[Federal Register Volume 61, Number 71 (Thursday, April 11, 1996)]
[Rules and Regulations]
[Pages 16046-16050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8697]



=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Department of the Air Force

32 CFR Part 865

RIN 0701-AA43


Personnel Review Boards

AGENCY: Department of the Air Force, DOD.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of the Air Force has revised Part 865, Subpart 
A of Subchapter G, Title 32 of the Code of Federal Regulations, which 
provides for making application, and the consideration of applications, 
for the correction of military records by the Secretary of the Air 
Force acting through the Air Force Board for Correction of Military 
Records.

EFFECTIVE DATE: March 1, 1996.

FOR FURTHER INFORMATION CONTACT: Mr. John J. D'Orazio, Chief Examiner, 
(301) 981-3502.

SUPPLEMENTARY INFORMATION: On July 26, 1994, the Department of the Air 
Force published (at 59 FR 37953) a proposed rule changing the 
procedures for making applications, and consideration of applications, 
for the correction of military records by the Secretary of the Air 
Force acting through the Air Force Board for Correction of Military 
Records. The following summarizes the major comments received and 
action taken:
    Two commentors stated that the rule should be amended to include 
specific references concerning other administrative remedies which must 
be exhausted prior to the submission of an application to the Board 
(Sec. 865.4(l)(3)). Information related to this rule is contained in 
Air Force Pamphlet (AFP) 36-2607, Applicant's Guide to the Air Force 
Board for Correction of Military Records (AFBCMR), dated 3 November 
1994. In addition, it is normally expected that an active member would 
be made aware of any available administrative remedies by seeking 
advice from personnel at their local Military Personnel Flight (MPF). 
Furthermore, exhausting administrative remedies also refers to cases 
where an application for correction of records is submitted by members 
or former members and authorities at the MPF or the Air Force Personnel 
Center, Randolph AFB, Texas, determine that an error exists and that 
administrative relief may be effected by the Air Force office of 
primary responsibility without referring the appeal to the Board. The 
only other organization to which a former member must apply prior to 
submitting an application to the AFBCMR is the Air Force Discharge 
Review Board (AFDRB), which operates under its own statute (10 U.S.C. 
1553) and Air Force Instruction (AFI) 36-2023, dated 14 October 1994. 
In view of the above, and, since the cited information is already 
available through other sources and would be made known to applicants 
who are inquiring about the Board process, amendment of the rule to 
include this information is deemed unnecessary.
    Two commentors suggested that the rule should be amended to state 
that time spent exhausting administrative remedies tolls the three-year 
time limit (Sec. 865.3(f)). The Board takes the position that, for 
practical reasons, efforts to seek other administrative remedies should 
not toll the three-year statute of limitations found at 10 U.S.C. 
1552(b). This rule works no hardship on potential applicants since the 
Board may waive the failure to file within the three-year period if it 
determines it is in the interest of justice to do so. Whether to waive 
an untimely filing is a discretionary judgment to be made by the Board.
    One commentor complained that the page limitation on briefs and 
rebuttals was too severe, was unrealistic, and did not define ``brief'' 
(Sec. 865.3 (i) and (j)). The Board considers the term ``brief'' to be 
self-explanatory. The rule already states that the limitation does not 
apply to evidence submitted in support of the appeal. The Board does 
not believe that the page limitations on briefs in support of an 
application and in rebuttal to the Air Staff evaluations are too 
severe. This rule was established to ensure that applicants and their 
counsels briefly and succinctly state their cases; prolixity hinders, 
rather than helps, the Board. In recognition that there exist cases of 
unusual complexity, the rule allows for a waiver of the page 
limitations by the Executive Director of the Board. Since the page 
limitation requirement was established in 1985, the authority to 
approve requests for waivers of this requirement has been liberally 
exercised to ensure adequate briefing of issues the Board considers 
important.
    Two commentors stated that the rule should be changed (at 
Sec. 865.8c) to provide for the payment of attorney's fees, with 
interest, asserting that such payments are authorized by 5 U.S.C. 
5596(b). 5 U.S.C. 5596(b) applies to employees as defined in 5 U.S.C. 
2105. The cited provision of law does not apply to members of the Armed 
Forces.
    One commentor recommended that the rule be amended to place 
limitations on the writers of advisory opinions with respect to the 
number of pages, type of spacing, and ``unprofessional'' comments 
(Sec. 865.8(a)(2)). Air Staff advisories rarely exceed more than two or 
three pages except in cases where the issues are extremely complicated. 
Furthermore, while the applicant has two opportunities to state his or 
her case (in the initial submission and rebuttal), ordinarily, the 
staff must state their position all at once. What constitutes 
``Unprofessional comments'' is in the eye of the beholder. The Board 
requires that the Air Staff provide unfettered opinions. If the Air 
Staff provides information not relevant to the case, the Board can and 
does elect not to rely on that information in making its final 
determination, in the same way it does when similar information is 
provided by an applicant or counsel.
    Two commentors suggested that the rule be amended to include (at 
Sec. 865.9) advice concerning appeals to Federal courts. The AFBCMR was 
established to correct military records. A discussion of Post-Board 
avenues of relief is not required by law nor would it be appropriate in 
a rule pertaining to nonadversarial proceedings for the purpose of 
securing administrative relief.
    One commentor recommended that the rule be changed to include a 
statement that, during its consideration of the case in executive 
session, the Board gave genuine consideration to

[[Page 16047]]
permitting the applicants the opportunity to be heard (Sec. 865.4(d)) 
and requiring that the Board reply in a meaningful fashion to 
meritorious issues raised by an applicant (Sec. 865.4(f)). Any decision 
to grant an applicant's request for a personal appearance is at the 
discretion of the Board. The Board gives careful and meaningful 
consideration to every request made by an applicant, including a 
request for a personal appearance. The Stipulation of Dismissal of the 
lawsuit by the Urban Law Institute of Antioch College required that the 
Board make a brief written statement of the grounds for its 
determination to grant or deny relief. The Board is in compliance with 
this requirement and addresses issues raised by the applicant in the 
level of detail which, in the Board's opinion, they warrant.
    Accordingly, the recommendations that the rule be amended as 
suggested in the above were not adopted.
    The Department of the Air Force has determined that this rule is 
not a major rule because it will not have an annual effect on the 
economy of $100 million or more. The Assistant Secretary of the Air 
Force (Manpower, Reserve Affairs, Installations and Environment) 
certifies that this rule is exempt from the requirements of the 
Regulatory Flexibility Act, 5 U.S.C. 601-611, because this rule does 
not have a significant economic impact on small entities as defined by 
the Act. This rule imposes no obligatory information requirements 
beyond internal Air Force use.

List of Subjects in 32 CFR Part 865

    Administrative practices and procedures, Military personnel, 
Records.

    Accordingly, 32 CFR Part 865, Subpart A is revised to read as 
follows:

PART 865--PERSONNEL REVIEW BOARDS

Subpart A--Air Force Board for Correction of Military Records
Sec.
865.0  Purpose.
865.1  Setup of the Board.
865.2  Board responsibilities.
865.3  Application procedures.
865.4  Board actions.
865.5  Decision of the Secretary of the Air Force.
865.6  Reconsideration of applications.
865.7  Action after final decision.
865.8  Miscellaneous provisions.

Subpart A--Air Force Board for Correction of Military Records

    Authority: 10 U.S.C. 1034, 1552.


Sec. 865.0   Purpose.

    This subpart sets up procedures for correction of military records 
to remedy error or injustice. It tells how to apply for correction of 
military records and how the Air Force Board for Correction of Military 
Records (AFBCMR, or the Board) considers applications. It defines the 
Board's authority to act on applications. It directs collecting and 
maintaining information subject to the Privacy Act of 1974 authorized 
by 10 U.S.C. 1034 and 1552. System of Records notice F035 SAFCB A, 
Military Records Processed by the Air Force Correction Board, applies.


Sec. 865.1  Setup of the Board.

    The AFBCMR operates within the Office of the Secretary of the Air 
Force according to 10 U.S.C. 1552. The Board consists of civilians in 
the executive part of the Department of the Air Force who are appointed 
and serve at the pleasure of the Secretary of the Air Force. Three 
members constitute a quorum of the Board.


Sec. 865.2  Board responsibilities.

    (a) Considering applications. The Board considers all individual 
applications properly brought before it. In appropriate cases, it 
directs correction of military records to remove an error or injustice, 
or recommends such correction.
    (b) Recommending action. When an applicant alleges reprisal under 
the Military Whistleblowers Protection Act, 10 U.S.C. 1034, the Board 
may recommend to the Secretary of the Air Force that disciplinary or 
administrative action be taken against those responsible for the 
reprisal.
    (c) Deciding cases.  The Board normally decides cases on the 
evidence of the record. It is not an investigative body. However, the 
Board may, in its discretion, hold a hearing or call for additional 
evidence or opinions in any case.


Sec. 865.3  Application procedures.

    (a) Who may apply:
    (1) In most cases, the applicant is a member or former member of 
the Air Force, since the request is personal to the applicant and 
relates to his or her military records.
    (2) An applicant with a proper interest may request correction of 
another person's military records when that person is incapable of 
acting on his or her own behalf, is missing, or is deceased. Depending 
on the circumstances, a child, spouse, parent or other close relative, 
an heir, or a legal representative (such as a guardian or executor) of 
the member or former member may be able to show a proper interest. 
Applicants will send proof of proper interest with the application when 
requesting correction of another person's military records.
    (b) Getting forms. Applicants may get a DD Form 149, ``Application 
for Correction of Military Record Under the Provisions of Title 10, 
U.S.C., Section 1552,'' and Air Force Pamphlet 36-2607, ``Applicants' 
Guide to the Air Force Board for Correction of Military Records 
(AFBCMR),'' from:
    (1) Any Air Force Military Personnel Flight (MPF) or publications 
distribution office.
    (2) Most veterans' service organizations.
    (3) The Air Force Review Boards Office, SAF/MIBR, 550 C Street 
West, Suite 40, Randolph AFB TX 78150-4742.
    (4) The AFBCMR, 1535 Command Drive, EE Wing 3rd Floor, Andrews AFB 
MD 20331-7002.
    (c) Preparation. Before applying, applicants should:
    (1) Review Air Force Pamphlet 36-2607.
    (2) Discuss their concerns with MPF, finance office, or other 
appropriate officials. Errors can often be corrected administratively 
without resort to the Board.
    (3) Exhaust other available administrative remedies (otherwise the 
Board may return the request without considering it).
    (d) Submitting the application. Applicants should complete all 
applicable sections of the DD Form 149, including at least:
    (1) The name under which the member served.
    (2) The member's social security number or Air Force service 
number.
    (3) The applicant's current mailing address.
    (4) The specific records correction being requested.
    (5) Proof of proper interest if requesting correction of another 
person's records.
    (6) The applicant's signature.
    (e) Applicants should mail the original signed DD Form 149 and any 
supporting documents to the Air Force address on the back of the form.
    (f) Meeting time limits. Ordinarily, applicants must file an 
application within three years after the error or injustice was 
discovered, or, with due diligence, should have been discovered. An 
application filed later is untimely and may be denied by the Board on 
that basis.
    (1) The Board may excuse untimely filing in the interest of 
justice.
    (2) If the application is filed late, applicants should explain why 
it would

[[Page 16048]]
be in the interest of justice for the Board to waive the time limits.
    (g) Stay of other proceedings. Applying to the AFBCMR does not stay 
other proceedings.
    (h) Counsel representation. Applicants may be represented by 
counsel, at their own expense.
    (1) The term ``counsel'' includes members in good standing of the 
bar of any state, accredited representatives of veterans' organizations 
recognized under 38 U.S.C. 3402, and other persons determined by the 
Executive Director of the Board to be competent to represent the 
interests of the applicant.
    (2) See Department of Defense Directive (DoDD) 7050.6, 
Whistleblower Protection Act, 3 September 1992,1 for special 
provisions for counsel in cases processed under 10 U.S.C. 1034.

    \1\ Copies of the publication are available, at cost, from the 
National Technical Information Service, U.S. Department of Commerce, 
5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------

    (i) Page limitations on briefs. Briefs in support of applications:
    (1) May not exceed twenty-five double-spaced typewritten pages.
    (2) Must be typed on one side of a page only with not more than 
twelve characters per inch.
    (3) Must be assembled in a manner that permits easy reproduction.
    (j) Responses to advisory opinions must not exceed ten double-
spaced typewritten pages and meet the other requirements for briefs.
    (k) These limitations do not apply to supporting documentary 
evidence.
    (l) In complex cases and upon request, the Executive Director of 
the Board may waive these limitations.
    (m) Withdrawing applications. Applicants may withdraw an 
application at any time before the Board's decision. Withdrawal does 
not stay the three-year time limit.


Sec. 865.4  Board actions.

    (a) Board information sources. The applicant has the burden of 
providing sufficient evidence of probable material error or injustice. 
However, the Board:
    (1) May get additional information and advisory opinions on an 
application from any Air Force organization or official.
    (2) May require the applicant to furnish additional information 
necessary to decide the case.
    (b) Applicants will normally be given an opportunity to review and 
comment on advisory opinions and additional information obtained by the 
Board.
    (c) Consideration by the Board. A panel consisting of at least 
three board members considers each application. One panel member serves 
as its chair. The panel's actions and decisions constitute the actions 
and decisions of the Board.
    (d) The panel may decide the case in executive session or authorize 
a hearing. When a hearing is authorized, the procedures in paragraph 
(f) of this section apply.
    (e) Board deliberations. Normally only members of the Board and 
Board staff will be present during deliberations. The panel chair may 
permit observers for training purposes or otherwise in furtherance of 
the functions of the Board.
    (f) Board hearings. The Board in its sole discretion determines 
whether to grant a hearing. Applicants do not have a right to a hearing 
before the Board.
    (g) The Executive Director will notify the applicant or counsel, if 
any, of the time and place of the hearing. Written notice will be 
mailed thirty days in advance of the hearing unless the notice period 
is waived by the applicant. The applicant will respond not later than 
fifteen days before the hearing date, accepting or declining the offer 
of a hearing and, if accepting, provide information pertaining to 
counsel and witnesses. The Board will decide the case in executive 
session if the applicant declines the hearing or fails to appear.
    (h) When granted a hearing, the applicant may appear before the 
Board in person, represented by counsel, or in person with counsel and 
may present witnesses. It is the applicant's responsibility to notify 
witnesses, arrange for their attendance at the hearing, and pay any 
associated costs.
    (i) The panel chair conducts the hearing, maintains order, and 
ensures the applicant receives a full and fair opportunity to be heard. 
Formal rules of evidence do not apply, but the panel observes 
reasonable bounds of competency, relevancy, and materiality. Witnesses 
other than the applicant will not be present except when testifying. 
Witnesses will testify under oath or affirmation. A recorder will 
record the proceedings verbatim. The chair will normally limit hearings 
to two hours but may allow more time if necessary to ensure a full and 
fair hearing.
    (j) Additional provisions apply to cases processed under 10 U.S.C. 
1034. See DoDD 7050.6.\2\

    \2\ See footnote 1.
---------------------------------------------------------------------------

    (k) The Board will not deny or recommend denial of an application 
on the sole ground that the issue already has been decided by the 
Secretary of the Air Force or the President of the United States in 
another proceeding.
    (l) Board decisions. The panel's majority vote constitutes the 
action of the Board. The Board's decision will be in writing and will 
include determinations on the following issues:
    (1) Whether the provisions of the Military Whistleblowers 
Protection Act apply to the application. This determination is needed 
only when the applicant invokes the protection of the Act, or when the 
question of its applicability is otherwise raised by the evidence.
    (2) Whether the application was timely filed and, if not, whether 
the applicant has demonstrated that it would be in the interest of 
justice to excuse the untimely filing. When the Board determines that 
an application is not timely, and does not excuse its untimeliness, the 
application will be denied on that basis.
    (3) Whether the applicant has exhausted all available and effective 
administrative remedies. If the applicant has not, the application will 
be denied on that basis.
    (4) Whether the applicant has demonstrated the existence of a 
material error or injustice that can be remedied effectively through 
correction of the applicant's military record and, if so, what 
corrections are needed to provide full and effective relief.
    (5) In Military Whistleblowers Protection Act cases only, whether 
to recommend to the Secretary of the Air Force that disciplinary or 
administrative action be taken against any Air Force official whom the 
Board finds to have committed an act of reprisal against the applicant. 
Any determination on this issue will not be made a part of the Board's 
record of proceedings and will not be given to the applicant, but will 
be provided directly to the Secretary of the Air Force under separate 
cover (Sec. 865.2(b)).
    (m) Record of proceedings. The Board staff will prepare a record of 
proceedings following deliberations which will include:
    (1) The name and vote of each Board member.
    (2) The application.
    (3) Briefs and written arguments.
    (4) Documentary evidence.
    (5) A hearing transcript if a hearing was held.
    (6) Advisory opinions and the applicant's related comments.
    (7) The findings, conclusions, and recommendations of the Board.
    (8) Minority reports, if any.
    (9) Other information necessary to show a true and complete history 
of the proceedings.
    (n) Minority reports. A dissenting panel member may prepare a 
minority

[[Page 16049]]
report which may address any aspect of the case.
    (o) Separate communications. The Board may send comments or 
recommendations to the Secretary of the Air Force as to administrative 
or disciplinary action against individuals found to have committed acts 
of reprisal prohibited by the Military Whistleblowers Protection Act 
and on other matters arising from an application not directly related 
to the requested correction of military records. Such comments and 
recommendations will be separately communicated and will not be 
included in the record of proceedings or given to the applicant or 
counsel.
    (p) Final action by the Board. The Board acts for the Secretary of 
the Air Force and its decision is final when it:
    (1) Denies any application (except under 10 U.S.C. 1034).
    (2) Grants any application in whole or part when the relief was 
recommended by the official preparing the advisory opinion, was 
unanimously agreed to by the panel, and does not involve an appointment 
or promotion requiring confirmation by the Senate.
    (q) The Board sends the record of proceedings on all other 
applications to the Secretary of the Air Force or his or her designee 
for final decision.


Sec. 865.5  Decision of the Secretary of the Air Force.

    (a) The Secretary may direct such action as he or she deems 
appropriate on each case, including returning the case to the Board for 
further consideration. Cases returned to the Board for further 
reconsideration will be accompanied by a brief statement of the reasons 
for such action. If the Secretary does not accept the Board's 
recommendation, the decision will be in writing and will include a 
brief statement of the grounds for denial.
    (b) Decisions in cases under the Military Whistleblowers Protection 
Act. The Secretary will issue decisions on such cases within 180 days 
after receipt of the case and will, unless the full relief requested is 
granted, inform applicants of their right to request review of the 
decision by the Secretary of Defense (SecDef). Applicants will also be 
informed:
    (1) Of the name and address of the official to whom the request for 
review must be submitted.
    (2) That the request for review must be submitted within ninety 
days after receipt of the decision by the Secretary of the Air Force.
    (3) That the request for review must be in writing and include the 
applicant's name, address, and telephone number; a copy of the 
application to the AFBCMR and the final decision of the Secretary of 
the Air Force; and a statement of the specific reasons the applicant is 
not satisfied with the decision of the Secretary of the Air Force.
    (4) That the request must be based on the Board record; requests 
for review based on factual allegations or evidence not previously 
presented to the Board will not be considered under this section but 
may be the basis for reconsideration by the Board under Sec. 865.6.
    (c) Decisions in cases filed under Section 507, Public Law 103-160. 
The Secretary will issue a decision within 60 days of receipt of the 
case of an officer who:
    (1) Was offered the opportunity to be discharged or separated from 
active duty under the Voluntary Separation Incentive (VSI) or Special 
Separation Benefit (SSB) programs,
    (2) Elected not to accept such discharge or separation,
    (3) Was thereafter discharged or separated from active duty, after 
September 30, 1990, as a result of selection by a board convened to 
select officers for early separation (a ``RIF board''),
    (4) Files an application with the Board within two years of the 
date of separation or discharge, or one year after March 1, 1996, 
whichever is later, alleging that the officer was not effectively 
counseled, before electing not to accept discharge or separation under 
the VSI/SSB programs, concerning the officer's vulnerability to 
selection for involuntary discharge or separation (``RIF''), and
    (5) Requests expedited consideration under this section.
    (d) Upon finding of ineffective counseling, the Secretary will 
provide the officer with an opportunity to participate, at the 
officer's option, in the VSI or SSB programs or, if eligible, in an 
early retirement program.
    (e) In cases under Secs. 865.5(b) and 865.5(c) which involve 
additional issues not cognizable under those sections, the additional 
issues may be considered separately by the Board under Secs. 865.3 and 
865.4. The special time limits in Secs. 865.5(b) and 865.5(c) do not 
apply to the decision concerning these additional issues.


Sec. 865.6  Reconsideration of applications.

    The Board may reconsider an application if the applicant submits 
newly discovered relevant evidence that was not available when the 
application was previously considered. The Executive Director will 
screen each request for reconsideration to determine whether it 
contains new evidence.
    (a) If the request contains new evidence, the Executive Director 
will refer it to a panel of the Board for a decision. The Board will 
decide the relevance and weight of any new evidence, whether it was 
reasonably available to the applicant when the application was 
previously considered, and whether it was submitted in a timely manner. 
The Board may deny reconsideration if the request does not meet the 
criteria for reconsideration. Otherwise the Board will reconsider the 
application and decide the case either on timeliness or merit as 
appropriate.
    (b) If the request does not contain new evidence, the Executive 
Director will return it to the applicant without referral to the Board.


Sec. 865.7  Action after final decision.

    (a) Action by the Executive Director. The Executive Director will 
inform the applicant or counsel, if any, of the final decision on the 
application. If any requested relief was denied, the Executive Director 
will advise the applicant of reconsideration procedures and, for cases 
processed under the Military Whistleblowers Protection Act, review by 
the SecDef. The Executive Director will send decisions requiring 
corrective action to the Chief of Staff, U.S. Air Force, for necessary 
action.
    (b) Settlement of claims. The Air Force is authorized, under 10 
U.S.C. 1552, to pay claims for amounts due to applicants as a result of 
correction of military records.
    (c) The Executive Director will furnish the Defense Finance and 
Accounting Service (DFAS) with AFBCMR decisions potentially affecting 
monetary entitlement or benefits. DFAS will treat such decisions as 
claims for payment by or on behalf of the applicant.
    (d) DFAS settles claims on the basis of the corrected military 
record. Computation of the amount due, if any, is a function of DFAS. 
Applicants may be required to furnish additional information to DFAS to 
establish their status as proper parties to the claim and to aid in 
deciding amounts due.
    (e) Public access to decisions. After deletion of personal 
information, AFBCMR decisions will be made available for review and 
copying at a public reading room in the Washington, D.C. metropolitan 
area.


Sec. 865.8  Miscellaneous provisions.

    (a) At the request of the Board, all Air Force activities and 
officials will furnish the Board with:

[[Page 16050]]

    (1) All available military records pertinent to an application.
    (2) An advisory opinion concerning an application. The advisory 
opinion will include an analysis of the facts of the case and of the 
applicant's contentions, a statement of whether or not the requested 
relief can be done administratively, and a recommendation on the 
timeliness and merit of the request. Regardless of the recommendation, 
the advisory opinion will include instructions on specific corrective 
action to be taken if the Board grants the application.
    (b) Access to records. Applicants will have access to all records 
considered by the Board, except those classified or privileged. To the 
extent practicable, applicants will be provided unclassified or 
nonprivileged summaries or extracts of such records considered by the 
Board.
    (c) Payment of expenses. The Air Force has no authority to pay 
expenses of any kind incurred by or on behalf of an applicant in 
connection with a correction of military records under 10 U.S.C. 1034 
or 1552.
Patsy J. Conner,
Air Force Federal Register Liaison Officer.
[FR Doc. 96-8697 Filed 4-10-96; 8:45 am]
BILLING CODE 3910-01-P