§ 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 § 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.*
( 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 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.
Footnotes -
865.4
[2] Copies may be obtained via the Internet at *http://www.dtic.mil/whs/directives/corres/pdf/705006p.pdf .*