[Federal Register Volume 60, Number 237 (Monday, December 11, 1995)]
[Proposed Rules]
[Pages 63489-63491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-29345]



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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

33 CFR Part 52

[OST Docket No. OST-95-878; Notice 95-14]
RIN 2105-AC31


Coast Guard Board for Correction of Military Records; Procedural 
Regulation

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department proposes to amend its regulations with respect 
to reconsideration of final decisions of the Board for Correction of 
Military Records of the Coast Guard (Board). This action is taken on 
the Department's initiative in order to streamline processing of these 
cases and to clarify the circumstances under which final decisions can 
be reconsidered. The proposed amendment will make it possible for the 
Board to expedite reconsideration and will increase the resources 
available to meet the requirement that all cases be decided within 10 
months of the receipt of a completed application.

DATES: Comments must be submitted on or before February 9, 1996. Late-
filed comments will be considered to the extent practicable.

ADDRESSES: Comments should be mailed, preferably in duplicate, to 
Docket No. OST-95-878, Documentary Services Division, C-55, PL-401, 
U.S. Department of Transportation; 400 Seventh Street SW, Washington, 
D.C. 20590. Comments will be available for review by the public at this 
address from 9 a.m. through 5 p.m., Monday 

[[Page 63490]]
through Friday. Persons wishing acknowledgment of their comments' 
receipt should include a stamped, self-addressed postcard. The 
Documentary Services Division will time and date-stamp the card and 
return it to the commenter.

FOR FURTHER INFORMATION CONTACT: Robert H. Joost, Chairman, Board for 
Correction of Military Records of the Coast Guard, C-60, Office of the 
General Counsel, U.S. Department of Transportation, 400 Seventh Street 
SW, Washington, D.C. 20590-0001. Telephone: (202) 366-9335.

SUPPLEMENTARY INFORMATION:

The Board Process With Respect to Reconsideration

    The Secretary of Transportation, acting through the Department of 
Transportation Board for Correction of Military Records of the Coast 
Guard, is authorized by section 1552 of title 10, United States Code, 
to correct the military records of serving, separated and retired Coast 
Guard military personnel when there is an error or injustice in a 
military record.
    After a final decision has been reached on an application for 
correction, the decision can be appealed by the applicant in an 
appropriate Federal court. There is no right, under 10 U.S.C. 1552, to 
administrative reconsideration of a final decision, but applicants have 
always been allowed to request such reconsideration by regulation.
    Under the present DOT BCMR regulation with respect to 
reconsideration (33 CFR 52.67(b)), the only basis for reconsideration 
is the presentation of ``newly discovered evidence or information, not 
previously considered by the Board * * * [which] would, if true, result 
in a determination other than that originally made.''
    The present regulation does not explicitly authorize 
reconsideration if the applicant offers evidence showing that material 
legal or factual error was made by the Board in its original decision. 
Also, it does not provide a means for expeditious handling of requests 
for reconsideration that do not meet the threshold requirements for 
review. Because of the current statutory direction that Board decisions 
be issued within 10 months of receiving a complete application, and the 
resulting pressure on Board resources, the Board must find ways to 
increase its efficiency of operation. An expedited process for handling 
facially defective reconsideration requests is proposed as an 
appropriate step in that direction. In addition, the present rule does 
not require that a request for reconsideration be made within a certain 
time period.

The Proposal

    The proposed rule would explicitly authorize the Board to consider 
applications for reconsideration upon a showing that the Board 
committed legal or factual error in the original determination that 
could have resulted in a determination other than that made.
    The proposed rule would authorize the Chairman not to docket 
applications for reconsideration that do not meet the threshold 
requirements for reconsideration, i.e. applications that only (1) 
present evidence or information previously considered by the Board, (2) 
present new evidence or information that is clearly not material to the 
result in the case, (3) present new evidence or information that could 
have been submitted earlier with the exercise of reasonable diligence, 
or (4) make arguments as to legal or factual error that are clearly not 
material to the result. The phrase ``otherwise comes to the attention 
of the Board'' has been deleted, however, as unnecessary.
    The proposed rule would provide that no Board member who considered 
an applicant's original application for correction would participate in 
the consideration of that person's application for reconsideration. 
There will, to the extent practicable, be a related prohibition on the 
staff member; the person who drafted the original decision would not 
draft the reconsideration decision. In light of these safeguards, it 
would not be necessary for the Secretary's designate to approve each 
denial of a reconsideration request, thus expediting the review 
process.

Section-by-Section Analysis

    Section 52.67, Reconsideration, is rewritten to add the new 
requirements outlined above, and to simplify the procedure on 
reconsideration.
    Paragraph (a) provides that reconsideration of an application may 
occur if the applicant meets at least one of two sets of criteria. The 
first of these, paragraph (a)(1), directs reconsideration if an 
applicant presents evidence or information that was not previously 
considered by the Board if that evidence or information could result in 
a different determination and if it ``could not have been presented to 
the Board prior to its original determination if the applicant had 
exercised reasonable diligence.'' The second of these, paragraph 
(a)(2), directs reconsideration if an applicant presents evidence or 
information that the Board committed legal or factual error in the 
original determination that could have resulted in a different result.
    Paragraph (b) directs the Chairman to docket a reconsideration 
request if it meets the requirements of paragraph (a)(1) or (a)(2). If 
neither of these requirements is met, the Chairman shall not docket the 
request, and shall return the application to the applicant with a 
statement that no action is being taken due to a failure to meet the 
threshold requirements for docketing.
    Paragraph (c) provides that the Board shall consider each 
application for reconsideration that has been docketed under paragraph 
(b). This paragraph also provides that the final decision on 
reconsideration shall involve a different Board than the one that 
initially considered the application.
    Paragraph (d) provides that the Board's final action on docketed 
application for reconsideration shall be the same as if they were 
original applications for correction.
    Paragraph (e) provides that an applicant's request for 
reconsideration must be filed within two years after the issuance of a 
final decision, subject to other legal rules such as the Soldier's and 
Sailor's Civil Relief Act. The two-year statute of limitations 
parallels the time period allowed by Article 73 of the Uniform Code of 
Military Justice for petitioning for a new trial after the approval of 
a court-martial sentence on the grounds of newly discovered evidence or 
fraud on the court. If the Chairman dockets an applicant's request for 
reconsideration under paragraph (b), the two-year requirement may be 
waived if the Board finds that it would be in the interest of justice 
to consider the request despite its untimeliness.

Regulatory Process Matters

    This NPRM does not propose a significant rule under Executive Order 
12681 or the Department's Regulatory Policies and Procedures. The costs 
of a purely procedural change in the Board's rule would be negligible. 
The NPRM would not, if adopted, have a significant economic effect on a 
substantial number of small entities, as defined in the Regulatory 
Flexibility Act. There are no Federalism factors to warrant the 
preparation of a Federalism assessment.

List of Subjects in 32 CFR Part 52

    Administrative practice and procedure, Archives and records, 
Military personnel, Military records.


[[Page 63491]]

    Issued this 24th day of November at Washington, DC.
Mortimer L. Downey,
Deputy Secretary of Transportation.

    For the reasons set forth in the preamble, the Office of the 
Secretary of the U.S. Department of Transportation proposes to amend 33 
CFR Part 52 as follows:

PART 52--[AMENDED]

    1. The authority citation for Part 52 is revised to read as 
follows:

    Authority: 10 U.S.C. 1552; 49 U.S.C. 108; Pub. L. 101-225, 103 
Stat. 1908, 1914.

    2. Section 52.67 is revised to read as follows:


Sec. 52.67  Reconsideration.

    (a) Reconsideration of an application for correction of a military 
record shall occur if an applicant requests it and the request meets 
the requirements set forth in paragraph (a)(1) or (a)(2) of this 
section.
    (1) An applicant presents evidence or information that was not 
previously considered by the Board that could result in a determination 
other than that originally made. Evidence or information may only be 
considered if it could not have been presented to the Board prior to 
its original determination if the applicant had exercised reasonable 
diligence; or
    (2) An applicant presents evidence or information that the Board, 
or the Secretary as the case may be, committed legal or factual error 
in the original determination that could have resulted in a 
determination other than that originally made.
    (b) The Chairman shall docket a request for reconsideration of a 
final decision if it meets the requirements of paragraph (a)(1) or 
(a)(2) of this section. If neither of these requirements is met, the 
Chairman shall not docket such request.
    (c) The Board shall consider each application for reconsideration 
that has been docketed. None of the Board members who considered an 
applicant's original application for correction shall participate in 
the consideration of that applicant's application for reconsideration.
    (d) Action by the Board on a docketed application for 
reconsideration is subject to Sec. 52.64(b).
    (e) An applicant's request for reconsideration must be filed within 
two years after the issuance of a final decision, except as otherwise 
required by law. If the Chairman dockets an applicant's request for 
reconsideration, the two-year requirement may be waived if the Board 
finds that it would be in the interest of justice to consider the 
request despite its untimeliness.

[FR Doc. 95-29345 Filed 12-8-95; 8:45 am]
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