[Federal Register Volume 61, Number 94 (Tuesday, May 14, 1996)]
[Rules and Regulations]
[Pages 24233-24235]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-12030]



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DEPARTMENT OF TRANSPORTATION

Office of the Secretary
Coast Guard

33 CFR Part 52

[OST Docket No. OST-95-878]
RIN 2105-AC31


Coast Guard Board for Correction of Military Records; Procedural 
Regulation

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

ACTION: Final Rule.

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SUMMARY: The Department is amending its regulation with respect to 
reconsideration of final decisions of the Board for Correction of 
Military Records of the Coast Guard (BCMR). This action is taken on the 
Department's initiative in order to streamline processing of these 
cases and to clarify the circumstances under which final decisions can 
be reconsidered. The amendment will make it possible for the BCMR to 
expedite the processing of reconsideration requests and it will 
increase the resources available to meet the requirement that all cases 
be decided within 10 months of the receipt of a completed application.

EFFECTIVE DATE: June 13, 1996.

FOR FURTHER INFORMATION CONTACT: Robert H. Joost, Chairman, Board for 
Correction of Military Records of the Coast Guard, C-60, Office of the 
General Counsel, U.S. Department of Transportation, 400 Seventh Street, 
SW, Washington, D.C. 20590-0001. Telephone: (202) 366-9335.

SUPPLEMENTARY INFORMATION:

Comments on Proposed Rulemaking

    Proposed rulemaking was published on pages 63489-63491 of the 
Federal Register of December 11, 1995 [60 FR 63489], and invited 
comments for 60 days ending February 9, 1996. Comments were received 
from the following sources: (1) Eugene R. Fidell, Esq., an attorney in 
private practice; and (2) Michael J. Calabro, Esq., an attorney in 
private practice. The comments and the actions taken in response to the 
comments are summarized below.
    Both attorneys expressed concern with respect to the amount of time 
that

[[Page 24234]]

may be consumed in processing a reconsideration request. The BCMR 
appreciates this concern, but believes that delay, which is a problem 
in the current reconsideration process, would be significantly reduced 
under the proposed rule. The proposed rule, by eliminating duplicative 
review of a reconsideration application, as required by the current 
Sec. 52.67(c), and by providing for an expedited process in handling 
facially defective reconsideration requests, will require less time per 
reconsideration request than the current rule.
    One of the commenting attorneys questioned the authority given to 
the Chairman in proposed Sec. 52.67(b) on the ground that the enabling 
statute (10 U.S.C. Sec. 1552) requires BCMR decisions to be made by the 
Secretary acting through a board. That is true, but it is only true 
with respect to an original decision. Section 1552 of title 10 does not 
provide for, nor does it prohibit, the reconsideration of original 
decisions. Reconsideration authority has been added by the BCMR's 
regulations and its parameters can therefore be determined by those 
regulations.
    Comments were also offered on other aspects of the correction board 
process for the Coast Guard. One attorney asked that the BCMR's basic 
time limit regulation be updated, even though that was not a subject 
addressed in the proposed rule. Both attorneys made suggestions with 
regard to administrative matters that do not bear on the proposed rule 
and do not require a rules change to implement: appropriate 
designations and numbering for docketed reconsideration requests; the 
formalization and publication of the Secretary's delegate's authority; 
improvement of the system for indexing and retrieval of redacted Coast 
Guard BCMR decisions; availability of redacted decisions to all who are 
interested by bulletin board, CD-ROM, or mailed to subscribers on a 
mailing list, in return for a reasonable fee. None of these comments 
bear on the reconsideration regulation that is being considered in this 
rulemaking process. Therefore, while these matters remain under 
consideration, they are not addressed at this time.

Final Rule

    This final rule explicitly authorizes the Board to consider 
applications for reconsideration upon a showing that the Board 
committed legal or factual error in the original determination that 
could have resulted in a determination other than that made.
    This final rule also authorizes the Chairman not to docket 
applications for reconsideration that do not meet the threshold 
requirements for reconsideration, i.e., applications that only (1) 
present evidence or information previously considered by the Board, (2) 
present new evidence or information that is clearly not material to the 
result in the case, (3) present new evidence or information that could 
have been submitted earlier with the exercise of reasonable diligence, 
or (4) make arguments as to legal or factual error that are clearly not 
material to the result. The phrase ``otherwise comes to the attention 
of the Board'' has been deleted, however, as unnecessary.
    This final rule also provides that no Board member who considered 
an applicant's original application for correction would participate in 
the consideration of that person's application for reconsideration. 
There will, to the extent practicable, be a related prohibition on the 
staff member; the person who drafted the original decision would not 
draft the reconsideration decision. In light of these safeguards, it 
would not be necessary for the Secretary's designate to approve each 
denial of a reconsideration request, thus expediting the review 
process.

Section-by-Section Analysis-

    Section 52.67, Reconsideration, is rewritten to add the new 
requirements outlined above, and to simplify the procedure on 
reconsideration.
    Paragraph (a) provides that reconsideration of an application may 
occur if the applicant meets at least one of two sets of criteria. The 
first of these, paragraph (a)(1), directs reconsideration if an 
applicant presents evidence or information that was not previously 
considered by the Board if that evidence or information could result in 
a different determination and if it ``could not have been presented to 
the Board prior to its original determination if the applicant had 
exercised reasonable diligence.'' The second of these, paragraph 
(a)(2), directs reconsideration if an applicant presents evidence or 
information that the Board committed legal or factual error in the 
original determination that could have resulted in a different result.
    Paragraph (b) directs the Chairman to docket a reconsideration 
request if it meets the requirements of paragraph (a)(1) or (a)(2). If 
neither of these requirements is met, the Chairman shall not docket the 
request, and shall return the application to the applicant with a 
statement that no action is being taken due to a failure to meet the 
threshold requirements for docketing.
    Paragraph (c) provides that the Board shall consider each 
application for reconsideration that has been docketed under paragraph 
(b). This paragraph also provides that the final decision on 
reconsideration shall involve a different Board than the one that 
initially considered the application. -
    Paragraph (d) provides that the Board's final action on docketed 
application for reconsideration shall be the same as if they were 
original applications for correction.
    Paragraph (e) provides that an applicant's request for 
reconsideration must be filed within two years after the issuance of a 
final decision, subject to other legal rules such as the Soldier's and 
Sailor's Civil Relief Act. The two-year statute of limitations 
parallels the time period allowed by Article 73 of the Uniform Code of 
Military Justice for petitioning for a new trial after the approval of 
a court-martial sentence on the grounds of newly discovered evidence or 
fraud on the court. If the Chairman dockets an applicant's request for 
reconsideration under paragraph (b), 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.

Regulatory Process Matters

    This is not a significant rule under Executive Order 12681 or the 
Department's Regulatory Policies and Procedures. The costs of a purely 
procedural change in the Board's rule would be negligible. The rule 
will not have a significant economic effect on a substantial number of 
small entities, as defined in the Regulatory Flexibility Act. There are 
no Federalism factors to warrant the preparation of a Federalism 
assessment.

List of Subjects in 33 CFR Part 52

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

    Issued this 8th day of May 1996, at Washington, D.C.------
Federico Pena,-
Secretary of Transportation.

    -For the reasons set forth in the preamble, the Office of the 
Secretary of the U.S. Department of Transportation amends 33 CFR Part 
52 as follows:

PART 52--[AMENDED]

    1. The authority citation for Part 52 is revised to read as 
follows:-

    Authority: 10 U.S.C. 1552; 49 U.S.C. 108; Pub. L. 101-225, 103 
Stat. 1908, 1914.

    2. Section 52.67 is revised to read as follows:

[[Page 24235]]

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

[FR Doc. 96-12030 Filed 5-13-96; 8:45 am]
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