(b) In the event the petitioner does not appear in person or by counsel, the Board shall review the case on the basis of documentary or oral evidence presented by or on behalf of the petitioner and by the government representative.

(c) In the event the petitioner appears in person or by counsel, the Board shall assemble to hear evidence offered by or on behalf of the petitioner, and by the government representative.

(d) After the conclusion of such hearings, the Board shall, as soon as practicable, arrive at its findings, conclusions and decision. Based thereon, the Board shall prepare its order relative to the case.

Subpart 51.06-Action by the Board § 51.06-1

Deliberations.

(b) No persons other than members of the Board shall be present at or participate in its deliberations.

(c) Members not concurring may file a minority report.

(d) The findings, conclusions, decision and order shall be signed by the concurring majority members.

(e) In its deliberations a Board shall be guided by the following principles:

(1) Relevant and material facts concerning the petitioner found by a Navy general or summary court-martial, or deck court, or by a Coast Guard general, summary, or deck court, or by a board of inquiry or board of investigation where petitioner was in the status of a defendant or interested party, as approved by the reviewing authorities, shall be presumed by the Board as established facts in the absence of manifest error.

(2) Relevant and material facts stated in a specification to which the petitioner pleaded guilty before a Navy general or summary court-martial, or deck court, or by a Coast Guard general, summary, or deck court, or where upon being confronted by such a specification the petitioner elected to resign for the good of the service or to accept a discharge to escape trial by a Navy general courtmartial, or a Coast Guard general court shall be presumed by the Board as established facts, in the absence of manifest error, or unless the petitioner shall show to the Board's satisfaction, or it shall otherwise appear, that arbitrary or

coercive action was taken against him at the time which was not apparent to the reviewing authority from the face of the record.

(3) A document evidencing separation from the Coast Guard relates only to such Coast Guard service. Accordingly. the evidence to be considered will be restricted to that covering relevant and material facts concerning petitioner's Coast Guard service, or his character, conduct, physical condition, or other material matter at the time of his entry into the Coast Guard, during such Coast Guard service or at the time of separation therefrom (which appear in available records of the Coast Guard and in testimony and other evidence before the board).

(4) In order to warrant a change, correction or modification of the original document evidencing separation from the Coast Guard, it is incumbent on the petitioner to show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the original document was improperly or inequitably issued under standards of Coast Guard and naval law and discipline existing at the time of such original separation, or under such standards differing therefrom in the petitioner's favor which subsequent to his separation were made retroactive specifically to separations of the type and character had by the petitioner. The standards of Coast Guard and naval law and discipline herein contemplated are those standards stated in statutes, regulations, directives of the Coast Guard, and other appropriate authority, together with interpretations thereof by the courts, the Attorney General, the Judge Advocate General of the Navy, the General Counsel of the Treasury Department, or the Chief Counsel of the Coast Guard.

§ 51.06-5 Findings of facts.

'The Board shall make findings of facts in each case which shall include the following:

(a) Type and nature of discharge or dismissal certificate or other documentary evidence of discharge or dismissal which was issued to the person concerned upon separation from the Coast Guard.

(b) Authority under which discharge or dismissal was issued.

(c) Circumstances surrounding the discharge or dismissal as found by the Board to be established from all the evidence considered. This includes material and relevant facts showing in what

The Board, on the basis of its findings, shall prepare conclusions which shall state:

(a) Whether or not any change, correction, or modification should be made in the type or character of the discharge or dismissal given.

(b) Where pertinent, the particular change, correction or modification that should be made, and

(c) The reasons why a change, correction or modification should or should not be made. This should not include comments on the actions of other Coast Guard personnel. Where such comment is warranted, it should be made the subject of an official communication entirely independent of petitioner's case.

§ 51.06-25

Record of proceedings.

(a) When the Board has concluded its proceedings, the recorder shall prepare a complete original record thereof. Such record shall include the request for review, a transcript of the hearing, if any; affidavits, papers and documents considered by the Board, all briefs and written arguments filed in the case; the findings, conclusions and decision; any minority report prepared by dissenting members of the Board, and all other papers and documents necessary to reflect a true and complete history of the proceedings. The record will be authenticated by the recorder as being true and complete.

(b) A record of proceedings of the Board and action transmitting a record to the Secretary of the Treasury for review shall not contain recommendations of any character which relate to matters beyond the scope of the Board's authority. To the extent that such recommendations are warranted, they should be made a matter for separate communication to the Commandant, Coast Guard, but should not be associated with the records of the petitioner before the Board.

§ 51.06-30 Transmittal of record.

The original record of the proceedings in each case shall be transmitted forthwith by the President of the Panel to the Secretary of the Treasury, via the Chief Counsel and the Commandant, Coast Guard. The Chief Counsel of the Coast Guard will review the record for legality of the proceedings and decision of the Board. In those cases in which the unanimous decision of the Board of Review is in favor of the appellant, and the President of the Panel in transmitting the record of the case by indorsement is in agreement, the Commandant, if in agreement with the decision, shall take appropriate administrative action in accordance therewith. However, if in his opinion the decision of the Board is not considered to be consistent with applicable directives or policies, he shall forward the record to the Secretary of the Treasury with appropriate comment. Subpart 51.08-The Secretary of the Treasury

return of the record to the Board for further consideration when deemed necessary.

(b) The procedure of the Board of such further consideration will conform as nearly as practicable to that heretofore prescribed, except that the scope of the action of the Board will be limited to the matters specified by the Secretary of the Treasury in the directive ordering such reconsideration.

(c) The Secretary of the Treasury, after this final action, will return all records to the President of the Panel, who will notify the petitioner of the action taken in his case, then forward all records to the Commandant, U. S. Coast Guard for the following administrative acts:

(1) Take such administrative action as may be necessary with respect to the discharge or dismissal in question.

(2) Place copies of the Secretary's order and of the record of proceedings in the service record. A reference shall be made in the copy of the Board's report of all enclosures or exhibits which are to be filed elsewhere.

(3) Place all records in their proper files for safe custody.

(4) Disclosure of such information contained in the record shall be within the limitations and conditions set forth under Veterans Regulation 11. (38 CFR, 1938 ed., 35.11)

Subpart 51.10-Representatives

§ 51.10-1 Appointment of Government

representatives.

Jurisdiction.

Denial of application.

52.05-20 Stay of proceedings.

Subpart 52.10-Counsel, Witnesses and

52.10-1 Counsel.

52.10-5 52.10-10

Expenses

Witnesses.

Expenses.

52.15-1 52.15-5 52.15-10

Notice of hearing.

This part establishes the procedures for making application, and the consideration of applications, for correction of military records by the Board for Correction of Military Records of the Coast Guard and the manner in which claims or continuing monetary benefits will be settled.

§ 52.01-5 Authority.

(a) Section 131 of the Legislative Reorganization Act of 1946 (60 Stat. 831) provides that no private bill or resolution, and no amendment to any bill or resolution, authorizing or directing the correction of a military or naval record shall be received or considered in either the Senate or the House of Representatives. Section 207 of the same act, as amended (Public Law 220, approved October 25, 1951, 5 U.S.C. 275), provides that the Secretary of the Treasury, acting through a board of civilian officers or employees, is authorized to correct any military record where in his judgment sich action is necessary to correct

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

§ 52.01-10 Application for relief.

(a) The claimant, his heirs at law, or legal representative must submit a written request to the Senior Member, Board for Correction of Military Records of the Coast Guard, Washington, D.C., 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 findings that it is in the interest of justice to do so.

(b) Application for relief must be made on DD Form 149, or CG Form 10092 (Application for Correction of Military or Naval Records), or exact facsimile thereof. Forms and explanatory matter may be obtained from the Senior Member, Board for Correction of Military Records of the Coast Guard, Washington, D.C.

(c) The application will be executed under oath or will contain provision that the statements submitted in the application, as a part of the claim, are made with full knowledge of the penalty provided by law for making false statement (18 U.S.C. 1001) or false claim against the Government (18 U.S.C. 287).

(d) If the record in question is that of a person who is deceased or incompetent, legal proof of death or incompetency must accompany the application. In such event, the application may be signed by a spouse, widow, widower, next of kin or legal representative, accompanied by satisfactory evidence of the required relationship.

Subpart 52.05—Constitution, Function and Jurisdiction

§ 52.05-1 Establishment of the Board. (a) Pursuant to the provisions of section 207 of the Legislative Reorganization Act of 1946, as amended, the Board

The function of the Board will be to review the application for relief together with all pertinent military or naval records to determine whether an error has been made in the Coast Guard records, or whether, under normal standards of military law, administration and practice, the subject of the application has suffered a wrong as the result of an error of omission or commission in his records or, through some manifest injustice in the treatment accorded him, and to recommend to the Secretary of the Treasury the action to be taken on each application.

(a) The Board shall have 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 of the Treasury.

(b) The Board shall not review any matter where other adequate legal or administrative remedy exists, except where such remedy has been exhausted or upon authorization of the Secretary of the Treasury.

§ 52.05-15 Denial of application.

(a) It shall be adequate ground for denial of any application that no basis for review has been established or that effective relief cannot be granted.

(b) In order to justify a hearing for correction of a military record, it is incumbent upon the applicant to show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the alleged entry or omission in the records was erroneous or has worked an injustice upon him.

§ 52.05-20 Stay of proceedings.

The filing of an application with the Board for relief shall not operate as a stay of any proceedings taken against the person involved.

As used in this part the term "Counsel" will be construed to include members of the Federal Bar in good standing, the bar of any State in good standing, 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 claim of the applicant for review, notwithstanding the provisions set forth in Part 10 of Title 31 of the Code of Federal Regulations.

(a) 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, with the report of the Examiner in the case, will be mailed to the applicant and counsel, if any, at least 30 days prior to the date of the hearing; except that an earlier date may be set where the applicant waives his right to such notice in writing.

§ 52.15-5 Appearance.

An applicant who requests a hearing and who, after being notified of the time and place of hearing, fails without good cause to appear at the appointed time and place, either in person or by counsel, will be deemed to have waived his right to be present, and the Board may proceed with the consideration and determination of the case.