[Federal Register Volume 68, Number 41 (Monday, March 3, 2003)]
[Rules and Regulations]
[Pages 9882-9890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-4767]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

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, DOT.

ACTION: Final rule.

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SUMMARY: The Department is revising and reissuing the procedural 
regulations of the Coast Guard Board for Correction of Military Records 
(Board) in order to clarify application procedures; to explain 
applicants' legal rights and burden of proof; to provide more time and 
flexibility for applicants to improve their applications; and to 
facilitate timely decision making by the Board.

EFFECTIVE DATE: April 2, 2003.

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: 

Electronic Access

    Internet users may download a copy of this final rule at the 
following Internet addresses: http://dms.dot.gov; http://www.access.gpo.gov; http://www.archives.gov/federal_register. An 
electronic copy may also be obtained by using a computer, modem, and 
suitable communications software from the Government Printing Office's 
Electronic Bulletin Board Service at (202) 512-1661.

Background

    The Secretary of Transportation, acting through the 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 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 revision of 33 CFR Part 52 is intended

[[Page 9883]]

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 Secretary or his or her delegate 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 an Internet site.
    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. Moreover, no 
provision addresses applicants' requests for extensions 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 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 
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. All of these matters are addressed 
in the final rule.

Notice and Comment

    The Department published a Notice of Proposed Rulemaking on 
December 11, 2002, at 67 FR 76142. No comments were received in 
response to that notice. Therefore, this final rule adopts the proposed 
rule without change.

Section-by-Section Analysis of the Final Rule

Subpart A--Purpose and Authority

Section 52.1 Purpose
    This section remains unchanged.
Section 52.2 Authority
    This section is 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 Part 52, the term Chair is 
substituted for the term Chairman to establish gender neutrality. This 
section is also amended to remove a citation to 49 U.S.C. 108(a).
Section 52.12 Function
    This section is 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 have been made to this section.

Subpart C--General Provisions Regarding Applications

Section 52.21 General Requirements
    No changes have been made to paragraph (a). Paragraph (b) is 
amended to inform family members and legal representatives that they 
must submit proof of their proper interest when applying to the Board 
for the correction of the military record of a deceased or incompetent 
veteran. Paragraph (c) is 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) is 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) is 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 is reworded to clarify why an applicant must provide 
reasons

[[Page 9884]]

for submitting an application after the three-year statute of 
limitations has passed.
Section 52.23 Counsel
    Paragraph (a) is 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 appears in 
paragraph (b) and is 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) is 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 Sec.  52.26. 
Paragraph (b) is 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 is 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 incorporates the provisions in old 
Sec. Sec.  52.68 and 52.61(c), informs applicants of their right to a 
final decision on their applications within ten months of the 
completion of their applications. It also permits applicants to request 
extensions, submit evidence after their applications have been 
docketed, and alter their requests for relief without waiving their 
right to a timely decision. It provides that, if an applicant requests 
an extension or unreasonably delays responding to a request from the 
Board, the Board's ten-month deadline is extended by the duration of 
the extension or of the unreasonable delay. It further provides 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 is considered newly completed and the applicant has 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) is 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 have been made to this section (old Sec.  52.33), apart 
from its renumbering. It has been 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 is 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 is renamed and expanded to clarify the circumstances 
under which the Chair may close a case without prejudice and without 
Board action. Paragraph (a) permits 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) requires the Chair to inform applicants of their right to 
reapply whenever he or she administratively closes a case.
Old Sec.  52.33 Stay of Proceedings
    This old section has been renumbered as Sec. 52.28.

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

    This new subpart E embodies old Subpart--Miscellaneous Provisions. 
It has been renamed and repositioned to better reflect its contents and 
the order of the Board's procedures. Old subpart E is included in 
subpart F.
Section 52.41 Assistance
    No changes have been made to 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)) is amended to reflect the 
amendments to sections 52.21 and 52.32. Paragraphs (a) and (b) (old 
Sec.  52.82(c)) are 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)) is 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 rule facilitates 
timely decisions when submissions of advisory opinions by the Coast 
Guard are delayed to the point where little or no time remains for the 
Board to receive the applicant's response to the advisory opinion, 
issue a 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)) increases the time provided for the applicant's 
response to the advisory opinion from 15 to 30 days and allows the 
Chair to grant extensions of the time to respond. Paragraph (e), which 
is new, requires 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)) has been 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 incorporates 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 have been made to this section (old Sec.  52.41).

[[Page 9885]]

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 have 
been made to this section (old Sec.  52.42).
Section 52.53 Witnesses
    This section (old Sec.  52.43) has been 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) has been 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 has been made to 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 
have been made to this section (old Sec.  52.51).
Section 52.57 Record of Hearing
    No change has been made to 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 
Chairman have been made to paragraphs (a) and (b). Old paragraph (c) is 
amended and moved to paragraphs 52.24(a) and 52.26(c). New paragraph 
(c) (old paragraph (d)) is 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)) is 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 have been made to paragraph (e) (old paragraph 
(f)).
Section 52.62 Minority Report
    No changes have been made to this section.
Section 52.63 Record of Proceedings
    Paragraph (a) contains the existing, unamended text of this 
section. Paragraph (b) has been 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) is 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) is also 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) is 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 have been made to this section.
Section 52.66 Notification
    This section is amended to make only the permanent record of 
proceedings, as compiled in accordance with Sec.  52.63(b), available 
for the applicant's inspection.
Section 52.67 Reconsideration
    In paragraphs (a), (b), and (e), the term Chair is substituted for 
the term Chairman. Paragraph (a)(1) is amended for clarification. 
Paragraph (c) is amended to better explain who can serve on a Board to 
reconsider a case. Paragraph (d) is amended to make applications for 
reconsideration subject to the provisions in Sec.  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 has been incorporated into Sec. 52.26.

Subpart H--Payment of Claims and Implementation of Orders

Section 52.71 Authority To Pay
    No changes have been made to this section.
Section 52.72 Implementation of Orders
    This section is renamed for clarity and the words ``shall 
transmit'' are substituted for the word ``transmits.'' Paragraph (b) is 
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) is 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 is 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 have been made to this section.

Subpart I--Public Access to Decisions

    The old Subpart I--Miscellaneous Provisions is repositioned and 
renamed as Subpart E--Submissions by the Coast Guard and Other Offices.
Section 52.81 Reading Room and Index
    This new section informs 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 Internet.

Regulatory Analyses and Notices

Executive Order 12866

    This 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 are negligible, their effect on 
industry is negligible, and they are not of general policy interest.

Regulatory Flexibility Act and Federalism

    Under 5 U.S.C. 604, we certify that this rule will not have a 
significant economic impact on a substantial number of small entities 
because it will 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

[[Page 9886]]

to warrant the preparation of a Federalism assessment.

Paperwork Reduction Act

    This final rule does not have any information collection 
requirements subject to review under the Paperwork Reduction Act.

Lists of Subjects in 33 CFR Part 52

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

    Issued this 14th day of February 2003 at Washington, DC.
Norman Y. Mineta,
Secretary of Transportation.

    For the reasons set forth in the preamble, the Department revises 
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.
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

[[Page 9887]]

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 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.  
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

[[Page 9888]]

    (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, 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

[[Page 9889]]

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 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

[[Page 9890]]

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 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. 03-4767 Filed 2-28-03; 8:45 am]
BILLING CODE 4910-62-P