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$51.7 Equity standard of review.

(a) A discharge is presumed to be equitable and will not be changed under this section unless the applicant submits evidence sufficient to establish, to the satisfaction of the DRB that:

(1) The policies and procedures under which the applicant was discharged differ in material respects from policies and procedures currently applicable on a service-wide basis to discharges of that type, provided that current policies or procedures represent a substantial enhancement of the rights afforded a party in such proceedings, and there is substantial doubt that the applicant would have received the same discharge if relevant current policies and procedures had been available to the applicant at the time of the discharge proceedings under consideration; or

(2) At the time of issuance, the discharge was inconsistent with standards of discipline in the Coast Guard; or

(3) The applicant's military record and other evidence presented to the DRB, viewed in conjunction with the factors listed in §51.8 and the regulations under which the applicant was discharged, do not fairly justify the type of discharge received.

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(b) If the applicant was discharged with a characterized discharge before June 15, 1983, a change from the characterized discharge to uncharacterized discharge will not be considered under the provisions of (a)(1) of this section unless specifically requested by the applicant. A determination that a discharge is inequitable according to the provisions of (a)(2) or (a)(3) of this section shall entitle the applicant to a discharge of a type to which the applicant was entitled at the time the original discharge was issued.

$51.8 Relevant considerations.

In determining the equity and propriety of a former member's discharge, the DRB shall consider all relevant evidence presented by the applicant. The DRB review will include, but is not limited to, consideration of the following factors:

(a) The quality of the applicant's service. In determining the quality of the applicant's service, the DRB may consider the applicant's dates and peri

ods of service; rate or rank achieved; marks and evaluations received; awards, decorations and letters of commendation; acts of merit; combat service and wounds received; promotions and demotions; prior military service and type of discharge; records of unauthorized absence; records of non-judicial punishment; convictions by courtmartial; records of conviction by civil authorities while a member of the Coast Guard; and any other relevant information respecting the applicant which is brought to the board's attention.

(b) The applicant's capability to serve. In determining the applicant's capability to serve, the DRB considers such factors as the applicant's age and education; qualification for reenlistment; capability to adjust to military service; and family or personal problems.

(c) Any evidence of arbitrary, capricious or discriminatory actions by individuals in authority over the applicant.

(d) Any other information respecting the applicant considered by the DRB to be relevant and material to the review of the applicant's discharge.

§ 51.9 Discharge review procedures.

(a) Preliminary. Prior to a review, applicants or their representatives may obtain copies of military records by submitting a Standard Form 180, Request Pertaining to Military Records, to the National Personnel Records Center (NPRC), 9799 Page Boulevard, St. Louis, MO. 72132. The request to the NPRC should be submitted prior to submitting the application for review, so that relevant information from the record can be included with the application.

(b) Initiation of review. Review may be initiated by an applicant or by the DRB. The applicant may apply for DRB review of discharge by submitting DD Form 293, Application for Review of Discharge or Separation from the Armed Forces of the United States, along with any other statements, affidavits or documentation desired by the applicant. The application must be received by the DRB within fifteen (15) years of the date of the discharge. The application form can be obtained,

along with explanatory matter, from Commandant, (G-WPM), U.S. Coast Guard Headquarters, 2100 2nd Street SW., Washington, DC 20593, any regional VA office, or by writing to the Armed Forces Review/Correction Board Reading Room, Pentagon Concourse, Washington, DC 20310.

(c) Notice. (1) The DRB will provide notification advising the former member of

(i) Receipt of the applicant's request; (ii) The right to appear before the board in person or by counsel; and

(iii) The date of review.

If the former member is deceased, written notice of DRB review will be sent to the surviving spouse, next of kin or legal representative of the former member. If the review is initiated by the DRB, notification will be sent to the last known address of the former member.

(2) Prior to the initiation of the decision process, the DRB will notify the former member of the date by which requests to examine the documents to be considered by the board must be received. This notice will also state the date by which a request for a hearing must be made and the deadline for filing responses to the board.

(3) An applicant who requests a hearing will be notified of the time and place of the hearing. All expenses incurred by the applicant in DRB proceedings and hearings are the sole responsibility of the applicant and are not obligations of the U.S. Coast Guard or the Department of Transportation. If the applicant fails to appear, except as provided in §51.9(f), the DRB will review the discharge and reach a decision based upon the evidence of record.

(d) Withdrawal of application. An applicant may withdraw an application without prejudice at any time before the scheduled review. An application which is withdrawn will not stay the running of the 15 year statutory limitation imposed on the authority of the DRB to review the discharge.

(e) The DRB will consider the records and other data submitted by the applicant. The DRB may consider other probative evidence provided that all materials relied on by the DRB, except classified documents, are made available to the applicant and applicant's rep

resentative prior to the hearing date (or review date if no hearing is requested). The DRB shall not consider a classified document in the review of a discharge unless a summary of, or extract from, the document (deleting all reference to sources of information and other matters, the disclosure of which would, in the opinion of the classifying authority, be detrimental to the security interests of the United States) is made available to the applicant.

(f) Postponement of review or hearing. At any time before the date of scheduled review or hearing, an applicant may be granted a continuance, provided the applicant or the applicant's counsel makes a written request for additional time to the DRB which shows good cause to justify the postponement.

(g) Hearing procedures. The following procedures apply to DRB hearings:

(1) DRB hearings are not public. Presence at hearings is limited to persons authorized by the Commandant or expressly requested by the applicant, subject to reasonable limitations based upon available space.

(2) The Federal Rules of Evidence are not applicable to DRB proceedings. The presiding officer rules on matters of procedure and ensures that reasonable bounds of relevancy and materiality are adhered to in the taking of evidence.

(3) An applicant is permitted to make a sworn or unsworn statement. Witness testimony will only be taken under oath or affirmation. An applicant or witness who makes a statement may be questioned by the DRB.

(4) An applicant may make oral or written argument personally or through his or her representative.

(h) Reconsideration. The decision of the DRB may not be reconsidered unless

(1) The only previous consideration of the case was on the motion of the DRB; (2) Changes in discharge policy occur;

or

(3) New, substantial, relevant evidence, not available to the applicant at the time of the original review, is submitted to the DRB.

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

851.10 Decisions.

(a) The DRB will make written findings and conclusions with respect to all disputed facts and issues. The decision of the DRB is governed by the vote of a majority of the board.

(b) A decision document is prepared for each review conducted by the DRB. This document contains

(1) The date, character of, and reason for the discharge including the specific authority under which the discharge was issued;

(2) The specific change(s) requested by the applicant;

(3) A list of the issues raised by the applicant;

(4) The circumstances and character of the applicant's service, as extracted from the service record, health record and other evidence presented to the DRB;

(5) References to documentary evidence, testimony or other material relied on by the DRB in support of its decision;

(5) A statement of the DRB's findings with respect to each issue raised by the applicant;

(7) A summary of the rationale and a statement of the DRB's conclusions as to whether any change, correction or modification should be made in the type or character of the discharge or the reason and authority for the discharge; and

(8) A statement of the particular changes, correction, or modification made by the DRB.

851.11 Records.

(a) The record of the discharge review will include

(1) The application for review;

(2) A summarized record of the testimony and a summary of evidence considered by the DRB other than information contained in the service records;

(3) Briefs or written arguments submitted by or on behalf of the applicant; (4) The decision of the DRB;

(5) Advisory opinions relief upon for the final action; and

(c) A copy of the decision of the DRB and the final action thereon is made available for public inspection and copying promptly after a notice of the final decision is sent to the applicant. However, to the extent required for the protection of privacy rights, identifying details of the applicant and other persons are deleted from the public record.

(1) DRB documents made available for public inspection and copying are located in the Armed Forces Discharge Review/Correction Board Reading Room. The documents are indexed so as to enable the public to determine why relief was granted or denied. The index includes the case number, the date, character of, reason for, and authority for the discharge and is maintained at Coast Guard Headquarters and the Armed Forces Reading Room. The Armed Forces Discharge Review/ Correction Board Reading Room publishes indexes quarterly for all boards.

(2) Correspondence relating to matters under the cognizance of the Reading Room (including requests for purchase of indexes) should be addressed to: Armed Forces Discharge Review/ Correction Board Reading Room, The Pentagon Concourse, Washington, DC 20310.

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(6) The final action on the DRB decision by the Commandant or Secretary. (b) The record of the discharge review is incorporated into the service record of the applicant.

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§ 52.2 Authority.

(a) The Secretary of Transportation, acting through boards of civilians, is authorized to correct any military record of the Coast Guard when the Secretary considers it necessary to correct an error or remove an injustice. 10 U.S.C. 1552. Section 212 of the Coast Guard Authorization Act of 1989 provides that the Secretary shall ensure that final action on a complete application for correction is taken within 10 months of its receipt.

(b) Corrections made under this authority are final and conclusive on all officers of the Government except when procured by fraud.

Subpart B-Establishment, Function, and Jurisdiction of Board § 52.11 Establishment and composi

tion.

(a) Pursuant to 10 U.S.C. 1552 and 49 U.S.C. 108(a), the Board for Correction of Military Records of the Coast Guard is established in the Office of the Secretary of Transportation.

(b) The Secretary appoints a panel of civilian officers or employees of the Department of Transportation to serve as members of the Board, and designates one such member to serve as Chairman of the Board. The Chairman designates members from this panel to serve as the Board for each case requiring consideration by a Board. The Board consists of three members, and two members present constitute quorum of the Board.

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(c) The Deputy Chairman of the Board exercises the functions prescribed by these regulations and such other duties as may be assigned by the Chairman.

$52.12 Function.

The function of the Board is to consider all applications properly before it, together with all pertinent military records to determine:

(a) Whether an error has been made in the applicant's Coast Guard military record, whether the applicant has suffered an error or injustice as the result of an omission or commission in his or her record, or whether the applicant

has suffered some manifest injustice in the treatment accorded him or her; and (b) Whether the Board finds it necessary to change a military record to correct an error or remove an injustice. $52.13 Jurisdiction.

(a) The Board has jurisdiction to review and determine all matters properly brought before it, consistent with existing law and such directives as may be issued by the Secretary.

(b) No application shall be considered by the Board until the applicant has exhausted all effective administrative remedies afforded under existing law or regulations, and such legal remedies as the Board may determine are practical, appropriate, and available to the applicant.

Subpart C-General Provisions Regarding Applications

§ 52.21 General requirements.

(a) An application for correction of a Coast Guard record shall be submitted on DD Form 149 (Application for Correction of Military or Naval Record) or an exact copy thereof, and shall be addressed to: Chairman, Board for Correction of Military Records of the Coast Guard (C-60), United States Department of Transportation, Washington, DC 20590. Forms and explanatory material may be obtained from the Chairman of the Board.

(b) The application shall be signed by the person alleging error or injustice in his or her military record, except that an application may be signed by a family member or legal representative with respect to the record of a deceased, incapacitated, or missing per

son.

(c) No application shall be processed until it is complete. An application for relief is complete when all of the following have been received by the Board:

(1) A signed DD Form 149, providing all necessary responses, including a specific allegation of error or injustice, accompanied by substantial proof in support of such allegation;

(2) The military records of the applicant; and

$52.22 Time limit for filing application.

An application for correction of a record must be filed within three years after the applicant discovered or reasonably should have discovered the alleged error or injustice. If an application is untimely, the applicant shall set forth reasons in the application why its acceptance is in the interest of justice. An untimely application shall be denied unless the Board finds that sufficient evidence has been presented to warrant a finding that it would be in the interest of justice to excuse the failure to file timely.

$52.23 Counsel.

As used in this part, the term "counsel" includes attorneys who are members in good standing of any bar; accredited representatives of veterans' organizations recognized by the Secretary of Veterans Affairs pursuant to 38 U.S.C. 3402; and other persons who, in the opinion of the Board, are competent to represent the applicant for correction. Whenever the term "applicant" is used in these rules, except in § 52.21, the term shall mean an applicant or his or her counsel.

§ 52.24 Evidence.

It is the responsibility of the applicant to procure such evidence, including official records, as the applicant desires to present in support of his

case.

$52.25 Access to official records.

The applicant shall have access to official records or to any information pertaining to the applicant which is in the custody of the Coast Guard, as provided in 49 CFR part 10. The applicant shall also have access to other Coast Guard records as provided in 49 CFR part 7.

§52.26 Withdrawal.

The board may, in its discretion, permit the applicant to withdraw his or her application at any time before a final determination by the Secretary. Any further consideration by the Board of the issues raised in the withdrawn

(3) Any applicable Department of application shall occur only upon the Veterans Affairs medical records.

filing of a new application.

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