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###### Department of Defense

###### Department of the Air Force 

          - 32 CFR Part 865 
          - [Docket No. USAF-2008-0002] 
          - RIN 0701-AA74 

# AGENCY:

Department of the Air Force, Department of Defense. 

# ACTION:

Proposed rule. 

# 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,                         *al.walker@afncr.af.mil*

# 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 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 

§ 865.0 

                                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                                       ( print 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.                             

§ 865.1 

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. 

§ 865.2 

                                (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.                             

§ 865. 3 

(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.                             

                                (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.                                       ( print 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.                             

§ 865.4 

                                (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                                       ( print 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. 

§ 865.5 

(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 § 865.6. 

(c) In cases under § 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 § 865.3 and § 865.4 of this part. The special time limit in § 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.                             

§ 865.6 

(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. 

§ 856.7 

                                (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.                             

§ 865.8 

(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.                                       ( print 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. 

# Footnotes

1.                                         Available via the Internet at                                     *http://www.dtic.mil/​whs/​directives/​corres/​pdf/​705006p.pdf.*
        Back to Citation      

2.                                         Copies may be obtained via the Internet at                                     *http://www.dtic.mil/​whs/​directives/​corres/​pdf/​705006p.pdf.*
        Back to Citation      

 [FR Doc. E9-16338 Filed 7-14-09; 8:45 am] 

BILLING CODE 5001-05-P