PART 581—PERSONNEL REVIEW BOARD Authority: 10 U.S.C. 1552, 1553, 1554, 3013, 3014, 3016; 38 U.S.C. 3103(a). § 581.1 Army Disability Review Board. (a) General provisions Constitution, purpose, and jurisdiction of review board. (ii) The class of officers whose cases are reviewable shall include officers of the Army of the United States, other than officers of the Regular Army, who were discharged or released to inactive service under the conditions prescribed in paragraph (a)(1)(i) of this section; and former officers of the Regular Army who were wholly retired under section 1252, Revised Statutes. (iii) The review board is authorized, upon timely application therefor, to review the proceedings and findings of boards referred to in paragraph (a)(1)(i) of this section; and to receive additional evidence bearing on the causes and service-connection of disabilities in the cases of officers referred to in paragraph (a)(1)(ii) of this section, whose cases were the subject of findings by a retiring or disposition board, and who were separated from the service or released to inactive service, without pay, by reason of physical disability, whether denial of retirement or retirement pay benefits, as the case may be, was pursuant to the adverse findings of a board, or was pursuant to administrative action in a case where there was favorable action by a board. (iv) In carrying out its duties under this memorandum such review board shall have the same powers as exercised by, or vested in, the board whose findings and decisions are being reviewed. (2) Application for review. (ii) No application for review will be granted unless received by the Department of the Army within 15 years after the date on which such officer was separated from the service or released to inactive service, without pay, for physical disability, or within 15 years after June 22, 1944, whichever date is the later. (iii) The Adjutant General, upon receipt of an application for review, will note thereon the time of receipt thereof and will, in cases where the jurisdiction for review by the review board is established, assemble the originals or certified copies of all available Department of the Army and/or other record pertaining to the health and physical condition of the applicant, including the record of the proceedings and findings of all retiring and disposition boards in question and the records of all administration and/or executive action taken thereon. Such records, together with the application and any supporting documents submitted therewith, will be transmitted to the president of the review board. (3) Changes in procedure of review board. (b) Proceedings of review board Convening of review board. (ii) Unless otherwise directed by its president, the review board will convene in Washington, DC, at the time and place indicated by him. (iii) The review board will assemble in open session for the consideration and determination of cases presented to it. After the conclusion of such hearing, the review board will as soon as practicable thereafter convene in closed session for determination. (2) Hearings. (ii) In every case in which a hearing is authorized, the secretary will transmit to the applicant and to designated counsel for the applicant, if any, a written notice by registered mail stating the time and place of hearing. Such notice shall be mailed at least 30 days in advance of the date on which the case is set for hearing except in cases in which the applicant waives the right of personal appearance and/or representation by counsel. Such notice shall constitute compliance with the requirement of notice to applicant and his counsel. The record shall contain the certificate of the secretary that written notice was given applicant and his counsel, if any, and the time and manner thereof. (iii) An applicant who requests a hearing and who, after being duly notified of the time and place of hearing, fails to appear at the appointed time, either in person or by counsel, or, in writing, waives his right to appear, thereby waives such right. (iv) In the conduct of its inquiries, the review board shall not be limited by the restrictions of common law rules of evidence. (v) In the case wherein it is advisable and practicable, the review board may, at the request of the examiner, or upon its own motion, request The Surgeon General to detail one or more medical officers to make physical examination of the applicant, if available, and report their findings resulting from such examination with respect to the matters at issue, either in person or by affidavit. When testifying in person at a hearing, such medical witnesses will be subject to cross-examination. Similarly the medical members of the board may examine the applicant, if available, and testify as witnesses concerning the results of such examination. (vi) Expenses incurred by the applicant, his witnesses, or in the procurement of their testimony, whether in person, by affidavit or by deposition will not be paid by the Government. (3) Continuances. (c) Findings, conclusions, and directions Findings, conclusions, and directions of review board. ( a ( b (ii) In the event the review board reverses any of such original findings or administrative actions, the review board will then make complete findings which shall include the affirmed findings of the original board or of administrative action subsequent thereto. Such complete findings shall include the following: ( a ( b ( c ( d ( e ( f ( g ( h (iii) In the event the review board finds the officer permanently incapacitated for active service and that the incapacity was an incident of service, it will make an additional finding specifying the grade in which the officer is entitled to be retired or to be certified for retirement pay benefits. (iv) The findings, conclusions, and directions of a majority of the review board shall constitute the findings, conclusions, and directions of the review board, and when made, will be signed by each member of the review board who concurs therein, filed, and authenticated by the secretary. (d) Disposition of and action upon proceedings Record of proceedings. (ii) All records of proceedings of the review board shall be confidential, except that upon written request from the applicant, his guardian or legal representative, The Adjutant General will furnish a copy of the proceedings of the review board, less any exhibits which it may be found impracticable to reproduce out which will include: ( a ( b ( c ( d ( e ( f If it should appear that furnishing such information would prove injurious to the physical or mental health of the applicant, such information will be furnished only to the guardian or legal representative of the applicant. The Adjutant General, subject to the foregoing restrictions, will make available for inspection, upon request of the applicant, his guardian or legal representative, a record of the proceedings of any case reviewed by the review board, but copies of the proceedings of any case heard prior to January 4, 1946, will not be furnished if such copies are not readily available. (2) Final action by review board. (e) Rehearings Policy on the granting of rehearings. (2) Application for rehearing. [13 FR 6805, Nov. 19, 1948, as amended at 19 FR 6706, Oct. 19, 1954] § 581.2 Army Discharge Review Board. (a) Purpose. (b) Explanation of terms Legal consultant of the Army Discharge Review Board (ADRB). (2) Medical consultant of the ADRB. (3) Video tape hearing. (c) Composition and responsibilities Authority. (2) The ADRB president. (i) Is responsible for the operation of the ADRB. (ii) Prescribes the operating procedures of the ADRB. (iii) Designates officers to sit on panels. (iv) Schedules panels to hear discharge review appeals. (v) Monitors the DOD directed responsibilities of the SA on service discharge review matters for the DOD. (3) ADRB panels and members. (4) Secretary Recorder (SR) Branch. (i) Ensures the efficient overall operation and support of the ADRB panels. (ii) Authenticates the case report and directives of cases heard. (5) Secretary Recorder. (i) Schedule, coordinate, and arrange for panel hearings at a designated site. (ii) Administer oaths to applicants and witnesses under Article 136 UCMJ. (iii) Ensure that the proceedings of the cases heard and recorded into the case report and directive of cases. (6) Administrative Specialist. (i) Assist the SR in arranging panel hearings. (ii) Operate and maintain video and voice recording equipment. (iii) Aid the SR in the administrative operations of the panels. (7) Administrative personnel. (d) Special standards. (2) Applicants who believe they fall within the scope of paragraph (d)(1) of this section should place the work CATEGORY “G” in block 7, DD Form 293, (Application for Review of Discharge or Dismissal from the Armed Forces of the United States). Such applications will be reviewed expeditiously by a designated official who will either send the individual an honorable discharge certificate if the individual falls within the scope of paragraph (d)(1) of this section or forward the application to the ADRB if the individual does not fall within the scope of paragraph (d)(1) of this section. The action of the designated official will not constitute an action or decision by the ADRB. [50 FR 33035, Aug. 16, 1985] § 581.3 Army Board for Correction of Military Records. (a) General Purpose. (2) Statutory authority. (b) Responsibilities The Secretary of the Army. (2) The ABCMR Director. (3) The chair of an ABCMR panel. (4) The ABCMR members. (i) Review all applications that are properly before them to determine the existence of error or injustice. (ii) If persuaded that material error or injustice exists, and that sufficient evidence exists on the record, direct or recommend changes in military records to correct the error or injustice. (iii) Recommend a hearing when appropriate in the interest of justice. (iv) Deny applications when the alleged error or injustice is not adequately supported by the evidence, and when a hearing is not deemed proper. (v) Deny applications when the application is not filed within prescribed time limits and when it is not in the interest of justice to excuse the failure to file in a timely manner. (5) The director of an Army records holding agency. (i) Take appropriate action on routine issues that may be administratively corrected under authority inherent in the custodian of the records and that do not require ABCMR action. (ii) Furnish all requested Army military records to the ABCMR. (iii) Request additional information from the applicant, if needed, to assist the ABCMR in conducting a full and fair review of the matter. (iv) Take corrective action directed by the ABCMR or the Secretary of the Army. (v) Inform the Defense Finance and Accounting Service (DFAS), when appropriate; the applicant; applicant's counsel, if any; and interested Members of Congress, if any, after a correction is complete. (vi) Return original records of the soldier or former soldier obtained from the Department of Veterans Affairs (VA). (6) The commanders of Army Staff agencies and commands. (i) Furnish advisory opinions on matters within their areas of expertise upon request of the ABCMR, in a timely manner. (ii) Obtain additional information or documentation as needed before providing the opinions to the ABCMR. (iii) Provide records, investigations, information, and documentation upon request of the ABCMR. (iv) Provide additional assistance upon request of the ABCMR. (v) Take corrective action directed by the ABCMR or the Secretary of the Army. (7) The Director, Defense Finance and Accounting Service (DFAS). (i) Furnish advisory opinions on matters within the DFAS area of expertise upon request. (ii) Obtain additional information or documentation as needed before providing the opinions. (iii) Provide financial records upon request. (iv) On behalf of the Army, settle claims that are based on ABCMR final actions. (v) Report quarterly to the ABCMR Director on the monies expended as a result of ABCMR action and the names of the payees. (c) ABCMR establishment and functions ABCMR establishment. (2) ABCMR functions. (ii) When an applicant has suffered reprisal under the Military Whistleblower Protection Act 10 U.S.C. 1034 and Department of Defense Directive (DODD) 7050.6, the ABCMR may recommend to the Secretary of the Army that disciplinary or administrative action be taken against any Army official who committed an act of reprisal against the applicant. (iii) The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing in 10 U.S.C. 1034 and DODD 7050.6) or request additional evidence or opinions. (d) Application procedures Who may apply. (ii) Usually applicants are soldiers or former soldiers of the Active Army, the U.S. Army Reserve (USAR), and in certain cases, the Army National Guard of the United States (ARNGUS) and other military and civilian individuals affected by an Army military record. Requests are personal to the applicant and relate to military records. Requests are submitted on DD Form 149 (Application for Correction of Military Record under the Provisions of 10 U.S.C. 1552). Soldiers need not submit applications through their chain of command. (iii) 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, missing, or deceased. Depending on the circumstances, a child, spouse, parent or other close relative, heir, or legal representative (such as a guardian or executor) of the soldier or former soldier may be able to demonstrate a proper interest. Applicants must send proof of proper interest with the application when requesting correction of another person's military records. (2) Time limits. (3) Administrative remedies. (4) Stay of other proceedings. (5) Counsel. (ii) See DODD 7050.6 for provisions for counsel in cases processed under 10 U.S.C. 1034. (e) Actions by the ABCMR Director and staff Criteria. (i) The applicant fails to complete and sign the application. (ii) The applicant has not exhausted all other administrative remedies. (iii) The ABCMR does not have jurisdiction to grant the requested relief. (iv) No new evidence was submitted with a request for reconsideration. (2) Burden of proof. (3) ABCMR consideration. (ii) The panel members may consider a case on the merits in executive session or may authorize a hearing. (iii) Each application will be reviewed to determine— (A) Whether the preponderance of the evidence shows that an error or injustice exists and— ( 1 ( 2 (B) Whether to authorize a hearing. (C) If the application is filed outside the statute of limitations and whether to deny based on untimeliness or to waive the statute in the interest of justice. (f) Hearings. (g) Disposition of applications ABCMR decisions. (2) ABCMR final action. (A) Denies any application (except for actions based on reprisals investigated under 10 U.S.C. 1034). (B) Grants any application in whole or in part without a hearing when— ( 1 ( 2 ( 3 (ii) The ABCMR will forward the decisional document to the Secretary of the Army for final decision in any case in which— (A) A hearing was held. (B) The facts involve reprisals under the Military Whistleblower Protection Act, confirmed by the DOD Inspector General (DODIG) under 10 U.S.C. 1034 and DODD 7050.6. (C) The ABCMR recommends relief but is not authorized to act for the Secretary of the Army on the application. (3) Decision of the Secretary of the Army. (ii) The Secretary of the Army will issue decisions on cases covered by the Military Whistleblower Protection Act (10 U.S.C. 1034 and DODD 7050.6). In cases where the DODIG concluded that there was reprisal, these decisions will be made within 180 days after receipt of the application and the investigative report by the DODIG, the Department of the Army Inspector General (DAIG), or other Inspector General offices. Unless the full relief requested is granted, these applicants will be informed of their right to request review of the decision by the Secretary of Defense. (4) Reconsideration of ABCMR decision. (i) If the ABCMR receives the request for reconsideration within 1 year of the ABCMR's original decision and if the ABCMR has not previously reconsidered the matter, the ABCMR staff will review the request to determine if it contains evidence (including, but not limited to, any facts or arguments as to why relief should be granted) that was not in the record at the time of the ABCMR's prior consideration. If new evidence has been submitted, the request will be submitted to the ABCMR for its determination of whether the new evidence is sufficient to demonstrate material error or injustice. If no new evidence is found, the ABCMR staff will return the application to the applicant without action. (ii) If the ABCMR receives a request for reconsideration more than 1 year after the ABCMR's original decision or after the ABCMR has already considered one request for reconsideration, then the case will be returned without action and the applicant will be advised the next remedy is appeal to a court of appropriate jurisdiction. (h) Claims/Expenses Authority. (ii) The Army may not pay any claim previously compensated by Congress through enactment of a private law. (iii) The Army may not pay for any benefit to which the applicant might later become entitled under the laws and regulations managed by the VA. (2) Settlement of claims. (ii) The DFAS will settle claims on the basis of the corrected military record. The DFAS will compute the amount due, if any. The DFAS may require applicants to furnish additional information to establish their status as proper parties to the claim and to aid in deciding amounts due. Earnings received from civilian employment during any period for which active duty pay and allowances are payable will be deducted. The applicant's acceptance of a settlement fully satisfies the claim concerned. (3) Payment of expenses. (i) Miscellaneous provisions Special standards. Giles Secretary of the Army (ii) Applicants who believe that they fall within the scope of paragraph (i)(1)(i) of this section should place the term “CATEGORY G” in block 11b of DD Form 149. Such applications should be expeditiously reviewed by a designated official, who will either send the individual an honorable discharge certificate if the individual falls within the scope of paragraph (i)(1)(i) of this section, or forward the application to the Discharge Review Board if the individual does not fall within the scope of paragraph (i)(1)(i) of this section. The action of the designated official will not constitute an action or decision by the ABCMR. (2) Public access to decisions. (ii) Under the Freedom of Information Act and the Privacy Act of 1974 (5 U.S.C. 552a), the ABCMR will not furnish to third parties information submitted with or about an application unless specific written authorization is received from the applicant or unless the Board is otherwise authorized by law. [65 FR 17441, Apr. 3, 2000, as amended at 70 FR 67368, Nov. 7, 2005]