[Federal Register Volume 65, Number 64 (Monday, April 3, 2000)]
[Rules and Regulations]
[Pages 17440-17443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-8089]


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DEPARTMENT OF DEFENSE

Department of the Army

32 CFR Part 581

[AR 15-185]


Army Board for Correction of Military Records

AGENCY:  Assistant Secretary of the Army for Manpower and Reserve 
Affairs, DOD.

ACTION:  Final rule.

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SUMMARY:  This final rule is a revision of the regulation on the Army 
Board for Correction of Military Records. This revision updates 
information on the policy and procedures for the operation of the Army 
Board for Correction of Military Records; implements that portion of 10 
U.S.C. 1034, and that portion of Department of Defense Directive (DODD) 
7050.6, Military Whistleblower Protection, that pertain to actions by 
the Army Board for Correction of Military Records; implements 
Department of Defense Instruction (DODI) 1336.6, Correction of Military 
Records; prescribes DD Form 149, Application for Correction of Military 
Record, under the provisions of 10 U.S.C. 1552 and eliminates those 
portions pertaining to the process of applying to the Army Board for 
Correction of Military Records, transferring them to a Department of 
the Army Pamphlet.

EFFECTIVE DATE:  March 29, 2000.

ADDRESSES:  Department of the Army, The Army Review Boards Agency, 
ATTN: SFMR-RBR, 1941 Jefferson Davis Highway, Arlington, VA 22202-4508.

FOR FURTHER INFORMATION CONTACT:  Ms. Mary L. Howell, Military 
Personnel Management Specialist, 703-607-1612, FAX 703-602-0935, email 
address: [email protected].

SUPPLEMENTARY INFORMATION:

a. Background

    Basic revised information on Army Board for Correction of Military 
Records was previously published in the Federal Register, Volume 63, 
No. 188, pages 51875-51878, September 29, 1998 for public comment.

b. Comments and Responses

    Comment: Only one respondent provided comment. The respondent 
objected to the authority of the ABCMR staff to review and reject 
requests for reconsideration without Board consideration.
    Response: The respondent had a different interpretation of the 
ABCMR staff's authority and a different definition of a ``request for 
reconsideration'' which was noted. The staff in its administrative 
review can only reject a request for reconsideration if it fails to 
meet the published criteria for a proper request for reconsideration. 
There were no changes in policy made as a result of the respondent's 
comments.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., this 
final rule will not have an annual effect on the economy of $100 
million or have a significant impact on a substantial number of small 
entities. The final rule only concerns the correction of information in 
Federal records that pertain to individuals.

Paperwork Reduction Act

    In compliance with The Paperwork Reduction Act, information 
collection is required on Department of Defense Form 149 titled 
``Application for Correction of Military Record''. The form is 
necessary to identify specific types of information in support of the 
Army Board requirements. The form was approved previously by the Office 
of Management Budget (OMB) and assigned OMB Control No. 0704-0003.

Executive Order 12612, Federalism

    This final rule has no significant federalism implications to 
warrant preparation of a Federalism Assessment under the principles and 
criteria in E.O. 12612.

[[Page 17441]]

Executive Order 12630, Government Actions and Interference With 
Constitutionally Protected Property Rights

    This final rule is issued with respect to a military function of 
the Defense Department and the provisions of E.O. 12630 or the Private 
Property Rights Act do not apply.

Executive Order 12866, Regulatory Planning and Review

    This final rule is not a significant regulatory action pursuant to 
Executive Order 12866, Regulatory Planning and Review, dated September 
30, 1993.

Executive Order 12875, Enhancing the Intergovernmental Partnership

    This final rule does not impose non statutory unfunded mandates on 
small governments and is not subject to the requirements of the 
executive order.

Executive Order 12988, Civil Justice Reform

    This final rule is in compliance with the provisions and 
requirements of E.O. 12988.

Executive Order 13045, Protection of Children From Environmental Health 
Risks and Safety Risks

    This final rule is issued with respect to a military function of 
the Defense Department and the provisions of E.O. 13045 do not apply.

Unfunded Mandates Act

    This final rule does not impose an enforceable duty upon the 
private sector nor does it impose unfunded mandates on small 
governments and is not subject to the requirements of the Unfunded 
Mandates Reform Act.

National Environmental Policy Act

    This final rule will not have a significant impact to the human 
environment, and preparation of an environmental impact statement is 
not required.

Submission to Congress and the Comptroller General of the General 
Accounting Office

    Pursuant to Section 801(a)(1)(A) of the Administrative Procedure 
Act as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996, the Army will submit a report containing this rule to the 
U.S. Senate, House of Representatives, and the Comptroller General of 
the General Accounting Office. This rule is not a major rule within the 
meaning of Section 804(2) of the Administrative Procedure Act, as 
amended.

List of Subjects in 32 CFR Part 581

    Administrative practice and procedure, Archives and Records, 
Military Personnel.

    Accordingly, part 581 is amended as follows:

PART 581--[AMENDED]

    1. The authority citation for part 581 is revised to read as 
follows:

    Authority: 10 U.S.C. 1552, 1553, 1554, 3013, 3014, 3016; 38 
U.S.C. 3103(a).


    2. Section 581.3 is revised to read as follows:


Sec. 581.3  Army Board for Correction of Military Records.

    (a) General--(1) Purpose. This section prescribes the policies and 
procedures for correction of military records by the Secretary of the 
Army, acting through the Army Board for Correction of Military Records 
(ABCMR).
    (2) Statutory authority. Title 10 U.S.C Section 1552, Correction of 
Military Records: Claims Incident Thereto, is the statutory authority 
for this regulation.
    (b) Responsibilities. (1) The Secretary of the Army. The Secretary 
of the Army will oversee the operations of the ABCMR. The Secretary 
will take final action on applications, as appropriate.
    (2) The ABCMR Director. The ABCMR Director will manage the ABCMR's 
day-to-day operations.
    (3) The chair of an ABCMR panel. The chair of a given ABCMR panel 
will preside over the panel, conduct a hearing, maintain order, ensure 
the applicant receives a full and fair opportunity to be heard, and 
certify the written record of proceedings in pro forma and formal 
hearings as being true and correct.
    (4) The ABCMR members. The ABCMR members will--
    (i) Review all applications that are properly before them to 
determine the existence of error or injustice.
    (ii) If persuaded that material error or injustice exists, and that 
sufficient evidence exists on the record, direct or recommend changes 
in military records to correct the error or injustice.
    (iii) Recommend a hearing when appropriate in the interest of 
justice.
    (iv) Deny applications when the alleged error or injustice is not 
adequately supported by the evidence, and when a hearing is not deemed 
proper.
    (v) Deny applications when the application is not filed within 
prescribed time limits and when it is not in the interest of justice to 
excuse the failure to file in a timely manner.
    (5) The director of an Army records holding agency. The director of 
an Army records holding agency will--
    (i) Take appropriate action on routine issues that may be 
administratively corrected under authority inherent in the custodian of 
the records and that do not require ABCMR action.
    (ii) Furnish all requested Army military records to the ABCMR.
    (iii) Request additional information from the applicant, if needed, 
to assist the ABCMR in conducting a full and fair review of the matter.
    (iv) Take corrective action directed by the ABCMR or the Secretary 
of the Army.
    (v) Inform the Defense Finance and Accounting Service (DFAS), when 
appropriate; the applicant; applicant's counsel, if any; and interested 
Members of Congress, if any, after a correction is complete.
    (vi) Return original records of the soldier or former soldier 
obtained from the Department of Veterans Affairs (VA).
    (6) The commanders of Army Staff agencies and commands. The 
commanders of Army Staff agencies and commands will--
    (i) Furnish advisory opinions on matters within their areas of 
expertise upon request of the ABCMR, in a timely manner.
    (ii) Obtain additional information or documentation as needed 
before providing the opinions to the ABCMR.
    (iii) Provide records, investigations, information, and 
documentation upon request of the ABCMR.
    (iv) Provide additional assistance upon request of the ABCMR.
    (v) Take corrective action directed by the ABCMR or the Secretary 
of the Army.
    (7) The Director, Defense Finance and Accounting Service (DFAS). At 
the request of the ABCMR staff, the Director, DFAS, will--
    (i) Furnish advisory opinions on matters within the DFAS area of 
expertise upon request.
    (ii) Obtain additional information or documentation as needed 
before providing the opinions.
    (iii) Provide financial records upon request.
    (iv) On behalf of the Army, settle claims that are based on ABCMR 
final actions.
    (v) Report quarterly to the ABCMR Director on the monies expended 
as a result of ABCMR action and the names of the payees.
    (c) ABCMR establishment and functions. (1) ABCMR establishment. The 
ABCMR operates pursuant to law (10 U.S.C. 1552) within the Office of 
the Secretary of the Army. The ABCMR

[[Page 17442]]

consists of civilians regularly employed in the executive part of the 
Department of the Army (DA) who are appointed by the Secretary of the 
Army and serve on the ABCMR as an additional duty. Three members 
constitute a quorum.
    (2) ABCMR functions. (i) The ABCMR considers individual 
applications that are properly brought before it. In appropriate cases, 
it directs or recommends correction of military records to remove an 
error or injustice.
    (ii) When an applicant has suffered reprisal under the Military 
Whistleblower Protection Act 10 U.S.C. 1034 and Department of Defense 
Directive (DODD) 7050.6, the ABCMR may recommend to the Secretary of 
the Army that disciplinary or administrative action be taken against 
any Army official who committed an act of reprisal against the 
applicant.
    (iii) The ABCMR will decide cases on the evidence of record. It is 
not an investigative body. The ABCMR may, in its discretion, hold a 
hearing (sometimes referred to as an evidentiary hearing or an 
administrative hearing in 10 U.S.C. 1034 and DODD 7050.6) or request 
additional evidence or opinions.
    (d) Application procedures--(1) Who may apply. (i) The ABCMR's 
jurisdiction under 10 U.S.C. 1552 extends to any military record of the 
DA. It is the nature of the record and the status of the applicant that 
define the ABCMR's jurisdiction.
    (ii) Usually applicants are soldiers or former soldiers of the 
Active Army, the U.S. Army Reserve (USAR), and in certain cases, the 
Army National Guard of the United States (ARNGUS) and other military 
and civilian individuals affected by an Army military record. Requests 
are personal to the applicant and relate to military records. Requests 
are submitted on DD Form 149 (Application for Correction of Military 
Record under the Provisions of 10 U.S.C. 1552). Soldiers need not 
submit applications through their chain of command.
    (iii) 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, missing, or deceased. Depending on the 
circumstances, a child, spouse, parent or other close relative, heir, 
or legal representative (such as a guardian or executor) of the soldier 
or former soldier may be able to demonstrate a proper interest. 
Applicants must send proof of proper interest with the application when 
requesting correction of another person's military records.
    (2) Time limits. Applicants must file an application within 3 years 
after an alleged error or injustice is discovered or reasonably should 
have been discovered. The ABCMR may deny an untimely application. The 
ABCMR may excuse untimely filing in the interest of justice.
    (3) Administrative remedies. The ABCMR will not consider an 
application until the applicant has exhausted all administrative 
remedies to correct the alleged error or injustice.
    (4) Stay of other proceedings. Applying to the ABCMR does not stay 
other proceedings.
    (5) Counsel. (i) Applicants may be represented by counsel, at their 
own expense.
    (ii) See DODD 7050.6 for provisions for counsel in cases processed 
under 10 U.S.C. 1034.
    (e) Actions by the ABCMR Director and staff. (1) Criteria. The 
ABCMR staff will review each application to determine if it meets the 
criteria for consideration by the ABCMR. The application may be 
returned without action if--
    (i) The applicant fails to complete and sign the application.
    (ii) The applicant has not exhausted all other administrative 
remedies.
    (iii) The ABCMR does not have jurisdiction to grant the requested 
relief.
    (iv) No new evidence was submitted with a request for 
reconsideration.
    (2) Burden of proof. The ABCMR begins its consideration of each 
case with the presumption of administrative regularity. The applicant 
has the burden of proving an error or injustice by a preponderance of 
the evidence.
    (3) ABCMR consideration. (i) A panel consisting of at least three 
ABCMR members will consider each application that is properly brought 
before it. One panel member will serve as the chair.
    (ii) The panel members may consider a case on the merits in 
executive session or may authorize a hearing.
    (iii) Each application will be reviewed to determine--
    (A) Whether the preponderance of the evidence shows that an error 
or injustice exists and--
    (1) If so, what relief is appropriate.
    (2) If not, deny relief.
    (B) Whether to authorize a hearing.
    (C) If the application is filed outside the statute of limitations 
and whether to deny based on untimeliness or to waive the statute in 
the interest of justice.
    (f) Hearings. ABCMR hearings. Applicants do not have a right to a 
hearing before the ABCMR. The Director or the ABCMR may grant a formal 
hearing whenever justice requires.
    (g) Disposition of applications. (1) ABCMR decisions. The panel 
members' majority vote constitutes the action of the ABCMR. The ABCMR's 
findings, recommendations, and in the case of a denial, the rationale 
will be in writing.
    (2) ABCMR final action. (i) Except as otherwise provided, the ABCMR 
acts for the Secretary of the Army, and an ABCMR decision is final when 
it--
    (A) Denies any application (except for actions based on reprisals 
investigated under 10 U.S.C. 1034).
    (B) Grants any application in whole or in part without a hearing 
when--
    (1) The relief is as recommended by the proper staff agency in an 
advisory opinion; and
    (2) Is unanimously agreed to by the ABCMR panel; and
    (3) Does not involve an appointment or promotion requiring 
confirmation by the Senate.
    (ii) The ABCMR will forward the decisional document to the 
Secretary of the Army for final decision in any case in which--
    (A) A hearing was held.
    (B) The facts involve reprisals under the Military Whistleblower 
Protection Act, confirmed by the DOD Inspector General (DODIG) under 10 
U.S.C. 1034 and DODD 7050.6.
    (C) The ABCMR recommends relief but is not authorized to act for 
the Secretary of the Army on the application.
    (3) Decision of the Secretary of the Army. (i) The Secretary of the 
Army may direct such action as he or she deems proper on each case. 
Cases returned to the Board for further consideration will be 
accompanied by a brief statement of the reasons for such action. If the 
Secretary does not accept the ABCMR's recommendation, adopts a minority 
position, or fashions an action that he or she deems proper and 
supported by the record, that decision will be in writing and will 
include a brief statement of the grounds for denial or revision.
    (ii) The Secretary of the Army will issue decisions on cases 
covered by the Military Whistleblower Protection Act (10 U.S.C. 1034 
and DODD 7050.6). In cases where the DODIG concluded that there was 
reprisal, these decisions will be made within 180 days after receipt of 
the application and the investigative report by the DODIG, the 
Department of the Army Inspector General (DAIG), or other Inspector 
General offices. Unless the full relief requested is granted, these 
applicants will be informed of their right to request review of the 
decision by the Secretary of Defense.
    (4) Reconsideration of ABCMR decision. An applicant may request the 
ABCMR to reconsider a Board decision under the following circumstances:

[[Page 17443]]

    (i) If the ABCMR receives the request within 1 year of the ABCMR's 
action and if the ABCMR has not previously reconsidered the matter, the 
ABCMR staff will review the request to determine if it contains 
evidence (including, but not limited to, any facts or arguments as to 
why relief should be granted) that was not in the record at the time of 
the ABCMR's prior consideration. If new evidence has been submitted, 
the request will be submitted to the ABCMR for its determination of 
whether the new evidence is sufficient to demonstrate material error or 
injustice. If no new evidence is found, the ABCMR staff will return the 
application to the applicant without action.
    (ii) If the ABCMR receives the request more than 1 year after the 
ABCMR's action or after the ABCMR has already considered one request 
for reconsideration, the ABCMR staff will review the request to 
determine if substantial relevant evidence is submitted showing fraud, 
mistake of law, mathematical miscalculation, manifest error, or the 
existence of substantial relevant new evidence discovered 
contemporaneously or within a short time after the ABCMR's original 
consideration. If the ABCMR staff finds such evidence, it will be 
submitted to the ABCMR for its determination of whether a material 
error or injustice exists and the proper remedy. If the ABCMR staff 
does not find such evidence, the application will be returned to the 
applicant without action.
    (h) Claims/Expenses.--(1) Authority. (i) The Army, by law, may pay 
claims for amounts due to applicants as a result of correction of 
military records.
    (ii) The Army may not pay any claim previously compensated by 
Congress through enactment of a private law.
    (iii) The Army may not pay for any benefit to which the applicant 
might later become entitled under the laws and regulations managed by 
the VA.
    (2) Settlement of claims. (i) The ABCMR will furnish DFAS copies of 
decisions potentially affecting monetary entitlement or benefits. The 
DFAS will treat such decisions as claims for payment by or on behalf of 
the applicant.
    (ii) The DFAS will settle claims on the basis of the corrected 
military record. The DFAS will compute the amount due, if any. The DFAS 
may require applicants to furnish additional information to establish 
their status as proper parties to the claim and to aid in deciding 
amounts due. Earnings received from civilian employment during any 
period for which active duty pay and allowances are payable will be 
deducted. The applicant's acceptance of a settlement fully satisfies 
the claim concerned.
    (3) Payment of expenses. The Army may not pay attorney's fees or 
other expenses incurred by or on behalf of an applicant in connection 
with an application for correction of military records under 10 U.S.C. 
1552.
    (i) Miscellaneous Provisions.--(1) Special Standards. (i) Pursuant 
to the November 27, 1979 order of the United States District Court for 
the District of Columbia in Giles v. Secretary of the Army (Civil 
Action No. 77-0904), a former Army soldier is entitled to an honorable 
discharge if a less than honorable discharge was issued to the soldier 
on or before November 27, 1979 in an administrative proceeding in which 
the Army introduced evidence developed by or as a direct or indirect 
result of compelled urinalysis testing administered for the purpose of 
identifying drug abusers (either for the purposes of entry into a 
treatment program or to monitor progress through rehabilitation or 
follow-up).
    (ii) Applicants who believe that they fall within the scope of 
paragraph (i)(1)(i) of this section should place the term ``CATEGORY 
G'' in block 11b of DD Form 149. Such applications should be 
expeditiously reviewed by a designated official, who will either send 
the individual an honorable discharge certificate if the individual 
falls within the scope of paragraph (i)(1)(i) of this section, or 
forward the application to the Discharge Review Board if the individual 
does not fall within the scope of paragraph (i)(1)(i) of this section. 
The action of the designated official will not constitute an action or 
decision by the ABCMR.
    (2) Public access to decisions. (i) After deletion of personal 
information, a redacted copy of each decision will be indexed by 
subject and made available for review and copying at a public reading 
room at Crystal Mall 4, 1941 Jefferson Davis Highway, Arlington, 
Virginia. The index will be in a usable and concise form so as to 
indicate the topic considered and the reasons for the decision. Under 
the Freedom of Information Act (5 U.S.C. 552), records created on or 
after November 1, 1996 will be available by electronic means.
    (ii) Under the Freedom of Information Act and the Privacy Act of 
1974 (5 U.S.C. 552a), the ABCMR will not furnish to third parties 
information submitted with or about an application unless specific 
written authorization is received from the applicant or unless the 
Board is otherwise authorized by law.

Karl F. Schneider,
Deputy, Assistant Secretary (Army Review Boards).
[FR Doc. 00-8089 Filed 3-31-00; 8:45 am]
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