32 C.F.R. § 723.6

Action by the Board

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(a) Deliberations, findings, conclusions, and recommendations. (1) Only members of the Board and its staff shall be present during the deliberations of the Board.

(2) Whenever, during the course of its review of an application, it appears to the Board's satisfaction that the facts have not been fully and fairly disclosed by the records or by the testimony and other evidence before it, the Board may require the applicant or military authorities to provide such further information as it may consider essential to a complete and impartial determination of the facts and issues.

(3) Following a hearing, or where the Board determines to recommend that the record be corrected without a hearing, the Board will make written findings, conclusions and recommendations. If denial of relief is recommended following a hearing, such written findings and conclusions will include a statement of the grounds for denial as described in § 723.3(e)(4). The name and final vote of each Board member will be recorded. A majority vote of the members present on any matter before the Board will constitute the action of the Board and shall be so recorded.

(4) Where the Board deems it necessary to submit comments or recommendations to the Secretary as to matters arising from but not directly related to the issues of any case, such comments and recommendations shall be the subject of separate communication. Additionally, in Military Whistleblower Protection Act cases, any recommendation by the Board to the Secretary that disciplinary or administrative action be taken against any Navy official based on the Board's determination that the official took reprisal action against the applicant will not be made part of the Board's record of proceedings or furnished the applicant but will be transmitted to the Secretary as a separate communication.

(b) Minority report. In case of a disagreement between members of the Board a minority report will be submitted, either as to the findings, conclusions or recommendation, including the reasons therefor.

(c) Record of proceedings. Following a hearing, or where the Board determines to recommend that the record be corrected without a hearing, a record of proceedings will be prepared. Such record shall indicate whether or not a quorum was present, and the name and vote of each member present. The record shall include the application for relief, a verbatim transcript of any testimony, affidavits, papers and documents considered by the Board, briefs and written arguments, advisory opinions, if any, minority reports, if any, the findings, conclusions and recommendations of the Board, where appropriate, and all other papers, documents, and reports necessary to reflect a true and complete history of the proceedings.

(d) Withdrawal. The Board may permit an applicant to withdraw his/her application without prejudice at any time before its record of proceedings is forwarded to the Secretary.

(e) Delegation of authority to correct certain naval records. (1) With respect to all petitions for relief properly before it, the Board is authorized to take final corrective action on behalf of the Secretary, unless:

(i) Comments by proper naval authority are inconsistent with the Board's recommendation;

(ii) The Board's recommendation is not unanimous; or

(iii) It is in the category of petitions reserved for decision by the Secretary of the Navy.

(2) The following categories of petitions for relief are reserved for decision by the Secretary of the Navy:

(i) Petitions involving records previously reviewed or acted upon by the Secretary wherein the operative facts remained substantially the same;

(ii) Petitions by former commissioned officers or midshipmen to change the character of, and/or the reason for, their discharge; or,

(iii) Such other petitions as, in the determination of Office of the Secretary or the Executive Director, warrant Secretarial review.

(3) The Executive Director after ensuring compliance with this section, will announce final decisions on applications decided under this section.

Notes of Decisions

Cited in 31 cases (6 in the last 5 years), 1967–2026 · leading case: Stewart v. Stackley, 251 F. Supp. 3d 138 (D.D.C. 2017).

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Stewart v. Stackley, 251 F. Supp. 3d 138 (D.D.C. 2017). · cites it 2× “” 32 C.F.R. § 723.6 (e)(1)(i); SECNA-VINST 5420.”

Peoples v. United States, 87 Fed. Cl. 553 (Fed. Cl. 2009). “” 32 C.F.R. § 723.6 (a)(3). Moreover, because the BCNR denied plaintiffs application without a hearing, it was required to include in its written determination a “brief statement of the grounds for denial,” id.”

Strand v. United States, 951 F.3d 1347 (Fed. Cir. 2020). “See 32 C.F.R. § 723.6 (e)(1). But any petition that the Secretary or the BCNR Executive Director determines warrants Secretarial review is “reserved for decision” by the Secretary.”

Sokol v. United States, 120 Fed. Cl. 144 (Fed. Cl. 2015). · cites it 4× “Sokol contends that the BCNR committed the following list of procedural errors, which he says render its decision arbitrary and capricious: it did not make written findings, conclusions, and recommendations, as required by 32 C.F.R. § 723.6 , Pl.’s Am. Mot. for J.”

William Havens v, Raymond Edwin Mabus, Jr., Sec'y of the Navy Chairman, Bd. for Corr. of Naval Records, 759 F.3d 91 (D.C. Cir. 2014). “6 Subject to exceptions inapplicable here, the BCNR issues the Navy’s final decision on a record correction application, see 32 C.F.R. § 723.6 (e), and reconsiders its decision only if the applicant presents “new and material evidence or other matter not previously considered by…”

Reilly v. Sec'y of the Navy, 12 F. Supp. 3d 125 (D.D.C. 2014). · cites it 2× “The regulations also provide that where “the facts have not been fully and fairly disclosed by the records or by the testimony and other evidence before it, the Board may require the applicant or military authorities to provide such further information as it may consider…”

Kennedy v. United States, 124 Fed. Cl. 309 (Fed. Cl. 2015). · cites it 2× “19, 1997), who, in the circumstances presented in this case, was required to review the BCNR’s decision, see 32 C.F.R. § 723.6 (e)(2)(ii) (2006). For simplicity, the court will refer to the Secretary of the Navy’s approval of the BCNR’s recommendations on plaintiff’s application…”

Matthew H. Sawyer v. The United States, 930 F.2d 1577 (Fed. Cir. 1991). “See 32 C.F.R. § 723.6 (a)(3) and (c) (1990). The regulations defining its activity make no distinction between cases in which the review boards have previously acted and those in which the BCNR is the first body to consider the claim.”

Lewis v. United States, 476 F. App'x 240 (Fed. Cir. 2012). “See 32 C.F.R. §§ 723.6 (a)(2) and 723.8(b)(2); SECNA-VINST 5420.”

Kenneth Wayne Nelson v. Charles K. Miller, Captain, United States Navy, Etc., 373 F.2d 474 (3rd Cir. 1967). “32 C.F.R. § 723.6 (a) (3). 14 . 32 C.F.R.”

Mitchell Van Bourg v. Paul H. Nitze, Sec'y of the Navy, 388 F.2d 557 (D.C. Cir. 1967). “The Corrections Board also failed to make the findings of fact required by 32 C.F.R. 723.6(a) (3) (1967) (effective since Nov.”

Vicki R. Champagne & Sandra L. Stout v. James R. Schlesinger, Sec'y of Def., 506 F.2d 979 (7th Cir. 1974). “9 The BCNR has the power to develop further the record in this case and to explore the position of the Navy regarding the discharge of homosexuals ( 32 CFR § 723.6 (a)(2)). Finally, we are mindful of the well-established and sound policy in the federal courts which seeks to…”

Show all 31 citing cases →

— 32 C.F.R. § 723.6(a) — 1 case

— 32 C.F.R. § 723.6(a)(2) — 1 case

Reilly v. Sec'y of the Navy, 12 F. Supp. 3d 125 (D.D.C. 2014). “The regulations also provide that where “the facts have not been fully and fairly disclosed by the records or by the testimony and other evidence before it, the Board may require the applicant or military authorities to provide such further information as it may consider…”

— 32 C.F.R. § 723.6(c) — 1 case

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