[Title 32 CFR 724.903]
[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]
[Subpart I - Standards for Discharge Review]
[Sec. 724.903 - Equity of the discharge.]
[From the U.S. Government Printing Office]
32NATIONAL DEFENSE52002-07-012002-07-01falseEquity of the discharge.724.903Sec. 724.903NATIONAL DEFENSEDepartment of Defense (Continued)DEPARTMENT OF THE NAVYPERSONNELNAVAL DISCHARGE REVIEW BOARDStandards for Discharge Review
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
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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
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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.