Subpart D-Consideration of Application, Denial of Relief, and Stay of Proceedings

§ 52.31 Consideration of application.

Each application shall be reviewed by the Chairman to determine whether it meets the requirements of §52.21(c). The Chairman shall decide in appropriate cases whether to grant a hearing or to recommend disposition on the merits without a hearing.

§ 52.32 Denial of relief.

(a) The Chairman may, notwithstanding §52.64, and without written findings and conclusons, deny in writing all requested relief to an applicant at any time prior to consideration of the applicant's case by a Board if:

(1) The information or evidence submited by the applicant is insufficient to demonstrate probable substantial error or injustice;

(2) Effective relief cannot be granted by the Board;

(3) The Board does not have jurisdiction to determine the issues presented;

or

(4) The application has not been timely filed under §52.22 and the interest of justice does not require its acceptance.

(b) Denial of relief pursuant to this section is without prejudice to further considration by the Board if the applicant requests further consideration and submits evidence in addition to that contained in his or her complete application. A request for further consideration shall be regarded as a new application for purpose of § 52.68.

(c) If relief is denied under this section, the applicant shall be advised of the right to further proceedings.

§ 52.33 Stay of proceedings.

An application to the Board for correction of a military record does not operate as a stay of any proceeding or administrative action taken with respect to or affecting the applicant.

ranted, the applicant will be entitled to be heard orally in person, by counsel, or in person with counsel.

§ 52.42 Notice of hearing.

(a) If the Chairman determines that a hearing is warranted, the Chairman shall notify the appliant that a hearing has been granted.

(b) The date of hearing shall be not less than 21 days from the date of this notification. Written notice stating the date, time and place of the hearing shall be given to the applicant and the Coast Guard.

§ 52.43 Witnesses.

(a) In any case in which the Chairman has granted a hearing, the applicant shall have the right to present witnesses.

(b) It is the responsibility of the applicant to notify witnesses and to ensure their appearance at the date, time and place set for the hearing.

§ 52.44 Expenses.

No expenses of any nature whatsoever incurred by an applicant, his or her counsel, witnesses, or others acting on behalf of the applicant shall be paid by the Government.

§ 52.45 Nonappearance.

An applicant who fails without good cause to appear in person or by counsel at the appointed date, time, and place for hearing, is deemed to have waived the right to a hearing. The application is then considered by the Board on the basis of all the material of record.

Subpart F-Procedure at Hearings $52.51 Conduct of hearing.

(a) The Chairman or the Chairman's designee shall conduct a hearing so as to ensure a full and fair presentation of the evidence.

(b) The hearing is not limited by legal rules of evidence but reasonable standards of competency, relevancy, and materiality are observed for the receipt and consideration of evidence.

(c) All testimony shall be given under oath or affirmation.

$52.52 Record of hearing.

A hearing pursuant to this subpart in open session shall be recorded verbatim and, at the discretion of the Board or direction of the Secretary, shall be transcribed.

Subpart G-Judgment and
Disposition

852.61 Deliberations and decision.

(a) The Board is convened at the call of the Chairman and its meetings are recessed or adjourned by order of the Chairman. Only members of the Board and its staff may be present during the deliberations of the Board. The Board's deliberations are conducted in executive session and are not reported.

(b) When the Board finds that the facts have not been fully and fairly disclosed by the records, testimony, and any other evidence before the Board, the Board may request the applicant and/or the Coast Guard to obtain and submit such further evidence as it considers essential to a complete and impartial understanding of the facts and issues.

(c) An applicant may submit to the board any further evidence relevant to an application at any time prior to final action. The Chairman shall accept any such submission if, and only if, the applicant agrees that §52.68 shall not apply to the case.

(d) Following the receipt of all evidence, the Chairman shall cause to be prepared and shall submit to the Board for its consideration a draft decision containing proposed findings and conclusions and a proposed order. A majority vote of the members of the board present at a meeting on any matter relating to a draft decision before the Board shall constitute the action of the Board. If a draft decision is approved by the Board, it shall become a decision of the Board.

(e) The decision of the Board shall specify with particularity any change, correction, or modification of records to be made by the Coast Guard, and any other action deemed necessary to carry out the Board's recommendation.

(f) If the Board deems it necessary to submit a comment or recommendation to the Secretary as to a matter arising

from, but not directly related to, the issues in a case, it does so by separate communication.

§ 52.62 Minority report.

In case of disagreement among Board members, a minority report may be submitted dissenting from or concurring with the decision of the Board.

§ 52.63 Record of proceedings.

The Board shall prepare a complete record of each proceeding. The record shall include the application for relief; the written views of the Coast Guard, if any; any transcript of testimony; affidavits and documents considered by the Board; briefs and written arguments filed in the case; the findings, decisions, and recommendations of the Board; minority reports, if any; and all other materials necessary to reflect a true and complete history of the proceedings.

§ 52.64 Final action.

(a) The Board, provided that it acts unanimously, may take final action on behalf of the Secretary, pursuant to 10 U.S.C. 1552, as follows:

(1) The Board may deny an application for the correction of military records.

(2) Unless the Chief Counsel of the Coast Guard, in submitting its views pursuant to §52.82(c), states that the application involves a significant issue of Coast Guard policy, the Board may approve an application for the correction of military records in any of the following categories:

(i) An application to correct an enlistment or reenlistment contract or agreement to extend an enlistment for the purpose of effecting or increasing entitlement to a Selective Reenlistment Bonus;

(ii) An application to modify an election to participate in the Survivor Benefit Plan;

(iii) An application to change a reenlistment eligibility code;

(iv) An application to correct the character of, or reason for, a discharge or separation.

(3) The Board may approve any application for correction of military

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records not falling into one of the categories in paragraph (a)(2) of this section, if the Chief Counsel of the Coast Guard recommends the same or substantially same relief as that requested by the applicant.

(b) Except in cases where the Board takes final action under paragraph (a) of this section, the Board shall forward the record of its proceedings to the Secretary for approval, disapproval, or return for additional consideration. After taking final action, the Secretary shall return the record to the Board for disposition.

$52.65 Orders.

(a) The Board shall issue such orders or directives as may be necessary to carry out a final action.

(b) The Board may ask the Coast Guard to submit a written report to the Board specifying the action taken and the date thereof with respect to any final action.

(c) Unless doing so is likely to nullify the relief granted, copies of the final decision shall be placed in the military record of the applicant.

§ 52.66 Notification.

Subject to Department of Transportation regulations, the Board shall transmit to the applicant a copy of a decision. The applicant may inspect the record of proceedings at Board offices.

§ 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 §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.

[OST Doc. No. OST-95-878, 61 FR 24235, May 14, 1996]

§ 52.68 Time limit for final action.

Final action on an application for correction of a military record shall be taken within 10 months after all the elements of a complete application, as defined in §52.21(c), have been received by the Board.

Subpart H-Payment of Claims and Implementation of Orders § 52.71 Authority to pay.

(a) The Coast Guard is authorized to pay the claims of any person as the result of any action heretofore or hereafter taken under 10 U.S.C. 1552.

(b) The Coast Guard is not authorized to pay any claim heretofore compensated by Congress through enactment of 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 Secretary of Veterans Affairs.

$52.72 Procedures.

(a) In each case the Board transmits a copy of its decision or the Secretary's decision to the proper Coast Guard authority for determination of monetary benefits due, if any, as a result of the action of the Board and for corrections of the military record ordered by the Board.

(b) Upon request, the claimant is required to furnish any information necessary to determine the proper parties to the claim for payment under applicable provisions of law.

(c) Appropriate records shall be examined in light of the Board's decision to determine all amounts which may be due. Amounts found due are subject, to the extent authorized by law or regulations, to setoff in the amount of existing indebtedness to the Government arising from Coast Guard service.

(d) At the time of payment, the claimant shall be advised as to the nature and amount of the various benefits represented by the total settlement, and of the fact that acceptance of the settlement constitutes a complete release by the claimant of any claim against the United States on account of the correction of record ordered by the Board.

$52.73 Interpretation.

If the intent or import of the final decision is not clear to the Coast Guard or if the Coast Guard believes that executing all or part of the order in the final decision is beyond the Coast Guard's authority, the final decision shall be returned to the Board for clarification or technical amendment.

$52.74 Report of settlement.

When payment is made pursuant to the order of the Board, the Board may request the Coast Guard to notify it of the name of any person to whom payment was made and of the amount of the payment.

Subpart I-Miscellaneous Provisions

852.81 Assistance.

The Board may request such advice, opinion, assistance, or use of the facilities of any other bureau, board, or office of the Department of Transportation as the Board deems necessary.

$52.82 Submissions sent to or received from the Coast Guard.

(a) The Board shall transmit to the Chief Counsel of the Coast Guard a copy of each application for relief submitted under subpart C of this part that has not been denied pursuant to §52.32, together with any briefs, memoranda, and documentary evidence submitted or obtained in the case.

(b) The Board may request the Coast Guard to submit any additional pertinent facts not disclosed in an application and its supporting documents.

(c) The Chief Counsel may forward to the Board the written views of the Coast Guard on any case before the Board.

(d) A copy of each submission made by the Coast Guard under this section shall be transmitted to the Board, which shall promptly send a copy to the applicant involved. Each applicant has 15 days, from the date the Board sends the submission, to rebut or respond to such submission

(e) Information and views furnished by the Coast Guard under this section shall not be binding upon the Board, but shall be considered by the Board along with all other information and material submitted in the particular

SOURCE: 56 FR 13405, Apr. 2, 1991, unless otherwise noted.

$53.1 Purpose.

This part:

(a) Establishes policy and implements section 1034 of title 10 of the United States Code to provide protection against reprisal to members of the Coast Guard for making a lawful communication to a Member of Congress or an Inspector General.

(b) Assigns responsibilities and delegates authority for such protection and prescribes operating procedures.

§ 53.3 Applicability.

This part applies to members of the United States Coast Guard, the Board for Correction of Military Records of the Coast Guard, and the Department of Transportation's Office of the Inspector General.

§ 53.5 Definitions.

As used in this part, the following terms shall have the meaning stated, except as otherwise provided:

Board for Correction of Military Records of the Coast Guard. The Department of Transportation Board for Correction of Military Records of the Coast Guard (Board) is empowered under 10 U.S.C. 1552 to make corrections of Coast Guard military records. The Board is part of the Office of the General Counsel in the Office of the Secretary of Transportation.

Corrective Action. Any action deemed necessary to make the complainant whole, changes in agency regulations or practices, and/or administrative or disciplinary action against offending personnel, or referral to the U.S. Attorney General or courtmartial convening authority of any evidence of criminal violation.

Inspector General. The Inspector General in the Office of Inspector General of the Department of Transportation, as appointed under the Inspector General Act of 1978.

Law Specialist. A commissioned officer of the Coast Guard designated for special duty (law).

Member of the Coast Guard. Any past or present Coast Guard uniformed personnel, officer or enlisted, regular or

reserve. This definition includes cadets of the Coast Guard Academy.

Member of Congress. In addition to a Representative or a Senator, the term includes any Delegate or Resident Commissioner to Congress.

Personnel Action. Any action taken regarding a member of the Coast Guard that adversely affects or has the potential to adversely affect the member's position or his or her career. Such actions include, but are not limited to, a disciplinary or other corrective action; a transfer or reassignment; a performance evaluation; or a decision concerning a promotion, pay, benefits, awards, or training.

Reprisal. Taking or threatening to take an unfavorable personnel action or withholding or threatening to withhold a favorable personnel action against a member of the Coast Guard for making or preparing to make a communication to a Member of Congress or an Inspector General.

Secretary. The Secretary of Transportation or his or her delegate.

§ 53.7 Requirements.

(a) No person within the Department of Transportation may restrict a member of the Coast Guard from lawfully communicating with a Member of Congress or an Inspector General.

(b) Members of the Coast Guard shall be free from reprisal for making or preparing to make lawful communications to Members of Congress or an Inspector General.

(c) Any employee or member of the Coast Guard who has the authority to take, direct others to take, or recommend or approve any personnel action shall not, under such authority, take, withhold, threaten to take, or threaten to withhold a personnel action regarding any member of the Coast Guard in reprisal for making or preparing to make a lawful communication to a Member of Congress or an Inspector General.

§ 53.9 Responsibilities.

(a) The Inspector General, Department of Transportation shall:

(1) Expeditiously investigate any allegation, if such allegation is submitted, that a personnel action has been taken (or threatened) in reprisal for