[Federal Register Volume 75, Number 3 (Wednesday, January 6, 2010)]
[Rules and Regulations]
[Pages 746-748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-31231]


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DEPARTMENT OF DEFENSE

Department of the Navy

32 CFR Part 724

[No. USN-2008-0009]
RIN 0703-AA86


Naval Discharge Review Board

AGENCY: Department of the Navy, DoD.

ACTION: Final rule.

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SUMMARY: The Department of the Navy amends its rules under 32 CFR Part 
724 to reflect the name change of the Naval Council of Personnel Boards 
to the Secretary of the Navy Council of Review Boards and to update 
other administrative information pertaining to the Naval Discharge 
Review Board.

DATES: This rule is effective January 6, 2010.

FOR FURTHER INFORMATION CONTACT: Lieutenant Commander Tanya M. Cruz, 
JAGC, U.S. Navy, Office of the Judge Advocate General (Administrative 
Law), Department of the Navy, 1322 Patterson Ave., SE., Suite 3000, 
Washington Navy Yard, DC 20374-5066, telephone: 703-614-7403.

SUPPLEMENTARY INFORMATION: The Department of the Navy published a 
proposed rule at 74 FR 31222 on June 30, 2009, amending 32 CFR Part 724 
to reflect the name change of the Naval Council of Personnel Boards to 
the Secretary of the Navy Council of Review Boards and to update other 
administrative information pertaining to the Naval Discharge Review 
Board, including the administration and management of Naval Discharge 
Review Board (NDRB) Panels within the National Capital Region (NCR) and 
other selected sites. Comments were submitted on the proposed rule.

Analysis of Comments and Changes

    Comment. A commentator expressed disagreement with the 
determination that the proposed changes do not constitute significant 
regulatory action, stating that the proposed rule impacts due process 
rights pertaining to the NDRB. The Department disagrees with this 
comment. The proposed rule does not restrict any qualified applicant 
from requesting the NDRB to conduct a review of a discharge from the 
naval service. The proposed rule amends applicable regulations for 
purposes of clarifying the administration and management of the NDRB 
Panels within the NCR and other selected sites. In addition, the 
proposed rule updates administrative information relating to the 
Secretary of the Navy Council of Review Boards and the NDRB. The 
proposed rule does not meet requirements under Executive Order 12866, 
``Regulatory Planning and Review,'' to be considered a significant 
regulatory action.
    Comment. A commentator disagreed with the proposed changes to 32 
CFR Parts 724.221, 724.222, 724.501, and 724.601, stating that the 
proposed changes impair the possibility of traveling boards. The 
Department disagrees with this interpretation of the proposed changes. 
The proposed rule amends applicable regulations for purposes of 
clarifying the administration and management of NDRB Panels within the 
NCR and other selected sites. The current regulations provide for the 
NDRB Panels to travel to other selected sites within the contiguous 48 
states as permitted by available resources. The current regulations 
also provide that the selection of sites and frequency of visits shall 
be predicated on the number of requests pending within a region. The 
proposed rule is consistent with applicable regulations and does not 
eliminate the right to appear before the NDRB. However, upon further 
consideration, the Department has decided not to adopt the changes as 
proposed regarding NDRB traveling panels under 32 CFR Parts 724.221, 
724.222, 724.501 and 724.601.
    Comment. A commentator sought clarification under 32 CFR Part 
724.504, regarding the text ``if required;'' specifically, whether this 
text was intended to modify ``health record,'' or ``health record'' and 
``service record.'' The proposed change only pertains to medical 
records. For purposes of clarity, the text ``if required'' has been 
inserted before the words ``health records'' in the final rule.
    The written comments received were fully considered in making the 
final amendments to 32 CFR Part 724. It has been determined that this 
final rule amendment is not a major rule within the criteria specified 
in Executive Order 12866, as amended by Executive Order 13258, and does 
not have substantial impact on the public.

Matters of Regulatory Procedure

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

    It has been determined that 32 CFR Part 724 is not a significant 
regulatory action. The 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

[[Page 747]]

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 724 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 96-511. ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been certified that 32 CFR Part 724 does not impose any 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995 (44 U.S.C. Chapter 35).

Federalism (Executive Order 13132)

    It has been certified that 32 CFR Part 724 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 724

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

0
For the reasons set forth in the preamble, the Department of the Navy 
amends 32 CFR Part 724 as follows:

PART 724--NAVAL DISCHARGE REVIEW BOARD

0
1. The authority citation for Part 724 continues to read as follows:

    Authority: 5 U.S.C. 301; 10 U.S.C. 1553.


0
2. Section 724.116 is amended by revising the section heading to read 
as follows:


Sec.  724.116  Counsel/Representative.

* * * * *


Sec.  724.118  [Amended]

0
3. Section 724.118 is amended by removing ``and medical'' in the second 
sentence.

0
4. Section 724.201 is revised to read as follows:


Sec.  724.201  Authority.

    The Naval Discharge Review Board, established pursuant to 10 U.S.C. 
1553, is a component of the Secretary of the Navy Council of Review 
Boards. On December 6, 2004, the Assistant Secretary of the Navy 
(Manpower & Reserve Affairs) approved the change in name from Naval 
Council of Personnel Boards to Secretary of the Navy Council of Review 
Boards. By SECNAVINST 5730.7 series, the Assistant Secretary of the 
Navy (Manpower and Reserve Affairs) is authorized and directed to act 
for the Secretary of the Navy within his/her assigned area of 
responsibility and exercises oversight over the Secretary of the Naval 
Council of Review Boards. SECNAVINST 5420.135 series states the 
organization, mission, duties and responsibilities of the Secretary of 
the Naval Council of Review Boards to include the Naval Discharge 
Review Board. The Chief of Naval Operations established the Office of 
Naval Disability Evaluation and the Navy Council of Personnel Boards on 
1 October 1976 (OPNAVNOTE 5450 Ser 09b26/535376 of 9 Sep 1976 (Canc 
frp: Apr 77)). The Chief of Naval Operations approved the change in 
name of the Office of Naval Disability Evaluation and Navy Council of 
Personnel Boards to Naval Council of Personnel Boards on 1 February 
1977 (OPNAVNOTE 5450 Ser 099b26/32648 of 24 Jan 1977 (Canc frp: Jul 
77)) with the following mission Statement:
    To administer and supervise assigned boards and councils.


Sec.  724.223  [Amended]

0
5. Section 724.223 is amended in paragraph (d) by removing ``NCPB'' and 
adding ``NDRB'' in its place.

Subpart C--Director, Secretary of the Navy Council of Review Boards 
and President Naval Discharge Review Board; Responsibilities in 
Support of the Naval Discharge Review Board

0
6. The Subpart C heading is revised to read as set forth above.

0
7. Section 724.302 is amended as follows:
0
a. The section heading is revised to read as set forth below; and
0
b. Paragraph (h) is amended by removing ``Naval Council of Personnel 
Boards'' and adding ``Secretary of the Navy Council of Review Boards'' 
in its place.


Sec.  724.302  Functions: Director, Secretary of the Navy Council of 
Review Boards.

* * * * *


Sec.  724.303  [Amended]

0
8. Section 724.303 is amended in paragraph (e) by removing ``5211.5C'' 
and adding ``5211.5 series'' in its place.


Sec.  724.501  [Amended]

0
9. Section 724.501 is amended in paragraph (e) by removing 
``withdrawn'' and adding ``withdraw'' in its place.


Sec.  724.502  [Amended]

0
10. Section 724.502 is amended as follows:
0
a. Paragraph (c) is amended by removing ``Suite 905--801 North Randolph 
Street, Arlington, VA 22203'' and adding ``720 Kennon Ave SE., Suite 
309, Washington, DC 20374-5023'' in its place; and
0
b. Paragraph (d) is amended by removing ``696-4881'' and adding ``685-
6600'' in its place.


Sec.  724.504  [Amended]

0
11. Section 724.504 is amended in paragraph (a) by adding ``, if 
required,'' prior to ``health record.''


Sec.  724.601  [Amended]

0
12. Section 724.601 is amended by removing ``Naval Council of Personnel 
Boards'' and adding ``Secretary of the Navy Council of Review Boards'' 
in its place.

0
13. Section 724.701 is amended as follows:
0
a. The introductory text is amended by removing ``Naval Council of 
Personnel Boards'' and adding ``Secretary of the Navy Council of Review 
Boards'' in its place; and
0
b. Paragraph (c) is revised to read as follows:


Sec.  724.701  Composition.

* * * * *
    (c) Normally, at least three of the five members of the NDRB shall 
belong to the service from which the applicant whose case is under 
review was discharged.
* * * * *

0
14. Section 724.703 is revised to read as follows:


Sec.  724.703  Legal counsel.

    Normally, the NDRB shall function without the immediate attendance 
of legal counsel. In the event that a legal advisory opinion is deemed 
appropriate by the NDRB, such opinion shall be obtained routinely by 
reference to the

[[Page 748]]

Counsel assigned to the Office of the Director, Secretary of the Navy 
Council of Review Boards. In addition, the NDRB may request advisory 
opinions from staff offices of the Department of the Navy, including, 
but not limited to the General Counsel and the Judge Advocate General.

    Dated: December 28, 2009.
A.M. Vallandingham,
Lieutenant Commander, Judge Advocate General's Corps, U.S. Navy, 
Federal Register Liaison Officer.
[FR Doc. E9-31231 Filed 1-5-10; 8:45 am]
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