[Federal Register Volume 74, Number 134 (Wednesday, July 15, 2009)]
[Proposed Rules]
[Pages 34279-34283]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-16338]


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DEPARTMENT OF DEFENSE

Department of the Air Force

32 CFR Part 865

[Docket No. USAF-2008-0002]
RIN 0701-AA74


Personnel Review Boards

AGENCY: Department of the Air Force, Department of Defense.

ACTION: Proposed rule.

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SUMMARY: The Department of the Air Force is proposing to amend part 865 
of Chapter VII, Title 32, Code of Federal Regulations, by revising 
Subpart A, Air Force Board for Correction of Military Records. Subpart 
A establishes procedures for the consideration of applications for the 
correction of military records and provides guidance to applicants and 
others interested in the process. This revision incorporates format 
changes and clarifies various minor provisions of the subpart. The 
public is invited to participate in this rulemaking by submitting 
comments to the point of contact listed below.

DATES: Interested parties should submit written comments on or before 
September 14, 2009.

ADDRESSES: You may submit comments, identified by docket number and/or 
RIN number and title, by any of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, OSD Mailroom 3C843, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any 
personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Mr Algie Walker Jr. at (240) 857-5380, 
[email protected]

SUPPLEMENTARY INFORMATION:

Executive Order 12866, ``Regulatory Planning and Review''

    It has been determined that 32 CFR part 865 is not a significant 
regulatory action. This rule does not:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of the 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

    It has been certified that 32 CFR Part 865 does not contain a 
Federal Mandate that may result in the expenditure by State, local and 
Tribal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been determined that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.

Public Law 95-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been certified that 32 CFR part 865 does not impose any 
additional reporting or recordkeeping requirements under the Paperwork 
Reduction Act of 1995 (44 U.S.C. Chapter 35). Existing reporting and 
recordkeeping requirements approved under OMB Control Number 0704-0003, 
Application for Correction of Military Record Under the Provisions of 
Title 10, U.S. Code, Section 1552, will be used.

Federalism (Executive Order 13132)

    It has been certified that 32 CFR Part 865 does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (1) The States;
    (2) The relationship between the National Government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of government.

List of Subjects in 32 CFR Part 865

    Administrative practices and procedures, Military personnel, 
Records.

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

PART 865--PERSONNEL REVIEW BOARDS

    1. The authority citation for 32 CFR part 865 continues to read as 
follows:

    Authority: 10 U.S.C. 1034, 1552.2.

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

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


Sec.  865.0  Purpose.

    This subpart sets up procedures for correction of military records 
to remedy error or injustice. It tells how to apply for correction of 
military records and how the Air Force Board for Correction

[[Page 34280]]

of Military Records (AFBCMR, or the Board) considers applications. It 
defines the Board's authority to act on applications. It directs 
collecting and maintaining information subject to the Privacy Act of 
1974 authorized by 10 U.S.C. 1034 and 1552. System of Records notice 
F035 SAFCB A, Military Records Processed by the Air Force Correction 
Board, applies.


Sec.  865.1  Setup of the Board.

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


Sec.  865.2  Board responsibilities.

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


Sec.  865. 3  Application procedures.

    (a) Who May Apply:
    (1) In most cases, the applicant is a member or former member of 
the Air Force, since the request is personal to the applicant and 
relates to his or her military records.
    (2) An applicant with a proper interest may request correction of 
another person's military records when that person is incapable of 
acting on his or her own behalf, is missing, or is deceased. Depending 
on the circumstances, a child, spouse, civilian employee or former 
civilian employee, former spouse, parent or other close relative, an 
heir, or a legal representative (such as a guardian or executor) of the 
member or former member may be able to show a proper interest. 
Applicants will send proof of proper interest with the application when 
requesting correction of another person's military records. An 
application may be returned when proper interest has not been shown.
    (3) A member, former member, employee or former employee, 
dependent, and current or former spouse may apply to correct a document 
or other record of any other military matter that affects them (This 
does not include records pertaining to civilian employment matters). 
Applicants will send proof of the effect of the document or record upon 
them with the application when requesting a correction under this 
provision.
    (b) Getting Forms. Applicants may get a DD Form 149, ``Application 
for Correction of Military Record Under the Provisions of Title 10, 
U.S.C., 1552,'' and Air Force Pamphlet 36-2607, Applicants' Guide to 
the Air Force Board for Correction of Military Records (AFBCMR), from:
    (1) Any Air Force Military Personnel Flight (MPF) or publications 
distribution office.
    (2) Most veterans' service organizations.
    (3) The Air Force Review Boards Office, SAF/MRBR, 550 C Street 
West, Suite 40, Randolph AFB TX 78150-4742.
    (4) The AFBCMR, 1535 Command Drive, EE Wing 3rd Floor, Andrews AFB 
MD 20762-7002.
    (5) Thru the Internet at http://www.dtic.mil/whs/directives/infomgt/forms/eforms/dd0149.pdf (DD Form 149) and http://www.e-publishing.af.mil/shared/media/epubs/AFPAM36-2607.pdf (Air Force 
Pamphlet 36-2607).
    (c) Preparation. Before applying, applicants should:
    (1) Review Air Force Pamphlet 36-2607.
    (2) Discuss their concerns with MPF, finance office, or other 
appropriate officials. Errors can often be corrected administratively 
without resort to the Board.
    (3) Exhaust other available administrative remedies (otherwise the 
Board may return the request without considering it).
    (d) Submitting the Application. Applicants should complete all 
applicable sections of the DD Form 149, including at least:
    (1) The name under which the member served.
    (2) The member's social security number or Air Force service 
number.
    (3) The applicant's current mailing address.
    (4) The specific records correction being requested.
    (5) Proof of proper interest if requesting correction of another 
person's records.
    (6) The applicant's original signature.
    (e) Applicants should mail the original signed DD Form 149 and any 
supporting documents to the Air Force address on the back of the form.
    (f) Meeting Time Limits. Ordinarily, applicants must file an 
application within 3 years after the error or injustice was discovered, 
or, with due diligence, should have been discovered. In accordance with 
Federal law, time on active duty is not included in the 3 year period. 
An application filed later is untimely and may be denied by the Board 
on that basis.
    (1) The Board may excuse untimely filing in the interest of 
justice.
    (2) If the application is filed late, applicants should explain why 
it would be in the interest of justice for the Board to waive the time 
limits.
    (g) Stay of Other Proceedings. Applying to the AFBCMR does not stay 
other proceedings.
    (h) Counsel Representation. Applicants may be represented by 
counsel, at their own expense.
    (1) The term ``counsel'' includes members in good standing of the 
bar of any State, accredited representatives of veterans' organizations 
recognized under by the Secretary of Veterans Affairs pursuant to 38 
U.S.C. 5902(a)(1), and other persons determined by the Executive 
Director of the Board to be competent to represent the interests of the 
applicant.
    (2) See DoDD 7050.06, Military Whistleblower Protection \1\ and AFI 
90-301, Inspector General Complaints Resolution, for special provisions 
for counsel in cases processed under 10 U.S.C. 1034.
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    \1\ Available via the Internet at http://www.dtic.mil/whs/directives/corres/pdf/705006p.pdf.
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    (i) Page Limitations on Briefs. Briefs in support of applications:
    (1) May not exceed 25 double-spaced typewritten pages.
    (2) Must be typed on one side of a page only with not more than 12 
characters per inch.
    (3) Must be assembled in a manner that permits easy reproduction.
    (4) Responses to advisory opinions must not exceed 10 double-spaced 
typewritten pages and meet the other requirements for briefs.
    (5) These limitations do not apply to supporting documentary 
evidence.
    (6) In complex cases and upon request, the Executive Director of 
the Board may waive these limitations.
    (j) Withdrawing Applications. Applicants may withdraw an 
application at any time before the Board's decision. Withdrawal does 
not stay the 3-year time limit.

[[Page 34281]]

    (k) Authority to Reject Applications. The Executive Director may 
return an application without action, if, after consultation with legal 
counsel, he or she determines that the application is clearly 
frivolous, or the remedy that is requested is beyond the authority of 
the Board. This authority may not be delegated.


Sec.  865.4  Board actions.

    (a) Board Information Sources. The applicant has the burden of 
providing sufficient evidence of material error or injustice. However, 
the Board:
    (1) May get additional information and advisory opinions on an 
application from any Air Force organization or official.
    (2) May ask the applicant to furnish additional information 
regarding matters before the Board.
    (b) Applicants will be given an opportunity to review and comment 
on advisory opinions and additional information obtained by the Board. 
They will also be provided with a copy of correspondence to or from the 
Air Force Review Boards Agency with an entity outside the Air Force 
Review Boards Agency in accordance with the provisions of 10 U.S.C. 
1556.
    (c) Consideration by the Board. A panel consisting of at least 
three board members considers each application. One panel member serves 
as its chair. The panel's actions and decisions constitute the actions 
and decisions of the Board.
    (d) The panel may decide the case in executive session or authorize 
a hearing. When a hearing is authorized, the procedures in Sec.  
865.4(f), of this part, apply.
    (e) Board Deliberations. Normally only members of the Board and 
Board staff will be present during deliberations. The panel chair may 
permit observers for training purposes or otherwise in furtherance of 
the functions of the Board.
    (f) Board Hearings. The Board in its sole discretion determines 
whether to grant a hearing. Applicants do not have a right to a hearing 
before the Board.
    (1) The Executive Director will notify the applicant or counsel, if 
any, of the time and place of the hearing. Written notice will be 
mailed 30 days in advance of the hearing unless the notice period is 
waived by the applicant. The applicant will respond not later than 15 
days before the hearing date, accepting or declining the offer of a 
hearing and, if accepting, provide information pertaining to counsel 
and witnesses. The Board will decide the case in executive session if 
the applicant declines the hearing or fails to appear.
    (2) When granted a hearing, the applicant may appear before the 
Board with or without counsel and may present witnesses. It is the 
applicant's responsibility to notify witnesses, arrange for their 
attendance at the hearing, and pay any associated costs.
    (3) The panel chair conducts the hearing, maintains order, and 
ensures the applicant receives a full and fair opportunity to be heard. 
Formal rules of evidence do not apply, but the panel observes 
reasonable bounds of competency, relevancy, and materiality. Witnesses 
other than the applicant will not be present except when testifying. 
Witnesses will testify under oath or affirmation. A recorder will 
record the proceedings verbatim. The chair will normally limit hearings 
to 2 hours but may allow more time if necessary to ensure a full and 
fair hearing.
    (4) Additional provisions apply to cases processed under 10 U.S.C. 
1034. See DoDD 7050.06, Military Whistleblower Protection \2\, and AFI 
90-301, Inspector General Complaints Resolution.
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    \2\ Copies may be obtained via the Internet at http://www.dtic.mil/whs/directives/corres/pdf/705006p.pdf.
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    (g) The Board will not deny or recommend denial of an application 
on the sole ground that the issue already has been decided by the 
Secretary of the Air Force or the President of the United States in 
another proceeding.
    (h) Board Decisions. The panel's majority vote constitutes the 
action of the Board. The Board will make determinations on the 
following issues in writing:
    (1) Whether the provisions of the Military Whistleblowers 
Protection Act apply to the application. This determination is needed 
only when the applicant invokes the protection of the Act, or when the 
question of its applicability is otherwise raised by the evidence.
    (2) Whether the application was timely filed and, if not, whether 
the applicant has demonstrated that it would be in the interest of 
justice to excuse the untimely filing. When the Board determines that 
an application is not timely, and does not excuse its untimeliness, the 
application will be denied on that basis.
    (3) Whether the applicant has exhausted all available and effective 
administrative remedies. If the applicant has not, the application will 
be denied on that basis.
    (4) Whether the applicant has demonstrated the existence of a 
material error or injustice that can be remedied effectively through 
correction of the applicant's military record and, if so, what 
corrections are needed to provide full and effective relief.
    (5) In Military Whistleblowers Protection Act cases only, whether 
to recommend to the Secretary of the Air Force that disciplinary or 
administrative action be taken against any Air Force official whom the 
Board finds to have committed an act of reprisal against the applicant. 
Any determination on this issue will not be made a part of the Board's 
record of proceedings and will not be given to the applicant, but will 
be provided directly to the Secretary of the Air Force under separate 
cover (Sec 865.2b, of this part).
    (i) Record of Proceedings. The Board staff will prepare a record of 
proceedings following deliberations which will include:
    (1) The name and vote of each Board member.
    (2) The application.
    (3) Briefs and written arguments.
    (4) Documentary evidence.
    (5) A hearing transcript if a hearing was held.
    (6) Advisory opinions and the applicant's related comments.
    (7) The findings, conclusions, and recommendations of the Board.
    (8) Minority reports, if any.
    (9) Other information necessary to show a true and complete history 
of the proceedings.
    (j) Minority Reports. A dissenting panel member may prepare a 
minority report which may address any aspect of the case.
    (k) Separate Communications. The Board may send comments or 
recommendations to the Secretary of the Air Force as to administrative 
or disciplinary action against individuals found to have committed acts 
of reprisal prohibited by the Military Whistleblowers Protection Act 
and on other matters arising from an application not directly related 
to the requested correction of military records. Such comments and 
recommendations will be separately communicated and will not be 
included in the record of proceedings or given to the applicant or 
counsel.
    (l) Final Action by the Board. The Board acts for the Secretary of 
the Air Force and its decision is final when it:
    (1) Denies any application (except under 10 U.S.C. 1034).
    (2) Grants any application in whole or part when the relief was 
recommended by the official preparing the advisory opinion, was 
unanimously agreed to by the panel, and does not affect an appointment 
or promotion requiring confirmation by the Senate., and does not affect 
a matter for which the

[[Page 34282]]

Secretary of the Air Force or his or her delegee has withheld decision 
authority or required notification before final decision.
    (3) The Board sends the record of proceedings on all other 
applications to the Secretary of the Air Force or his or her designee 
for final decision.
    (m) The Board may identify DoD or Air Force policies, instructions, 
guidance or practices that are leading to, or likely to lead to unsound 
business decisions, unfair results, waste of government funds or public 
criticism. The Board will forward such observations directly to the 
appropriate offices of the Secretariat and/or Air Staff for review and 
evaluation. Such observations will not be included in the record of 
proceedings.


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

    (a) The Secretary may direct such action as he or she deems 
appropriate on each case, including returning the case to the Board for 
further consideration. Cases returned to the Board for further 
reconsideration will be accompanied by a brief statement of the reasons 
for such action. If the Secretary does not accept the Board's 
recommendation, the Secretary's decision will be in writing and will 
include a brief statement of the grounds for his/her final decision.
    (b) Decisions in Cases Under the Military Whistleblowers Protection 
Act. The Secretary will issue decisions on such cases within 180 days 
after receipt of the case and will, unless the full relief requested is 
granted, inform applicants of their right to request review of the 
decision by the Secretary of Defense (SecDef). Applicants will also be 
informed:
    (1) Of the name and address of the official to whom the request for 
review must be submitted.
    (2) That the request for review must be submitted within 90 days 
after receipt of the decision by the Secretary of the Air Force.
    (3) That the request for review must be in writing and include the 
applicant's name, address, and telephone number; a copy of the 
application to the AFBCMR and the final decision of the Secretary of 
the Air Force; and a statement of the specific reasons the applicant is 
not satisfied with the decision of the Secretary of the Air Force.
    (4) That the request must be based on the Board record; requests 
for review based on factual allegations or evidence not previously 
presented to the Board will not be considered under this paragraph but 
may be the basis for reconsideration by the Board under Sec.  865.6.
    (c) In cases under Sec.  865.5(b) of this part which involve 
additional issues not cognizable under that paragraph, the additional 
issues may be considered separately by the Board under Sec.  865.3 and 
Sec.  865.4 of this part. The special time limit in Sec.  865.5 (b) 
does not apply to the decision concerning these additional issues.
    (d) Decisions in High Profile or Sensitive Cases. Prior to taking 
final action on a BCMR application that has generated, or is likely to 
generate, significant public or Congressional interest, the Secretarial 
designee will provide the case record of proceedings through 
Secretarial channels to OSAF so that the Secretary can determine 
whether to decide the case personally or take other action the 
Secretary deems appropriate.


Sec.  865.6  Reconsideration of applications.

    (a) The Board may reconsider an application if the applicant 
submits newly discovered relevant evidence that was not reasonably 
available when the application was previously considered. The Executive 
Director or Team Chiefs will screen each request for reconsideration to 
determine whether it contains new evidence. New arguments about, or 
analysis of, evidence already considered, and additional statements 
which are cumulative to those already in the record of proceedings will 
not be considered new evidence.
    (b) If the request contains new evidence, the Executive Director or 
his/her designee will refer it to a panel of the Board for a decision. 
The Board will decide the relevance and weight of any new evidence, 
whether it was reasonably available to the applicant when the 
application was previously considered, and whether it was submitted in 
a timely manner. The Board may deny reconsideration if the request does 
not meet the criteria for reconsideration. Otherwise the Board will 
reconsider the application and decide the case either on timeliness or 
merit as appropriate.
    (c) If the request does not contain new evidence, the Executive 
Director or his/her designee will return it to the applicant without 
referral to the Board.


Sec.  856.7  Action after final decision.

    (a) Action by the Executive Director. The Executive Director or 
his/her designee will inform the applicant or counsel, if any, of the 
final decision on the application. If any requested relief was denied, 
the Executive Director will advise the applicant of reconsideration 
procedures and, for cases processed under the Military Whistleblowers 
Protection Act, review by the SecDef. The Executive Director will send 
decisions requiring corrective action to the Chief of Staff, U.S. Air 
Force, for necessary action.
    (b) Settlement of Claims. The Air Force is authorized, under 10 
U.S.C. 1552, to pay claims for amounts due to applicants as a result of 
correction of military records.
    (1) The Executive Director will furnish the Defense Finance and 
Accounting Service (DFAS) with AFBCMR decisions potentially affecting 
monetary entitlement or benefits. DFAS will treat such decisions as 
claims for payment by or on behalf of the applicant.
    (2) DFAS settles claims on the basis of the corrected military 
record. Computation of the amount due, if any, is a function of DFAS. 
Applicants may be required to furnish additional information to DFAS to 
establish their status as proper parties to the claim and to aid in 
deciding amounts due.
    (3) Earnings received from civilian employment during any period 
for which active duty pay and allowances are payable will be deducted 
from the settlement. Amounts found due will be offset by the amount of 
any existing indebtedness to the government in compliance with the Debt 
Collection Act of 1982 or successor statutes.
    (c) Public Access to Decisions. After deletion of personal 
information, AFBCMR decisions will be made available for review and 
copying at an electronic public reading room.


Sec.  865.8  Miscellaneous provisions.

    (a) At the request of the Board, all Air Force activities and 
officials will furnish the Board with:
    (1) All available military records pertinent to an application.
    (2) An advisory opinion concerning an application. The advisory 
opinion will include an analysis of the facts of the case and of the 
applicant's contentions, a statement of whether or not the requested 
relief can be done administratively, and a recommendation on the 
timeliness and merit of the request. Regardless of the recommendation, 
the advisory opinion will include instructions on specific corrective 
action to be taken if the Board grants the application.
    (b) Access to Records. Applicants will have access to all records 
considered by the Board, except those classified or privileged. To the 
extent practicable, applicants will be provided unclassified or 
nonprivileged summaries or extracts of such records considered by the 
Board.

[[Page 34283]]

    (c) Payment of Expenses. The Air Force has no authority to pay 
expenses of any kind incurred by or on behalf of an applicant in 
connection with a correction of military records under 10 U.S.C. 1034 
or 1552.
    (d) Form Adopted: DD Form 149.

Bao-Anh Trinh,
Air Force Federal Register Liaison Officer.
 [FR Doc. E9-16338 Filed 7-14-09; 8:45 am]
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