[Federal Register Volume 67, Number 238 (Wednesday, December 11, 2002)]
[Proposed Rules]
[Pages 76142-76150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30933]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

Coast Guard

33 CFR Part 52

[OST Docket No. 2002-13439; Notice 2002-1]
RIN-2105-AD19


Coast Guard Board for Correction of Military Records; Procedural 
Regulation

AGENCY: Office of the Secretary, Coast Guard, DOT.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department proposes to revise and reissue its procedural 
regulations for the Coast Guard Board for Correction of Military 
Records (Board). This action is taken on the Department's initiative in 
order to clarify application procedures; to explain applicants' legal 
rights and burden of proof; to allow applicants to change their 
requests for relief, to submit evidence after their applications have 
been docketed, or to request extensions of the time to respond to the 
advisory opinion of the Coast Guard without filing a new application or 
waiving their right to a timely decision; to provide for administrative 
closure of cases without Board action when the Chair determines that an 
application has been erroneously docketed; to facilitate Board 
decisions when the advisory opinions of the Coast Guard are not timely 
received; to increase the time provided for applicants to respond to 
the advisory opinions; to facilitate the Board's review of privileged, 
classified, and sensitive information; to clarify the Board's authority 
to order the Coast Guard to convene medical boards to evaluate 
applicants pursuant to applications for separations by reason of 
disability; to clarify actions that may be taken by the delegate of the 
Secretary; and to notify the public of the Board's reading room.

DATES: Comments must be submitted on or before January 27, 2003.

ADDRESSES: Anyone wishing to file a comment should refer to the OST 
docket and notice numbers (OST Docket No. OST 2002-13439, Notice No.1 
). You may submit your comments and related material by only one of the 
following methods: You may mail your comments to the Docket Management 
System, U.S. Department of Transportation, Room PL-401, 400 7th Street 
SW., Washington, DC 20590-0001; or you may submit your comments 
electronically through the Web site for the Docket Management System at 
http://dms.dot.gov. For instructions on how to submit comments 
electronically, visit the Docket Management System Web site and click 
on the ``Help'' menu.
    The Docket Management Facility maintains the public docket for this 
rulemaking. Comments, and documents as indicated in this preamble, will 
become part of this docket and will be available for inspection or 
copying at room PL-401 on the plaza level of the Nassif Building at the 
same address during regular business hours. You may also obtain access 
to this docket on the Internet at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Dorothy J. Ulmer, Chair, Board for 
Correction of Military Records of the Coast Guard, C-60, Office of the 
General Counsel, U.S. Department of Transportation, 400 7th Street SW., 
Washington, DC 20590. Telephone: (202) 366-9335.

SUPPLEMENTARY INFORMATION: 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 of the United States Code to correct the military records of 
active duty, reserve, retired, and discharged Coast Guard military 
personnel who apply for a correction of an error or injustice in their 
records.

The Need for Revision

    The Board's current rules at 33 CFR part 52 have become 
disorganized over time by amendments and have several shortcomings that 
may negatively affect the Board's applicants and the timeliness of the 
Board's decisions. This proposed revision of 33 CFR part 52 is intended 
to better organize the rules, notify applicants of their rights and 
Board procedures, and remove other shortcomings as described below.
    The current rules fail to inform the public of the following 
important matters: The proper format for briefs in support of an 
application; the need for a family member or legal representative to 
submit proof of his or her proper interest before applying on behalf of 
a deceased or incompetent veteran; the requirement that applicants 
inform the Board of any change in their mailing address prior to final 
action by the Board; the fact that applicants whose cases are processed 
under the Whistleblower Protection Act and who are granted a hearing 
may be entitled to representation by a Coast Guard law specialist in 
accordance with 10 U.S.C. 1034(f)(3)(A); the presumption of regularity 
accorded military records and the burden of proof borne by applicants; 
the possible actions the delegate of the Secretary may take when 
reviewing a recommended decision of the Board; the possible reduction 
of monetary awards resulting from record corrections because of setoffs 
required by law or regulation; and the availability of copies of the 
Board's final decisions, redacted to protect the privacy of applicants, 
for review in the Board's reading room and on a Web site. These are 
matters that should be addressed in the Board's rules.
    Furthermore, the current rule allows an applicant only 15 days to 
respond to the written views of the Coast Guard on his or her 
application. Sec.  52.82(d). In light of the underway schedules of some 
of the Board's active duty applicants assigned to sea duty, 15 days is 
insufficient time for some applicants to respond. No provision 
addresses applicants' requests for extensions of that time in order to 
consult counsel or gather more evidence. The current rule requires 
members who submit evidence after submitting their applications to 
waive their right to a final decision

[[Page 76143]]

within ten months and makes no provision for a new deadline. Sec.  
52.61(c). Moreover, no provision addresses the consequences of an 
applicant's decision to change his or her request for relief.
    The current rule states that Board action is required before a 
member can withdraw an application. Sec.  52.26. It also allows the 
Chair to deny an application, without prejudice and without action by 
the Board, if he or she believes that the evidence is insufficient or 
that the application was untimely and lacks merit. Sec.  52.32.
    The current rule does not address or facilitate the Board's access 
to privileged, classified, and sensitive information, such as reports 
of investigations, which is occasionally necessary for the Board to 
determine whether an error or injustice has been committed. The current 
rule also permits applicants to inspect the Board's record of 
proceedings without expressly providing for the protection of 
privileged, classified, and sensitive information. Sec.  52.66.
    The current rule states that the Board shall consider any written 
recommendation submitted by the Chief Counsel of the Coast Guard before 
issuing a decision. Sec.  52.82(e). However, it provides no deadline 
for the Chief Counsel's submission even though the Board must take 
final action on each application within ten months. 14 U.S.C. 425. 
Delayed submissions by the Chief Counsel's office can leave the Board 
with little or no time to receive the applicant's response, issue a 
final decision, and have it reviewed by the delegate of the Secretary 
before the statutory ten-month deadline has expired. The current rule 
also does not take into account written views submitted by a delegate 
of the Commandant of the Coast Guard other than the Chief Counsel. In 
addition, the current rule fails to require the Coast Guard to describe 
what ``significant issue of Coast Guard policy'' is at stake when he or 
she invokes review of a Board decision by the delegate of the 
Secretary. Sec.  52.64(a)(2).
    The current rule permits the Board to specify any correction of a 
record in its order and to order the Coast Guard to take ``any other 
action deemed necessary to carry out the Board's recommendation,'' but 
it does not expressly permit the Board to order the Coast Guard to 
convene medical boards to determine an applicant's disability rating so 
that his or her separation can be corrected. Sec.  52.61(e). The 
current rule also requires the delegate of the Secretary to review 
cases in which the Board corrects a record to show that a member is 
entitled to a medal or award contrary to the Coast Guard's 
recommendation. In addition, the current rule does not address what the 
Coast Guard should do if it finds that an order of the Board is 
incomplete because of an oversight.

Section-by-Section Analysis of the Proposed Rule

Subpart A--Purpose and Authority

Section 52.1 Purpose.

    This section remains unchanged under the proposal.

Section 52.2 Authority.

    This section would be amended to reflect the codification of the 
Board's ten-month deadline for issuing decisions under 14 U.S.C. 425 
and to add a citation (10 U.S.C. 1552(a)(4)) for the finality and 
conclusiveness of the Board's orders.

Subpart B--Establishment, Function, and Jurisdiction of Board

Section 52.11 Establishment and Composition

    Throughout this section and all of the proposed rule, the term 
Chair would be substituted for the term Chairman to establish gender 
neutrality. This section would also be amended to remove a citation to 
49 U.S.C. 108(a).

Section 52.12 Function

    This section would be amended to reflect the fact that the Board 
considers submissions from the Coast Guard and other Government offices 
along with applications and military records in reaching its decisions.

Section 52.13 Jurisdiction

    No changes are proposed for this section.

Subpart C--General Provisions Regarding Applications

Section 52.21 General Requirements

    No changes are proposed for paragraph (a). Paragraph (b) would be 
amended to inform family members and legal representatives that they 
must submit proof of their proper interest before applying to the Board 
for the correction of the military record of a deceased or incompetent 
veteran. Paragraph (c) would be amended to reflect the fact that 
applications are not docketed by the Board until they are complete and 
to reflect the need for substantial evidence or information and all 
military and medical records before an application is considered 
complete. Paragraph (d) would be added to advise applicants of the 
necessity of keeping the Board informed of any changes in mailing 
address so that they will receive the Board's correspondence. Paragraph 
(e) would be added to ensure that briefs submitted in support of 
applications are readable, replicable, and not unduly lengthy.

Section 52.22 Time Limit for Filing Application

    This section would be slightly reworded to clarify why an applicant 
must provide reasons for submitting an application after the three-year 
statute of limitations has passed.

Section 52.23 Counsel

    Paragraph (a) would be added to inform applicants that they may be 
represented by counsel at their own expense but that applicants whose 
cases are processed under the Whistleblower Protection Act may be 
entitled to representation by a law specialist at a hearing convened in 
accordance with Subpart F. The previous text of this section would 
appear in paragraph (b) and would be amended by updating two citations 
and by making the Chair, rather than the Board, responsible for 
deciding the competence of an applicant's chosen representative.

Section 52.24 Evidence and Burden of Proof

    Paragraph (a) would be revised to encourage the timely submission 
of evidence with the initial application and to direct attention toward 
the new rule concerning late submissions of evidence in section 52.26. 
Paragraph (b) would be added to inform applicants of the presumption of 
regularity accorded military records and of the burden of proof they 
must meet to be granted relief, which is the preponderance of the 
evidence.

Section 52.25 Access to Official Records

    This section would be amended to consolidate the sentences.

Section 52.26 Right to Timely Decision; Effect of Requests for 
Extensions, Changes in Requests for Relief, and Late Submissions of 
Evidence

    This new section, which would incorporate the provisions in old 
sections 52.68 and 52.61(c), would inform applicants of their right to 
a final decision on their applications within ten months of the 
completion of their applications. It would also permit applicants to 
request extensions, submit evidence after their applications have been 
docketed, and alter their requests for relief without waiving their 
right to

[[Page 76144]]

a timely decision. It would provide that, if an applicant requests an 
extension or unreasonably delays responding to a request from the 
Board, the Board's ten-month deadline would be extended by the duration 
of the extension or of the unreasonably delay. It would further provide 
that, if in the determination of the Chair, an applicant has submitted 
significant new evidence or has significantly altered his or her 
request for relief after his or her application has been docketed, the 
application would be considered newly completed and the applicant would 
have the right to a final decision within ten months of the new date of 
completion.

Section 52.27 Withdrawal of Application

    This section (old Sec.  52.26) would be revised to allow the Chair 
to permit an applicant to withdraw his or her application without Board 
action.

Section 52.28 Stay of Proceedings

    No changes are proposed for this section (old Sec.  52.33), apart 
from its renumbering. It should be renumbered because it belongs better 
under this Subpart C-General Provisions Regarding Applications than 
where it was under Subpart D-Consideration of Application.

Subpart D--Consideration of Application and Administrative Closure

Section 52.31 Consideration of Application

    This section would be amended to show that the Chair's initial 
review of an application to determine whether it is complete occurs 
before the application is docketed.

Section 52.32 Administrative Closure

    This section would be renamed and expanded to clarify the 
circumstances under which the Chair may close a case without prejudice 
and without Board action. Paragraph (a) would permit the Chair to close 
a case when he or she determines that the application was erroneously 
documented because it was never completed, the Board lacks authority to 
grant the requested relief, the applicant failed to exhaust an 
administrative remedy before applying to the Board, or the Coast Guard 
has already made the requested corrections. Paragraph (b) addresses how 
applicants might reapply after their cases have been administratively 
closed. Paragraph (c) would require the Chair to inform applicants of 
their right to reapply whenever he or she administratively closes a 
case.
    Old section 52.33 Stay of proceedings. This old section would be 
renumbered as section 52.28 under the proposed rule.

Subpart E--Submissions by the Coast Guard and Other Offices

    This new Subpart E would embody old Subpart I--Miscellaneous 
Provisions. It would be renamed and repositioned to better reflect its 
contents and the order of the Board's procedures. Old Subpart E would 
be included in Subpart F.

Section 52.41 Assistance

    No changes are proposed for this section (old Sec.  52.81), apart 
from its renumbering.

Section 52.42 Views of the Coast Guard

    Paragraph (a) (old Sec.  52.82(a)) would be amended to reflect the 
amendments to sections 52.21 and 52.32. Paragraphs (a) and (b) (old 
Sec.  52.82(c)) would be amended to reflect the fact that the views of 
the Coast Guard may be submitted in an advisory opinion by any delegate 
of the Commandant. Paragraph (c) (old Sec.  52.82(e)) would be amended 
to require the Board to consider the advisory opinion of the Coast 
Guard only if it is submitted within 135 days of the date the 
application is complete but to permit the Board to consider advisory 
opinions submitted after the 135-day deadline has passed. The proposed 
rule would facilitate timely decisions when submissions of advisory 
opinions by the Coast Guard are delayed to the point where little or no 
time would remain for the Board to receive the applicant's response to 
the advisory opinion, issue a final decision, and have it reviewed by 
the delegate of the Secretary before the statutory ten-month deadline 
has expired. Paragraph (d) (old Sec.  52.82(d)) would increase the time 
provided for the applicant's response to the advisory opinion from 15 
to 30 days and allow the Chair to grant extensions of the time to 
respond. Paragraph (e), which is new, would require advisory opinions 
and applicants' briefs in response to advisory opinions to be readable, 
replicable, and not unduly lengthy.

Section 52.43 Requests for Further Information; Submissions of 
Classified, Privileged, and Sensitive Information

    This section (old Sec.  52.82(b)) would be expanded to address the 
Board's ability to seek information from applicants and from other 
Government offices, as well as from the Coast Guard. It addresses how 
the Board can receive and review classified, privileged, and sensitive 
information from the Coast Guard or another Government office while 
providing the applicant with a copy of any part of that information 
that would be released to him or her if requested by the applicant from 
the custodian of the information under 49 CFR parts 7 or 10.

Subpart F--Hearings

    This subpart would incorporate both old Subpart E--Hearings and old 
Subpart F--Procedure at Hearings because both concern hearings.

Section 52.51 General provision

    No changes other than renumbering and substituting the term Chair 
for the term Chairman are proposed for this section (old Sec.  52.41).

Section 52.52 Notice of Hearing

    No changes other than renumbering, substituting the term Chair for 
the term Chairman, and adding a comma for stylistic consistency are 
proposed for this section (old Sec.  52.42).

Section 52.53 Witnesses

    This section (old Sec.  52.43) would be renumbered and amended by 
substituting the term Chair for the term Chairman, adding a comma for 
stylistic consistency, and clarifying the language to indicate that the 
applicant is only responsible for ensuring the appearance of his or her 
own witnesses at a hearing.

Section 52.54 Expenses

    This section (old Sec.  52.44) would be renumbered and amended to 
inform applicants that they may be entitled to representation by a law 
specialist if they are granted a hearing and their cases are processed 
under the Whistleblower Protection Act.

Section 52.55 Nonappearance

    No change is proposed for this section (old Sec.  52.45), apart 
from its renumbering.

Section 52.56 Conduct of Hearing

    No amendments other than renumbering, substituting the term Chair 
for the term Chairman, and adding a comma for stylistic consistency are 
proposed for this section (old Sec.  52.51).

Section 52.57 Record of Hearing

    No change is proposed for this section (old Sec.  52.52), apart 
from its renumbering.

Subpart G--Judgment and Disposition

Section 52.61 Deliberations and Decision

    No amendments other than substituting the term Chair for the term

[[Page 76145]]

Chairman are proposed for paragraphs (a) and (b). Old paragraph (c) 
would be amended and moved to proposed paragraphs 52.24(a) and 
52.26(c). New paragraph (c) (old paragraph (d)) would be amended only 
by substituting the term Chair for the term Chairman and by 
capitalizing the letter b in Board for stylistic consistency. Paragraph 
(d) (old paragraph (e)) would be revised to show that the Board's 
authority to order the Coast Guard to take ``any other action deemed 
necessary to carry out the Board's recommendation,'' as previously 
provided, includes the authority to order the Coast Guard to convene 
medical boards to help determine an applicant's proper disability 
rating for a correction of his or her separation. No changes are 
proposed for paragraph (e) (old paragraph (f)).

Section 52.62 Minority Report

    No changes are proposed for this section.

Section 52.63 Record of Proceedings

    Paragraph (a) would contain the existing, unamended text of this 
section. Paragraph (b) would be added to provide for the return of 
classified, privileged, or sensitive information reviewed by the Board 
to the custodial Government office and the inclusion of the redacted 
copy of the information that was provided to the applicant in the 
Board's permanent record of proceedings after final action is taken.

Section 52.64 Final Action

    Paragraph (a)(2) would be amended to require the delegate of the 
Commandant of the Coast Guard to identify and describe in his or her 
advisory opinion the significant issue of Coast Guard policy challenged 
in an application that requires its review by the delegate of the 
Secretary under paragraph (b) if the Board grants relief contrary to 
the Coast Guard's advisory opinion or if the Board grants substantially 
different relief than that recommended by the Coast Guard. Paragraph 
(a)(2) would also be amended to make the Board's decision on an 
application to receive a medal or award final unless the Coast Guard 
describes a significant issue of Coast Guard policy that is challenged 
in the application. Paragraph (b) would be amended to reflect the range 
of actions the delegate of the Secretary may take in reviewing a 
decision of the Board.

Section 52.65 Orders

    No changes are proposed for this section.

Section 52.66 Notification

    This section would be amended to make only the permanent record of 
proceedings, as compiled in accordance with section 52.63(b), available 
for the applicant's inspection.

Section 52.67 Reconsideration

    In paragraphs (a), (b), and (e), the term Chair would be 
substituted for the term Chairman. Paragraph (a)(1) would be amended 
for clarification. Paragraph (c) would be amended to better explain who 
can serve on a Board to reconsider a case. Paragraph (d) would be 
amended to make applications for reconsideration subject to the 
provisions in section 52.26 for permitting applicants to request 
extensions, submit evidence late, and alter their requests for relief.

Old Section 52.68 Time Limit for Final Action

    This old section would be incorporated in proposed section 52.26.

Subpart H--Payment of Claims and Implementation of Orders

Section 52.71 Authority to Pay

    No changes are proposed for this section.

Section 52.72 Implementation of Orders

    This section would be renamed for clarity and the words ``shall 
transmit'' would be substituted for the word ``transmits.'' Paragraph 
(b) would be amended to specify that applicants must furnish to the 
Board or to the Coast Guard information needed to determine the proper 
parties to a claim. Paragraph (c) would be amended to notify applicants 
that monetary awards resulting from record corrections may be reduced 
by setoffs required by law or regulation.

Section 52.73 Interpretation

    This section would be amended to provide that the Coast Guard 
should return a decision to the Board for clarification or technical 
amendment if it believes that the Board's order is incomplete because 
of an oversight.

Section 52.74 Report of Settlement

    No changes are proposed for this section.

Subpart I--Public Access to Decisions

    The old Subpart I--Miscellaneous Provisions would be repositioned 
and renamed as Subpart E--Submissions by the Coast Guard and Other 
Offices.

Section 52.81 Reading Room and Index

    This new section would inform the public of the availability of 
copies of its final decisions, redacted to protect the privacy of 
applicants, for public review in the Board's reading room and on the 
Web.

Regulatory Analyses and Notices

Executive Order 12866

    This proposed rule does not constitute a significant rule under 
Executive Order 12866 or the Department's Regulatory Policies and 
Procedures. The costs of these procedural changes would be negligible, 
their effect on industry would be negligible, and they are not of 
general policy interest.

Regulatory Flexibility Act and Federalism

    Under 5 U.S.C. 604, we certify that this proposed rule, if adopted, 
would not have a significant economic impact on a substantial number of 
small entities because it would affect only the procedures followed by 
the Board, the Coast Guard, and applicants in the submission and 
processing of applications for correction of individuals' personal 
military records. There are no Federalism factors to warrant the 
preparation of a Federalism assessment.

Paperwork Reduction Act

    This NPRM does not propose any information collection requirements 
subject to review under the Paperwork Reduction Act.

Lists of Subjects in 33 CFR Part 52

    Military records.

    Issued this 26th day of November 2002 at Washington, DC.
Norman Y. Mineta,
Secretary of Transportation.
    For the reasons set forth in the preamble, the Department proposes 
to revise 33 CFR Part 52 to read as follows:

PART 52--BOARD FOR CORRECTION OF MILITARY RECORDS OF THE COAST 
GUARD

Subpart A--Purpose and Authority
Sec.
52.1 Purpose.
52.2 Authority.
Subpart B--Establishment, Function, and Jurisdiction of Board
52.11 Establishment and composition.
52.12 Function.
52.13 Jurisdiction.

[[Page 76146]]

Subpart C--General Provisions Regarding Applications
52.21 General requirements.
52.22 Time limit for filing application.
52.23 Counsel.
52.24 Evidence and burden of proof.
52.25 Access to official records.
52.26 Right to timely decision; effect of requests for extensions, 
changes in requests for relief, and late submissions of evidence.
52.27 Withdrawal of application.
52.28 Stay of proceedings.
Subpart D--Consideration of Application and Administrative Closure
52.31 Consideration of application.
52.32 Administrative closure.
Subpart E--Submissions by the Coast Guard and Other Offices
52.41 Assistance.
52.42 Views of the Coast Guard.
52.43 Requests for further information; submissions of classified, 
privileged, and sensitive information.
Subpart F--Hearings
52.51 General provision.
52.52 Notice of hearing.
52.53 Witnesses.
52.54 Expenses.
52.55 Nonappearance.
52.56 Conduct of hearing.
52.57 Record of hearing.
Subpart G--Judgment and Disposition
52.61 Deliberations and decision.
52.62 Minority report.
52.63 Record of proceedings.
52.64 Final action.
52.65 Orders.
52.66 Notification.
52.67 Reconsideration.
Subpart H--Payment of Claims and Implementation of Orders
52.71 Authority to pay.
52.72 Implementation of orders.
52.73 Interpretation.
52.74 Report of settlement.
Subpart I--Public Access to Decisions
52.81 Reading room and index.

    Authority: 10 U.S.C. 1552, 14 U.S.C. 425.

Subpart A--Purpose and Authority


Sec.  52.1  Purpose.

    This part establishes the procedure for application for correction 
of military records of the Coast Guard, for consideration of 
applications by the Department of Transportation Board for Correction 
of Military Records of the Coast Guard (hereinafter ``the Board''), and 
for settling claims or determining monetary benefits.


Sec.  52.2  Authority.

    (a) The Secretary of Transportation, acting through boards of 
civilians, is authorized to correct any military record of the Coast 
Guard when the Secretary considers it necessary to correct an error or 
remove an injustice. 10 U.S.C. 1552. The Secretary shall ensure that 
final action on a complete application for correction is taken within 
10 months of its receipt. 14 U.S.C. 425.
    (b) Corrections made under this authority are final and conclusive 
on all officers of the Government except when procured by fraud. 10 
U.S.C. 1552(a)(4).

Subpart B--Establishment, Function, and Jurisdiction of Board


Sec.  52.11  Establishment and composition.

    (a) Pursuant to 10 U.S.C. 1552, the Board for Correction of 
Military Records of the Coast Guard is established in the Office of the 
Secretary of Transportation.
    (b) The Secretary appoints a panel of civilian officers or 
employees of the Department of Transportation to serve as members of 
the Board, and designates one such member to serve as Chair of the 
Board. The Chair designates members from this panel to serve as the 
Board for each case requiring consideration by a Board. The Board 
consists of three members, and two members present constitute a quorum 
of the Board.
    (c) The Deputy Chair of the Board exercises the functions 
prescribed by these regulations and such other duties as may be 
assigned by the Chair.


Sec.  52.12  Function.

    The function of the Board is to consider all applications properly 
before it, together with all pertinent military records and any 
submission received from the Coast Guard or other Government office 
under subpart E, to determine:
    (a) Whether an error has been made in the applicant's Coast Guard 
military record, whether the applicant has suffered an error or 
injustice as the result of an omission or commission in his or her 
record, or whether the applicant has suffered some manifest injustice 
in the treatment accorded him or her; and
    (b) Whether the Board finds it necessary to change a military 
record to correct an error or remove an injustice.


Sec.  52.13  Jurisdiction.

    (a) The Board has jurisdiction to review and determine all matters 
properly brought before it, consistent with existing law and such 
directives as may be issued by the Secretary.
    (b) No application shall be considered by the Board until the 
applicant has exhausted all effective administrative remedies afforded 
under existing law or regulations, and such legal remedies as the Board 
may determine are practical, appropriate, and available to the 
applicant.

Subpart C--General Provisions Regarding Applications


Sec.  52.21  General Requirements.

    (a) An application for correction of a Coast Guard record shall be 
submitted on DD Form 149 (Application for Correction of Military or 
Naval Record) or an exact copy thereof, and shall be addressed to: 
Chair, Board for Correction of Military Records of the Coast Guard (C-
60), United States Department of Transportation, Washington, DC 20590. 
Forms and explanatory material may be obtained from the Chair of the 
Board.
    (b) The application shall be signed by the person alleging error or 
injustice in his or her military record, except that an application may 
be signed by a family member or legal representative with respect to 
the record of a deceased, incapacitated, or missing person. The family 
member or legal representative must submit proof of his or her proper 
interest with the application.
    (c) No application shall be docketed or processed until it is 
complete. An application for relief is complete when all of the 
following have been received by the Board:
    (1) A signed DD Form 149, providing all necessary responses, 
including a specific allegation of error or injustice, accompanied by 
substantial evidence or information in support of such allegation;
    (2) The military records of the applicant; and
    (3) Any applicable military and Department of Veterans Affairs 
medical records.
    (d) It is the applicant's responsibility to include his or her 
correct mailing address on the DD Form 149 and to inform the Chair in 
writing of any subsequent change of address until the Board or the 
Secretary takes final action on the application.
    (e) Briefs in support of applications must be assembled in a manner 
that permits easy reproduction and may not exceed twenty-five double-
spaced typewritten pages in a type size with no more than twelve 
characters per inch. This limitation does not apply to supporting 
documentary evidence. In complex cases, the Chair may waive this 
limitation.


Sec.  52.22  Time limit for filing application.

    An application for correction of a record must be filed within 
three years after the applicant discovered or reasonably should have 
discovered the alleged error or injustice. If an

[[Page 76147]]

application is untimely, the applicant shall set forth reasons in the 
application why it is in the interest of justice for the Board to 
consider the application. An untimely application shall be denied 
unless the Board finds that sufficient evidence has been presented to 
warrant a finding that it would be in the interest of justice to excuse 
the failure to file timely.


Sec.  52.23  Counsel.

    (a) Applicants may be represented by counsel at their own expense. 
Applicants whose cases are processed under the Whistleblower Protection 
Act and who are granted a hearing by the Board may be entitled to 
representation by a Coast Guard law specialist. 10 U.S.C. 
1034(f)(3)(A).
    (b) As used in this part, the term ``counsel'' includes attorneys 
who are members in good standing of any bar; accredited representatives 
of veterans' organizations recognized by the Secretary of Veterans 
Affairs pursuant to 38 U.S.C. 5902; and other persons who, in the 
opinion of the Chair, are competent to represent the applicant for 
correction. Whenever the term ``applicant'' is used in these rules, 
except in Sec.  52.21(c), the term shall mean an applicant or his or 
her counsel.


Sec.  52.24  Evidence and burden of proof.

    (a) It is the responsibility of the applicant to procure and submit 
with his or her application such evidence, including official records, 
as the applicant desires to present in support of his or her case. All 
such evidence should be submitted with the applicant's DD Form 149 in 
accordance with Sec.  52.21(c)(1). Evidence submitted by an applicant 
after an application has been filed and docketed shall be considered 
late and its acceptance is subject to the provisions in Sec. Sec.  
52.26(a)(4) and (c).
    (b) The Board begins its consideration of each case presuming 
administrative regularity on the part of Coast Guard and other 
Government officials. The applicant has the burden of proving the 
existence of an error or injustice by the preponderance of the 
evidence.


Sec.  52.25  Access to official records.

    The applicant shall have such access to official records or to any 
information pertaining to the applicant which is in the custody of the 
Coast Guard as is provided in 49 CFR parts 7 and 10.


Sec.  52.26  Right to timely decision; effect of requests for 
extensions, changes in requests for relief, and late submissions of 
evidence.

    (a) Each applicant has a right to have final action taken on his or 
her application within 10 months after all the elements of a complete 
application, as defined in Sec.  52.21(c), have been received by the 
Board, unless the applicant
    (1) Submits a written request, which is granted by the Chair, for 
an extension of a specific duration to seek counsel or additional 
evidence;
    (2) Submits a written request, which is granted by the Chair, for 
an extension of the time provided for responding to the views of the 
Coast Guard in accordance with Sec.  52.42(d);
    (3) Submits a signed statement that is determined by the Chair to 
significantly amend the applicant's request for relief after the 
application has been docketed;
    (4) Submits significant new evidence, as determined by the Chair, 
after the application has been docketed; or
    (5) Is found by the Chair to have unreasonably delayed responding 
to a request for further information or evidence.
    (b) If the applicant requests an extension in accordance with 
paragraphs (a)(1) or (a)(2) of this section or unreasonably delays 
responding to a request for further information or evidence in 
accordance with paragraph (a)(5) of this section, he or she shall have 
a right to have final action taken on the application for correction 
within 10 months of the application's completion plus all periods of 
extension granted to the applicant by the Chair and all periods of 
unreasonable delay.
    (c) If the applicant significantly amends his or her request for 
relief or submits significant new evidence after the application has 
been docketed, in accordance with paragraphs (a)(3) or (a)(4) of this 
section, the application shall be considered newly complete as of the 
date the amended request for relief or new evidence is received, in 
which case the applicant shall have a right to have final action taken 
on the application within 10 months of the date the Board receives the 
amended request for relief or significant new evidence.


Sec.  52.27  Withdrawal of application.

    The Chair may, at his or her discretion, permit the applicant to 
withdraw his or her application at any time before final action is 
taken under Sec.  52.64. Any further consideration by the Board of the 
issues raised in the withdrawn application shall occur only upon the 
filing of a new application.


Sec.  52.28  Stay of proceedings.

    An application to the Board for correction of a military record 
does not operate as a stay of any proceeding or administrative action 
taken with respect to or affecting the applicant.

Subpart D--Consideration of Application and Administrative Closure


Sec.  52.31  Consideration of application.

    Each application shall be reviewed by the Chair to determine 
whether it meets the requirements of Sec.  52.21 before it is docketed. 
The Chair shall decide in appropriate cases whether to grant a hearing 
or to recommend disposition on the merits without a hearing.


Sec.  52.32  Administrative closure.

    (a) The Chair may administratively close a case after it has been 
docketed and at any time prior to its consideration by the Board if the 
Chair determines that:
    (1) The application was erroneously docketed because the 
application did not meet the criteria under Sec.  52.21;
    (2) Effective relief cannot be granted by the Board;
    (3) The Board does not have jurisdiction to determine the issues 
presented or the applicant has not exhausted an available 
administrative remedy, as required under Sec.  52.13(b); or
    (4) The Coast Guard has granted effective relief satisfactory to 
the applicant.
    (b) Administrative closure does not constitute a denial of relief. 
Applicants who believe their cases should not have been 
administratively closed by the Chair may resubmit their applications 
with a request for further consideration and a statement explaining why 
the applicant believes his or her case should be docketed and 
considered by the Board. A request for further consideration shall be 
regarded as a new application for the purposes of Sec. Sec.  52.21 and 
52.26.
    (c) If the Chair administratively closes a case, the applicant 
shall be advised of the reason and of the right to resubmit his or her 
application.

Subpart E--Submissions by the Coast Guard and Other Offices


Sec.  52.41  Assistance.

    The Board may request such advice, opinion, assistance, or use of 
the facilities of any other bureau, board, or office of the Department 
of Transportation as the Board deems necessary.


Sec.  52.42  Views of the Coast Guard.

    (a) The Board shall transmit to the Commandant of the Coast Guard 
or his or her delegate a copy of each application for relief submitted 
and docketed under subpart C of this part,

[[Page 76148]]

together with any briefs, memoranda, and documentary evidence submitted 
or obtained in the case.
    (b) The Commandant of the Coast Guard or his or her delegate may 
forward to the Board a written advisory opinion presenting the views of 
the Coast Guard on any case before the Board.
    (c) An advisory opinion furnished by the Coast Guard under this 
section shall not be binding upon the Board, but shall be considered by 
the Board, along with all other information and material submitted in 
the particular case, if it is received by the Board within 135 days of 
the date the application is complete. The Chair may, in his or her 
discretion, grant the Coast Guard an extension of the time provided for 
submitting the advisory opinion.
    (d) The Board shall promptly send a copy of each submission made by 
the Coast Guard under this section to the applicant involved, subject 
to the limitations in Sec. Sec.  52.42(c) and 52.43(c). Each applicant 
has 30 days, from the date the Board sends the submission, to submit to 
the Board a written rebuttal or response to the Coast Guard's advisory 
opinion or a written request for an extension of the time to respond, 
subject to the provisions in Sec.  52.26.
    (e) Advisory opinions submitted by the Coast Guard and briefs 
submitted by applicants in response to the advisory opinions of the 
Coast Guard must be assembled in a manner that permits easy 
reproduction and may not exceed fifteen double-spaced typewritten pages 
in a type size with no more than twelve characters per inch. This 
limitation does not apply to supporting documentary evidence. In 
complex cases, the Chair may waive this limitation.


Sec.  52.43  Requests for further information; submissions of 
classified, privileged, and sensitive information.

    (a) The Chair or the Board may ask the applicant to submit 
additional information not included in the application or response to 
the advisory opinion.
    (b) The Chair or the Board may ask the Coast Guard or other 
Government office to submit any information, including reports of 
investigations, that the Chair or the Board deems relevant to an 
applicant's case.
    (c) Whenever the Coast Guard or other Government office submits 
classified, privileged, or sensitive information to the Board in 
accordance with paragraph (b) of this section or Sec.  52.42(b), it 
shall identify such information and also provide the Board with a copy 
of that part of the information that would be released to the applicant 
by the Coast Guard or other Government office if he or she requested it 
under 49 CFR parts 7 and 10. The Board shall forward only this redacted 
copy to the applicant.

Subpart F--Hearings


Sec.  52.51  General provision.

    In each case in which the Chair determines that a hearing is 
warranted, the applicant will be entitled to be heard orally in person, 
by counsel, or in person with counsel.


Sec.  52.52  Notice of hearing.

    (a) If the Chair determines that a hearing is warranted, the Chair 
shall notify the applicant that a hearing has been granted.
    (b) The date of hearing shall be not less than 21 days from the 
date of this notification. Written notice stating the date, time, and 
place of the hearing shall be given to the applicant and the Coast 
Guard.


Sec.  52.53  Witnesses.

    (a) In any case in which the Chair has granted a hearing, the 
applicant shall have the right to present witnesses.
    (b) It is the responsibility of the applicant to notify his or her 
witnesses and to ensure their appearance at the date, time, and place 
set for the hearing.


Sec.  52.54  Expenses.

    No expenses of any nature whatsoever incurred by an applicant, his 
or her counsel, witnesses, or others acting on behalf of the applicant 
shall be paid by the Government, except that an applicant may be 
entitled to representation by a Coast Guard law specialist if the case 
has been processed under the Whistleblower Protection Act. 10 U.S.C. 
1034(f)(3)(A).


Sec.  52.55  Nonappearance.

    An applicant who fails without good cause to appear in person or by 
counsel at the appointed date, time, and place for hearing, is deemed 
to have waived the right to a hearing. The application is then 
considered by the Board on the basis of all the material of record.


Sec.  52.56  Conduct of hearing.

    (a) The Chair or the Chair's designee shall conduct a hearing so as 
to ensure a full and fair presentation of the evidence.
    (b) The hearing is not limited by legal rules of evidence, but 
reasonable standards of competency, relevancy, and materiality are 
observed for the receipt and consideration of evidence.
    (c) All testimony shall be given under oath or affirmation.


Sec.  52.57  Record of hearing.

    A hearing pursuant to this subpart in open session shall be 
recorded verbatim and, at the discretion of the Board or direction of 
the Secretary, shall be transcribed.

Subpart G--Judgment and Disposition


Sec.  52.61  Deliberations and decision.

    (a) The Board is convened at the call of the Chair and its meetings 
are recessed or adjourned by order of the Chair. Only members of the 
Board and its staff may be present during the deliberations of the 
Board. The Board's deliberations are conducted in executive session and 
are not reported.
    (b) When the Board finds that the facts have not been fully and 
fairly disclosed by the records, testimony, and any other evidence 
before the Board, the Board may request the applicant and/or the Coast 
Guard to obtain and submit such further evidence as it considers 
essential to a complete and impartial understanding of the facts and 
issues.
    (c) Following the receipt of all evidence, the Chair shall cause to 
be prepared and shall submit to the Board for its consideration a draft 
decision containing proposed findings and conclusions and a proposed 
order. A majority vote of the members of the Board present at a meeting 
on any matter relating to a draft decision before the Board shall 
constitute the action of the Board. If a draft decision is approved by 
the Board, it shall become a decision of the Board.
    (d) The decision of the Board shall specify any change, correction, 
or modification of records to be made by the Coast Guard, and any other 
action deemed necessary to provide full and effective relief, which may 
include directing the Coast Guard to convene medical boards.
    (e) If the Board deems it necessary to submit a comment or 
recommendation to the Secretary as to a matter arising from, but not 
directly related to, the issues in a case, it does so by separate 
communication.


Sec.  52.62  Minority report.

    In case of disagreement among Board members, a minority report may 
be submitted dissenting from or concurring with the decision of the 
Board.


Sec.  52.63  Record of proceedings.

    (a) The Board shall prepare a complete record of each proceeding. 
The record shall include the application for relief; the written views 
of the Coast Guard, if any; any transcript of testimony; affidavits and 
documents considered by the Board; briefs and

[[Page 76149]]

written arguments filed in the case; the findings, decisions, and 
recommendations of the Board; minority reports, if any; and all other 
materials necessary to reflect a true and complete history of the 
proceedings.
    (b) After final action has been taken on an application in 
accordance with Sec.  52.64, any classified, privileged, or sensitive 
information in the record of proceedings that has been provided by the 
Coast Guard or another Government office in accordance with Sec. Sec.  
52.42 or 52.43 shall be returned by the Board to the office from which 
it was received. Only a copy of the information provided by the Coast 
Guard or other Government office for release to the applicant in 
accordance with Sec.  52.43(c) shall be retained in the permanent 
record of proceedings after final action is taken.


Sec.  52.64  Final action.

    (a) The Board, provided that it acts unanimously, may take final 
action on behalf of the Secretary, pursuant to 10 U.S.C. 1552, as 
follows:
    (1) The Board may deny an application for the correction of 
military records.
    (2) Unless the Coast Guard, in submitting its views pursuant to 
Sec.  52.42(b), identifies and describes a significant issue of Coast 
Guard policy challenged in the application, the Board may approve an 
application for the correction of military records in any of the 
following categories:
    (i) An application to correct an enlistment or reenlistment 
contract or agreement to extend an enlistment for the purpose of 
effecting or increasing entitlement to a Selective Reenlistment Bonus;
    (ii) An application to modify an election to participate in the 
Survivor Benefit Plan;
    (iii) An application to change a reenlistment eligibility code;
    (iv) An application to correct the character of, or reason for, a 
discharge or separation; or
    (v) An application to receive a medal or award.
    (3) The Board may approve any application for correction of 
military records not included in one of the categories in paragraph 
(a)(2) of this section, if the Coast Guard recommends the same or 
substantially same relief as that requested by the applicant.
    (b) Except in cases where the Board takes final action under 
paragraph (a) of this section, the Board shall forward the record of 
its proceedings to the Secretary, who may approve, disapprove, or 
concur in the decision of the Board or the minority report, if any, 
either in whole or in part, and amend the order of the Board 
accordingly, or return the case to the Board for additional 
consideration. After taking final action, the Secretary shall send any 
such statement and the record of proceedings to the Board for 
disposition.


Sec.  52.65  Orders.

    (a) The Board shall issue such orders or directives as may be 
necessary to carry out a final action.
    (b) The Board may ask the Coast Guard to submit a written report to 
the Board specifying the action taken and the date thereof with respect 
to any final action.
    (c) Unless doing so is likely to nullify the relief granted, copies 
of the final decision shall be placed in the military record of the 
applicant.


Sec.  52.66  Notification.

    After final action is taken under Sec.  52.64, the Board shall send 
a copy of the final decision to the applicant. The applicant may 
inspect the permanent record of proceedings at Board offices.


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 and that could result in a 
determination other than that originally made. Such new 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 Chair 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 Chair shall 
not docket such request.
    (c) The Board shall consider each application for reconsideration 
that has been docketed. None of the Board members who served on the 
Board that considered an applicant's original application for 
correction shall serve on the Board that decides the applicant's 
application upon reconsideration.
    (d) Action by the Board on a docketed application for 
reconsideration is subject to Sec. Sec.  52.26 and 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 Chair 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.

Subpart H--Payment of Claims and Implementation of Orders


Sec.  52.71  Authority to pay.

    (a) The Coast Guard is authorized to pay the claims of any person 
as the result of any action heretofore or hereafter taken under 10 
U.S.C. 1552.
    (b) The Coast Guard is not authorized to pay any claim heretofore 
compensated by Congress through enactment of private law, or to pay any 
amount as compensation for any benefit to which the claimant might 
subsequently become entitled under the laws and regulations 
administered by the Secretary of Veterans Affairs.


Sec.  52.72  Implementation of orders.

    (a) In each case the Board shall transmit a copy of its decision or 
the Secretary's decision to the proper Coast Guard authority for 
determination of monetary benefits due, if any, as a result of the 
action of the Board and for corrections of the military record ordered 
by the Board.
    (b) Upon request, the claimant is required to furnish to the Board 
or to the Coast Guard any information necessary to determine the proper 
parties to the claim for payment under applicable provisions of law.
    (c) Appropriate records shall be examined in light of the Board's 
decision to determine all amounts which may be due. Amounts found due 
are subject to setoff in the amount of any existing indebtedness to the 
Government arising from Coast Guard service and to other setoffs 
required by law or regulation.
    (d) At the time of payment, the claimant shall be advised as to the 
nature and amount of the various benefits represented by the total 
settlement, and of the fact that acceptance of the settlement 
constitutes a complete release by the claimant of any claim against the 
United States on account of the correction of record ordered by the 
Board.


Sec.  52.73  Interpretation.

    If the intent or import of the final decision is not clear to the 
Coast Guard, if the Coast Guard believes that executing all or part of 
the order in the

[[Page 76150]]

final decision is beyond the Coast Guard's authority, or if the Coast 
Guard believes that the order is incomplete because of an oversight, 
the final decision shall be returned to the Board for clarification or 
technical amendment.


Sec.  52.74  Report of settlement.

    When payment is made pursuant to the order of the Board, the Board 
may request the Coast Guard to notify it of the name of any person to 
whom payment was made and of the amount of the payment.

Subpart I--Public Access to Decisions


Sec.  52.81  Reading room and index.

    After deleting only so much personal information as is necessary to 
prevent an unwarranted invasion of privacy of the applicant or other 
persons mentioned in the final decision of the Board, a redacted copy 
of each final decision shall be indexed by subject and made available 
for review and copying at a public reading room. Final decisions 
created on or after November 1, 1996, shall be made available by 
electronic means. 5 U.S.C. 552.

[FR Doc. 02-30933 Filed 12-10-02; 8:45 am]
BILLING CODE 4910-15-P