or as may be prescribed by the applicable provisions of law relating to the kind of payment involved.

(1) This subsection shall not be deemed to authorize the payment of any claim heretofore compensated by Congress through enactment of a private law.

(c) The acceptance by the claimant of any settlement made pursuant to subsection (b) of this section shall constitute a complete release by the claimant of any claim against the United States on account of such correction of record.

(d) Applicable current appropriations shall be available for payment of such sums as may be due for continuing the pay (including retired or retirement pay), allowances, compensation, emoluments, and other monetary benefits to persons who shall have received payment pursuant to the provisions of subsection (b) of this section and who may be entitled to such continuing payments as a result of the correction of their military or naval records: Provided, That continuing payments are authorized to be made to such personnel for not more than one year following the date of the correction or one year following the date of enactment of this Act, whichever be the later, without the necessity of reenlistment, appointment, or reappointment to the grade, rank, or office to which such pay (including retired or retirement pay), allowances, compensation, emoluments, and other monetary benefits are attached, and such reenlistments, appointments, and reappointments hereby authorized by the Secretary concerned without regard to other qualifications.

are

(e) The Secretary of Defense and the Secretary of the Treasury, for their respective Departments, shall make semiannual reports to the Congress of all claims paid under this subsection during the period covered by each such report. Each such report shall include, with respect to each such claim, a statement of the amount paid, to whom, and a brief description of the claim.

(f) Nothing in this Act shall be construed to authorize the payment of any amount as compensation for any benefit to which the claimant might subsequently become entitled under the laws and regulations administered by the Administrator of Veterans' Affairs.

§ 723.2 Establishment, function and jurisdiction of the Board—(a) Establishment and composition. (1) Pursuant to the provisions of section 207 of the Legislative Reorganization Act of 1946, as amended, the Board for Correction of Naval Records is established in the Office of the Secretary of the Navy.

(2) The Board will consist of civilian officers or employees of the Department of the Navy in such number, not less than three, as may be appointed by the Secretary of the Navy. Three members present shall constitute a quorum of the

Board. The Secretary of the Navy will designate one member as the Chairman. In the event of absence or incapacity of the Chairman, an Acting Chairman chosen by the Board shall act as Chairman for all purposes.

(b) Function. The function of the Board is to consider all applications properly before it for the purpose of determining the existence of an error or an injustice and to make appropriate recommendations to the Secretary of the

Navy.

(c) Jurisdiction. The Board shall have jurisdiction to review and determine all matters properly brought before it, consistent with existing law.

§ 723.3 Application for correction(a) General requirements. (1) The application for correction should be submitted on DD Form 149 (Application for Correction of Military or Naval Records) or exact facsimile thereof, and should be addressed to: The Secretary of the Navy (Board for Correction of Naval Records), Washington 25, D. C. Forms and explanatory matter may be obtained from: Board for Correction of Naval Records, Navy Department, Washington 25, D. C.

(2) Except as provided in subparagraph (3) of this paragraph, the application shall be signed by the person requesting corrective action with respect to his record and will either be sworn to or will contain a provision to the effect that the statements submitted in the application are made with full knowledge of the penalty provided by law for mak(Title ing a false statement or claim. 18, U. S. Code, secs. 287, 1001).

(3) When the record in question is that of a person who is incapable of making application himself, or whose whereabouts is unknown, or when such person is deceased, for the purpose of bringing the matter before the Board the application may be made (except where compliance with the provisions of the law with respect to time limitations for filing an application may require otherwise) by such person as the Board shall determine to be competent and suitable and to have a proper interest therein, including but not limited to, a spouse, a parent, or relative. Such proof of suitability and proper interest shall be submitted as may be required by the Board.

(b) Time limit for filing application. The claimant, his heirs at law, or legal

representatives, must file a request for correction of a record with the Secretary of the Navy prior to October 25, 1961, or within three years of discovery of the alleged error or injustice, whichever be the later. The failure to file such request within the time prescribed may be excused by the Board on its finding that it is in the interest of justice to do so.

(c) Exhaustion of other remedies. No application will be considered until the applicant has exhausted all effective administrative remedies afforder him by existing law or regulations, and such legal remedies as the Board shall determine are practical and appropriately available to the applicant.

(d) Other proceedings not stayed. The application to the Board for correction of a record shall not operate as a stay of any proceedings being taken with respect to the person involved.

(e) Denial of application. It shall be adequate ground for denial of any application that a sufficient basis for review has not been established or that effective relief cannot be granted.

§ 723.4 Entitlement to hearing; notice; counsel; witnesses; access to records-(a) Entitlement to hearing. When an application has been found to be within the jurisdiction of the Board and sufficient evidence has been presented indicating probable error or injustice, the applicant will be entitled to a hearing before the Board either in person or by counsel of his own selection or in person with counsel.

(b) Notice. (1) In each case in which a hearing is authorized, the Board will transmit to the applicant and counsel, if any, a written notice stating the time and place of hearing. The notice will be mailed to the applicant and counsel, if any, at least thirty days prior to the date of hearing, except that an earlier date may be set where the applicant waives his right to such notice in writing.

(2) Upon receipt of notice of hearing, the applicant will notify the Board in writing at least 15 days prior to the date set for hearing as to whether he will be present at the hearing and will indicate to the Board the name of counsel, if represented by counsel, and the names of such witnesses as he may intend to call in his behalf. Cases in which the applicant notifies the Board that he does not

desire to be present at the hearing, will be considered in accordance with § 723.5 (b) (2).

(c) Counsel, definition of. As used in this part, the term "counsel" will be construed to include members in good standing of the Federal Bar or the Bar of any State, accredited representatives of veterans organizations recognized by the Veterans Administration under section 200 of the act of June 29, 1936 (38 U. S. C. 101), and such other persons who, in the opinion of the Board, are considered to be competent to present equitably and comprehensively the request of the applicant for correction, unless barred by law.

(d) Witnesses. The applicant will be permitted to present witnesses in his behalf at hearings before the Board. It will be the responsibility of the applicant to notify his witnesses and to arrange for their appearance at the time and place set for hearing.

(e) Access to records. (1) The applicant shall have access to such official records as are deemed necessary to an adequate presentation of his case. It will be the responsibility of the applicant to procure such evidence not contained in the official records of the Department of the Navy as he desires to present in support of his case.

(2) Classified or privileged matter shall not be disclosed or made available without express finding of the Chairman that such disclosure is required in the case and is not detrimental to the public interest. Such disclosure must be in accordance with law and departmental regulations concerning the security of classified material. When appropriate the applicant may be supplied only with a summary or extract of classified matter.

§ 723.5 Hearing-(a) Convening of Board. The Board will be convened at the call of the Chairman and will recess or adjourn at his order.

(b) Conduct of hearing. (1) The hearing shall be conducted by the Chairman, and shall be subject to his rulings so as to insure a full and fair hearing. The Board shall not be limited by legal rules of evidence but shall maintain reasonable bounds of competency, relevancy, and materiality.

(2) If the applicant, after being duly notified, has indicated to the Board that he does not desire to be present or to be

represented by counsel at the hearing, the Board will consider the case on the basis of all the material before it, including, but not limited to, the application for correction filed by the applicant, any documentary evidence filed in support of such application, any brief submitted by or in behalf of the applicant, and all available pertinent records.

(3) If the applicant, after being duly notified, has indicated to the Board that he will be present or be represented by counsel at the hearing, and without good cause and timely notice to the Board, he or his representative fails to appear at the time and place set for the hearing, the Board may consider the case in accordance with the provisions of subparagraph (2) of this paragraph, or will make such other disposition of the case as is indicated under the circumstances.

(4) All testimony before the Board shall be given under oath or affirmation. The proceedings of the Board and the testimony given before it will be recorded verbatim.

may

(c) Continuance. The Board continue a hearing on its own motion. A request for continuance by or in behalf of the applicant may be granted by the Board if a continuance appears necessary to insure a full and fair hearing.

§ 723.6 Action by the Board-(a) Deliberations, findings, decisions, and recommendations. (1) Only members of the Board and its staff shall be present during the deliberations of the Board.

(2) Whenever, during the course of its review of the case, it appears to the Board's satisfaction that the facts have not been fully and fairly disclosed by the records or by the testimony and other evidence before the Board, the Board may require the applicant to obtain, or the Board may obtain, such further information as it may consider essential to a complete and impartial determination of the facts and issues.

(3) Following a hearing, the Board will make written findings, decisions, and recommendations. A majority vote of the members present on any matter before the Board will constitute the action of the Board and shall be so recorded.

(4) Where the Board deems it necessary to submit comments or recommendations to the Secretary of the Navy as to matters arising from but not directly

related to the issues of any case, such comments and recommendations shall be the subject of separate communication.

(b) Minority report. In case of a disagreement between members of the Board a minority report may be submitted, either as to the findings, decision, or the recommendations or to all, including the reasons therefor.

(c) Record of proceedings. When the Board has completed its proceedings, a record thereof shall be prepared. Such record shall indicate whether or not a quorum was present at the hearing and at the Board's deliberations. The record shall include the application for relief, a transcript of any testimony, affidavits, papers, and documents considered by the Board, briefs and written arguments filed in the case, the findings, decision and recommendations of the Board and all other papers, documents, and reports necessary to reflect a true and complete history of the proceedings. The record so prepared will be certified by the Chairman or his designee as being true and complete.

The Board may

(d) Withdrawal. permit an applicant to withdraw his application without prejudice at any time before its proceedings are forwarded to the Secretary of the Navy.

§ 723.7 Action by the Secretary. The record of proceedings of the Board will be forwarded to the Secretary of the Navy who will direct such action in each case as he determines to be appropriate, which may include the return of the record to the Board for further consideration when deemed necessary.

§ 723.8 Staff action. (a) Upon final action by the Secretary of the Navy, the record of proceedings shall be returned to the Board for disposition. The Board shall transmit the decision previously submitted and approved by the Secretary of the Navy to the proper naval authority for appropriate action.

(b) The addresses of such decisions shall report compliance therewith to the Chairman of the Board.

(c) The Board shall transmit a copy of the record of proceedings to the proper naval authority for filing in the service record of the subject of the application except where the effect of such action would be to nullify the relief granted. In such cases no reference to the Board's decision shall be made in

the service record or files of the applicant and all copies of the record of proceedings and any related papers shall be forwarded to the Board and by it retained in a confidential file maintained for the purpose. Access to such file shall be had only upon written order of the Secretary of the Navy.

(d) Upon receipt of the record of proceedings after final action by the Secretary of the Navy, the Board shall communicate the decision to the applicant and his counsel, if any.

(e) The applicant shall not be entitled to copies of the record of proceedings, but such record shall be made available for his inspection except where, in the discretion of the Chairman, it is detrimental to the public interest.

§ 723.9 Reconsideration. After final adjudication further hearing before the Board will be granted only upon presentation by the applicant of newly discovered relevant evidence not previously considered by the Board and then only upon recommendation of the Board and approval by the Secretary of the Navy.

§ 723.10 Settlement of claims-(a) Authority. (1) The Department of the Navy is authorized to settle and pay claims for amounts paid as fines or forfeitures or for losses of pay (including retired or retirement pay), allowances, compensation, emoluments, or other monetary benefits as the case may be which are found to be due, under applicable provisions of law, on account of naval service, and as the result of action heretofore or hereafter taken under section 207 of the Legislative Reorganization Act of 1946, as amended, except as provided in subparagraph (2) of this paragraph.

(2) The Department of the Navy is not authorized to pay any claim heretofore compensated by Congress through enactment of a private law, or to pay any amount as compensation for any benefit to which the claimant might subsequently become entitled under the laws and regulations administered by the Administrator of Veterans' Affairs.

a separate part of the application for correction of the record.

(2) In case the person whose record has been corrected is deceased, and where no demand is presented by a duly appointed legal representative of the estate, payments otherwise due shall be made to the decedent's widow, widower, legal heirs, or beneficiaries, in the order of precedence or succession as may be prescribed by the applicable provisions of law relating to the kind of payment involved and when not otherwise so provided, in the order of precedence as set forth in the act of February 25, 1946 (60 Stat. 30), or as may be prescribed by the applicable provisions of law relating to the kind of payment involved.

(3) Upon request, the applicant or applicants shall be required to furnish requisite information to determine their status as proper parties to the claim for purposes of payment under applicable provisions of law.

(c) Settlement. (1) Settlement of claims shall be upon the basis of the decision and recommendations of the Board, as approved by the Secretary of the Navy. Computation of the amounts due shall be made by the appropriate disbursing activity. In no case will the amount found due exceed the amount which would otherwise have been paid or have become due under applicable laws had no error or injustice occurred. To the extent authorized by law and regulations, amounts found due may be reduced by the amount of any existing indebtendess to the Government arising from naval service.

(2) Prior to or at the time of payment, the person or persons to whom payments are to be made shall be advised by the disbursing activity as to the nature and amount of the various benefits represented by the total settlement, and shall be advised further that acceptance of such settlement shall constitute a complete release by the claimants involved of any claim against the United States on account of the correction of the record.

(d) Report of settlement. (1) In every case where payment is made, the amount of such payment and the names of the payee or payees, shall be reported to the Chairman of the Board.

(2) The Chairman of the Board shall make a semi-annual report to the Secretary of the Navy of all claims paid dur

ing the period covered by the report, including a statement of the amount paid, the names of the payee or payees and a brief description of the claim in each case.

§ 723.11 Miscellaneous—(a) Staff assistance. The facilities of all bureaus, offices and boards of the Navy Department shall be made available to the Board to assist it in the performance of its function.

(b) Expenses. No expenses of any nature whatsoever voluntarily incurred by the applicant, his counsel, his witnesses, or by any other person in his behalf, will be paid by the Government.

(c) Changes in procedures. The Board may initiate recommendations for such changes in procedures as established herein as may be considered necessary for the proper functioning of the Board. Such changes will be subject to the approval of the Secretary of the Navy and of the Secretary of Defense.

Part 724-Board of Review, Discharges, and Dismissals of Former Personnel of the Navy and Marine Corps

Sec.

724.1 General provisions; jurisdiction. 724.2 Procedure.

724.3 Action by the Board.

724.4 Review by the Secretary of the Navy. 724.5 The Panel.

724.6 The Board.

724.7 Representatives; petitioner's representative.

724.8 Correspondence; addressing of requests.

AUTHORITY: §§ 724.1 to 724.8 issued under sec. 301, 58 Stat. 286, as amended; 38 U. S. C. 693h.

SOURCE: §§ 724.1 to 724.8 appear at 13 F. R. 8545, Dec. 28, 1948.

§ 724.1 General provisions; jurisdiction. (a) In accordance with the Secretary of the Navy's precept, the Navy Department Board of Review, Discharges and Dismissals, hereinafter known as the Board, has been established within the Navy Department to review, upon its own motion, or upon request by or on behalf of the individual former officer or enlisted man or woman, or if deceased, by the surviving spouse, next of kin or legal representative concerned, or if incompetent, by the guardian, the type and nature of discharge or dismissal certifi

cate or other documentary evidence of discharge or dismissal of former mem'bers of the naval service, except a discharge or dismissal by reason of the sentence of a general court martial. This jurisdiction is construed to include every separation from the naval service, irrespective of the manner evidenced or brought about, except separations by reason of the sentence of a general court martial.

(b) The scope of the review shall be to determine whether, under reasonable standards of naval law and discipline, the type and nature of the discharge or dismissal should be changed, corrected or modified, and, if so, to decide what change, correction or modification should be made.

(c) The Board has no authority to revoke any discharge or dismissal, to reinstate any person in the military service subsequent to his discharge or dismissal, or to recall any person to active duty.

(d) Section 301, Servicemen's Readjustment Act, provides for a review of the type and nature of a discharge or dismissal and further provides that the decision of the Board shall be final subject only to the review of the Secretary of the Navy. Accordingly when the decision of the Board has been approved by the Secretary of the Navy the case has reached a finality and the Board has no authority to reopen the proceedings for further review, except that the Board may, in its discretion, when authorized by the Secretary of the Navy, reconsider and change the action originally taken upon the production of material, newly discovered evidence.

§ 724.2 Procedure-(a) Request for review. (1) The discharged person should submit a petition for a review to the Board, with the certificate of discharge or dismissal in question, if available, and such other statements or affidavits as he desires to present.

(2) When the request for review is submitted by a surviving spouse, next of kin, legal representative or guardian, satisfactory evidence of the required relationship must be submitted. If the discharged person is deceased or mentally incompetent an affidavit containing a statement to that effect and a statement giving the identity of the authorized representative must accompany the petition. The petition must be signed by the authorized representative.