§ 49.05-5 Bonding of trustee.

The trustee or trustees appointed to receive moneys in behalf of incompetent personnel shall furnish a bond in all cases when the amounts to be received may be expected to exceed $1,000, and in such other cases when deemed appropriate by the Commandant. The bond so required and furnished shall have as surety a company approved by the Federal Government, and shall be in such amount as is required by the Commandant. Such bonds shall be continued in effect for the life of trusteeship and expenses in connection with the furnishing and renewal of such bonds may be paid out of sums due the incompetent.

$49.05-10 Affidavits required.

The trustee or trustees appointed to receive moneys due incompetent personnel shall, prior to the payment of any such moneys, execute and file with the Commandant an affidavit or affidavits saying and deposing that any moneys henceforth received by virtue of such appointment shall be applied solely to the use and benefit of the incompetent and that no fee, commission, or charge shall be demanded, or in any manner accepted, for any service or services rendered in connection with such appointment as trustee or trust

ees.

Subpart 49.10-Reports and
Moneys

§ 49.10-1 Reports required.

The trustee or trustees so appointed shall submit reports annually, or at such other times as the Commandant may designate. The report shall show a statement of the conditions of the trust account at the time of the submission of the report, including all funds received on behalf of the incompetent; all expenditures made in behalf of the incompetent, accompanied by receipts or vouchers covering such expenditures; and a receipt indicating that the surety bond required by $49.05-5 has been renewed. When the trustee is the spouse or adult dependent of the incompetent, receipts or vouchers need not be filed for expenditures made for living expenses. If the

report

trustee or trustees fail to promptly and properly at the end of any annual period or at such other times as the Commandant desires, the Commandant may, in his discretion, cause payment to such trustee or trustees to cease, and may, if deemed advisable, appoint another person or persons not under legal disability so to act, to receive future payments of moneys due the incompetent for the use and benefit of the incompetent.

$49.10-5 Payment of moneys due.

Upon the appointment of a trustee or trustees to receive moneys due an incompetent, the authorized certifying officer having custody of that person's pay record shall be advised. After such notification, payments of moneys due the incompetent may be made by the appropriate officer in accordance with procedure prescribed by the Commandant. All such payments so made, however, shall be made to the designated trustee or trustees.

§ 49.10-10 Cessation of payments.

(a) Payments of amounts due incompetent personnel shall cease to be paid to the trustee or trustees upon receipt of notification by the authorized certifying officer of the occurrence of any of the following:

(1) Death of the incompetent;

(2) Death or disability of the trustee or trustees appointed;

(3) Receipt of notice that a committee, guardian, or other legal representative has been appointed for the incompetent by a court of competent jurisdiction;

(4) Failure of the trustee or trustees to render the reports required by § 49.10-1;

(5) That there is probable cause to believe that moneys received on behalf of the incompetent have been, or are being, improperly used;

(6) A finding by a board of medical officers that the heretofore incompetent is mentally capable of managing his own affairs;

(7) That the Commandant deems it to be in the best interest of the incompetent.

(b) In the event of termination of payments under paragraphs (a)(2), (4),

(5), or (7) of this section, the Commandant may, if deemed appropriate, appoint a successor trustee or trustees. The successor trustee or trustees, so appointed, shall comply with the provisions of the regulations and instructions in this part issued thereunder, and do all acts in the manner required of the original trustee or trustees.

§ 49.10-15 Final accounting by trustee.

The trustee or trustees, when payments, hereunder are terminated, shall file a final account with the said Commandant. Thereupon, the trustee or trustees will be discharged and the surety released. In event of death or disability of the trustee, the final accounting will be filed by his legal representative.

of a retiring board, the findings and decision of the retiring board. The term "retired or released to inactive service" includes every kind of separation from the service.

(c) After reviewing the findings and decision of a retiring board the Board will affirm or reverse, in whole or in part, the findings and decision of the retiring board.

(d) In carrying out its duties the Board shall have the same powers as exercised by, or vested in, the retiring board whose findings and decision are being reviewed.

[10 FR 5650, May 17, 1945]

$50.2 Composition of Board.

(a) The Board will be composed of five commissioned officers designated for each case from a panel appointed by the Commandant. The senior Coast Guard members of the panel will designate the members of the Board for each case, three of whom shall be officers of the Coast Guard and two of whom shall be officers of the Public Health Service.

(b) The senior Coast Guard member of the Board will be President and the junior Coast Guard member will be Recorder.

(c) The Board will convene at the time and place designated by the President for each case, and will recess and adjourn at his order.

[10 FR 5650, May 17, 1945. Redesignated at 13 FR 7303, Nov. 30, 1948, and amended by CGFR 53-12, 18 FR 2953, May 22, 1953]

$50.3 Request for review.

(a) Any officer of the Coast Guard who is retired or released to inactive service, without pay, for a physical disability, pursuant to the decision of a Coast Guard retiring board, may request a review of the findings and decision of the retiring board.

(b) An application requesting a review must be in writing and shall be addressed to the Retiring Review Board, Coast Guard Headquarters, Washington D.C. 20226. Forms for application for review will be provided upon request.

(c) An application requesting a review shall contain:

(1) The full name of the applicant;

(2) The mailing address of the applicant;

(3) A brief statement setting out the basis of the request for review, showing in general the nature of error or inequity believed to have occurred in the findings and decision of the retiring board;

(4) The corrective action requested; (5) Whether the applicant desires to appear before the Board in person;

(6) Whether the applicant will be represented by counsel, and if so, the name and address of counsel.

(d) No request for review shall be valid, and the Board will not consider an application, unless filed within fifteen years after the date of retirement for disability, or after the effective date of the act of June 22, 1944, whichever is the later.

[10 FR 5650, May 17, 1945. Redesignated at 13 FR 7303, Nov. 30, 1948]

$50.4 Presentation of case.

(a) The applicant may present his

case:

(1) Solely by written application, or by written application together with any additional written evidence or argument that he may desire to submit;

(2) At a hearing before the Board.

(b) The case of an applicant may be presented by his counsel. The term "counsel" includes members of the bar in good standing, accredited representatives of veterans' organizations recognized by the Veterans' Administration under section 200 of the act of June 29, 1936 (49 Stat. 2031, 38 U. S. C. 101), and any other person approved by the Board.

(c) If an applicant signifies a desire to present his case at a hearing, the Board will give him written notice of the place of his hearing, and of the time, which shall be at least thirty days after the time of mailing the notice.

(d) The Board may, upon its own motion or at the request of the applicant or his counsel, grant a continuance whenever it appears necessary, in the judgment of the Board, in order to insure a thorough, complete and equitable hearing.

(e) The case of any applicant who fails to appear, either in person or by counsel, after being duly notified of the

time and place of the hearing will be decided upon the written application and such other evidence as is available to the Board.

(f) As far as practicable the hearings of the Board will be conducted in accordance with the pertinent instructions contained in Coast Guard Boards, 1935, as amended, except that:

(1) Physical examination of the applicant is not mandatory, but the Board may request that he submit to physical examination by physicians of the Board's choice in any case in which it appears to the satisfaction of the Board to be essential;

(2) The medical members of the Board will not submit a report and will not be subject to examination.

(g) Evidence may be submitted to the Board by oral testimony under oath, or in the form of depositions or affidavits. Witnesses appearing before the Board will be subject to examination or crossexamination, as the case may be, by members of the Board and the applicant or his counsel.

(h) The Board will consider all available service records and all matter adduced by the applicant that bears upon the merits of the case. It will not be restricted by the rules of evidence.

(i) Classified matter of the Coast Guard will not be made available to an applicant or his counsel. The Board will, when it deems it necessary in the interest of justice and compatible with the public interest, make available a summary of relevant classified matter.

(j) The Government will not assume or pay any expenses incurred by an applicant, or by his witnesses or counsel. [10 FR 5650, May 17, 1945. Redesignated at 13 FR 7303, Nov. 30, 1948]

§ 50.5 Action by the Board.

(a) After a complete and thorough review of the evidence before it the Board will, in closed session, deliberate and make its decision affirming or reversing the findings and decision of the retiring board being reviewed.

(b) If the Board reverses the findings of the retiring board being reviewed, it will make complete findings, including: (1) Whether the applicant was incapacitated for active service;

(2) If so, the disability causing the incapacity;

(3) Whether the incapacity is permanent;

(4) Whether the incapacity was the result of an incident of service or incurred in the line of duty;

(5) Whether the incapacity was the result of the applicant's own vicious habits;

(6) In the case of Reserve officers and officers who have served under temporary appointments, when the physical disability was incurred.

(c) The findings and decision of a majority of the Board will constitute the findings and decision of the Board Members who do not concur with the majority may file a minority report.

(d) When the Board has concluded its proceedings in any case the Recorder will prepare a complete record thereof including (1) the application for review (2) a transcript of the hearing, if any (3) affidavits, briefs, and written agreements filed in the case, (4) the findings and decision of the Board, and (5) all other papers and documents necessary to reflect a true and complete record of the proceedings. This complete record will be transmitted to the Commandant for appropriate action.

[10 FR 5650, May 17, 1945. Redesignated at 13 FR 7303, Nov. 30, 1948, and amended at CGFR 53-12, 18 FR 2953, May 22, 1953]

§51.1 Basis and purpose.

This part establishes the procedures for review of administrative discharges from the Coast Guard by a Discharge Review Board (DRB) or by the Secretary of the Department, and for the compilation of the record of the DRB determination, made available for public inspection, copying and distribution through the Armed Forces Discharge Review/Correction Board Reading

Room.

$51.2 Authority.

(a) The Secretry of Transportation has the authority to establish a Discharge Review Board (DRB) to review the discharge of a former member of the United States Coast Guard under the provisions of 10 U.S.C. 1553. This part prescribes the establishment and outlines the procedures of the Coast Guard Discharge Review Board. The Secretary retains the authority to review and take final action on the DRB's findings in the following cases:

(1) Those cases in which a minority of the board requests that their written opinion be forwarded to the Secretary for consideration;

(2) Those cases selected by the Commandant to inform the Secretary of aspects of the board's functions which may be of interest to the Secretary;

(3) Any case in which the Secretary demonstrates an interest;

(4) Any case which the President of the board believes is of significant interest to the Secretary.

(b) The Commandant of the Coast Guard is delegated the authority to:

(1) Appoint members to serve on the Discharge Review Board;

(2) Appoint alternates to serve on the DRB in the event that a regularly appointed member is unavailable;

(3) Designate a member as the President of the DRB; and

(4) Review and take final action on all DRB decisions which are not reviewed by the Secretary.

$51.3 Applicability and scope.

The provisions of this part apply to the United States Coast Guard including reserve-components and all former members who have been discharged within 15 years of the date upon which application for review is received by

the DRB. A former member may apply to the DRB for a change in the character of, and/or the reason for, the discharge. The Coast Guard DRB review is generally applicable only to administrative discharges, however, the DRB may review the discharge of a former member by sentence of a court-martial for the purpose of clemency. A petition for clemency will not be considered by the DRB unless the applicant has exhausted all appellate remedies. Upon a petition for clemency, the DRB shall consider only the equity of the discharge awarded.

$51.4 Definitions.

Applicant. A former member of the Coast Guard who has been discharged from the service but excluding those discharged by sentence of a court-martial, except as provided in §51.3. If the former member is deceased or incompetent, the term "applicant" includes the surviving spouse, next-of-kin, or legal representative who is acting on behalf of the former member.

Counsel. An individual or agency designated by the applicant who agrees to represent the applicant in a case before the DRB. It includes, but is not limited to: A lawyer who is a member of the bar of a federal court or of the highest court of a state; an accredited representative designated by an organization recognized by the Administrator of Veterans Affairs; a representative from a state agency concerned with veterans affairs; or a representative from private organizations or local government agencies.

Discharge. Any formal separation of a member from the Coast Guard which is not termed "honorable", including dismissals and "dropping from the rolls". This term also includes the assignment of a separation program designator, separation authority, the stated reason for the discharge, and the characterization of service.

Discharge Review. The process by which the reason for separation, the procedures followed in accomplishing separation, and the characterization of service are evaluated. This includes determinations made under the provisions of 38 U.S.C. 3103(e)(2).

Discharge Review Board. A board consisting of five members of the U.S.

Coast Guard, appointed by the Commandant of the Coast Guard and vested with the authority to review the discharge of a former member. The board is empowered to change a discharge or issue a new discharge to reflect its findings, subject to review by the Commandant or the Secretary.

Hearing. A proceeding which, upon request of the applicant, is utilized in the discharge review process enabling the applicant and/or the applicant's representative to appear before the DRB and present evidence.

President. An officer of the United States Coast Guard appointed by the Commandant as President to preside over the DRB. The President will convene the board and may also serve as a member. If the President does not serve as a member of the DRB, the President shall designate a presiding officer for the board to serve as President.

[CGD 81-104, 50 FR 41495, Oct. 11, 1985, as amended by CGD 96-026, 61 FR 33663, June 28, 1996]

§51.5 Objective of review.

The objective of the discharge review is to examine the propriety and equity of the applicant's discharge and to effect changes if necessary. The DRB will utilize its discretion to reach a fair and just resolution of the applicant's claim. The standards of review and the underlying factors which aid in determining whether the standards are met shall be historically consistent with criteria for determining honorable service. No factors shall be established which require automatic change, or denial of change, in a discharge.

§ 51.6 Propriety standard of review.

A discharge is deemed to be proper except that:

(a) A discharge may be improper if an error of fact, law, procedure, or discretion was associated with the discharge at the time of issuance which prejudiced the rights of the applicant.

(b) A discharge may be improper if there has been a change in policy by the Coast Guard made expressly retroactive to the type of discharge under consideration.