.
Source: 50 FR 10943, Mar. 19, 1985, unless otherwise noted.
Editorial Note: Nomenclature changes to part 724 appear at 65 FR
62616, Oct. 19, 2000.
Subpart A--Definitions
Sec. 724.101 Naval Service.
The Naval Service is comprised of the uniformed members of the
United States Navy and the United States Marine Corps, including active
and inactive reserve components.
Sec. 724.102 Naval Discharge Review Board.
An administrative board, referred to as the ``NDRB'' established by
the Secretary of the Navy pursuant to title 10 U.S.C., section 1553, for
the review of discharges of former members of the Naval Service.
Sec. 724.103 NDRB panel.
An element of the NDRB, consisting of five members, authorized to
review discharges. In plenary review session, an NDRB panel acts with
the authority delegated by the Secretary of the Navy to the Naval
Discharge Review Board.
Sec. 724.104 NDRB Traveling Panel.
An NDRB Panel that travels for the purpose of conducting personal
appearances discharge review hearings at locations outside of the
National Capital Region (NCR).
Sec. 724.105 President of the NDRB.
A senior officer of the Naval Service designated by the Secretary of
the Navy who is responsible for the direct supervision of the discharge
review function within the Naval Service. (See subpart E).
Sec. 724.106 Presiding Officer, NDRB Panel.
The senior member of an NDRB Panel shall normally be the Presiding
Officer. He/she shall convene, recess and adjourn the NDRB Panel as
appropriate.
Sec. 724.107 Discharge.
In the context of the review function prescribed by 10 U.S.C. 1553,
a discharge or dismissal is a complete separation from the Naval
Service, other than one pursuant to the sentence of a general court-
martial. By reason of usage, the term ``discharge'' is predominantly
applicable to the separation of enlisted personnel for any reason, and
the term ``dismissal'' to the separation of officers as a result of
Secretarial or general court-martial action. In the context of the
mission of the NDRB, the term ``discharge'' used here shall, for purpose
of ease of expression, include any complete separation from the naval
service other than that pursuant to the sentence of general court-
martial. The term ``discharge'' also includes the type of discharge and
the reason/basis for that discharge, e.g., Other Than Honorable/
Misconduct (Civil Conviction).
Sec. 724.108 Administrative discharge.
A discharge upon expiration of enlistment or required period of
service, or prior thereto, in a manner prescribed by the Commandant of
the Marine Corps or the Commander, Naval Personnel Command, but
specifically excluding separation by sentence of a general court-
martial.
[65 FR 62616, Oct. 19, 2000]
[[Page 232]]
Sec. 724.109 Types of administrative discharges.
(a) A determination reflecting a member's military behavior and
performance of duty during a specific period of service. The three
characterizations are:
(1) Honorable. A separation from the naval service with honor. The
issuance of an Honorable Discharge is contingent upon proper military
behavior and performance of duty.
(2) Under Honorable Conditions (also termed General Discharge). A
separation from the naval service under honorable conditions. The
issuance of a discharge under honorable conditions is contingent upon
military behavior and performance of duty which is not sufficiently
meritorious to warrant an Honorable Discharge.
(3) Under Other Than Honorable Conditions (formerly termed
Undesirable Discharge). A separation from the naval service under
conditions other than honorable. It is issued to terminate the service
of a member of the naval service for one or more of the reasons/basis
listed in the Naval Military Personnel Manual, Marine Corps Separation
and Retirement Manual and their predecessor publications.
(4) Entry Level Separation. (i) A separation initiated while a
member is in entry level status will be described as an Entry Level
Separation except in the following circumstances:
(a) When characterization under Other Than Honorable Conditions is
authorized and is warranted by the circumstances of the case; or
(b) When characterization of service as Honorable is clearly
warranted by the presence of unusual circumstances including personal
conduct and performance of naval duty and is approved on a case-by-case
basis by the Secretary of the Navy. This characterization will be
considered when the member is separated by reason of Selected Changes in
Service Obligation, Convenience of the Government, or Disability.
(ii) With respect to administrative matters outside the
administrative separation system that require a characterization of
service as Honorable or General, an Entry Level Separation shall be
treated as the required characterization. An Entry Level Separation for
a member of a Reserve component separated from the Delayed Entry Program
is under honorable conditions.
(b) [Reserved]
[50 FR 10943, Mar. 19, 1985, as amended at 51 FR 44909, Dec. 15, 1986;
65 FR 62616, Oct. 19, 2000]
Sec. 724.110 Reason/basis for administrative discharge.
The terms ``reason for discharge'' and ``basis for discharge'' have
the same meaning. The first is a Navy term and the second is a Marine
Corps term. These terms identify why an administrative discharge was
issued, e.g., Convenience of the Government, Misconduct. Reasons/basis
for discharge are found in the Naval Military Personnel Manual and
Marine Corps Separation and Retirement Manual as well as predecessor
publications.
Sec. 724.111 Punitive discharge.
A discharge awarded by sentence of a court-martial. There are two
types of punitive discharges:
(a) Bad conduct. A separation from the naval service under
conditions other than honorable. It may be effected only as a result of
the approved sentence of a general or special court-martial.
(b) Dishonorable. A separation from the naval service under
dishonorable conditions. It may be effected only as a result of the
approved sentence of a general court-martial.
Sec. 724.112 Clemency discharge.
(a) The clemency discharge was created by the President on September
16, 1974, in his Proclamation 4313, ``Announcing a Program for the
Return of Vietnam Era Draft Evaders and Military Deserters.'' Upon
issuance to individuals who have an undesirable discharge or a punitive
discharge, a clemency discharge serves as a written testimonial to the
fact that the individual has satisfied the requirements of the
President's program, and has fully earned his/her return to the
mainstream of American society in accordance with that program.
(b) The clemency discharge is a neutral discharge, neither honorable
nor less than honorable. It does not effect a change in the
characterization of the
[[Page 233]]
individual's military service as havng been under other than honorable
condition, nor does it serves to change, seal, erase or in any way
modify the individual's past military record. Therefore, if the
underlying discharge was issued as a result of a general court-martial,
the issuance of a Clemency Discharge does not subject the underlying
characterization to review under 10 U.S.C. 1553. Clemency discharges are
issued by the Commander, Naval Military Personnel Command or the
Commandant of the Marine Corps when an individual has met the
requirements of the Presidential Proclamation.
Sec. 724.113 Application.
In the context of this Manual, a written application to the NDRB for
the review of a discharge submitted by a former member of the naval
service or, where a former member is deceased or incompetent, by spouse,
next of kin or legal representative. Department of Defense Form 293 must
be used for the application.
Sec. 724.114 Applicant.
A former member of the naval service who has been discharged
administratively in accordance with the directives of the naval service
or by sentence of a special court-martial under title 10 U.S.C. 801 et
seq. (Uniform Code of Military Justice) and, in accordance with
statutory and regulatory provisions:
(a) Whose case is considered by the NDRB at the request of the
former member, of, if authorized under Sec. 724.113, the surviving
spouse, next-of-kin or legal representative, or
(b) Whose case is considered on the NDRB's own motion.
Sec. 724.115 Next of kin.
The person or persons in the highest category of priority as
determined by the following list (categories appear in descending order
of priority): Surviving legal spouse; children (whether by current or
prior marriage) age 18 years or older in descending precedence by age;
father or mother, unless by court order custody has been vested in
another (adoptive parent takes precedence over natural parent); siblings
(whole or half) age 18 years or older in descending precedence by age;
grandfather or grandmother; any other relative (precedence to be
determined in accordance with the civil law of descent of the deceased
former member's state of domicile at time of death).
Sec. 724.116 Council/representative.
An individual or agency designated by the applicant who agrees to
represent the applicant in a case before the NDRB. It includes, but is
not limited to: a lawyer who is a member of the bar of a Federal Court
or of the highest court of a State; an accredited representative
designated by an organization recognized by the Administrator of
Veterans Affairs; a representative from a State agency concerned with
veterans affairs; or a representative from private organizations or
local Government agencies.
Sec. 724.117 Discharge review.
A nonadversary administrative reappraisal at the level of the Navy
Department of discharges from the naval service. The object of the
reappraisal is to determine whether the discharge should be changed, and
if so, the nature of the change. This reappraisal includes the type and
reason/basis for separation, the procedures followed in accomplishing
separation, and the characterization of service. This term includes
determinations made under the provisions of 38 U.S.C. 3103(2).
Sec. 724.118 Documentary discharge review.
A formal session of the NDRB convened for the purpose of reviewing,
on the basis of documentary data, an applicant's discharge. The
Documentary data shall include the application together with all
information accompanying that application, available service and medical
records, and any other information considered relevant by the NDRB.
Sec. 724.119 Personal appearance discharge review.
A formal session of the NDRB convened for the purpose of reviewing
an applicant's discharge on the basis of a personal appearance, as well
as documentary data. The personal appearance
[[Page 234]]
may be by the applicant or by a representative of the applicant, or
both.
Sec. 724.120 National Capital Region (NCR).
The District of Columbia; Prince Georges and Montgomery Counties in
Maryland; Arlington, Fairfax, Loudoun, and Prince William Counties in
Virginia; and all cities and towns included within the outer boundaries
of the foregoing counties.
Sec. 724.121 Decisional document.
The written recordation of the applicant's summary of service, the
issue or issues presented together with any evidence offered in support
of the application, the NDRB's response to the issue or issues, the
votes of the members of the panel, and any recommendations or responses
by the President of the NDRB or the Secretarial Reviewing Authority
(SRA). The decisional document is promulgated by the ``en bloc letter''.
Sec. 724.122 Recorder, NDRB Panel.
A panel member responsible for briefing an applicant's case from the
documentary evidence available prior to a discharge review, presenting
the brief to the panel considering the application, performing other
designated functions during personal appearance discharge hearings, and
drafting the decisional document subsequent to the hearing.
Sec. 724.123 Complainant.
A former member of the Armed Forces (or the former member's counsel)
who submits a complaint under 32 CFR Part 70 with respect to the
decisional document issued in the former member's own case; or a former
member of the Armed Forces (or the former member's counsel) who submits
a complaint under reference (b) stating that correction of the
decisional document will assist the former member in preparing for an
administrative or judicial proceeding in which the former member's own
discharge will be at issue.
Subpart B--Authority/Policy for Departmental Discharge Review
Sec. 724.201 Authority.
The Naval Discharge Review Board, established pursuant to 10 U.S.C.
1553, is a component of the Naval Council of Personnel Boards. By
SECNAVINST 5730.7 series, the Assistant Secretary of the Navy (Manpower
and Reserve Affairs) is authorized and directed to act for the Secretary
of the Navy within his/her assigned area of responsibility and exercises
oversight over the Naval Council of Personnel Boards. SECNAVINST
5420.135 series of July 15, 1983 states the organization, mission,
duties and responsibilities of the Naval Council of Personnel Boards to
include the Naval Discharge Review Board. The Chief of Naval Operations
established the Office of Naval Disability Evaluation and Navy Council
of Personnel Boards on 1 October 1976 (OPNAVNOTE 5450 Ser 09B26/535376
of 9 Sep 1976 (Canc frp: Apr 77)). The Chief of Naval Operations
approved the change in name of the Office of Naval Disability Evaluation
and Navy Council of Personnel Boards to Naval Council of Personnel
Boards on 1 February 1977 (OPNAVNOTE 5450 Ser 09B26/32648 of 24 Jan 1977
(Canc frp: Jul 77)) with the following mission statement:
To administer and supervise assigned boards and councils.
[50 FR 10943, Mar. 19, 1985, as amended at 65 FR 62616, Oct. 19, 2000]
Sec. 724.202 Statutory/Directive Authority.
The NDRB, in its conduct of discharge review, shall be guided by the
applicable statutes, regulations, and manuals and directives of the
Department of the Navy, and other written public expressions of policy
by competent authority:
(a) 10 U.S.C. 1553, Review of discharge or dismissal:
(1) ``The Secretary concerned shall, after consulting the
Administrator of Veterans' Affairs, establish a board of review,
consisting of five members, to review the discharge or dismissal (other
than a discharge or dismissal by sentence of a general court-martial) of
any former member of an armed force
[[Page 235]]
under the jurisdiction of his/her department upon its own motion or upon
the request of the former member or, if he/she is dead, his/her
surviving spouse, next of kin, or legal representative. A motion or
request for review must be made within 15 years after the date of the
discharge or dismissal.''
(2) A board established under this section may, subject to review by
the Secretary concerned, change a discharge or dismissal, or issue a new
discharge, to reflect its findings.
(3) A review by the board established under this section shall be
based on the records of the armed forces concerned and such other
evidence as may be presented to the board. A witness may present
evidence to the board in person or by affidavit. A person who requests a
review under this section may appear before the board in person or by
counsel or an accredited representative or an organization recognized by
the Administrator of Veterans' Affairs under title 38 U.S.C. 3401 et
seq.''.
(b) Pub. L. 95-126. See appendix D.
(c) 32 CFR part 70. This provides for uniform standards and
procedures for review of discharges from the military services of the
Department of Defense. The provisions of 32 CFR part 70 are incorporated
in this Manual.
(d) The Secretary of Defense memoranda dated August 13, 1971 and
April 28, 1972 (NOTAL). These directed a review for recharacterization
of (1) administrative discharges under other than honorable conditions
issued solely on the basis of personal use of drugs or possession of
drugs for the purpose of such use, and (2) punitive discharges and
dismissals issued solely for conviction of personal use of drugs and
possession for the purpose of such use for those discharges executed as
a result of a case completed or in process on or before July 7, 1971.
(See appendix B).
(e) 32 CFR part 41. This prescribes policy, standards and procedures
which govern the administrative separation of enlisted persons from the
Armed Forces.
Sec. 724.203 Broad objectives of naval discharge review.
Naval discharge review shall have as its broad objectives:
(a) The furtherance of good order and discipline.
(b) The correction of injustice or inequity in the discharge issued.
(c) The correction of administrative or clerical errors.
Sec. 724.204 Eligibility for naval discharge review.
Any former member of the Naval Service, eligible for review under
reference (a) or surviving spouse, next of kin or legal representative,
shall upon submission of an application be afforded a review of the
member's discharge from the Naval Service as provided in Secs. 724.205
and 724.206. Discharge review may also be initiated on the motion of the
NDRB (See Sec. 724.220).
Sec. 724.205 Authority for review of naval discharges; jurisdictional limitations.
(a) The Board shall have no authority to:
(1) Review a discharge or dismissal resulting from a general court-
martial;
(2) Alter the judgment of a court-martial, except the discharge or
dismissal awarded may be changed for purposes of clemency;
(3) Revoke any discharge or dismissal;
(4) Reinstate a person in the naval service;
(5) Recall a former member to active duty;
(6) Change a reenlistment code;
(7) Make recommendations for reenlistment to permit entry in the
naval service or any other branch of the Armed Forces;
(8) Cancel or void enlistment contracts; or
(9) Change the reason for discharge from or to a physical disability
(b) Review of naval discharges shall not be undertaken in instances
where the elapsed time between the date of discharge and the date of
receipt of application for review exceeds fifteen years.
Sec. 724.206 Jurisdictional determinations.
The determination as to whether the NDRB has jurisdiction in any
case shall be predicated on the policy stated in Sec. 724.205. Decisions
shall be made by
[[Page 236]]
administrative action without referral to the NDRB. Normally, they shall
be made by the Executive Secretary of the NDRB, or they may be referred
to the President, NDRB.
Sec. 724.207 Disposition of applications for discharge review.
One of three dispositions will be made of an application for review
of a discharge:
(a) The application may be rejected for reason of:
(1) Absence of jurisdiction;
(2) Previous review on the same evidence; or
(b) The application may be withdrawn by the applicant; or
(c) The application may be accepted and the discharge reviewed by
the NDRB, resulting in,
(1) Change to the discharge, or
(2) No change.
Sec. 724.208 Implementation of NDRB decisions.
The Commandant of the Marine Corps and the Chief of Naval Operations
are responsible for implementing Naval Discharge Review Board decisions
within their respective services. The Commandant of the Marine Corps
shall be notified of decisions in each discharge review case and shall
implement the decisions within the Marine Corps. The Commander, Naval
Military Personnel Command, acting for the Chief of Naval Operations and
Chief of Naval Personnel, shall be notified of decisions in each
discharge review case and shall implement the decisions within the Navy.
Sec. 724.209 Evidence supporting applications.
In the absence of law, evidence or policy to the contrary, naval
discharges shall be considered just, equitable and proper as issued.
When hearings are scheduled, applicants must be prepared to present
their case at the scheduled time. In the absence of any other evidence,
naval discharge review shall be undertaken by examination of available
service and health records of the applicant. Normally, the
responsibility for presenting evidence from outside available service
and health records shall rest with the applicant. Applications in which
elements of relevant information are obviously omitted will be returned
for completion and resubmission.
Sec. 724.210 Review action in instances of unavailable records.
(a) In the event that Department of the Navy personnel or health
records associated with a requested review of discharge are not located
at the custodial activity, the following action shall be taken by the
NDRB prior to consideration of the request for discharge review.
(1) A certification that the records are unavailable shall be
obtained from the custodial activity.
(2) The applicant shall be notified of the situation 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 60 days
shall be allowed for such documents to be submitted. At the expiration
of this time period, the review may be conducted with information
available to the NDRB.
(3) The presumption of regularity in the conduct of government
affairs may be applicable in instances of unavailable records depending
on the circumstances of the case. (See Sec. 724.211)
(b) [Reserved]
[50 FR 10943, Mar. 19, 1985, as amended at 65 FR 62616, Oct. 19, 2000]
Sec. 724.211 Regularity of government affairs.
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.
Sec. 724.212 Availability of records.
(a) 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 63132. Once the application for discharge review (DD Form 293)
is submitted, an applicant's military records are forwarded to the
[[Page 237]]
NDRB where they cannot be reproduced. Submission of a request for an
applicant's military records, including a request under the Freedom of
Information Act (5 U.S.C. 552) or Privacy Act (5 U.S.C. 552a) 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
NDRB. 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 in processing of applications and scheduling of reviews.
Applicants and their counsel may also examine their military personnel
records at the site of their scheduled review before the hearing. The
NDRB shall notify applicants of the dates the records are available for
examination in their standard scheduling information.
(b) If the NDRB 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 NDRB shall advise the
applicant of the mailing address of the government department, office,
or activity to which the request should be submitted.
(c) [Reserved]
(d) The NDRB 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.
(1) In any case heard on request of an applicant, the NDRB 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 NDRB
shall also notify the applicant or counsel or representative: (a) of the
right to examine such documents or to be provided with copies of the
documents upon request; (b) of the date by which such requests must be
received; and (c) of the opportunity to respond within a reasonable
period of time to be set by the NDRB.
(2) When necessary to acquaint the applicant with the substance of a
classified document, the classifying authority, on the request of the
NDRB, 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 source shall not
be considered by the NDRB in its review of the case.
(e) 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, The Pentagon,
Washington, DC 20310.
[50 FR 10943, Mar. 19, 1985, as amended at 65 FR 62616, Oct. 19, 2000]
Sec. 724.213 Attendance of witnesses.
Arrangement for attendance of witnesses testifying in behalf of the
applicant at discharge review hearings is the responsibility of the
applicant. The NDRB is not authorized to subpoena or otherwise require
their presence.
Sec. 724.214 Applicant's expenses.
Unless otherwise specified by law or regulation, expenses incurred
by the
[[Page 238]]
applicant, witnesses, or counsel/representative will not be paid by the
Department of Defense. The NDRB is not authorized to issue orders or
other process to enable the applicant to appear in person.
Sec. 724.215 Military representation.
Military officers, except those acting pursuant to specific
detailing by appropriate authorities desiring to act for or on behalf of
an applicant in the presentation of a case before an NDRB Panel are
advised to consult legal counsel before undertaking such representation.
Such representation may be prohibited by 18 U.S.C. 205.
Sec. 724.216 Failure to appear at a hearing or respond to a scheduling notice.
(a) 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:
(1) 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
(2) 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.
(b) In such cases, the applicant shall be deemed to have waived the
right to a hearing, and the NDRB 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.
Sec. 724.217 Limitation--Reconsiderations.
A discharge review shall not be subject to reconsideration except:
(a) When the only previous consideration of the case was on the
motion of the NDRB;
(b) When the original discharge review did not involve a personal
hearing and a hearing is now desired, and the provisions of Sec. 724.216
do not apply;
(c) When changes in discharge policy are announced after an earlier
review of an applicant's discharge, and the new policy is made expressly
retroactive;
(d) When the NDRB 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 an applicant in such proceedings;
(e) When an individual is to be represented by counsel or
representative, and was not so represented in any previous consideration
of the case by the NDRB;
(f) 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
(g) 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.
Sec. 724.218 Limitation--Continuance and Postponements.
(a) A continuance of a discharge review hearing may be authorized by
the President of the NDRB 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.
[[Page 239]]
(b) 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.
Sec. 724.219 Withdrawal of application.
An applicant shall be permitted to withdraw an application without
prejudice at any time before the scheduled review, except that failure
to appear for a scheduled hearing shall not be construed or accepted as
a withdrawal.
Sec. 724.220 Review on motion of the NDRB.
Reviews of Naval discharges may be initiated by the NDRB on its own
motion (10 U.S.C. 1553) which includes reviews requested by the Veterans
Administration under 38 U.S.C. 101, 3103 as amended by Pub. L. 95-126 of
October 8, 1977 (See Pub. L. 98-209).
Sec. 724.221 Scheduling of discharge reviews.
(a) If an applicant requests a personal appearance discharge review,
or to be represented in absentia, the NDRB shall provide a hearing in
the NCR or at another site within the forty-eight contiguous states.
(b) The NDRB shall subsequently notify the applicant and
representative (if any) in writing of the proposed personal appearance
hearing time and place. This notice shall normally be mailed thirty to
sixty days prior to the date of the hearing. If the applicant elects,
this time limit may be waived and an earlier date set.
(c) When an applicant requests a documentary review, the NDRB shall
undertake the review as soon as practicable. Normally, documentary
reviews shall be conducted in the order in which they are received.
Sec. 724.222 Personal appearance discharge hearing sites.
(a) The NDRB shall be permanently located, together with its
administrative staff, in the NCR. The NDRB shall routinely conduct
personal appearance discharge reviews and documentary reviews at this,
its permanent office.
(b) In addition, as permitted by available resources, NDRB Panels
shall travel to other selected sites within the contiguous 48 states for
the purpose of conducting reviews. The selection of sites and frequency
of visits shall be predicated on the number of requests pending within a
region and the availability of resources.
Sec. 724.223 NDRB support and augmentation by regular and reserve activities.
(a) When an NDRB Panel travels for the purpose of conducting
hearings, it shall normally select Navy or Marine Corps installations in
the area visited as review sites.
(b) The NDRB Traveling Board shall normally consist of members from
the NCPB and augmentees from regular and reserve Navy and Marine Corps
sources, as required.
(c) Navy and Marine Corps activities in the geographical vicinity of
selected review sites shall provide administrative support and
augmentation to an NDRB Panel during its visit where such assistance can
be undertaken without interference with mission accomplishment. The NDRB
shall coordinate requests for augmentees and administrative support
through Commandant of the Marine Corps or the Chief of Naval Reserve, as
appropriate.
(d) The administrative staff of the NCPB shall undertake all
arrangements for NDRB Traveling Panel visits and shall process
associated review documents.
Sec. 724.224 Court-martial specifications, presumption concerning.
(a) Relevant and material facts stated in a court-martial
specification, shall be presumed by the NDRB Panel as established facts.
With respect to a discharge or dismissal adjudged by a court-martial
case tried under the Uniform Code of Military Justice, the action may
extend only to change in the discharge or dismissal for purposes of
clemency. This policy only applies to cases filed with the discharge
review board after December 6, 1983.
(b) Relevant and material facts stated in a court-martial
specification, in the face of which the applicant requested a discharge
for the good of the service to avoid trial by court-martial,
[[Page 240]]
shall be considered in accordance with the following:
(1) If the applicant/accused was required to admit the facts
contained in the charge sheet, or if the discharge authority was
required to find that the stated facts were true, then the NDRB can
presume the truth of such facts, unless there is a substantial credible
evidence to rebut this presumption; or
(2) If the discharge in lieu of court-martial only required a valid
preferral, the NDRB may presume that the signer either had personal
knowledge of, or had investigated the matters set forth, and that the
charges were true in fact to the best of the signer's knowledge and
belief.\1\ The weight to be given this presumption in determining
whether the facts stated in the charge sheet are true is a matter to be
determined by the NDRB. To the extent that the discharge proceeding
reflects an official determination that the facts stated in the charge
sheet are true; that the applicant/accused admitted the facts stated in
the charge sheet; or that the applicant/accused admitted guilt of the
offense(s), then the presumption is strengthened. In accordance with
paragraph B12f of enclosure (3) to 32 CFR part 70 the presumption may be
rebutted by ``substantial credible evidence.''
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\1\ Charges may be preferred by any person subject to the Uniform
Code of Military Justice. The charges must be signed and sworn to before
a commissioned officer authorized to administer oaths, and shall state
that the signer has personal knowledge of, or has investigated the
matters set forth therein; and that the charges are true in fact to the
best of the signer's knowledge and belief. 10 U.S.C. 830 (1976) (Art. 30
Uniform Code of Military Justice).
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Subpart C--Director, Naval Council of Personnel Boards and President
Naval Discharge Review Board; Responsibilities in Support of the Naval
Discharge Review Board
Sec. 724.301 Mission.
To administer and supervise assigned boards and councils within the
Department of the Navy.
Sec. 724.302 Functions: Director, Naval Council of Personnel Boards.
(a) Make recommendations to the Secretary of the Navy regarding
organization, tasking and resources of the NDRB and its associated
administrative support.
(b) Submit recommendations to the Secretary of the Navy regarding
policy and procedures for discharge review.
(c) Provide administrative and clerical support for NDRB.
(d) Inform the Secretary of the Navy of matters of interest to him.
(e) Maintain a system of records, including as a minimum:
(1) Records specified for the NDRB as stipulated in the procedures
prescribed in subpart H of this Manual.
(2) Records required for the administration of military and civilian
personnel.
(3) Files of correspondence received and issued.
(f) Establish billet/position assignment criteria for the NDRB.
(g) Propose to the Secretary of the Navy, changes to this
instruction.
(h) Issue requisite precepts and remove or add members to the NDRB
from personnel detailed to serve on the Naval Council of Personnel
Boards, or from personnel otherwise made available.
Sec. 724.303 Functions: President, Naval Discharge Review Board.
(a) Exercise primary cognizance within the Department of the Navy
for matters relating to discharge review.
(b) Supervise and direct the activities of the NDRB.
(c) Maintain appropriate liaison with discharge review activities in
other services (use Army Discharge Review Board as focal point for
service coordination).
(d) Maintain coordination with the Commandant of the Marine Corps
(Code M) and the Commander, Naval Military Personnel Command in matters
associated with discharge review.
(e) In conformance with SECNAVINST 5211.5C, protect the privacy of
individuals in connection with discharge review.
(f) Assure that NDRB functions are administered in accordance with
the
[[Page 241]]
appropriate Secretary of the Navy instructions dealing with privacy and
access to information.
(g) Convene the NDRB as authorized by the Secretary of the Navy.
(h) Direct the movement of the NDRB Traveling Panel(s) on the basis
of regional hearing requests.
(i) Monitor the performance of the naval discharge review system.
Make recommendations for changes and improvements. Take action to avoid
delays in processing of individual discharge review actions.
(j) Provide NDRB inputs for the maintenance of a public reading file
and maintain associated NDRB indexes updated quarterly.
Sec. 724.304 Responsibility for Department of the Navy support of the Naval Discharge Review Board.
The Commandant of the Marine Corps; Commander, Naval Military
Personnel Command; Commander, Naval Reserve Force; Commander, Naval
Medical Command; and chiefs of other bureaus and offices of the
Department of the Navy shall provide support, as requested, to the Naval
discharge review process.
Sec. 724.305 Functions of the CMC and CNO.
In the case of Navy, CNMPC, under the CNP, shall discharge
responsibilities of the CNO.
(a) Provide and facilitate access by the NDRB to service/health
records and other data associated with performance of duty of
applicants.
(b) Advise the NDRB of developments in personnel management which
may have a bearing on discharge review judgments.
(c) Implement the discharge review decisions of the NDRB and those
of higher authority within respective areas of cognizance.
(d) Include the record of NDRB proceedings as a permanent part of
the service record of the applicant in each case.
(e) Where appropriate, recommend cases for the NDRB to review on its
own motion.
(f) Provide qualified personnel as NDRB members, recorders and
administrative staff.
(g) Establish administrative procedures to ensure that if a member
is separated from the Navy or the Marine Corps under other than fully
honorable conditions, the member is advised of:
(1) The right to a review of his or her discharge under provisions
of 10 U.S.C. 1553, and
(2) The procedures for applying for such a review.
(h) Provide Navy and Marine Corps units and activities with
information on the mission of the Naval Discharge Review Board through
entries in appropriate personnel administration directives.
Sec. 724.306 Functions of the Commander, Naval Medical Command.
Under the CNO the COMNAVMEDCOM shall facilitate, as required, access
by the NDRB to health records of applicants.
Sec. 724.307 Functions of the Commander, Naval Reserve Force.
In the case of Navy, the COMNAVRESFOR shall discharge the
responsibilities of the CNO--
(a) Upon request and within available resources, provide qualified
inactive duty reservists to serve as members of the NDRB.
(b) Upon request, provide appropriate accommodations to the NDRB
Traveling Panels for purposes of conducting reviews at Naval and Marine
Corps Reserve Centers and aviation facilities.
Subpart D--Principal Elements of the Navy Department Discharge Review
System
Sec. 724.401 Applicants.
As defined in Sec. 724.114.
Sec. 724.402 Naval Discharge Review Board.
As defined in Sec. 724.102.
Sec. 724.403 President, Naval Discharge Review Board.
Supervises the Naval Discharge Review Board. (See subpart C).
[[Page 242]]
Sec. 724.404 Director, Naval Council of Personnel Boards.
Exercises adminstrative control and oversight of the Naval discharge
review process. (See subpart C).
Sec. 724.405 Commandant of the Marine Corps or the Commander, Naval Military Personnel Command.
Personnel managers of the Marine Corps and the Navy; responsible for
providing limited support to the Naval Discharge Review Board and for
implementation of departmental discharge review decisions. (See subpart
C).
Sec. 724.406 Commander, Naval Medical Command.
Custodian of Navy and Marine Corps health records. (See subpart C).
Sec. 724.407 Commander, Naval Reserve Force.
Manages Naval Reserve resources. Responsible for providing limited
support to the Naval Discharge Review Board. (See subpart C).
Sec. 724.408 Secretary of the Navy.
The final authority within the Department of the Navy in discharge
review.
Subpart E--Procedural Rights of the Applicant and Administrative Actions
Preliminary to Discharge Review
Sec. 724.501 Procedural rights of the applicant.
Each applicant has the following procedural rights:
(a) Within 15 years after the date of discharge, to make a written
request for review of the applicant's discharge if the discharge was
other than the result of a general court-martial. The request may
include such other statements, affidavits, or documentation as desired.
(b) To have that review conducted by the NDRB either in the NCR or
other designated location, when a personal appearance discharge review
is desired.
(c) To appear before the NDRB in person, with or without counsel/
representative; with counsel/representative concurrence, to have
counsel/representative present the applicant's case in the absence of
the applicant; or to have the review conducted based on records and any
additional documentation submitted by the applicant or counsel/
representative.
(d) To request copies of any documents or other evidence to be
considered by the NDRB in the review of the applicant's discharge or
dismissal other than the documents or evidence contained in the official
record or submitted by the applicant prior to the conduct of the formal
review and to be afforded an opportunity to examine such other documents
or evidence or to be provided with copies of them.
(e) To withdrawn the request for discharge review without prejudice
at any time prior to the scheduled review, except that failure to appear
for a scheduled hearing shall not be construed or accepted as a
withdrawal.
(f) To request a continuance of the review when the continuance is
of a reasonable duration and essential to achieving a full and fair
hearing. The request must indicate the reason why the continuance is
required.
(g) To request postponement of the discharge review for good and
sufficient reason set forth in a timely manner.
(h) To request reconsideration of the discharge review under the
conditions set forth in Sec. 724.217.
(i) To have access to the information to be considered by the NDRB
prior to the actual review of the applicant's case.
(j) To have the applicant's right to privacy protected in any review
conducted by the NDRB.
(k) When appearing personally before the NDRB:
(1) To introduce witnesses, documents, and sworn or unsworn
testimony.
(2) To present oral or written arguments personally or through
counsel/representative.
(l) To submit documents, affidavits, briefs or arguments in writing.
When the counsel/representative appears in person before the NDRB,
arguments may be presented orally.
(m) To state clearly and specifically the issue or issues which the
applicant desires the NDRB to answer in writing.
[[Page 243]]
These must be presented in writing on DD Form 293 by the applicant or
counsel/representative.
(n) To have the applicant's discharge reviewed under the standards
of equity and propriety outlined in subpart I.
(o) To be provided with a written decision on the applicant's
review.
(p) If the case is to be forwarded for Secretarial review, to
present a timely statement rebutting any findings, conclusions, or
reasons of the NDRB or the President, NDRB, which are alleged to be
erroneous on the facts, against the substantial weight of the evidence,
or contrary to law or governing regulation, prior to that Secretarial
review.
Sec. 724.502 Actions to be taken by the applicant preliminary to discharge review.
(a) Application for Review of Discharge or Dismissal from the Armed
Forces of the United States, DD Form 293 must be used in requesting a
discharge review. DD Form 293 is available at most military
installations and regional offices of the Veterans Administration. This
form is to be signed personally by the applicant. In the event the
discharged individual is deceased or incompetent, the form must be
signed by an authorized individual as discussed in Sec. 724.113 of this
Manual.
(b) The application is to be accompanied by:
(1) A copy of the certificate of discharge, if available;
(2) A copy of the Armed Forces of the United States Report of
Transfer or Discharge (DD-214), if available;
(3) Certification of death, incompetency and evidence of
relationship in applicable cases (Sec. 724.113);
(4) Other statements, affidavits, depositions, documents and
information desired by the applicant to be considered by the NDRB.
(c) Correspondence relating to review of naval discharges should be
addressed to:
Naval Discharge Review Board, Suite 905--801 North Randolph Street,
Arlington, VA 22203
(d) NDRB telephone number is (202) 696-4881.
Sec. 724.503 NDRB response to application for discharge review.
(a) The NDRB shall acknowledge receipt of the application.
(b) In the event a documentary review is requested, the applicant
shall normally receive no further communication from the NDRB until
notified of the decision in the case.
(c) In the event a personal appearance discharge review is
requested, the applicant shall be notified of the proposed time and
place of this review and shall be advised of the availability of the
official documents to be considered by the NDRB.
(d) A copy of NDRB correspondence to an applicant shall be sent to
the representative of record, if any.
Sec. 724.504 NDRB actions preliminary to discharge review.
(a) When each application for discharge review is received by the
NDRB, the service record and health record of the applicant will be
requested from the appropriate record custodian.
(b) Upon receipt, each record of service will be reviewed to
determine whether or not the applicant appears to have been discharged
under circumstances which might act as a bar to Veterans' Administration
benefits under 38 U.S.C. 3103. These circumstances of discharge are:
(1) Discharge or dismissal by reason of the sentence of a general
court-martial.
(2) Discharge as a conscientious objector who refused to perform
military duty, to wear the uniform or otherwise to comply with lawful
orders of competent military authority.
(3) Discharge as a deserter.
(4) Discharge on the basis, or as part of the basis, of an absence
without authority from active duty for a continuous period of at least
180 days, if such discharge was under conditions other than honorable.
Additionally, such absence is computed without regard to the applicant's
normal or adjusted expiration of term of service.
(5) Discharge or dismissal of an officer based on acceptance of the
officer's resignation for the good of the service.
(6) Discharge, on his/her own application, during a period of
hostilities, as an alien.
[[Page 244]]
(c) If it appears that the applicant was discharged under one or
more of the circumstances outlined in Sec. 724.504b, a written
notification will be sent which informs the applicant that:
(1) An initial service record review reveals that the discharge may
have been awarded under circumstances which make the applicant
ineligible for receipt of VA benefits regardless of any action taken by
the NDRB.
(2) Separate action by the Board for Correction of Naval Records
(BCNR) and/or the VA, in case of 180 days consecutive UA
disqualification, may confer eligibility for VA benefits. Instructions
for making application to the BCNR and for contacting the VA are
provided.
Subpart F--Naval Discharge Review Board Mission and Functions
Sec. 724.601 General.
The NDRB is a component of the Naval Council of Personnel Boards and
has its offices located in the NCR. The NDRB conducts documentary
reviews and personal appearance reviews in the NCR and, on a traveling
basis, at selected sites within the 48 contiguous states. Regional site
selection is predicated on the number of pending applications
accumulated from a given geographical area and the resources available
to support distant personal appearance reviews. The NDRB does not
maintain facilities other than at its NCR offices. The primary sites of
NCR are: Chicago, IL; Dallas, TX; and San Francisco, CA.
Sec. 724.602 Mission.
To decide, in accordance with standards of naval law and discipline
and the standards for discharge review set forth in subpart I, whether a
discharge or dismissal from the naval service is proper and equitable,
or whether it should be changed.
Sec. 724.603 Functions.
(a) Meet as frequently as necessary to provide expeditious review of
naval discharges.
(b) Meet at locations within the 48 contiguous states as determined
appropriate on the basis of the number of discharge review applications
received from various geographical areas and of available resources and
facilities.
(c) Review applications for review of discharges.
(d) In consonance with directives of higher authority and the
policies set forth in this Manual, grant or deny change of discharges.
(e) Promulgate decisions in a timely manner.
(f) Maintain a system of records.
(g) Maintain liaison in discharge review matters with:
(1) General Counsel of the Navy.
(2) Commandant of the Marine Corps.
(3) Chief of Naval Operations.
(i) Commander, Naval Reserve Force.
(ii) Commander, Naval Medical Command.
(iii) Commander, Naval Military Personnel Command, under the Chief
of Naval Personnel.
(4) Judge Advocate General of the Navy.
(5) Veterans' service organizations.
(6) Discharge review boards of the other services, using the Army
Discharge Review Board as the focal point for service coordination.
(h) Protect the privacy of individuals whose records are reviewed.
(i) Maintain for public access a reading file and associated index
of records of NDRB proceedings in all reviews undertaken subsequent to
July 1, 1975.
Subpart G--Organization of the Naval Discharge Review Board
Sec. 724.701 Composition.
The NDRB acting in plenary review session shall be composed of five
members. Normally the members shall be career military officers,
assigned to the Naval Council of Personnel Boards or otherwise made
available; inactive duty officers of the Navy and Marine Corps Reserve
may serve as members when designated to do so by the President, NDRB.
(a) Presiding officers of the NDRB shall normally be Navy or Marine
Corps officers in the grade of Captain/Colonel or above.
(b) The remaining NDRB membership shall normally be not less than
the grade of Lieutenant Commander/Major
[[Page 245]]
with preference being given to senior grades.
(c) At least three of the five members of the NDRB shall belong to
the service from which the applicant whose case is under review was
discharged.
(d) Individual membership in the NDRB may vary within the
limitations of the prescribed composition.
(e) Any member of a panel of the NDRB other than the presiding
officer may act as recorder for cases assigned. The recorder will
participate as a voting member of the panel.
Sec. 724.702 Executive management.
The administrative affairs of the NDRB shall be managed by the
Executive Secretary. This responsibility shall include schedules,
records, correspondence and issuance of NDRB decisions.
Sec. 724.703 Legal counsel.
Normally, the NDRB shall function without the immediate attendance
of legal counsel. In the event that a legal advisory opinion is deemed
appropriate by the NDRB, such opinion shall be obtained routinely by
reference to the senior Judge Advocate assigned to the Office of the
Director, Naval Council of Personnel Boards. In addition, the NDRB may
request advisory opinions from staff offices of the Department of the
Navy, including, but not limited to the General Counsel and the Judge
Advocate General.
Subpart H--Procedures of Naval Discharge Review Board
Sec. 724.801 Matters to be considered in discharge review.
In the process of its review of discharges, the NDRB shall examine
available records and pertinent regulations of the Department of the
Navy, together with such information as may be presented by the
applicant and/or representative, which will normally include:
(a) The application for discharge review;
(b) Statements, affidavits or documentation, if any, accompanying
the application or presented during hearings;
(c) Testimony, if any, presented during hearings;
(d) Service and health records;
(e) A brief of pertinent facts extracted from the service and health
records, prepared by the NDRB recorder.
Sec. 724.802 Applicant's responsibilities.
(a) Request for change of discharge. An applicant may request a
change in the character of or reason for discharge (or both).
(1) 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). 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 will be treated as a request for a change to an
Honorable Discharge unless the applicant requests a specific change to
another character of discharge.
(2) 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 NDRB will 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 NDRB will change the reason for discharge if such a
change is warranted.
(3) The applicant must ensure that issues submitted to the NDRB 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
and applicant's issue and the request in block 7, the NDRB will respond
to the issue in the context of the action requested in block 7. In the
case of a personal appearance hearing, the NDRB will attempt to resolve
the ambiguity under Sec. 724.802(c).
[[Page 246]]
(b) Request for consideration of specific issues. An applicant may
request the Board 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 manual
before submitting issues for consideration by the Board.
(1) Submission of issues on DD Form 293. Issues must be provided to
the NDRB on DD Form 293 (82 Nov) before the NDRB closes the review
process for deliberation.
(i) Issues must be clear and specific. An issue must be stated
clearly and specifically in order to enable the NDRB to understand the
nature of the issue and its relationship to the applicant's discharge.
(ii) 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 NDRB.
(iii) Use of DD Form 293. DD Form 293 provides applicants with a
standard format for submitting issues to the NDRB, and its use:
(A) Provides a means for an applicant to set forth clearly and
specifically those matters that, in the option of the applicant, provide
a basis for changing the discharge;
(B) Assists the NDRB in focusing on those matters considered to be
important by an applicant;
(C) Assists the NDRB in distinguishing between a matter submitted by
an applicant in the expectation that it will be treated as a decisional
issue, and those matters submitted simply as background or supporting
materials;
(D) Provides the applicant with greater rights in the event that the
applicant later submits a complaint concerning the decisional document;
(E) Reduces the potential for disagreement as to the content of an
applicant's issue.
(iv) 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 NDRB 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
NDRB'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 failed expressly to incorporate an
issue which the applicant clearly identifies as an issue to be addressed
by the NDRB, the NDRB shall respond to such an issue. (See Secs. 724.805
and 724.806.)
(v) Effective date of the new Form DD 293. With respect to
applications pending (before November 1982, the effective date of the
new DD Form 293), the NDRB shall consider issues clearly and
specifically stated in accordance with the rules in effect at the time
of submission. With respect to applications received after November
1982, if the applicant submits an obsolete DD Form 293, the NDRB 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 instruction.
(2) 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 either the character of or the reason for
discharge (or both). Unless the issue is directed at the reason for
discharge expressly or by necessary implication, the NDRB will presume
that it applies solely to the character of discharge.
(3) Relationship of issues to the standards for discharge review.
The NDRB reviews discharges on the basis of issues of propriety and
equity. The standards used by the NDRB are set forth in Sec. 724.804.
The applicant is encouraged to review those standards before submitting
any issue upon which the applicant believes a change in discharge should
be based.
[[Page 247]]
(i) Issues concerning the equity of the discharge. An issue of
equity is a matter that involves a determination whether a discharge
should be changed under the equity standards of this part. This includes
any issue, submitted by the applicant in accordance with
Sec. 724.802(b)(1), that is addressed to the discretionary authority of
the NDRB.
(ii) 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 this part. This
includes an applicant's issue, submitted in accordance with
Sec. 724.802(b)(1), 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 NDRB adequately of the basis
for the applicant's position.
(iii) The applicant's identification of an issue. The applicant is
encouraged, but not required, to specify that each issue pertains to the
propriety or the equity of the discharge. This will assist the NDRB in
assessing the relationship of the issue to propriety or equity.
(4) Citation of matter from decisions. The primary function of the
NDRB involves the exercise of discretion on a case-by-case basis.
Applicants are not required to cite prior decisions as the basis for a
change in discharge. If the applicant wishes to bring the NDRB'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 with respect to applications received on or
after November 27, 1982 apply:
(i) The issue must be set forth or expressly incorporated in the
``Applicant's Issue'' portion of DD Form 293.
(ii) If an applicant's issue cites a prior decision (of the NDRB,
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.
(iii) 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 NDRB 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.
(iv) If the applicant fails to comply with requirements in
Sec. 724.802(b)(4), the decisional document shall note the defect, and
shall respond to the issue without regard to the citation.
(c) Identification by the NDRB 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 Sec. 924.803, is
made.
(1) Issues on DD Form 293. The NDRB shall consider all items
submitted as issues by an applicant on DD Form 293 (or incorported
therein).
(2) Amendment of issues. The NDRB 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:
(i) Limits the NDRB's authority to question an applicant as to the
meaning of such matter;
(ii) Precludes the NDRB from developing decisional issues based upon
such questions;
(iii) Prevents the applicant from amending or withdrawing such
matter any time before the NDRB closes the review process for
deliberation; or
[[Page 248]]
(iv) Prevents the NDRB 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.
(3) Additional issues identified during a hearing. The following
additional procedure shall be used during a hearing in order to promote
the NDRB's understanding of an applicant's presentation. If, before
closing the case for deliberation, the NDRB believes that an applicant
has presented an issue not listed on DD Form 293, the NDRB 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 NDRB
from developing its own decisional issues.
Sec. 724.803 The decisional document.
A decisional document shall be prepared for each review. At a
minimum, this document shall contain:
(a) 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:
(1) Information concerning the discharge under review, including:
(i) Date (YYMMDD) of discharge;
(ii) Character of discharge;
(iii) Reason for discharge;
(iv) The specific regulatory authority under which the discharge was
issued;
(v) Date (YYMMDD) of enlistment;
(vi) Period of enlistment;
(vii) Age at enlistment;
(viii) Length of service;
(ix) Periods of unauthorized absence;
(x) Conduct and efficiency ratings (numerical or narrative);
(xi) Highest rank achieved;
(xii) Awards and decorations;
(xiii) Educational level;
(xiv) Aptitude test scores;
(xv) Incidents of punishment pursuant to Article 15, Uniform Code of
Military Justice (including nature and date (YYMMDD) of offense or
punishment);
(xvi) Convictions by court-martial;
(xvii) Prior military service and type of discharge received.
(2) Any other matters in the applicant's record which pertains to
the discharge or the issues, or provide a clearer picture of the overall
quality of the applicant's service.
(b) A list of the type of documents submitted by or on behalf of the
applicant (including written briefs, letters of recommendation,
affidavits concerning the circumstances of the discharge, or other
documentary evidence), if any.
(c) A statement whether the applicant testified, and a list of the
type of witnesses, if any , who testified on behalf of the applicant.
(d) A notation whether the application pertained to the character of
discharge, the reason for discharge, or both.
(e) 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. 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 written consent of the applicant need not be listed.
(f) The response to the items submitted as issues by the applicant.
(g) A list of decisional issues and a discussion of such issues.
(h) NDRB's conclusions on the following:
(1) Whether the character of or reason for discharge should be
changed.
(2) The specific changes to be made, if any.
(i) A record of the voting, including:
(1) The number of votes for the NDRB's decision and the number of
votes in the minority, if any.
(2) The NDRB members' names 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.
(j) Advisory opinions, including those containing factual
information, when
[[Page 249]]
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 that are not fully set forth in
the discussion of decisional issues or otherwise in response to items
submitted as issues by the applicant 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.
(k) The recommendation of the NDRB president when required.
(l) The addendum of the SRA when required.
(m) Index entries for each decisional issue under appropriate
categories listed in the index of decisions.
(n) An authentication of the document by an appropriate official.
Sec. 724.804 Decision process.
(a) The NDRB or the NDRB panel, as appropriate, shall meet in
plenary session to review discharges and exercise its discretion on a
case-by-case basis in applying the standard set forth in subpart I.
(b) The presiding officer is responsible for the conduct of the
discharge review. The presiding officer shall convene, recess, and
adjourn the NDRB panel as appropriate and shall maintain an atmosphere
of dignity and decorum at all times.
(c) Each NDRB member shall act under oath or affirmation requiring
careful, objective consideration of the application. NDRB members are
responsible for eliciting all facts necessary for a full and fair
review. 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 NDRB, and any other evidence obtained in accordance with this
Manual.
(d) The NDRB shall identify and address issues after a review of the
following material obtained and presented in accordance with this Manual
and any implementing instructions of the NDRB: 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.
(e) If an applicant who has requested a hearing does not respond to
a notification letter or does not appear for a scheduled hearing, the
NDRB may complete the review on the basis of material previously
submitted and available service records.
(f) Application of standards. (1) When the NDRB determines that an
applicant's discharge was improper, the NDRB 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, the provisions as to the characterization in the regulation
under which the applicant should have been discharged will be considered
in determining whether further relief is warranted.
(2) When the NDRB determines that an applicant's discharge was
inequitable, any change will be based on the evaluation of the
applicant's overall record of service and relevant regulations of the
service of which the applicant was a member.
(g) Voting shall be conducted in closed session, a majority of the
votes of the five members constituting the NDRB decision.
(h) Details of closed session deliberations of the NDRB are
priviledged information and shall not be divulged.
(i) There is no requirement for a statement of minority views in the
event of a split vote.
(j) The NDRB may request advisory opinions from appropriate staff
officers of the naval service. These opinions are advisory in nature and
are not binding on the NDRB in its decision-making process.
(k) The preliminary determinations required by 38 U.S.C. 3103(e)
shall be made upon majority vote of the NDRB concerned on an expedited
basis. Such
[[Page 250]]
determination shall be based upon the standards set forth in this
Manual.
Sec. 724.805 Response to items submitted as issues by the applicant.
(a) General guidance. (1) If any issue submitted by an applicant
contains two or more clearly separate issues, the NDRB should respond to
each issue under the guidance of this paragraph as if it had been set
forth separately by the applicant.
(2) 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.
(3) Nothing in this paragraph precludes the NDRB 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.
(b) Decisional issues. An item submitted as an issue by an applicant
in accordance with this Manual shall be addressed as a decisional issue
in the following circumstances:
(1) When the NDRB decides that a change in discharge should be
granted, and the NDRB bases its decision in whole or in part on the
applicant's issue; or
(2) When the NDRB does not provide the applicant with the full
change in discharge requested, and the decision is based in whole or in
part on the NDRB's disagreement on the merits with an issue submitted by
the applicant.
(c) Response to items not addressed as decisional issues. (1) 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.
(2) 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 NDRB shall address the items submitted by the
applicant under Sec. 724.806, (Decisional Issues) unless one of the
following responses is applicable:
(i) Duplicate issues. The NDRB 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.
(ii) Citations without principles and facts. The NDRB 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 Sec. 724.802(b)(4).
(iii) Unclear issues. The NDRB 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.
(iv) Nonspecific issues. The NDRB 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 cannot determine the relationship between the
applicant's submission and the particular 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
NDRB disagrees with the applicant as to the relevance of matters set
forth in the submission, the NDRB normally will set forth the nature of
the disagreement with respect to decisional issues, or it will reject
the applicant's position. If the applicant's submission is so general
that none of those provisions is applicable, then the NDRB may state
that it cannot respond because the item is not specific.
Sec. 724.806 Decisional issues.
(a) General. Under the guidance in this section, the decisional
document shall discuss the issues that provide a
[[Page 251]]
basis for the decision whether there should be a change in the character
of or reason for discharge. In order to enhance clarity, the NDRB should
not address matters other than issues relied upon in the decision or
raised by the applicant.
(1) 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 NDRB denies the full change
requested.
(2) Relationship of issue of 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.
(3) Relationship of an issue to propriety or equity. (i) If an
applicant identifies an issue as pertaining to both propriety and
equity, the NDRB will consider it under both standards.
(ii) 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 NDRB shall consider the issue solely as a matter of
propriety. Except as provided in Sec. 724.806(a)(3)(d), the NDRB is not
required to consider such an issue under the equity standards.
(iii) If the applicant's issue contends that the NDRB 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 Sec. 724.806 (a) or (b).
(iv) If the applicant's issue sets forth principles of equity
contained in a prior NDRB decision, describes the relationship to the
applicant's case, and contends that the NDRB is required as a matter of
law to follow the prior case, the decisional document shall note that
the NDRB is not bound by its discretionary decisions in prior cases.
However, the principles cited by the applicant, and the description of
the relationship of the principles to the applicant's case, shall be
considered and addressed under the equity standards.
(v) If the applicant's issue cannot be identified as a matter of
propriety or equity, the NDRB shall address it as an issue of equity.
(b) Change of discharge: issues of propriety. If a change in the
discharge is warranted under the propriety standards, the decisional
document shall state that conclusion and list the errors of expressly
retroactive changes in policy or violations of regulations 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 set forth.
(c) Denial of the full change requested: issues of propriety. (1) If
the decision rejects the applicant's position on an issue of propriety,
of 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.
(2) The decisional document shall list reasons for its conclusion on
each issue of propriety under the following guidance:
(i) If a reason is based in whole or in part upon a regulation,
statute, constitutional provision, judicial determination, or other
source of law, the NDRB 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.
(ii) If a reason is based in whole or in part on a determination as
to the occurrence or nonoccurrence of an event or circumstances,
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 NDRB shall make a finding of fact for each
such event or circumstance.
(A) 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.
[[Page 252]]
If the information is listed in the service record section of the
decisional document, a citation is not required.
(B) 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 NDRB), 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
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 NDRB did not find
the applicant's testimony to be sufficiently credible to overcome the
presumption.
(iii) If the NDRB disagrees with the position of the applicant on an
issue of propriety, the following guidance applies in addition to the
guidance in Sec. 724.806(c)(2) (a) and (b):
(A) The NDRB 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 Sec. 724.802(b)(4).
(B) The NDRB 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
Sec. 724.802(b)(4)) are not relevant to the applicant's case.
(C) The NDRB may reject an applicant's position by stating that the
applicant's issue of propriety is not a matter upon which the NDRB
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.
(D) The NDRB may reject the applicant's position on the grounds that
other specified factors in the case preclude granting relief, regardless
of whether the NDRB agreed with the applicant's position.
(E) If the applicant take 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 NDRB 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 NDRB should provide the
applicant with a brief description of the procedures for requesting
correction of the record. If the NDRB on its own motion cites this issue
as a decisional issue on the basis of equity, it shall address the
issue.
(F) When an applicant's issue contains a general allegation that a
certain course of action violated his or her constitutional rights, the
NDRB 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.
(d) 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 NDRB has not otherwise relied upon an issue of
propriety to change the discharge, the decisional document shall contain
a statement to that effect. The NDRB is not required to provide any
further discussion as to the propriety of the discharge.
[[Page 253]]
(e) Change of discharge: issues of equity. If the NDRB concludes
that a change in the discharge is warranted under the equity standards,
the decisional document shall list each issue of equity upon which this
conclusion is based. The NDRB 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.
(f) Denial of the full change in discharge requested: issues of
equity. (1) If the NDRB 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.
(2) The NDRB shall list reasons for its conclusion on each issue of
equity under the following guidance:
(i) If a reason is based in whole or in part upon a regulation,
statute, constitutional provision, judicial determination, or other
source of law, the NDRB 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.
(ii) 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 NDRB shall make a finding of fact for each
such event or circumstance.
(A) 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.
(B) If a finding of fact is made after consideration of
contradictory evidence in the record (including information cited by the
applicant or otherwise indentified by members of the NDRB), 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
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 NDRB did not find
the applicant's testimony to be sufficiently credible to overcome the
presumption.
(iii) If the NDRB disagrees with the postion of the applicant on an
issue of equity, the following guidance applies in addition to the
guidance in paragraphs above:
(A) The NDRB 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).
(B) The NDRB 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.
(C) The NDRB may reject an applicant's position by explaining why
the applicant's issue is not a matter upon which the NDRB 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.
(D) The NDRB may reject the applicant's position on the grounds that
other specified factors in the case preclude granting relief, regardless
of whether the NDRB agrees with the applicant's position.
(E) 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
[[Page 254]]
corrective action, the NDRB may respond that it will presume the
validity of the record in the absence of such corrective action.
However, the NDRB 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.
(iv) When NDRB concludes that aggravating factors outweigh
mitigating factors, the NDRB 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 NDRB 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.
(v) If the applicant has not submitted any issues and the NDRB 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.
Sec. 724.807 Record of NDRB proceedings.
(a) When the proceedings in any review have been concluded, a record
thereof will be prepared. Records may include written records,
electromagnetic records, audio and/or videotape recordings, or a
combination.
(b) At a minimum, the record will include the following:
(1) The application for review;
(2) A record of the testimony in either verbatim, summarized, or
recorded form at the option of the NDRB;
(3) Documentary evidence or copies, other than the military service
record considered by the NDRB;
(4) Briefs and arguments submitted by or on behalf of the applicant;
(5) Advisory opinions considered by the NDRB, if any:
(6) The findings, conclusions, and reasons developed by the NDRB;
(7) Notification of the NDRB's decision to the cognizant custodian
of the applicant's records, or reference to the notification document;
(8) A copy of the decisional document.
Sec. 724.808 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. Final notification of decisions shall be issued to the
applicant with a copy to the counsel or representative, if any, and to
the service manager concerned.
(a) 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.
(b) Notification to the service manager 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.
(c) Actions on review by superior authority, when occurring, shall
be provided to the applicant and counsel or representative in the same
manner as to the notification of the review decision.
Sec. 724.809 Final disposition of the record of proceedings.
The original decisional document and all appendices thereto, shall
in all cases be incorporated in the military service record of the
applicant and the service record shall be returned to the custody of the
appropriate record holding facility. If a portion of the original record
of proceedings cannot be stored with the service record, the service
record shall contain a notation as to the place where the record is
stored. Other copies including any electromagnetic records, audio and/or
videotape recordings or any combination thereof shall be filed in the
NDRB case folder and disposed of in accordance with appropriate naval
regulations.
[[Page 255]]
Sec. 724.810 Availability of Naval Discharge Review Board documents for public inspection and copying.
(a) A copy of the decisional document prepared in accordance with
subpart H of this enclosure shall be made available for public
inspection and copying promptly after a notice of final decision is sent
to the applicant.
(b) 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.
(1) 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.
(2) The NDRB 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.
(c) Any other privileged or classified material contained in or
appended to any documents required by this Manual to be furnished the
applicant and counsel or representative or made available for public
inspection and copying may be deleted only if a written statement on 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.
(d) NDRB 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 NDRB, 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 NDRB or the
Secretary concerned granted or denied relief.
(1) The reading file index shall include, in addition to any other
item determined by the NDRB, the case number, the date, character of,
reason and authority for the discharge. It shall also include the
decisions of the NDRB and reviewing authority, if any, and the issues
addressed in the statement of findings, conclusions, and reasons.
(2) 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 NDRB is present and in operation. An applicant who has requested
a traveling panel review shall be advised, in the notice of such review,
of the permanent index locations.
(3) The Armed Forces Discharge Review/Corrections Board Reading Room
shall publish indexes quarterly for all DRBs. The NDRB shall be
responsible for timely submission to the Reading Room of individual case
information required for update of the indexes. In addition, the NDRB
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 or purchase (or both) at the
Reading Room. When the NDRB has accepted an application, information
concerning the availability of the index shall be provided in the NDRB's
response to the application.
Sec. 724.811 Privacy Act information.
Information protected under the Privacy Act is involved in the
discharge review functions. The provisions of SECNAVINST 5211.5C shall
be observed throughout the processing of a request for review of
discharge or dismissal.
Sec. 724.812 Responsibilities of the Reading Room.
(a) 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
[[Page 256]]
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.
(b) Correspondence relating to matters under the cognizance of the
Reading Room (including requests for purchase of indexes) shall be
addressed to:
DA Military Review Board Agency, Attention: SFBA (Reading Room), Room
1E520, The Pentagon, Washington, DC 20310.
Sec. 724.813 The recommendation of the NDRB president.
(a) General. The president of the NDRB may forward cases for
consideration by the Secretarial Review Authority (SRA). 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 Sec. 724.813b.
(b) Format for recommendation. If a recommendation is provided, it
shall contain the president's view 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:
(1) Adoption of the NDRB'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 enclosure.
(2) 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.
(3) 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:
(i) The issues on which the president's recommendation is based.
Each such decisional issue shall be addressed by the president.
(ii) The president's response to items submitted as issues by the
applicant.
(iii) Reasons for rejecting the conclusion of the majority with
respect to the decisional document 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. Such issues shall be
addressed under the principles in Sec. 724.806.
Sec. 724.814 Secretarial Review Authority (SRA).
(a) Review by the SRA. The Secretarial Review Authority (SRA) is the
Secretary concerned or the official to whom Secretary's discharge review
authority has been delegated.
(1) The SRA may review the following types of cases before issuance
of the final notification of a decision:
(i) Any specific case in which the SRA has an interest.
(ii) Any specific case that the president of the NDRB believes is of
significant interest to the SRA.
(2) Cases reviewed by the SRA shall be considered under the
standards set forth in this part.
(b) Processing the decisional document. (1) The decisional document
shall be transmitted by the NDRB president under Sec. 724.813.
(2) The following guidance applies to cases that have been forwarded
to the SRA except for cases reviewed on the NDRB's own motion, without
the participation of the applicant or the applicant's counsel:
(i) The applicant and counsel or representative, if any, shall be
provided with a copy of the proposed decisional
[[Page 257]]
document, including the NDRB president's recommendation to the SRA, if
any. Classified information shall be summarized.
(ii) The applicant shall be provided with a reasonable period of
time, but not less than 25 days, to submit a rebuttal to the SRA. Any
issue in rebuttal consists of a clear and specific statement by the
applicant in support of or in opposition to the statements of the NDRB
or NDRB president on decisional issues and other clear and specific
issues that were submitted by the applicant. The rebuttal shall be based
solely on matters in the record before the NDRB closed the case for
deliberation or in the president's recommendation.
(c) Review of the decisional document. If corrections in the
decisional document are required, the decisional document shall be
returned to the NDRB 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
decision by the NDRB (or NDRB president) of the issues raised by the
majority or the applicant.
(d) 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.
(1) 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 NDRB or the NDRB president,
the decisional document shall contain a reference to the matter adopted.
(2) 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 and issues raised by the NDRB and
the NDRB president in accordance with the following guidance:
(i) Adoption of the NDRB president's recommendation. The addendum
may state that the SRA has adopted the NDRB president's recommendation.
(ii) Adoption of the NDRB's proposed decisional document. The
addendum may state that the SRA has adopted the proposed decisional
document prepared by the NDRB.
(iii) Adoption of specific statements from the majority or the NDRB
president. If the SRA adopts the views of the NDRB or the NDRB president
only in part, the addendum shall cite the specific statements adopted.
If the SRA modifies a statement submitted by the NDRB or the NDRB
president, the addendum shall set forth the modification.
(iv) Response to issues not included in matter adopted from the NDRB
or the NDRB president. The addendum shall set forth the following if not
adopted in whole or in part from the NDRB or the NDRB president:
(A) A list of the issues on which the SRA's decision is based. Each
such decisional document issue shall be addressed by the SRA. This
includes reasons for rejecting the conclusion of the NDRB or the NDRB
president with respect to decisional issues which, if resolved in the
applicant's favor, would have resulted in a 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 Sec. 724.806(f).
(B) The SRA's response to items submitted as issues by the
applicant.
(3) Response to the rebuttal. (i) 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 and
no further response to the rebuttal is required.
(ii) 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:
(A) If the SRA rejects an issue in rebuttal, the SRA may respond in
accordance with the principals in Sec. 724.806.
[[Page 258]]
(B) 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.
(C) If the matter submitted by the applicant does not meet the
requirements for rebuttal material, that fact shall be noted.
(4) Index entries. Appropriate index entries shall be prepared for
the SRA's actions for matters that are not adopted from the NDRB's
proposed decisional document.
Sec. 724.815 Complaints.
A complaint is any correspondence in which it is alleged that a
decisional document issued by the NDRB or the SRA contains a
specifically indentified violation of 32 CFR part 70 or any references
thereto. Complaints will be reviewed pursuant to 32 CFR part 70.
Subpart I--Standards for Discharge Review
Sec. 724.901 Objective of discharge review.
The objective of a discharge review is ot examine the propriety and
equity of the applicant's discharge and to effect changes, if necessary.
The standards of the review and the underlying factors which aid in
determining whether the standards are met shall be consistent with
historical criteria for determining honorable service. No factors shall
be established that require automatic change or denial of a change in a
discharge. Neither the NDRB nor the Secretary of the Navy shall be bound
by any methodology of weighting of the factors in reaching a
determination. In each case, the NDRB shall give full, fair, and
impartial consideration to all applicable factors before reaching a
decision. An applicant may not receive a less favorable discharge than
that issued at the time of separation. This does not preclude correction
of clerical errors.
Sec. 724.902 Propriety of the discharge.
(a) A discharge shall be deemed to be proper unless, in the course
of discharge review, it is determined that:
(1) There exists an error of fact, law, procedure, or discretion
associated with the discharge at the time of issuance; and that the
rights of the applicant were prejudiced thereby (such error shall
constitute prejudicial error if there is substantial doubt that the
discharge would have remained the same if the error had not been made);
or
(2) A change in policy by the military service of which the
applicant was a member, made expressly retroactive to the type of
discharge under consideration, requires a change in the discharge.
(b) When a record associated with the discharge at the time of
issuance involves a matter in which the primary responsibility for
corrective action rests with another organization (for example, another
Board, agency, or court) the NDRB will recognize an error only to the
extent that the error has been corrected by the organization with
primary responsibility for correcting the record.
(c) The primary function of the NDRB is to exercise its discretion
on issues of equity by reviewing the individual merits of each
application on a case-by-case basis. Prior decisions in which the NDRB
exercised its discretion to change a discharge based on issues of equity
(including the factors cited in such decisions or the weight given to
factors in such decisions) do not bind the NDRB in its review of
subsequent cases because no two cases present the same issues of equity.
(d) The following applies to applicants who received less than fully
honorable administrative discharges because of their civilian misconduct
while in an inactive duty status in a reserve component and who were
discharged or had their discharge reviewed on or after April 20, 1971:
the NDRB shall either recharacterize the discharge to Honorable without
any additional proceedings or additional proceedings shall be conducted
in accordance with the Court's Order of December 3, 1981, in Wood v.
Secretary of Defense to determine whether proper grounds exist for the
issuance of a less than honorable discharge, taking into account that:
[[Page 259]]
(1) An other than honorable (formerly undesirable) discharge for an
inactive duty reservist can only be based upon civilian misconduct found
to have affected directly the performance of military duties;
(2) A general discharge for an inactive duty reservist can only be
based upon civilian misconduct found to have had an adverse impact on
the overall effectiveness of the military, including military morale and
efficiency.
Sec. 724.903 Equity of the discharge.
A discharge shall be deemed to be equitable unless:
(a) In the course of a discharge review, it is determined that the
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:
(1) Current policies or procedures represent a substantial
enhancement of the rights afforded a respondent in such proceedings; and
(2) There is substantial doubt that the applicant would have
received the same discharge, if relevant current policies and procedures
had been available to the applicant at the time of the discharge
proceedings under consideration.
(b) At the time of issuance, the discharge was inconsistent with
standards of discipline in the military service of which the applicant
was a member.
(c) In the course of a discharge review, it is determined that
relief is warranted based upon consideration of the applicant's service
record and other evidence presented to the NDRB viewed in conjunction
with the factors listed in this paragraph and the regulations under
which the applicant was discharged, even though the discharge was
determined to have been otherwise equitable and proper at the time of
issuance. Areas of consideration include, but are not limited to:
(1) Quality of service, as evidenced by factors such as:
(i) Service history, including date of enlistment, period of
enlistment, highest rank achieved, conduct and proficiency ratings
(numerical and narrative);
(ii) Awards and decorations;
(iii) Letters of commendation or reprimand;
(iv) Combat service;
(v) Wounds received in action;
(vi) Records of promotions and demotions;
(vii) Level of responsibility at which the applicant served;
(viii) Other acts of merit that may not have resulted in formal
recognition through an award or commendation;
(ix) Length of service during the service period which is the
subject of the discharge review;
(x) Prior military service and type of discharge received or
outstanding post service conduct to the extent that such matters provide
a basis for a more thorough understanding of the performance of the
applicant during the period of service which is the subject of the
discharge review;
(xi) Convictions by court-martial;
(xii) Records of nonjudicial punishment;
(xiii) Convictions by civil authorities while a member of the
service, reflected in the discharge proceedings or otherwise noted in
the service records;
(xiv) Records of periods of unauthorized absence;
(xv) Records relating to a discharge in lieu of court-martial.
(2) Capability to serve, as evidenced by factors such as:
(i) Total capabilities. This includes an evaluation of matters such
as age, educational level, and aptitude scores. Consideration may also
be given as to whether the individual met normal military standards of
acceptability for military service and similar indicators of an
individual's ability to serve satisfactorily, as well as ability to
adjust to military service.
(ii) Family and personal problems. This includes matters in
extenuation or mitigation of the reason for discharge that may have
affected the applicant's ability to serve satisfactorily.
(iii) Arbitrary or capricious actions. This includes actions by
individuals in authority which constiute a clear abuse of such authority
and that, although not amounting to prejudicial error, may have
contributed to the decision to discharge the individual or
[[Page 260]]
unduly influence the characterization of service.
(iv) Discrimination. This includes unauthorized acts as documented
by records or other evidence.
Appendix A to Part 724--Policy Statement by the Secretary of Defense--
Addressing Certain Categories of Discharges
Secretary of Defense memorandum of August 13, 1971, to the
Secretaries of the Military Departments, The Chairman, Joint Chiefs of
Staff; Subject: Review of Discharges Under Other Than Honorable
Conditions Issued to Drug Users:
``Consistent with Department of Defense Directive 1300.11, October
23, 1970, and my memorandum of July 7, 1971, concerning rehabilitation
and treatment of drug users, administrative discharges under other than
honorable conditions issued solely on the basis of personal use of drugs
or possession of drugs for the purpose of such use will be reviewed for
recharacterization.
``Accordingly, each Secretary of a Military Department, acting
through his/her Discharge Review Board, will consider applications for
such review from former service members. Each Secretary is authorized to
issue a discharge under honorable conditions upon establishment of facts
consistent with this policy. Former service members will be notified of
the results of the review. The Veterans' Administration will also be
notified of the names of former service members whose discharges are
recharacterized.
``The statute of limitations for review of discharges within the
scope of this policy will be in accordance with 10 United States Code
1553.
``This policy shall apply to those service members whose cases are
finalized or in process on or before July 7, 1971''.
Secretary of Defense memorandum of April 28, 1972, to Secretaries of
the Military Departments, Chairman, Joint Chiefs of Staff; Subject:
Review of Punitive Discharges Issued to Drug Users:
``Reference is made to Secretary Packard's memorandum of July 7,
1971, concerning rehabilitation and treatment of drug users, and my
memorandum of August 13, 1971, subject: `Review of Discharges Under
Other Than Honorable Conditions Issued to Drug Users.'
``My August 13, 1971 memorandum established the current Departmental
policy that administrative discharges under other than honorable
conditions issued solely on the basis of personal use of drugs or
possession of drugs for the purpose of such use will be reviewed for
recharacterization to under honorable conditions.
``It is my desire that this policy be expanded to include punitive
discharges and dismissals resulting from approved sentences of courts-
martial issed solely for conviction of personal use of drugs or
possession of drugs for the purpose of such use.
``Review and recharacterization are to be effected, upon the
application of former service members, utilizing the procedures and
authority set forth in Title 10, United States Code, sections 874(b),
1552 and 1553.
``This policy is applicable only to discharges which have been
executed on or before July 7, 1971, or issued as a result of a case in
process on or before July 7, 1971.
``Former service members requesting a review will be notified of the
results of the review. The Veterans' Administration will also be
notified of the names of former service members whose discharges are
recharacterized.''
Appendix B to Part 724--Oath or Affirmation To Be Administered to
Discharge Review Board Members
Prior to undertaking duties as a Board member, each person assigned
to such duties in the precept of the Board shall execute the following
oath or affirmation which shall continue in effect throughout service
with the Board.
Oath/Affirmation
I, ------------, do swear or affirm that I will faithfully and
impartially perform all the duties incumbent upon me as a member of the
Naval Discharge Review Board; that I will fully and objectively inquire
into and examine all cases coming before me; that I will, without regard
to the status of the individual in any case, render my individual
judgment according to the facts, my conscience and the law and
regulations applicable to review of naval discharges, so help me God.
Appendix C to Part 724--Samples of Formats Employed by the Naval
Discharge Review Board
------------------------------------------------------------------------
Attachment Form Title
------------------------------------------------------------------------
1 Letter...................... En Block Notification of
Decision to Commander, Naval
Military Personnel Command
(No Change).
2 ......do.................... En Block Notification of
Decision to Commander, Naval
Military Personnel Command
(Change).
3 ......do.................... En Block Notification of
Decision to Commandant,
Marine Corps (No Change).
4 ......do.................... En Block Notification of
Decision to Commandant,
Marine Corps (Change).
------------------------------------------------------------------------
[[Page 261]]
Note: The Forms appearing in appendix C are not carried in the Code
of Federal Regulations.
Appendix D to Part 724--Veterans' Benefits
91 Stat. 1106
Pub. L. 95-126, Oct. 8, 1977
95th Congress
An Act
To deny entitlement to veterans' benefits to certain persons who
would otherwise become so entitled solely by virtue of the
administrative upgrading under temporarily revised standards of other
than honorable discharges from service during the Vietnam era; to
require case-by-case review under uniform, historically consistent,
generally appli cable standards and procedures prior to the award of
veterans' benefits to persons administratively discharged under other
than honorable conditions from active military, naval, or air service;
and for other purposes.
Be it enacted by the Senate and the House of Representatives of the
United States of America in Congress assembled, That (a) section 3103 of
Title 38, United States Code, is amended by--
(1) Inserting ``or on the basis of an absence without authority from
active duty for a continuous period of at least one hundred and eighty
days if such person was discharged under conditions other than honorable
unless such person demonstrates to the satisfaction of the Administrator
that there are compelling circumstances to warrant such prolonged
unauthorized absence.'' after ``deserter,'' in subsection (a), and by
inserting a coma and ``notwithstanding any action subsequent to the date
of such discharge by a board established pursuant to section 1553 of
title 10'' before the period at the end of such subsection; and
(2) Adding at the end of such section the following new subsection:
``(e)(1) Notwithstanding any other provision of law, (A) no benefits
under laws administered by the Veterans' Administration shall be
provided, as a result of a change in or new issuance of a discharge
under section 1553 of title 10, except upon a case-by-case review by the
board of review concerned, subject to review by the Secretary concerned,
under such section, of all the evidence and factors in each case under
published uniform standard (which shall be historically consistent with
criteria for determining honorable service and shall not include any
criterion for automatically granting or denying such change or issuance)
and procedures generally applicable to all persons administratively
discharged or released from active military, naval, or air service under
other than honorable conditons: and (B) any such person shall be
afforded an opportunity to apply for such review under such section 1553
for a period of time terminating not less than one year after the date
on which such uniform standards and procedures are promulgated and
published.
``(2) Notwithstanding any other provision of law--
``(A) No person discharged or released from active military, naval,
or air service under other than honorable conditions who has been
awarded a general or honorable discharge under revised standards for the
review of discharges, (i) as implemented by the President's directive of
January 19, 1977, initiating further action with respect to the
President's Proclamation 4313 of September 16, 1974, (ii) as implemented
on or after April 5, 1977, under the Department of Defense's special
discharge review program, or (iii) as implemented subsequent to April 5,
1977, and not made applicable to all persons administratively discharged
or released from active military, naval, or air service under other than
honorable conditions, shall be entitled to benefits under laws
administered by the Veterans' Administration except upon a
determination, based on a case-by-case review, under standards (meeting
the requirements of paragraph (1) of this subsection) applied by the
board of review concerned under section 1553 of title 10, subject to
review by the Secretary concerned, that such person would be awarded an
upgraded discharged under such standards;
``(B) Such determination shall be made by such board, (i) on an
expedited basis after notification by the Veterans' Administration to
the Secretary concerned that such person has received, is in receipt of,
or has applied for such benefits or after a written request is made by
such person or such determination, (ii) on its own initiative within one
year after the date of enactment of this paragraph in any case where a
general or honorable discharge has been awarded on or prior to the date
of enactment of this paragraph under revised standards referred to in
clause (A) (i), (ii), or (iii) of this paragraph, or (iii) on its own
initiative at the time a general or honorable discharge is so awarded in
any case where a general or honorable discharge is awarded after such
enactment date.
``If such board makes a preliminary determination that such person
would not have been awarded an upgraded discharge under standards
meeting the requirements of paragraph (1) of this subsection, such
personal shall be entitled to an appearance before the board, as
provided for in section 1553(c) of title 10, prior to a final
determination on such question and shall be given written notice by the
board of such preliminary determination and of his or her right to such
appearance. The Administrator shall, as soon as administratively
feasible, notify the appropriate board of review of the receipt of
[[Page 262]]
benefits under laws administered by the Veterans' Administration, or the
application for such benefits, by any person awarded an upgraded
discharge under revised standards referred to in clause (A) (i), (ii),
or (iii) of this paragraph with respect to whom a favorable
determination has not been made under this paragraph.''.
(b)(1) The Secretary of Defense shall fully inform each person
awarded a general or honorable discharge under revised standards for the
review of discharges referred to in section 3103(e)(2)(A) (i), (ii), or
(iii) of title 38, United States Code, as added by subsection (a)(2) of
this section of his or her right to obtain an expedited determination
under section 3103(e)(2)(B)(i) of such title and of the implications of
the provisions of this Act for each such person.
(2) Notwithstanding any other provision of law, the Secretary of
Defense shall inform each person who applies to a board of review under
section 1553 of title 10, United States Code, and who appears to have
been discharged under circumstances which might constitute a bar to
benefits under section 3103(a), of title 38, United States Code, (A)
that such person might possibly be administratively found to be entitled
to benefits under laws administered by the Veterans' Administration only
through the action of a board for the correction of military records
under section 1552 of such title 10 or the action of the Administrator
of Veterans' Affairs under section 3103 of such title 38, and (B) of the
procedures for making application to such section 1552 board for such
purpose and to the Administrator of Veterans' Affairs for such purpose
(including the right to proceed concurrently under such sections 3103,
1552 and 1553).
Section 2. Notwithstanding any other provision of law, the
Administrator of Veterans' Affairs shall provide the type of health care
and related benefits authorized to be provided under chapter 17 of title
38, United States Code, for any disability incurred or aggravated during
active military, naval, or air service in line of duty by a person other
than a person barred from receiving benefits by section 3103(a) of such
title, but shall not provide such health care and related benefits
pursuant to this section for any disability incurred or aggravated
during a period of service from which such person was discharged by
reason of a bad conduct discharge.
Section 3. Paragraph (18) of section 101 of Title 38, United States
Code, is amended to read as follows:
``(18) The term `discharge or release' includes, (A) retirement from
the active military, naval, or air service, and (B) the satisfactory
completion of the period of active military, naval, or air service for
which a person was obligated at the time of entry into such service in
the case of a person who, due to enlistment or reenlistment, was not
awarded a discharge or release from such period of service at the time
of such completion thereof and who, at such time, would otherwise have
been eligible for the award of a discharge or release under conditions
other than dishonorable.''
Section 4. In promulgating, or making any revisions of or amendments
to, regulations governing the standards and procedures by which the
Veterans' Administration determines whether a person was discharged or
released from active military, naval, or air service under conditions
other than dishonorable, the Administrator of Veterans' Affairs shall,
in keeping with the spirit and intent of this Act, not promulgate any
such regulations or revise or amend any such regulations for the purpose
of, or having the effect of, (1) providing any unique or special
advantage to veterans awarded general or honorable discharges under
revised standards for the review of discharges described in section
3103(e)(2)(A) (i), (ii), or (iii) of title 38, United States Code, as
added by section 1(a)(2) of this Act, or (2) otherwise making any
special distinction between such veterans and other veterans.
Section 5. This Act shall become effective on the date of its
enactment, except that--
(1) Section 2 shall become effective on October 1, 1977, or on such
enactment date, whichever is later; and
(2) The amendments made by section 1(a) shall apply retroactively to
deny benefits under laws administered by the Veterans' Administration,
except that, notwithstanding any other provision of law.
(A) With respect to any person who, on such enactment date is
receiving benefits under laws administered by the Veterans'
Administration, (i) such benefits shall not be terminated under
paragraph (2) of section 3103(e) of title 38, United States Code, as
added by section 1(a)(2) of this Act, until, (I) the day on which a
final determination not favorable to the person concerned is made on an
expedited basis under paragraph (2) of such section 3103(e), (II) the
day following the expiration of ninety days after a preliminary
determination not favorable to such person is made under such paragraph,
or (III) the day following the expiration of one hundred and eighty days
after such enactment date, whichever day is the earliest, and (ii) the
United States shall not make any claim to recover the value of any
benefits provided to such person prior to such earliest day;
(B) With respect to any person awarded a general or honorable
discharge under revised standards for the review of discharges referred
to in clause (A) (i), (ii), or (iii) of such paragraph who has been
provided any such benefits prior to such enactment date, the United
States shall not make any claim to recover the value of any benefits so
provided; and
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(C) The amendments made by clause (1) of section 1(a) shall apply,
(i) retroactively only to persons awarded general or honorable
discharges under such revised standards and to persons who, prior to the
date of enactment of this Act, had not attained general eligibility to
such benefits by virtue of (I) a change in or new issuance of a
discharge under section 1553 of title 10, United States Code, or (II)
any other provision of law, and (ii) prospectively (on and after such
enactment date) to all other persons.