Title 32 National Defense Parts 400 to 629

Revised as of July 1, 2014

Containing a codification of documents of general applicability and future effect

As of July 1, 2014

Published by the Office of the Federal Register National Archives and Records Administration as a Special Edition of the Federal Register

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Legal Status and Use of Seals and Logos The seal of the National Archives and Records Administration (NARA) authenticates the Code of Federal Regulations (CFR) as the official codification of Federal regulations established under the Federal Register Act. Under the provisions of 44 U.S.C. 1507, the contents of the CFR, a special edition of the Federal Register, shall be judicially noticed. The CFR is prima facie evidence of the original documents published in the Federal Register (44 U.S.C. 1510). It is prohibited to use NARA’s official seal and the stylized Code of Federal Regulations logo on any republication of this material without the express, written permission of the Archivist of the United States or the Archivist’s designee. Any person using NARA’s official seals and logos in a manner inconsistent with the provisions of 36 CFR part 1200 is subject to the penalties specified in 18 U.S.C. 506, 701, and 1017.

Use of ISBN Prefix This is the Official U.S. Government edition of this publication and is herein identified to certify its authenticity. Use of the 0–16 ISBN prefix is for U.S. Government Printing Office Official Edi- tions only. The Superintendent of Documents of the U.S. Govern- ment Printing Office requests that any reprinted edition clearly be labeled as a copy of the authentic work with a new ISBN.

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Page Explanation ...... v

Title 32:

SUBTITLE A—DEPARTMENT OF DEFENSE (CONTINUED)

Chapter V—Department of the Army ...... 5

Finding Aids:

Table of CFR Titles and Chapters ...... 453

Alphabetical List of Agencies Appearing in the CFR ...... 473

List of CFR Sections Affected ...... 483

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To cite the regulations in this volume use title, part and section number. Thus, 32 CFR 504.1 refers to title 32, part 504, section 1.

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The Code of Federal Regulations is a codification of the general and permanent rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent broad areas subject to Federal regulation. Each title is divided into chapters which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas. Each volume of the Code is revised at least once each calendar year and issued on a quarterly basis approximately as follows: Title 1 through Title 16...... as of January 1 Title 17 through Title 27 ...... as of April 1 Title 28 through Title 41 ...... as of July 1 Title 42 through Title 50...... as of October 1 The appropriate revision date is printed on the cover of each volume. LEGAL STATUS The contents of the Federal Register are required to be judicially noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text of the original documents (44 U.S.C. 1510). HOW TO USE THE CODE OF FEDERAL REGULATIONS The Code of Federal Regulations is kept up to date by the individual issues of the Federal Register. These two publications must be used together to determine the latest version of any given rule. To determine whether a Code volume has been amended since its revision date (in this case, July 1, 2014), consult the ‘‘List of CFR Sections Affected (LSA),’’ which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ which appears in the Reader Aids section of the daily Federal Register. These two lists will identify the Federal Register page number of the latest amendment of any given rule. EFFECTIVE AND EXPIRATION DATES Each volume of the Code contains amendments published in the Federal Reg- ister since the last revision of that volume of the Code. Source citations for the regulations are referred to by volume number and page number of the Federal Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the actual effective date. In instances where the effective date is beyond the cut- off date for the Code a note has been inserted to reflect the future effective date. In those instances where a regulation published in the Federal Register states a date certain for expiration, an appropriate note will be inserted following the text. OMB CONTROL NUMBERS The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires Federal agencies to display an OMB control number with their information collection request.

VerDate Mar<15>2010 11:08 Sep 09, 2014 Jkt 232131 PO 00000 Frm 00005 Fmt 8008 Sfmt 8092 Y:\SGML\232131.XXX 232131 pmangrum on DSK3VPTVN1PROD with CFR Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as close as possible to the applicable recordkeeping or reporting requirements. PAST PROVISIONS OF THE CODE Provisions of the Code that are no longer in force and effect as of the revision date stated on the cover of each volume are not carried. Code users may find the text of provisions in effect on any given date in the past by using the appropriate List of CFR Sections Affected (LSA). For the convenience of the reader, a ‘‘List of CFR Sections Affected’’ is published at the end of each CFR volume. For changes to the Code prior to the LSA listings at the end of the volume, consult previous annual editions of the LSA. For changes to the Code prior to 2001, consult the List of CFR Sections Affected compilations, published for 1949- 1963, 1964-1972, 1973-1985, and 1986-2000. ‘‘[RESERVED]’’ TERMINOLOGY The term ‘‘[Reserved]’’ is used as a place holder within the Code of Federal Regulations. An agency may add regulatory information at a ‘‘[Reserved]’’ location at any time. Occasionally ‘‘[Reserved]’’ is used editorially to indicate that a portion of the CFR was left vacant and not accidentally dropped due to a printing or computer error. INCORPORATION BY REFERENCE What is incorporation by reference? Incorporation by reference was established by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C. 552(a)). This material, like any other properly issued regulation, has the force of law. What is a proper incorporation by reference? The Director of the Federal Register will approve an incorporation by reference only when the requirements of 1 CFR part 51 are met. Some of the elements on which approval is based are: (a) The incorporation will substantially reduce the volume of material published in the Federal Register. (b) The matter incorporated is in fact available to the extent necessary to afford fairness and uniformity in the administrative process. (c) The incorporating document is drafted and submitted for publication in accordance with 1 CFR part 51. What if the material incorporated by reference cannot be found? If you have any problem locating or obtaining a copy of material listed as an approved incorporation by reference, please contact the agency that issued the regulation containing that incorporation. If, after contacting the agency, you find the material is not available, please notify the Director of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001, or call 202-741-6010. CFR INDEXES AND TABULAR GUIDES A subject index to the Code of Federal Regulations is contained in a separate volume, revised annually as of January 1, entitled CFR INDEX AND FINDING AIDS. This volume contains the Parallel Table of Authorities and Rules. A list of CFR titles, chapters, subchapters, and parts and an alphabetical list of agencies publishing in the CFR are also included in this volume.

VerDate Mar<15>2010 11:08 Sep 09, 2014 Jkt 232131 PO 00000 Frm 00006 Fmt 8008 Sfmt 8092 Y:\SGML\232131.XXX 232131 pmangrum on DSK3VPTVN1PROD with CFR An index to the text of ‘‘Title 3—The President’’ is carried within that volume. The Federal Register Index is issued monthly in cumulative form. This index is based on a consolidation of the ‘‘Contents’’ entries in the daily Federal Reg- ister. A List of CFR Sections Affected (LSA) is published monthly, keyed to the revision dates of the 50 CFR titles. REPUBLICATION OF MATERIAL There are no restrictions on the republication of material appearing in the Code of Federal Regulations. INQUIRIES For a legal interpretation or explanation of any regulation in this volume, contact the issuing agency. The issuing agency’s name appears at the top of odd-numbered pages. For inquiries concerning CFR reference assistance, call 202–741–6000 or write to the Director, Office of the Federal Register, National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001 or e-mail [email protected]. SALES The Government Printing Office (GPO) processes all sales and distribution of the CFR. For payment by credit card, call toll-free, 866-512-1800, or DC area, 202- 512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2104, 24 hours a day. For payment by check, write to: US Government Printing Office – New Orders, P.O. Box 979050, St. Louis, MO 63197-9000. ELECTRONIC SERVICES The full text of the Code of Federal Regulations, the LSA (List of CFR Sections Affected), The United States Government Manual, the Federal Register, Public Laws, Public Papers of the Presidents of the United States, Compilation of Presi- dential Documents and the Privacy Act Compilation are available in electronic format via www.ofr.gov. For more information, contact the GPO Customer Con- tact Center, U.S. Government Printing Office. Phone 202-512-1800, or 866-512-1800 (toll-free). E-mail, [email protected]. The Office of the Federal Register also offers a free service on the National Archives and Records Administration’s (NARA) World Wide Web site for public law numbers, Federal Register finding aids, and related information. Connect to NARA’s web site at www.archives.gov/federal-register. The e-CFR is a regularly updated, unofficial editorial compilation of CFR material and Federal Register amendments, produced by the Office of the Federal Register and the Government Printing Office. It is available at www.ecfr.gov.

CHARLES A. BARTH, Director, Office of the Federal Register. July 1, 2014.

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Title 32—NATIONAL DEFENSE is composed of six volumes. The parts in these volumes are arranged in the following order: Parts 1–190, parts 191–399, parts 400– 629, parts 630–699, parts 700–799, and part 800 to end. The contents of these volumes represent all current regulations codified under this title of the CFR as of July 1, 2014.

The current regulations issued by the Department of Defense appear in the volumes containing parts 1–189 and parts 190–399; those issued by the Department of the Army appear in the volumes containing parts 400–629 and parts 630–699; those issued by the Department of the Navy appear in the volume containing parts 700–799, and those issued by the Department of the Air Force, Defense Logis- tics Agency, Selective Service System, National Counterintelligence Center, Cen- tral Intelligence Agency, Information Security Oversight Office, National Secu- rity Council, Office of Science and Technology Policy, Office for Micronesian Status Negotiations, and Office of the Vice President of the United States appear in the volume containing part 800 to end.

For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of Federal Regulations publication program is under the direction of John Hyrum Martinez, assisted by Ann Worley.

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(This book contains parts 400 to 629)

SUBTITLE A—DEPARTMENT OF DEFENSE (CONTINUED) Part

CHAPTER V—Department of the Army ...... 504

ABBREVIATIONS USED IN THIS CHAPTER: AGCT = Army General Classification Test. AGO = Adjutant General’s Office. APP = Army Procurement Procedure. AR = Army Regulations. ASPR = Armed Services Procurement Regulations. ATC = Air Transport Command. A. W. = Articles of War. AWOL = Absent Without Leave. Comp. Gen. = Comptroller General. OCF = Office, Chief of Finance. ROTC = Reserve Officer’s Training Corps. ZI = Zone of Interior.

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SUBCHAPTER A—AID OF CIVIL AUTHORITIES AND PUBLIC RELATIONS

Part Page 400–500 [Reserved] 504 Obtaining information from financial institutions 7 505 Army Privacy Act Program ...... 15 507 Manufacture and sale of decorations, medals, badges, insignia, commercial use of heraldic designs and Heraldic Quality Control Program ...... 47 508 Competition with civilian bands ...... 53 510 Chaplains ...... 54 516 Litigation ...... 54 518 The Freedom of Information Act Program ...... 111 525 Entry authorization regulation for Kwajalein Mis- sile Range ...... 166

SUBCHAPTER B—CLAIMS AND ACCOUNTS 534 Military court fees ...... 174 536 Claims against the United States ...... 178 537 Claims on behalf of the United States ...... 253 538 Military payment certificates ...... 264

SUBCHAPTER C—MILITARY EDUCATION 542 Schools and colleges ...... 267 543–544 [Reserved]

SUBCHAPTER D—MILITARY RESERVATIONS AND NATIONAL CEMETERIES 552 Regulations affecting military reservations ...... 270 553 Army national cemeteries ...... 331 555 Corps of Engineers, research and development, laboratory research and development and tests, work for others ...... 343

SUBCHAPTER E—ORGANIZED RESERVES 562 Reserve Officers’ Training Corps ...... 349

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Part Page 564 National Guard regulations ...... 352

SUBCHAPTER F—PERSONNEL 571 Recruiting and enlistments ...... 360 575 Admission to the United States Military Academy 361 581 Personnel review board ...... 364 583 Former personnel [Reserved] 584 Family support, child custody, and paternity ...... 373 589 Compliance with court orders by personnel and command sponsored family members ...... 392

SUBCHAPTER G—PROCUREMENT 619 [Reserved]

SUBCHAPTER H—SUPPLIES AND EQUIPMENT 621 Loan and sale of property ...... 397 623 Loan of Army materiel ...... 408 625 Surface transportation—administrative vehicle management ...... 448 626–629 [Reserved]

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PARTS 400–500 [RESERVED] (3) This part also applies to financial records maintained by financial institutions as defined in § 504.1(c)(1). PART 504—OBTAINING INFORMA- (c) Explanation of terms. (1) For pur- TION FROM FINANCIAL INSTITU- poses of this part, the following terms TIONS apply: (i) Financial institution. Any office Sec. of a— 504.1 General. (A) Bank. 504.2 Procedures. (B) Savings bank. APPENDIX A TO PART 504—REQUEST FOR BASIC (C) Card issuer as defined in section IDENTIFYING ACCOUNT DATA—SAMPLE 103 of the Consumers Credit Protection FORMAT. Act (15 U.S.C. 1602(n)). APPENDIX B TO PART 504—CUSTOMER CONSENT (D) Industrial loan company. AND AUTHORIZATION FOR ACCESS—SAMPLE (E) Trust company. FORMAT. (F) Savings association. APPENDIX C TO PART 504—CERTIFICATE OF (G) Building and loan association. COMPLIANCE WITH THE RIGHT TO FINAN- (H) Homestead association (including CIAL PRIVACY ACT OF 1978—SAMPLE FOR- cooperative banks). MAT. (I) Credit union. APPENDIX D TO PART 504—FORMAL WRITTEN (J) Consumer finance institution. REQUEST FOR ACCESS—SAMPLE FORMAT. (ii) This includes only those offices APPENDIX E TO PART 504—CUSTOMER NOTICE located in any State or territory of the OF FORMAL WRITTEN REQUEST—SAMPLE United States, or in the District of Co- FORMAT. lumbia, Puerto Rico, Guam, American AUTHORITY: 12 U.S.C. 3401 et seq., Pub. L. Samoa, or the Virgin Islands. 95–630, unless otherwise noted. (2) Financial record. An original SOURCE: 70 FR 60723, Oct. 19, 2005, unless record, its copy, or information known otherwise noted. to have been derived from the original record held by a financial institution, § 504.1 General. pertaining to a customer’s relationship (a) Purpose. This part provides DA with the financial institution. (3) Person. An individual or partner- policies, procedures, and restrictions ship of five or fewer individuals. (Per governing access to and disclosure of DODD 5400.12.) financial records maintained by finan- (4) Customer. Any person or author- cial institutions during the conduct of ized representative of that person— Army investigations or inquiries. (i) Who used or is using any service of (b) Applicability and scope. (1) This a financial institution. part applies to the Active Army, the (ii) For which a financial institution Army National Guard of the United is acting or has acted as a fiduciary for States (ARNGUS)/Army National an account maintained in the name of Guard (ARNG), and the United States that person. Army Reserve unless otherwise stated. (5) Law enforcement inquiry. A lawful (2) The provisions of 12 U.S.C. 3401 et investigation or official proceeding in- seq. do not govern obtaining access to quiring into a violation of, or failure to financial records maintained by finan- comply with, a criminal or civil stat- cial institutions located outside of the ute or any regulation, rule, or order territories of the United States, Puerto issued pursuant thereto. Rico, the District of Columbia, Guam, (6) Army law enforcement office. Any American Samoa, or the Virgin Is- army element, agency, or unit author- lands. The procedures outlined in ized to conduct investigations under § 504.2(d)(4) will be followed in seeking the Uniform Code of Military Justice access to financial information from or Army regulations. This broad defini- these facilities. tion of Army law enforcement office

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includes military police, criminal in- which meets the requirements of vestigation, inspector general, and § 504.2(f). military intelligence activities con- (3) Voluntary information. Nothing in ducting investigations of suspected this part will preclude any financial in- violations of law or regulation. stitution, or any officer, employee, or (7) Personnel security investigation. An agent of a financial institution, from investigation required to determine a notifying an Army investigative ele- person’s eligibility for access to classi- ment that such institution, or officer, fied information, assignment or reten- employee or agent has information tion in sensitive duties, or other des- which may be relevant to a possible ignated duties requiring such inves- violation of any statute or regulation. tigation. Personnel security investiga- (e) Authority. (1) Law enforcement of- tion includes investigations of subver- fices are authorized to obtain records sive affiliations, suitability informa- of financial institutions per this part, tion, or hostage situations conducted except as provided in § 504.2(e). to make personnel security determina- (2) The head of a law enforcement of- tions. It also includes investigations of fice of field grade rank or higher (or an allegations that— equivalent grade civilian official) is au- (i) Arise after adjudicative action, thorized to initiate requests for such and records. (ii) Require resolution to determine a (f) Exceptions and waivers. (1) A law person’s current eligibility for access enforcement office may issue a formal to classified information or assignment written request for basic identifying or retention in a sensitive position. account information to a financial in- With DA, the Defense Investigative stitution as part of a legitimate law Service conducts personnel security in- enforcement inquiry. The request may vestigations. be issued for any or all of the following (d) Policy—(1) Customer consent. It is identifying data: DA policy to seek customer consent to (i) Name. obtain a customer’s financial records (ii) Address. from a financial institution unless (iii) Account number. doing so would compromise or harm- (iv) Type of account of any customer fully delay a legitimate law enforce- or ascertainable group of customers as- ment inquiry. If the person declines to sociated with a financial transaction or consent to disclosure, the alternative class of financial transactions. means of obtaining the records author- (2) A request for disclosure of the ized by this part will be used. (See above specified basic identifying data § 504.2 (c) through (g).) on a customer’s account may be issued (2) Access requests. Except as provided without complying with the customer in paragraph (d)(3) of this section and notice, challenge, or transfer proce- §§ 504.1(f)(1), 504.2(g) and 504.2(j), Army dures described in § 504.2. However, if investigative elements may not have access to the financial records them- access to or obtain copies of the infor- selves is required, the procedures in mation in the financial records of any § 504.2 must be followed. (A sample for- customer from a financial institution mat for requesting basic identifying unless the financial records are reason- account data is in app. A.) ably described and the— (3) This part will not apply when fi- (i) Customer has authorized such dis- nancial records are sought by the closure (§ 504.2(b)); Army under the Federal Rules for Civil (ii) Financial records are disclosed in Procedure, Criminal Procedure, Rules response to a search warrant which for Courts-Martial, or other com- meets the requirements of § 504.2(d); parable rules of other courts in connec- (iii) Financial records are disclosed tion with litigation to which the Gov- in response to a judicial subpoena ernment and the customer are parties. which meets the requirements of (4) No exceptions or waivers will be § 504.2(e); or granted for those portions of this part (iv) Financial records are disclosed in required by law. Submit requests for response to a formal written request exceptions or waivers of other aspects

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of this part to HQDA OPMG (DAPM– (d) Search warrant. (1) A law enforce- MPD–LE), Washington, DC 20310–2800. ment office may obtain financial records by using a search warrant ob- § 504.2 Procedures. tained under Rule 41 of the Federal (a) General. A law enforcement offi- Rules of Criminal Procedure in appro- cial seeking access to a person’s finan- priate cases. cial records will, when feasible, obtain (2) No later than 90 days after the the customer’s consent. This section search warrant is served, unless a delay also sets forth other authorized proce- of notice is obtained under § 504.2(i), a dures for obtaining financial records if copy of the search warrant and the fol- it is not feasible to obtain the cus- lowing notice must be mailed to the tomer’s consent. Authorized procedures customer’s last known address: for obtaining financial records follow. Records or information concerning All communications with a U.S. Attor- your transactions held by the financial ney or a U.S. District Court, as re- institution named in the attached quired by this part, will be coordinated search warrant were obtained by this with the supporting staff judge advo- (office/agency/unit) on (date) for the cate before dispatch. following purpose: (state purpose). You (b) Customer consent. (1) A law en- may have rights under the Right to Fi- forcement office may gain access to or nancial Privacy Act of 1978. a copy of a customer’s financial records (3) Search authorization signed by in- by obtaining the customer’s consent stallation commanders or military and authorization in writing. (See app. judges will not be used to gain access B to this part for a sample format.) to financial records from financial in- Any consent obtained under the provi- stitutions in any State or territory of sions of this paragraph must— the United States. (i) Be in writing, signed, and dated. (4) Access to financial records main- (ii) Identify the particular financial records being disclosed. tained by military banking contractors (iii) State that the customer may re- in overseas areas or by other financial voke the consent at any time before institutions located on DOD installa- disclosure. tions outside the United States, Puerto (iv) Specify the purpose of disclosure Rico, the District of Columbia, Guam, and to which agency the records may American Samoa, or the Virgin Islands be disclosed. is preferably obtained by customer con- (v) Authorize the disclosure for a pe- sent. riod not over 3 months. (i) In cases where it would not be ap- (vi) Contain a ‘‘’Statement of Cus- propriate to obtain this consent or tomer Rights Under the Right to Fi- such consent is refused and the finan- nancial Privacy Act of 1978’’ (12 U.S.C. cial institution is not otherwise willing 3401 et seq.) (app. B). to provide access to its records, the law (2) Any customer’s consent not con- enforcement activity may seek access taining all of the elements listed in by use of a search authorization. This paragraph (a) of this section will not be authorization must be prepared and valid. issued per AR 27–10, Military Justice. (3) A copy of the customer’s consent (ii) Information obtained under this will be made a part of the law enforce- paragraph should be properly identified ment inquiry file. as financial information. It should be (4) A certification of compliance with transferred only where an official need- 12 U.S.C. 3401 et seq. (app. C), along with to-know exists. Failure to do so, how- the customer’s consent, will be pro- ever, does not render the information vided to the financial institution as a inadmissible in courts-martial or other prerequisite to obtaining access to the proceedings. financial records. (iii) Law enforcement activities seek- (c) Administrative summons or sub- ing access to financial records main- poena. The Army has no authority to tained by all other financial institu- issue an administrative summons or tions overseas will comply with local subpoena for access to financial foreign statutes or procedures gov- records. erning such access.

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(e) Judicial subpoena. Judicial sub- sonal service is made, and 14 days when poenas— service is by mail. (1) Are those subpoenas issued in con- (6) The head of the law enforcement nection with a pending judicial pro- office initiating the formal written re- ceeding. quest will set up procedures to ensure (2) Include subpoenas issued under that no access to financial records is Rule for Courts-Martial 703(e)(2) of the attempted before expiration of the Manual for Courts-Martial and Article above time periods— 46 of the Uniform Code of Military Jus- (i) While awaiting receipt of a poten- tice. The servicing staff judge advocate tial customer challenge, or will be consulted on the availability (ii) While awaiting the filing of an and use of judicial subpoenas. application for an injunction by the (f) Formal written request. (1) A law customer. enforcement office may formally re- (7) Proper preparation of the formal quest financial records when the written request and notice to the cus- records are relevant to a legitimate tomer requires preparation of motion law enforcement inquiry. This request papers and a statement suitable for may be issued only if— court filing by the customer. Accord- (i) The customer has declined to con- ingly, the law enforcement office in- sent to the disclosure of his or her tending to initiate a formal written re- records, or quest will coordinate preparation of (ii) Seeking consent from the cus- the request, the notice, motion papers, tomer would compromise or harmfully and sworn statement with the sup- delay a legitimate law enforcement in- porting staff judge advocate. These quiry. documents are required by statute; (2) A formal written request will be their preparation cannot be waived. in a format set forth in appendix D of (8) The supporting staff judge advo- this part and will— cate is responsible for liaison with the (i) State that the request is issued proper United States Attorney and under the Right to Financial Privacy United States District Court. The re- Act of 1978 and this part. questing official will coordinate with (ii) Described the specific records to the supporting staff judge advocate to be examined. determine whether the customer has (iii) State that access is sought in filed a motion to prevent disclosure of connection with a legitimate law en- the financial records within the pre- forcement inquiry. scribed time limits. (iv) Describe the nature of the in- (9) The head of the law enforcement quiry. office (§ 504.2(f)(2)(v)) will certify in (v) Be signed by the head of the law writing (see app. C) to the financial in- enforcement office or a designee (per- stitution that such office has complied sons specified in § 504.1(e)(2)). with the requirements of 12 U.S.C. 3401 (3) At the same time or before a for- et seq.— mal written request is issued to a fi- (i) When a customer fails to file a nancial institution, a copy of the re- challenge to access to financial records quest will be personally served upon or within the above time periods, or mailed to the customer’s last known (ii) When a challenge is adjudicated address unless a delay of customer no- in favor of the law enforcement office. tice has been obtained under § 504.2(i). No access to any financial records will The notice to the customer will be— be made before such certification is (i) In a format similar to appendix E given. of this part. (g) Emergency access. Section (ii) Personally served at least 10 days 504.2(g)(2)(3) provides for emergency ac- or mailed at least 14 days before the cess in such cases of imminent danger. date on which access is sought. (No other procedures in this part apply (4) The official who signs the cus- to such emergency access.) tomer notice is designated to receive (1) In some cases, the requesting law any challenge from the customer. enforcement office may determine that (5) The customer will have 10 days to a delay in obtaining access would cre- challenge a notice request when per- ate an imminent danger of—

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(i) Physical injury to a person, writing. Certification will state that (ii) Serious property damage, or there is reason to believe that the (iii) Flight to avoid prosecution. records are relevant to a legitimate (2) When emergency access is made to law enforcement inquiry within the ju- financial records, the requesting offi- risdiction of the receiving agency or cial (§ 504.1(e)(2)) will— department. To support this certifi- (i) Certify in writing (in a format cation, the transferring office may re- similar to that in app. C) to the finan- quire that the requesting agency sub- cial institution that the provisions of mit adequate justification for its re- 12 U.S.C. 3401 et seq. have been complied quest. File a copy of this certification with as a prerequisite to obtaining ac- with a copy of the released records. cess. (ii) Unless a delay of customer notice (ii) File with the proper court a has been obtained (§ 504.2(i)), the trans- signed, sworn statement setting forth ferring law enforcement office will, the grounds for the emergency access within 14 days, personally serve or mail within 5 days of obtaining access to fi- the following to the customer at his or nancial records. her last known address— (3) After filing of the signed, sworn (A) A copy of the certification made statement, the official who has ob- according to § 504.2(h)(2)(i) and tained access to financial records under this paragraph will as soon as prac- (B) The following notice, which will ticable— state the nature of the law enforce- (i) Personally serve or mail to the ment inquiry with reasonable detail: customer a copy of the request to the Copies of, or information contained in, financial institution and the following your financial records lawfully in possession notice, unless a delay of notice has of the Department of the Army have been been obtained under § 504.2(i): furnished to (state the receiving agency or department) pursuant to the Right to Finan- Records concerning your transactions held cial Privacy Act of 1978 for (state the pur- by the financial institution named in the at- pose). If you believe that this transfer has tached request were obtained by (office/agen- not been made to further a legitimate law cy/unit) under the Right to Financial Pri- enforcement inquiry, you may have legal vacy Act of 1978 on (date) for the following rights under the Financial Privacy Act of purpose: (state with reasonable detail the na- 1978 or the Privacy Act of 1974. ture of the law enforcement inquiry). Emer- gency access to such records was obtained on (iii) If a request for release of infor- the grounds that (state grounds). mation is from a Federal agency au- (ii) Ensure that mailings under this thorized to conduct foreign intel- section are by certified or registered ligence or foreign counterintelligence mail to the last known address of the activities (Executive Order 12333) and is customer. for purposes of conducting such activi- (h) Release of information obtained ties by these agencies, the information from financial institutions—(1) Records will be released without notifying the notice. Financial records, to include de- customer, unless permission to provide rived information, obtained under 12 notification is given in writing by the U.S.C. 3401 et seq. will be marked as fol- requesting agency. lows: (iv) Financial information obtained before the effective date of the Finan- This record was obtained pursuant to the Right to Financial Privacy Act of 1978, 12 cial Privacy Act of 1978 (March 10, 1979) U.S.C. 3401 et seq., and may not be trans- may continue to be provided to other ferred to another Federal agency or depart- agencies according to existing proce- ment outside DOD without prior compliance dures, to include applicable Privacy with the transferring requirements of 12 Act System Notices published in AR U.S.C. 3412. 340–21 series. (2) Records transfer. (i) Financial (3) Precautionary measures. Whenever records originally obtained under this financial data obtained under this part part will not be transferred to another is incorporated into a report of inves- agency or department outside the DOD tigation or other correspondence, pre- unless the transferring law enforce- cautions must be taken to ensure ment office certifies their relevance in that—

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(i) The report or correspondence is copy of the search warrant and the fol- not distributed outside of DOD except lowing notice. in compliance with paragraph Records or information concerning your (h)(2)(ii)(B) of this section. transactions held by the financial institu- (ii) The report or other correspond- tion named in the attached search warrant ence contains the following warning re- were obtained by this (agency or office) on striction on the first page or cover: (date). Notification was delayed beyond the statutory 180-day delay period pursuant to a Some of the information contained herein determination by the court that such notice (cite specific paragraphs) is financial record would seriously jeopardize an investigation information which was obtained pursuant to concerning (state with reasonable detail). the Right to Financial Privacy Act of 1978, 12 You may have rights under the Right to Fi- U.S.C. 3401 et seq. This information may not nancial Privacy Act of 1978. be released to another Federal agency or department outside the DOD without compli- (ii) Section 504.2(f)(3), the law en- ance with the specific requirements of 12 forcement office obtaining financial U.S.C. 3412 and AR 190–6. records will serve personally or mail to the customer a copy of the process or (i) Delay of customer notice proce- request and the following notice: dures—(1) Length of delay. The customer notice required by formal writ- Records or information concerning your ten request (§ 504.2(f)(3)), emergency ac- transactions which are held by the financial institution named in the attached process or cess (§ 504.2(g)(3)), and release of infor- request were supplied to or requested by the mation (§ 504.2(h)(2)(iii)) may be de- Government authority named in the process layed for successive periods of 90 days. or request on (date). Notification was with- The notice required for search warrant held pursuant to a determination by the (§ 504.2(d)(2)) may be delayed for one pe- (title of the court so ordering) under the riod of 180 days and successive periods Right to Financial Privacy Act of 1978 that of 90 days. such notice might (state reason). The purpose of the investigation or official pro- (2) Conditions for delay. A delay of no- ceeding was (state purpose with reasonable tice may only be made by an order of detail). an appropriate court. This will be done when not granting a delay in serving (iii) Section 504.2(g)(3), the law en- the notice would result in— forcement office obtaining financial (i) Endangering the life or physical records will serve personally or mail to safety of any person. the customer a copy of the request and the notice required by § 504.2(g)(3). (ii) Flight from prosecution. (iv) Section 504.2(h)(2), the law en- (iii) Destruction of or tampering with forcement office transferring financial evidence. records will serve personally or mail to (iv) Intimidation of potential wit- the customer the notice required by nesses. § 504.2(f)(3). If the law enforcement of- (v) Otherwise seriously jeopardizing fice was responsible for obtaining the an investigation or official proceeding court order authorizing the delay, such or unduly delaying a trial or ongoing office shall also serve personally or by official proceeding to the same degree mail to the customer the notice re- as the circumstances in § 504.2(i)(2)(i) quired in § 504.2(f)(3). through (iv). (j) Foreign intelligence and foreign (3) Coordination. When a delay of no- counterintelligence activities. (1) Except tice is appropriate, the law enforce- as indicated below, nothing in this reg- ment office involved will consult with ulation applies to requests for financial the supporting staff judge advocate be- information in connection with author- fore attempting to obtain such a delay. ized foreign intelligence and foreign Applications for delay of notice should counterintelligence activities as de- contain reasonable detail. fined in Executive Order 12333. Appro- (4) After delay expiration. Upon the ex- priate foreign intelligence and counter- piration of a delay of notice under intelligence directives should be con- above and required by— sulted in these instances. (i) Section 504.2(d)(2), the law en- (2) However, to comply with the Fi- forcement office obtaining financial nancial Privacy Act of 1978, the fol- records will mail to the customer a lowing guidance will be followed for

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such requests. When a request for fi- Under section 3417(c) of the Act, good faith nancial records is made— reliance upon this certification relieves your (i) A military intelligence group institution and its employees and agents of any possible liability to the subject in con- commander, the chief of an investiga- nection with the disclosure of the requested tive control office, or the Commanding financial records. General (CG) (or Deputy CG), U.S. Army Intelligence and Security Com- APPENDIX B TO PART 504—CUSTOMER mand, will certify to the financial in- CONSENT AND AUTHORIZATION FOR stitution that the requesting activity ACCESS—SAMPLE FORMAT has complied with the provisions of 12 U.S.C. 3403(b). Pursuant to section 3404(a) of the Right to Financial Privacy Act of 1978, I, (name of (ii) The requesting official will notify customer), having read the explanation of the financial institution from which my rights on the reverse side, hereby author- records are sought that 12 U.S.C. ize the (name and address of financial insti- 3414(a)(3) prohibits disclosure to any tution) to disclose these financial records: person by the institution, its agents, or (list of particular financial records) to employees that financial records have (Army law enforcement office) for the fol- been sought or obtained. lowing purpose(s): (specify the purpose(s)). I understand that this authorization may (k) Certification. A certificate of com- be revoked by me in writing at any time be- pliance with the Right to Financial fore my records, as described above, are dis- Privacy Act of 1978 (app. C) will be pro- closed, and that this authorization is valid vided to the financial institution as a for no more than 3 months from the date of prerequisite to obtaining access to fi- my signature. nancial records under the following ac- Date: llllllllllllllllllll cess procedures: Signature: llllllllllllllllll (1) Customer consent (§ 504.2(b)). (Typed name) (2) Search warrant (§ 504.2(d)). Mailing address of customer) (3) Judicial subpoena (§ 504.2(e)). Statement of Customer Rights Under the Right to Financial Privacy Act of 1978 (4) Formal written request (§ 504.2(f)). Federal law protects the privacy of your fi- (5) Emergency access (§ 504.2(g)). nancial records. Before banks, savings and (6) Foreign intelligence and foreign loan associations, credit unions, credit card counterintelligence activities issuers, or other financial institutions may (§ 504.2(j)). give financial information about you to a Federal agency, certain procedures must be APPENDIX A TO PART 504—REQUEST FOR followed. BASIC IDENTIFYING ACCOUNT DATA— Consent to Financial Records SAMPLE FORMAT You may be asked to consent to the finan- (Official Letterhead) cial institution making your financial (Date) llllllllllllllllllll records available to the Government. You may withhold your consent, and your con- Mr./Mrs. lllll lllllllllllll sent is not required as a condition of doing Chief Teller (as appropriate), First National business with any financial institution. If Bank, Little Rock, AR 72203. you give your consent, it can be revoked in Dear Mr./Mrs. lllll: In connection writing at any time before your records are with a legitimate law enforcement inquiry disclosed. Furthermore, any consent you and pursuant to section 3414 of the Right to give is effective for only 3 months and your Financial Privacy Act of 1978, section 3401 et financial institution must keep a record of seq., Title 12, United States Code, you are re- the instances in which it discloses your fi- quested to provide the following account in- nancial information. formation: (name, address, account number, and type of account of any customer or as- Without Your Consent certainable group of customers associated Without your consent, a Federal agency with a certain financial transaction or class that wants to see your financial records may of financial transactions as set forth in do so ordinarily only by means of a lawful § 504.1(f)). subpoena, summons, formal written request, I hereby certify, pursuant to section 3403(b) or search warrant for that purpose. Gen- of the Right to Financial Privacy Act of 1978, erally, the Federal agency must give you ad- that the provisions of the Act have been vance notice of its request for your records complied with as to this request for account explaining why the information is being information. sought and telling you how to object in (Official Signature Block) lll llllll court. The Federal agency must also send

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you copies of court documents to be prepared search warrant or judicial subpoena, formal by you with instructions for filling them written request, emergency access, as appli- out. While these procedures will be kept as cable) presented on (date), for the following simple as possible, you may want to consult financial records of (customer’s name): an attorney before making a challenge to a llllllllllllllllllllllll Federal agency’s request. (Describe the specific records) Exceptions (Official Signature Block) lllllllll In some circumstances, a Federal agency Pursuant to section 3417(c) of the Right to may obtain financial information about you Financial Privacy Act of 1978, good faith re- without advance notice or your consent. In liance upon this certificate relieves your in- most of these cases, the Federal agency will stitution and its employees and agents of be required to go to court for permission to any possible liability to the customer in con- obtain your records without giving you no- nection with the disclosure of these financial tice beforehand. In these instances, the court records. will make the Government show that its investigation and request for your records are APPENDIX D TO PART 504—FORMAL proper. When the reason for the delay of no- WRITTEN REQUEST FOR ACCESS— tice no longer exists, you will usually be no- SAMPLE FORMAT tified that your records were obtained. (Official Letterhead) Transfer of Information (Date) llllllllllllllllllll Generally, a Federal agency that obtains your financial records is prohibited from Mr./Mrs. lllllllllllllllllll transferring them to another Federal agency President (as appropriate), City National Bank unless it certifies in writing the transfer is and Trust Company, Altoona, PA 16602. proper and sends a notice to you that your Dear Mr./Mrs. lllll: In connection records have been sent to another agency. with a legitimate law enforcement inquiry Penalties and pursuant to section 3402(5) and section 3408 of the Right to Financial Privacy Act of If the Federal agency or financial institu- 1978, section 3401 et seq., Title 12, United tion violates the Right to Financial Privacy States Code, and Army Regulation 190–6, you Act, you may sue for damages or seek compliance with the law. If you win, you may be are requested to provide the following ac- repaid your attorney’s fee and costs. count information pertaining to (identify customer); Additional Information llllllllllllllllllllllll If you have any questions about your (Describe the specific records to be exam- rights under this law, or about how to con- ined) sent to release your financial records, please The Army has no authority to issue an ad- call the official whose name and telephone ministrative summons or subpoena for ac- number appears below: cess to these financial records which are re- llllllllllllllllllllllll quired for (describe the nature or purpose of (Last Name, First Name, Middle Initial) the inquiry). llllllllllllllllllllllll A copy of this request was (personally Title (Area Code) (Telephone Number) served upon or mailed to) the subject on llllllllllllllllllllllll (date) who has (10 or 14) days in which to challenge this request by filing an applica- (Component activity, address) tion in an appropriate United States district court if the subject desires to do so. APPENDIX C TO PART 504—CERTIFICATE Upon expiration of the above mentioned OF COMPLIANCE WITH THE RIGHT TO time period and in the absence of any filing FINANCIAL PRIVACY ACT OF 1978— or challenge by the subject, you will be fur- SAMPLE FORMAT nished a certification certifying in writing (Official Letterhead) that the applicable provisions of the Act Mr./Mrs. lllllllllllllllllll have been complied with prior to obtaining Manager, Army Federal Credit Union, Fort Ord, the requested records. Upon your receipt of a CA 93941. Certificate of Compliance with the Right to Dear Mr./Mrs. lllll: I certify, pursu- Financial Privacy Act of 1978, you will be re- ant to section 3403(b) of the Right to Finan- lieved of any possible liability to the subject cial Privacy Act of 1978, section 3401 et seq., in connection with the disclosure of the re- Title 12, United States Code, that the appli- quested financial records. cable provisions of that statute have been (Official Signature Block) lllllllll complied with as to the (customer’s consent,

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APPENDIX E TO PART 504—CUSTOMER PART 505—ARMY PRIVACY ACT NOTICE OF FORMAL WRITTEN RE- PROGRAM QUEST—SAMPLE FORMAT

(Official Letterhead) Sec. 505.1 General information. (Date) llllllllllllllllllll 505.2 General provisions. Mr./Ms. lllllllllllllllllll 505.3 Privacy Act systems of records. 1500 N. Main Street, Washington, DC 20314. 505.4 Collecting personal information. 505.5 Individual access to personal informa- Dear Mr./Ms. ll: Information or records tion. concerning your transactions held by the fi- 505.6 Amendment of records. nancial institution named in the attached 505.7 Disclosure of personal information to request are being sought by the (agency/de- other agencies and third parties. partment) in accordance with the Right to 505.8 Training requirements. Financial Privacy Act of 1978, section 3401 et 505.9 Reporting requirements. seq., Title 12, United States Code, and Army 505.10 Use and establishment of exemptions. Regulation 190–6, for the following pur- 505.11 Federal Register publishing require- pose(s): ments. llllllllllllllllllllllll 505.12 Privacy Act enforcement actions. (List the purpose(s)) 505.13 Computer Matching Agreement Pro- gram. If you desire that such records or informa- 505.14 Recordkeeping requirements under tion not be made available, you must do the the Privacy Act. following: a. Fill out the accompanying motion paper APPENDIX A TO PART 505—REFERENCES and sworn statement or write one of your APPENDIX B TO PART 505—DENIAL AUTHORI- TIES FOR RECORDS UNDER THEIR AUTHOR- own— ITY (FORMERLY ACCESS AND AMENDMENT (1) Stating that you are the customer REFUSAL AUTHORITIES) whose records are being requested by the APPENDIX C TO PART 505—PRIVACY ACT Government. STATEMENT FORMAT (2) Giving the reasons you believe that the APPENDIX D TO PART 505—EXEMPTIONS; EX- records are not relevant or any other legal CEPTIONS; AND DOD BLANKET ROUTINE basis for objecting to the release of the USES records. APPENDIX E TO PART 505—LITIGATION STATUS b. File the motion and statement by mail- SHEET ing or delivering them to the clerk of any APPENDIX F TO PART 505—EXAMPLE OF A SYS- one of the following United States District TEM OF RECORDS NOTICE Courts: APPENDIX G TO PART 505—MANAGEMENT CON- llllllllllllllllllllllll TROL EVALUATION CHECKLIST (List applicable courts) APPENDIX H TO PART 505—DEFINITIONS c. Mail or deliver a copy of your motion AUTHORITY: Pub. L. 93–579, 88 Stat. 1896 (5 and statement to the requesting authority: U.S.C. 552a). (give title and address). SOURCE: 71 FR 46052, Aug. 10, 2006, unless d. Be prepared to come to court and otherwise noted. present your position in further detail. You do not need to have a lawyer, although § 505.1 General information. you may wish to employ one to represent (a) Purpose. This part sets forth poli- you and protect your rights. cies and procedures that govern per- If you do not follow the above procedures, upon the expiration of (10 days from the date sonal information maintained by the of personal service) (14 days from the date of Department of the Army (DA) in Pri- mailing) of this notice, the records or infor- vacy Act systems of records. This part mation requested therein may be made also provides guidance on collecting available. and disseminating personal informa- These records may be transferred to other tion in general. The purpose of the Government authorities for legitimate law Army Privacy Act Program is to bal- enforcement inquiries, in which event you ance the government’s need to main- will be notified after the transfer if such tain information about individuals transfer is made. with the right of individuals to be pro- 3 Enclosures (see para ll) tected against unwarranted invasions (Signature) lllllllllllllllll of their privacy stemming from Fed- eral agencies’ collection, maintenance,

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use and disclosure of personal informa- P), U.S. Army Records Management tion about them. Additionally, this and Declassification Agency will— part promotes uniformity within the (i) Develop and recommend policy; Army’s Privacy Act Program. (ii) Execute duties as the Army’s Pri- (b) References: (1) Referenced publica- vacy Act Officer; tions are listed in Appendix A of this (iii) Promote Privacy Act awareness part. throughout the DA; (2) DOD Computer Matching Program (iv) Serve as a voting member on the and other Defense Privacy Guidelines Defense Data Integrity Board and the may be accessed at the Defense Privacy Defense Privacy Board; Office Web site http:// (v) Represent the Department of the www.defenselink.mil/privacy. Army in DOD policy meetings; and (c) Definitions are provided at Appen- (vi) Appoint a Privacy Act Manager dix H of this part. who will— (d) Responsibilities. (1) The Office of (A) Administer procedures outlined the Administrative Assistant to the in this part; Secretary of the Army will— (B) Review and approve proposed (i) Act as the senior Army Privacy new, altered, or amended Privacy Act Official with overall responsibility for systems of records notices and subse- the execution of the Department of the quently submit them to the Defense Army Privacy Act Program; Privacy Office for coordination; (ii) Develop and issue policy guidance (C) Review Department of the Army for the program in consultation with Forms for compliance with the Privacy the Army General Counsel; and Act and this part; (iii) Ensure the DA Privacy Act Pro- (D) Ensure that reports required by gram complies with Federal statutes, the Privacy Act are provided upon re- Executive Orders, Office of Manage- quest from the Defense Privacy Office; ment and Budget guidelines, and 32 (E) Review Computer Matching CFR part 310. Agreements and recommend approval (2) The Chief Attorney, Office of the or denial to the Chief, DA FOIA/P Of- Administrative Assistant to the Sec- fice; retary of the Army (OAASA) will— (F) Provide Privacy Act training; (i) Provide advice and assistance on (G) Provide privacy guidance and as- legal matters arising out of, or inci- sistance to DA activities and combat- dent to, the administration of the DA ant commands where the Army is the Privacy Act Program; Executive Agent; (ii) Serve as the legal advisor to the (H) Ensure information collections DA Privacy Act Review Board. This are developed in compliance with the duty may be fulfilled by a designee in Privacy Act provisions; the Chief Attorney and Legal Services (I) Ensure Office of Management and Directorate, OAASA; Budget reporting requirements, guid- (iii) Provide legal advice relating to ance, and policy are accomplished; and interpretation and application of the (J) Immediately review privacy vio- Privacy Act of 1974; and lations of personnel to locate the prob- (iv) Serve as a member on the De- lem and develop a means to prevent re- fense Privacy Board Legal Committee. currence of the problem. This duty may be fulfilled by a des- (5) Heads of Department of the Army ignee in the Chief Attorney and Legal activities, field-operating agencies, di- Services Directorate, OAASA. rect reporting units, Major Army com- (3) The Judge Advocate General will mands, subordinate commands down to serve as the Denial Authority on re- the battalion level, and installations quests made pursuant to the Privacy will— Act of 1974 for access to or amendment (i) Supervise and execute the privacy of Army records, regardless of func- program in functional areas and activi- tional category, concerning actual or ties under their responsibility; and potential litigation in which the (ii) Appoint a Privacy Act Official United States has an interest. who will— (4) The Chief, DA Freedom of Infor- (A) Serve as the staff advisor on pri- mation Act and Privacy Office (FOIA/ vacy matters;

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(B) Ensure that Privacy Act records and submit them to the DA Freedom of collected and maintained within the Information and Privacy Office for re- Command or agency are properly de- view. After appropriate coordination, scribed in a Privacy Act system of the system of records notices will be records notice published in the FED- submitted to the Defense Privacy Of- ERAL REGISTER; fice for their review and coordination; (C) Ensure no undeclared systems of (v) Review, biennially, each Privacy records are being maintained; Act system of records notice under (D) Ensure Privacy Act requests are their purview to ensure that it accu- processed promptly and responsively; rately describes the system of records; (E) Ensure a Privacy Act Statement (vi) Review, every four years, the is provided to individuals when infor- routine use disclosures associated with mation is collected that will be main- each Privacy Act system of records no- tained in a Privacy Act system of tice in order to determine if such rou- records, regardless of the medium used tine use continues to be compatible to collect the personal information with the purpose for which the activity (i.e., forms, personal interviews, styl- collected the information; ized formats, telephonic interviews, or (vii) Review, every four years, each other methods); Privacy Act system of records notice (F) Review, biennially, recordkeeping for which the Secretary of the Army practices to ensure compliance with has promulgated exemption rules pur- the Act, paying particular attention to suant to Sections (j) or (k) of the Act. the maintenance of automated records. This is to ensure such exemptions are In addition, ensure cooperation with still appropriate; records management officials on such (viii) Review, every year, contracts matters as maintenance and disposal that provide for the maintenance of a procedures, statutory requirements, Privacy Act system of records to ac- forms, and reports; and complish an activity’s mission. This re- (G) Review, biennially Privacy Act quirement is to ensure each contract training practices. This is to ensure all contains provisions that bind the con- personnel are familiar with the re- tractor, and its employees, to the requirements of the Act. quirements of 5 U.S.C. 552a(m)(1); and (6) DA Privacy Act System Managers (ix) Review, if applicable, ongoing and Developers will— Computer Matching Agreements. The (i) Ensure that appropriate proce- Defense Data Integrity Board approves dures and safeguards are developed, im- Computer Matching Agreements for 18 plemented, and maintained to protect months, with an option to renew for an an individual’s personal information; additional year. This additional review (ii) Ensure that all personnel are will ensure that the requirements of aware of their responsibilities for pro- the Privacy Act, Office of Management tecting personal information being col- and Budget guidance, local regulations, lected and maintained under the Pri- and the requirements contained in the vacy Act Program; Matching Agreements themselves have (iii) Ensure official filing systems been met. that retrieve records by name or other (7) All DA personnel will— personal identifier and are maintained (i) Take appropriate actions to en- in a Privacy Act system of records sure personal information contained in have been published in the FEDERAL a Privacy Act system of records is pro- REGISTER as a Privacy Act system of tected so that the security and con- records notice. Any official who will- fidentiality of the information is pre- fully maintains a system of records served; without meeting the publication re- (ii) Not disclose any personal infor- quirements, as prescribed by 5 U.S.C. mation contained in a Privacy Act sys- 552a, as amended, OMB Circular A–130, tem of records except as authorized by 32 CFR part 310 and this part, will be 5 U.S.C. 552a, DOD 5400.11–R, or other subject to possible criminal penalties applicable laws. Personnel willfully and/or administrative sanctions; making a prohibited disclosure are sub- (iv) Prepare new, amended, or altered ject to possible criminal penalties and/ Privacy Act system of records notices or administrative sanctions; and

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(iii) Report any unauthorized disclo- (10) Public Law 107–347, Section 208, sures or unauthorized maintenance of Electronic Government (E-Gov) Act of new Privacy Act systems of records to 2002. the applicable activity’s Privacy Act (11) DOD Regulation 6025.18–R, DOD Official. Health Information Privacy Regula- (8) Heads of Joint Service agencies or tion, January 24, 2003. commands for which the Army is the Executive Agent or the Army other- § 505.2 General provisions. wise provides fiscal, logistical, or ad- (a) Individual privacy rights policy. ministrative support, will adhere to Army policy concerning the privacy the policies and procedures in this rights of individuals and the Army’s re- part. sponsibilities for compliance with the (9) Commander, Army and Air Force Privacy Act are as follows— Exchange Service, will supervise and (1) Protect the privacy of United execute the Privacy Program within States living citizens and aliens law- that command pursuant to this part. fully admitted for permanent residence from unwarranted intrusion. (10) Overall Government-wide respon- (2) Deceased individuals do not have sibility for implementation of the Pri- Privacy Act rights, nor do executors or vacy Act is the Office of Management next-of-kin in general. However, imme- and Budget. The Department of De- diate family members may have lim- fense is responsible for implementation ited privacy rights in the manner of of the Act within the armed services. death details and funeral arrangements The Privacy Act also assigns specific of the deceased individual. Family Government-wide responsibilities to members often use the deceased indi- the Office of Personnel Management vidual’s Social Security Number (SSN) and the General Services Administra- for federal entitlements; appropriate tion. safeguards must be implemented to (11) Government-wide Privacy Act protect the deceased individual’s SSN systems of records notices are avail- from release. Also, the Health Insur- able at http://www.defenselink.mil/pri- ance Portability and Accountability vacy. Act extends protection to certain med- (e) Legal Authority. (1) Title 5, United ical information contained in a de- States Code, Section 552a, as amended, ceased individual’s medical records. The Privacy Act of 1974. (3) Personally identifiable health in- (2) Title 5, United States Code, Sec- formation of individuals, both living tion 552, The Freedom of Information and deceased, shall not be used or dis- Act (FOIA). closed except for specifically permitted (3) Office of Personnel Management, purposes. Federal Personnel Manual (5 CFR parts (4) Maintain only such information 293, 294, 297, and 7351). about an individual that is necessary (4) OMB Circular No. A–130, Manage- to accomplish the Army’s mission. ment of Federal Information Re- (5) Maintain only personal informa- sources, Revised, August 2003. tion that is timely, accurate, complete, and relevant to the collection purpose. (5) DOD Directive 5400.11, Depart- (6) Safeguard personal information to ment of Defense Privacy Program, No- prevent unauthorized use, access, dis- vember 16, 2004. closure, alteration, or destruction. (6) DOD Regulation 5400.11–R, Depart- (7) Maintain records for the min- ment of Defense Privacy Program, Au- imum time required in accordance with gust 1983. an approved National Archives and (7) Title 10, United States Code, Sec- Records Administration record disposition 3013, Secretary of the Army. tion. (8) Executive Order No. 9397, Num- (8) Let individuals know what Pri- bering System for Federal Accounts vacy Act records the Army maintains Relating to Individual Persons, Novem- by publishing Privacy Act system of ber 30, 1943. records notices in the FEDERAL REG- (9) Public Law 100–503, the Computer ISTER. This will enable individuals to Matching and Privacy Act of 1974. review and make copies of these

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records, subject to the exemptions au- records see AR 380–67, The Department thorized by law and approved by the of the Army Personnel Security Pro- Secretary of the Army. Department of gram. the Army Privacy Act systems of (c) Conveying privacy protected data records notices are available at http:// electronically via e-mail and the World www.defenselink.mil/privacy. Wide Web. (1) Unencrypted electronic (9) Permit individuals to correct and transmission of privacy protected data amend records about themselves which makes the Army vulnerable to infor- they can prove are factually in error, mation interception which can cause not timely, not complete, not accurate, serious harm to the individual and the or not relevant. accomplishment of the Army’s mission. (10) Allow individuals to request an (2) The Privacy Act requires that ap- administrative review of decisions that propriate technical safeguards be es- deny them access to or the right to tablished, based on the media (e.g., amend their records. paper, electronic) involved, to ensure (11) Act on all requests promptly, ac- the security of the records and to pre- curately, and fairly. vent compromise or misuse during (12) Keep paper and electronic records transfer. that are retrieved by name or personal (3) Privacy Web sites and hosted sys- identifier only in approved Privacy Act tems with privacy-protected data will systems of records. employ secure sockets layers (SSL) (13) Maintain no records describing and Public Key Infrastructure (PKI) how an individual exercises his or her encryption certificates or other DoD- rights guaranteed by the First Amend- approved commercially available cer- ment (freedom of religion, freedom of tificates for server authentication and political beliefs, freedom of speech and client/server authentication. Individ- press, freedom of peaceful assemblage, uals who transmit data containing per- and petition) unless expressly author- sonally identifiable information over e- ized by statute, pertinent to and within mail will employ PKI or other DoD-ap- the scope of an authorized law enforce- proved certificates. ment activity, or otherwise authorized (4) When sending Privacy Act pro- by law or regulation. tected information within the Army (14) Maintain appropriate adminis- using encrypted or dedicated lines, en- trative technical and physical safe- sure that— guards to ensure records are protected (i) There is an ‘‘official need to from unauthorized alteration or disclo- know’’ for each addressee (including sure. ‘‘cc’’ addressees); and (b) Safeguard personal information. (1) (ii) The Privacy Act protected infor- Privacy Act data will be afforded rea- mation is marked For Official Use Only sonable safeguards to prevent inad- (FOUO) to inform the recipient of limi- vertent or unauthorized disclosure of tations on further dissemination. For records during processing, storage, example, add FOUO to the beginning of transmission, and disposal. an e-mail message, along with the fol- (2) Personal information should never lowing language: ‘‘This contains FOR be placed on shared drives that are OFFICIAL USE ONLY (FOUO) infor- accessed by groups of individuals un- mation which is protected under the less each person has an ‘‘official need Privacy Act of 1974 and AR 340–21, The to know’’ the information in the per- Army Privacy Program. Do not further formance of official duties. disseminate this information without (3) Safeguarding methods must strike the permission of the sender.’’ a balance between the sensitivity of (iii) Do not indiscriminately apply the data, need for accuracy and reli- this statement. Use it only in situa- ability for operations, general security tions when actually transmitting proof the area, and cost of the safeguards. tected Privacy Act information. In some situations, a password may be (iv) For additional information about enough protection for an automated marking documents ‘‘FOUO’’ review system with a log-on protocol. For ad- AR 25–55, Chapter IV. ditional guidance on safeguarding per- (5) Add appropriate ‘‘Privacy and Se- sonal information in automated curity Notices’’ at major Web site

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entry points. Refer to AR 25–1, para 6– tected personal information pertaining 4n for requirements for posting ‘‘Pri- to a Service member, civilian employee vacy and Security Notices’’ on public (appropriated or non-appropriated Web sites. Procedures related to the es- fund), military retiree, family member, tablishing, operating, and maintaining or another individual affiliated with of unclassified DA Web sites can be Army organization (e.g., volunteer) has accessed at http://www.defenselink.mil/ been lost, stolen, or compromised, the webmasters/policy/DODlweblpolicy. organization shall inform the affected (6) Ensure public Web sites comply individuals as soon as possible, but not with policies regarding restrictions on later than ten days after the loss or persistent and third party cookies. The compromise of protected personal in- Army prohibits both persistent and formation is discovered. third part cookies. (see AR 25–1, para 6– (2) At a minimum, the organization 4n) shall advise individuals of what spe- (7) A Privacy Advisory is required on cific data was involved; the cir- Web sites which host information sys- cumstances surrounding the loss, theft, tems soliciting personally identifying or compromise; and what protective ac- information, even when not maintained tions the individual can take. in a Privacy Act system of records. The (3) If Army organizations are unable Privacy Advisory informs the indi- to comply with policy, they will imme- vidual why the information is solicited diately notify their superiors, who will and how it will be used. Post the Pri- submit a memorandum through the vacy Advisory to the Web site page chain of command to the Administra- where the information is being solic- tive Assistant of the Secretary of the ited, or to a well marked hyperlink Army to explain why the affected indi- stating ‘‘Privacy Advisory—Please viduals or population’s personal infor- refer to the Privacy and Security No- mation has been lost, stolen, or com- tice that describes why this informa- promised. tion is collected and how it will be (4) This policy is also applicable to used.’’ Army contractors who collect, main- (d) Protecting records containing personal identifiers such as names and Social tain, use, or disseminate protected per- Security Numbers. (1) Only those records sonal information on behalf of the or- covered by a Privacy Act system of ganization. records notice may be arranged to per- (f) Federal government contractors’ mit retrieval by a personal identifier compliance. (1) When a DA activity con- (e.g., an individual’s name or Social tracts for the design, development, or Security Number). AR 25–400–2, para- operation of a Privacy Act system of graph 6–2 requires all records covered records in order to accomplish a DA by a Privacy Act system of records no- mission, the agency must apply the re- tice to include the system of record quirements of the Privacy Act to the identification number on the record contractor and its employees working label to serve as a reminder that the on the contract (See 48 CFR part 24 and information contained within must be other applicable supplements to the safeguarded. FAR; 32 CFR part 310). (2) Use a coversheet or DA Label 87 (2) System Managers will review an- (For Official Use Only) for individual nually, contracts contained within the records not contained in properly la- system(s) of records under their re- beled file folders or cabinets. sponsibility, to determine which ones (3) When developing a coversheet, the contain provisions relating to the de- following is an example of a statement sign, development, or operation of a that you may use: ‘‘The information Privacy Act system of records. contained within is FOR OFFICIAL (3) Contractors are considered em- USE ONLY (FOUO) and protected by ployees of the Army for the purpose of the Privacy Act of 1974.’’ the sanction provisions of the Privacy (e) Notification of Individuals when Act during the performance of the con- personal information is lost, stolen, or tract requirements. compromised. (1) Whenever an Army or- (4) Disclosing records to a contractor ganization becomes aware the pro- for use in performing the requirements

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of an authorized DA contract is consid- tered system to the DA Freedom of In- ered a disclosure within the agency formation and Privacy Office. The pro- under exception (b)(1), ‘‘Official Need posed or altered notice must include a to Know’’, of the Act. narrative statement and supporting documentation. A narrative statement § 505.3 Privacy Act systems of records. must contain the following items: (a) Systems of records. (1) A system of (i) System identifier and name; records is a group of records under the (ii) Responsible Official, title, and control of a DA activity that are re- phone number; trieved by an individual’s name or by (iii) If a new system, the purpose of some identifying number, symbol, or establishing the system or if an altered other identifying particular assigned to system, nature of changes proposed; an individual. (iv) Authority for maintenance of the (2) Privacy Act systems of records system; must be— (v) Probable or potential effects of (i) Authorized by Federal statute or the system on the privacy of individ- an Executive Order; uals; (ii) Needed to carry out DA’s mission; (vi) Whether the system is being and maintained, in whole or in part, by a (iii) Published in the FEDERAL REG- contractor; ISTER in a system of records notice, (vii) Steps taken to minimize risk of which will provide the public an oppor- unauthorized access; tunity to comment before DA imple- (viii) Routine use compatibility; ments or changes the system. (ix) Office of Management and Budg- (3) The mere fact that records are re- et information collection require- trievable by a name or personal identi- ments; and fier is not enough. Records must actu- (x) Supporting documentation as an ally be retrieved by a name or personal attachment. Also as an attachment identifier. Records in a group of should be the proposed new or altered records that may be retrieved by a system notice for publication in the name or personal identifier but are not FEDERAL REGISTER. normally retrieved by this method are (3) An amended or altered system of not covered by this part. However, they records is one that has one or more of are covered by AR 25–55, the Depart- the following: ment of the Army Freedom of Informa- (i) A significant increase in the num- tion Act Program. ber, type, or category of individuals (4) The existence of a statute or Ex- about whom records are maintained; ecutive Order mandating the mainte- (ii) A change that expands the types nance of a system of records to perform of categories of information main- an authorized activity does not abolish tained; the responsibility to ensure the infor- (iii) A change that alters the purpose mation in the system of records is rel- for which the information is used; evant and necessary to perform the au- (iv) A change to equipment configu- thorized activity. ration (either hardware or software) (b) Privacy Act system of records no- that creates substantially greater ac- tices. (1) DA must publish notices in the cess to the records in the system of FEDERAL REGISTER on new, amended, records; altered, or deleted systems of records (v) An addition of an exemption pur- to inform the public of the Privacy Act suant to Section (j) or (k) of the Act; or systems of records that it maintains. (vi) An addition of a routine use pur- The Privacy Act requires submission of suant to 5 U.S.C. 552a(b)(3). new or significantly changed systems (4) For additional guidance contact of records to OMB and both houses of the DA FOIA/P Office. Congress before publication in the FED- (5) On behalf of DA, the Defense Pri- ERAL REGISTER (See Appendix E of this vacy Office maintains a list of DOD part). Components’ Privacy Act system of (2) Systems managers must send a records notices at the Defense Privacy proposed notice at least 120 days before Office’s Web site http:// implementing a new, amended or al- www.defenselink.mil/privacy.

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(6) DA PAM 25–51 sets forth proce- before that date. Executive Order 9397 dures pertaining to Privacy Act system (issued prior to January 1, 1975) author- of records notices. izes the Army to solicit and use the (7) For new systems, system man- SSN as a numerical identifier for indi- agers must establish appropriate ad- viduals in most federal records sys- ministrative, technical, and physical tems. However, the SSN should only be safeguards to ensure the security and collected as needed to perform official confidentiality of records. This applies duties. Executive Order 9397 does not to all new systems of records whether mandate the solicitation of SSNs from maintained manually or automated. Army personnel as a means of identi- (i) One safeguard plan is the develop- fication. ment and use of a Privacy Impact As- (3) Upon entrance into military serv- sessment (PIA) mandated by the E-Gov ice or civilian employment with DA, Act of 2002, Section 208. The Office of individuals are asked to provide their Management and Budget specifically SSN. The SSN becomes the service or directs that a PIA be conducted, reemployment number for the individual viewed, and published for all new or and is used to establish personnel, fi- significantly altered information in nancial, medical, and other official identifiable form collected from or records. After an individual has pro- about the members of the public. The vided his or her SSN for the purpose of PIA describes the appropriate adminis- establishing a record, the Privacy Act trative, technical, and physical safe- Statement is not required if the indi- guards for new automated systems. vidual is only requested to furnish or This will assist in the protection verify the SSN for identification pur- against any anticipated threats or haz- poses in connection with the normal ards to the security or integrity of use of his or her records. If the SSN is data, which could result in substantial to be used for a purpose other than harm, embarrassment, inconvenience, identification, the individual must be or unfairness to any individual on informed whether disclosure of the whom information is maintained. Con- SSN is mandatory or voluntary; by tact your local Information Officer for what statutory authority the SSN is guidance on conducting a PIA. solicited; and what uses will be made of (ii) The development of appropriate the SSN. This notification is required safeguards must be tailored to the re- even if the SSN is not to be maintained quirements of the system as well as in a Privacy Act system of records. other factors, such as the system envi- (4) When asking an individual for his ronment, location, and accessibility. or her SSN or other personal information that will be maintained in a sys- § 505.4 Collecting personal informa- tem of records, the individual must be tion. provided with a Privacy Act State- (a) General provisions. (1) Employees ment. will collect personal information to the (b) Privacy Act Statement (PAS). (1) A greatest extent practicable directly Privacy Act Statement is required from the subject of the record. This is whenever personal information is re- especially critical, if the information quested from an individual and will be- may result in adverse determinations come part of a Privacy Act system of about an individual’s rights, benefits, records. The information will be re- and privileges under federal programs trieved by the individual’s name or (See 5 U.S.C. 552a(e)(2)). other personal identifier (See 5 U.S.C. (2) It is unlawful for any Federal, 552a(e)(3)). State, or local government agency to (2) The PAS will ensure that individ- deny anyone a legal right, benefit, or uals know why the information is privilege provided by law for refusing being collected so they can make an in- to give their SSN unless the law re- formed decision as to providing the quires disclosure, or a law or regula- personal information. tion adopted before January 1, 1975, re- (3) In addition, the PAS will include quired the SSN or if DA uses the SSN language that is explicit, easily under- to verify a person’s identity in a sys- stood, and not so lengthy as to deter an tem of records established and in use individual from reading it.

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(4) A sign can be displayed in areas (ii) Within the body with a notation where people routinely furnish this of its location below the title; kind of information, and a copy of the (iii) On the reverse side with a nota- PAS will be made available upon re- tion of its location below the title; quest by the individual. (iv) Attached as a tear-off sheet; or (5) Do not ask the person to sign the (v) Issued as a separate supplement. PAS. (8) An example of a PAS is at appen- (6) A Privacy Act Statement must in- dix B of this part. clude the following four items— (9) Include a PAS on a Web site page (i) Authority: Cite the specific statute if it collects information directly from or Executive Order, including a brief an individual and is retrieved by his or title or subject that authorizes the DA her name or personal identifier (See Of- to collect the personal information re- fice of Management and Budget Pri- quested. vacy Act Guidelines, 40 FR 28949, 28961 (ii) Principal Purpose (s): Cite the (July 9, 1975)). principal purposes for which the infor- (10) Army policy prohibits the collec- mation will be used. tion of personally identifying informa- (iii) Routine Uses: A list of where and tion on public Web sites without the why the information will be disclosed express permission of the user. Re- OUTSIDE of DOD. Applicable routine quests for exceptions must be for- uses are published in the applicable warded to the Army CIO/G–6. (See AR Privacy Act system of records no- 25–1, para 6–4n.) tice(s). If none, the language to be used (c) Collecting personal information from is: ‘‘Routine Use(s): None. However the third parties. (1) It may not be practical ‘Blanket Routine Uses’ set forth at the to collect personal information di- beginning of the Army’s compilation of rectly from the individual in all cases. systems of records notices apply.’’ Some examples of when collection from (iv) Disclosure: Voluntary or Manda- third parties may be necessary are tory. Include in the Privacy Act State- when— ment specifically whether furnishing (i) Verifying information; the requested personal data is manda- (ii) Opinions or evaluations are need- tory or voluntary. A requirement to ed; furnish personal data is mandatory (iii) The subject cannot be contacted; ONLY when a federal statute, Execu- or tive Order, regulation, or other law (iv) At the request of the subject in- specifically imposes a duty on the indi- dividual. vidual to provide the information (2) When asking third parties to pro- sought, and when the individual is sub- vide information about other individ- ject to a penalty if he or she fails to uals, they will be advised of— provide the requested information. If (i) The purpose of the request; and providing the information is only a (ii) Their rights to confidentiality as condition of or prerequisite to granting defined by the Privacy Act of 1974 (Con- a benefit or privilege and the indi- sult with your servicing Staff Judge vidual has the option of receiving the Advocate for potential limitations to benefit or privilege, providing the in- the confidentiality that may be offered formation is always voluntary. How- pursuant to the Privacy Act). ever, the loss or denial of the privilege, (d) Confidentiality promises. Promises benefit, or entitlement sought must be of confidentiality must be prominently listed as a consequence of not fur- annotated in the record to protect from nishing the requested information. disclosure any information provided in (7) Some acceptable means of admin- confidence pursuant to 5 U.S.C. istering the PAS are as follows, in the 552a(k)(2), (k)(5), or (k)(7). order of preference— (i) Below the title of the media used § 505.5 Individual access to personal to collect the personal information. information. The PAS should be positioned so that (a) Individual access. (1) The access the individual will be advised of the provisions of this part are intended for PAS before he or she provides the reuse by individuals whose records are quested information; maintained in a Privacy Act system of

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records. If a representative acts on (3) Release of personal information to their behalf, a written authorization individuals under this section is not must be provided, with the exception of considered a ‘‘public release’’ of infor- members of Congress acting on behalf mation. of a constituent. (c) Verification of identity for first (2) A Department of the Army party requesters. (1) Before granting ac- ‘‘Blanket Routine Use’’ allows the recess to personal data, an individual lease of Privacy Act protected informa- will provide reasonable verification of tion to members of Congress when they identity. are acting on behalf of the constituent (2) When requesting records in writ- and the information is filed and re- ing, the preferred method of verifying trieved by the constituent’s name or identity is the submission of a nota- personal identifier. The said ‘‘Blanket rized signature. An alternative method Routine Use’’ is listed below. of verifying identity for individuals ‘‘Congressional Inquiries Disclosure Routine Use: Disclosure from a system who do not have access to notary serv- of records maintained by a DOD Com- ices is the submission of an un-sworn ponent may be made to a congressional declaration in accordance with 28 office from the record of an individual U.S.C. 1746 in the following format: in response to an inquiry from the con- (i) If executed within the United gressional office made at the request of States, its territories, possessions, or that individual.’’ commonwealths: ‘‘I declare (or certify, (3) Upon a written request, an indi- verify, or state) under penalty of per- vidual will be granted access to infor- jury that the foregoing is true and cor- mation pertaining to him or her that is rect. Executed on (date). (Signature)’’. maintained in a Privacy Act system of (ii) If executed outside of the United records, unless— States: ‘‘I declare under perjury or pen- (i) The information is subject to an alty under the laws of the United exemption, the system manager has in- States of America that the foregoing is voked the exemption, and the exemp- true and correct. Executed on (date). tion is published in the FEDERAL REG- (Signature).’’ ISTER; or (3) When an individual seeks access (ii) The information was compiled in in person, identification can be verified reasonable anticipation of a civil ac- by documents normally carried by the tion or proceeding. individual (such as identification card, (4) Legal guardians or parents acting driver’s license, or other license, per- on behalf of a minor child have the mit or pass normally used for identi- minor child’s rights of access under fication purposes). However, level of this part, unless the records were cre- proof of identity is commensurate with ated or maintained pursuant to cir- the sensitivity of the records sought. cumstances where the interests of the For example, more proof is required to minor child were adverse to the inter- access medical records than is required ests of the legal guardian or parent. to access parking records. (5) These provisions should allow for the maximum release of information (4) Telephonic requests will not be consistent with Army and DOD’s statu- honored. tory responsibilities. (5) An individual cannot be denied ac- (b) Individual requests for access. (1) cess solely for refusal to provide his or Individuals will address requests for ac- her Social Security Number (SSN) un- cess to records in a Privacy Act system less the SSN was required for access by of records to the system manager or statute or regulation adopted prior to the custodian of the record designated January 1, 1975. in DA systems of records notices (See (6) If an individual wishes to have his DA PAM 25–51 or the Defense Privacy or her records released directly to a Office’s Web site http:// third party or to be accompanied by a www.defenselink.mil/privacy). third party when seeking access to his (2) Individuals do not have to state a or her records, reasonable proof of au- reason or justify the need to gain ac- thorization must be obtained. The indi- cess to records under the Act. vidual may be required to furnish a

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signed access authorization with a no- found in the Privacy Act of 1974 and tarized signature or other proof of au- this part. In order to be in compliance thenticity (i.e. telephonic confirma- with HIPAA, the additional guidelines tion) before granting the third party and procedures will be reviewed before access. release of an individual’s identifiable (d) Individual access to medical records. health information. (1) An individual must be given access (e) Personal notes. (1) The Privacy Act to his or her medical and psychological does not apply to personal notes of in- records unless a judgment is made that dividuals used as memory aids. These access to such records could have an documents are not Privacy Act records adverse effect on the mental or phys- and are not subject to this part. ical health of the individual. This de- (2) The five conditions for documents termination normally should be made to be considered personal notes are as in consultation with a medical doctor. follows— Additional guidance is provided in DOD (i) Maintained and discarded solely 5400.11–R, Department of Defense Pri- at the discretion of the author; vacy Program. In this instance, the in- (ii) Created only for the author’s per- dividual will be asked to provide the sonal convenience and the notes are re- name of a personal health care pro- stricted to that of memory aids; vider, and the records will be provided (iii) Not the result of official direc- to that health care provider, along tion or encouragement, whether oral or with an explanation of why access written; without medical supervision could be (iv) Not shown to others for any rea- harmful to the individual. son; and (2) Information that may be harmful (v) Not filed in agency files. to the record subject should not be re- (3) Any disclosure from personal leased to a designated individual unless notes, either intentional or through the designee is qualified to make psy- carelessness, removes the information chiatric or medical determinations. from the category of memory aids and (3) DA activities may offer the serv- the personal notes then become subject ices of a military physician, other than to provisions of the Act. the one who provided the treatment. (f) Denial or limitation of individual’s (4) Do not require the named health right to access. (1) Even if the informa- care provider to request the records for tion is filed and retrieved by an indi- the individual. vidual’s name or personal identifier, (5) The agency’s decision to furnish his or her right to access may be de- the records to a medical designee and nied if— not directly to the individual is not (i) The records were compiled in rea- considered a denial for reporting pur- sonable anticipation of a civil action or poses under the Act and cannot be ap- proceeding including any action where pealed. DA expects judicial or administrative (6) However, no matter what the spe- adjudicatory proceedings. The term cial procedures are, DA has a statutory ‘‘civil action or proceeding’’ includes obligation to ensure that access is pro- quasi-judicial, pre-trial judicial, and vided the individual. administrative proceedings, as well as (7) Regardless of age, all DA military formal litigation; personnel and all married persons are (ii) The information is about a third considered adults. The parents of these party and does not pertain to the re- individuals do not have access to their quester. A third party’s SSN and home medical records without written con- address will be withheld. However, in- sent of the individual. formation about the relationship be- (8) DOD 6025.18–R, DOD Health Infor- tween the individual and the third mation Privacy Regulation, issued pur- party would normally be disclosed as it suant to the Health Insurance Port- pertains to the individual; ability and Accountability Act (iii) The records are in a system of (HIPAA) of 1996, has placed additional records that has been properly exempt- procedural requirements on the uses ed by the Secretary of the Army from and disclosure of individually identifi- the access provisions of this part and able health information beyond those the information is exempt from release

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under a provision of the Freedom of In- but not the other. The Freedom of In- formation Act (See appendix C of this formation Act and the PA works to- part for a list of applicable Privacy Act gether to ensure that requesters re- exemptions, exceptions, and ‘‘Blanket’’ ceive the greatest amount of informa- routine uses); tion possible. (iv) The records contain properly (2) Do not deny the individual access classified information that has been to his or her records simply because he exempted from the access provision of or she failed to cite the appropriate this part; statute or regulation. (v) The records are not described well (3) If the records are required to be enough to enable them to be located released under the Freedom of Infor- with a reasonable amount of effort on mation Act, the PA will never block the part of an employee familiar with disclosure to requester. If the PA al- the file. Requesters should reasonably lows the DA activity to deny access to describe the records they are request- an individual, the Freedom of Informa- ing. They do not have to designate a tion Act must still be applied, and the Privacy Act system of records notice information released if required by the identification number, but they should Freedom of Information Act. at least identify a type of record or (4) Unlike the Freedom of Informa- functional area. For requests that ask tion Act, the Privacy Act applies only for ‘‘all records about me,’’ DA per- to U.S. citizens and aliens lawfully ad- sonnel should ask the requester for mitted for permanent residence. more information to narrow the scope of his or her request; and (5) Requesters who seek records (vi) Access is sought by an individual about themselves contained in a Pri- who fails or refuses to comply with Pri- vacy Act system of records (1st party vacy Act established procedural re- requesters) and who cite or imply only quirements, included refusing to pay the Privacy Act, will have their re- fees. quest processed under the provisions of (2) Requesters will not use govern- both the PA and the Freedom of Infor- ment equipment, supplies, stationery, mation Act. If the information re- postage, telephones, or official mail quested is not contained in a Privacy channels for making Privacy Act re- Act system of records or is not about quests. System managers will process the requester, the individual’s request such requests but inform requesters will be processed under the provisions that using government resources to of the Freedom of Information Act make Privacy Act requests is not au- only, and the Freedom of Information thorized. Act processing requirements/time lines (3) When a request for information will apply. contained in a Privacy Act system of (6) Third party information. (i) Third records is denied in whole or in part, party information contained in a Pri- the Denial Authority or designee shall vacy Act system of records that does inform the requester in writing and ex- not pertain to the requester, such as plain why the request for access has SSN, home addresses, and other purely been refused. personal information that is not about (4) A request for access, notification, the requester, will be processed under or amendment of a record shall be ac- the provisions of Freedom of Informa- knowledged in writing within 10 work- tion Act only. Third party information ing days of receipt by the proper sys- that is not about the requester is not tem manager or record custodian. subject to the Privacy Act’s first party (g) Relationship between the Privacy access provision. Act and the Freedom of Information Act. (ii) Information about the relation- (1) Not all requesters are knowledge- ship between the first party requester able of the appropriate statutory au- and a third party is normally disclosed thority to cite when requesting infor- as pertaining to the first party re- mation. In some instances, they may quester. Consult your servicing Staff cite neither the PA nor the Freedom of Judge Advocate if there is a question Information Act in their request. In about the release of third party infor- some instances they may cite one Act mation to a first party requester.

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(7) If an individual requests informa- records pertaining to the requesting in- tion about them contained in a Privacy dividual, are the appropriate Denial Act system of records, the individual Authorities, their designees, or the may be denied the information only if Secretary of the Army who will be act- the information is exempt under both ing through the General Counsel. the PA and the Freedom of Informa- (2) Denial Authorities are authorized tion Act. Both PA and Freedom of In- to deny requests, either in whole or in formation Act exemptions will be cited part, for notification, access and in the denial letter and appeals will be amendment of Privacy Act records con- processed in accordance with both tained in their respective areas of re- Acts. sponsibility. (8) Each time a first party requester (i) The Denial Authority may dele- cites or implies the PA, perform this gate all or part of their authority to a analysis: division chief under his supervision (i) Is the request from a United within the Agency in the grade of 0–5/ States living citizen or an alien law- GS–14 or higher. All delegations must fully admitted for permanent resi- be in writing. dence? (ii) The Denial Authority will send (ii) Is the individual requesting an the names, office names, and tele- agency record? phones numbers of their delegates to (iii) Are the records within a PA sys- the DA Freedom of Information and tem of records that are filed and re- Privacy Office. trieved by an individual’s name or (iii) If a Denial Authority delegate other personal identifier? (If the an- denies access or amendment, the dele- swer is ‘‘yes’’ to all of these questions, gate must clearly state that he or she then the records should be processed is acting on behalf of the Denial Au- under the ‘‘Privacy Act’’) and thority, who must be identified by (iv) Does the information requested name and position in the written re- pertain exclusively to the requester? sponse to the requester. Denial Author- (A) If yes, no further consideration of ity designation will not delay proc- Freedom of Information Act exemp- essing privacy requests/actions. tions required. Release all information (iv) The official Denial Authorities unless a PA exemption authorizes are for records under their authority withholding. (See appendix B of this part). The indi- (B) If no, process the information viduals designated as Denial Authori- that is not about the requester under ties under this part are the same indi- the Freedom of Information Act and viduals designated as Initial Denial Au- withhold only if a proper Freedom of thorities under AR 25–55, the Depart- Information Act exemption applies. ment of the Army Freedom of Informa- (h) Functional requests. If an indi- tion Act Program. However, delegation vidual asks for his or her records and of Denial Authority pursuant to this does not cite or reasonably imply ei- part does not automatically encompass ther the Privacy Act or the Freedom of delegation of Initial Denial Authority Information Act, and another pre- under AR 25–55. Initial Denial Author- scribing directive or regulation authority must be expressly delegated pursu- izes the release, the records should be ant to AR 25–55 for an individual to released under that other directive or take action on behalf of an Initial De- regulation and not the PA or the FOIA. nial Authority under AR 25–55. Examples of functional requests are (3) The custodian of the record will military members asking to see their acknowledge requests for access made Official Military Personnel Records or under the provisions of the Privacy Act civilian employees asking to see their within 10 working days of receipt. Official Personnel Folder. (4) Requests for information rec- (i) Procedures for denying or limiting ommended for denial will be forwarded an individual’s right to access or amend- to the appropriate Denial Authority, ment and the role of the Denial Author- along with a copy of the records and ity. (1) The only officials authorized to justification for withholding the deny a request for records or a request record. At the same time, notify the re- to amend records in a PA system of quester of the referral to the Denial

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Authority for action. All documents or mination that is forwarded to the De- portions thereof determined to be re- nial Authority. leasable to the requester will be re- (2) The Denial Authority must pro- leased to the requester before for- vide the requester with appeal rights. warding the case to the Denial Author- (k) Referral of requests. (1) A request ity. received by a DA activity having no (5) Within 30 working days, the De- records responsive to a request shall be nial Authority will provide the fol- referred to another DOD Component or lowing notification to the requester in DA activity, if the other Component or writing if the decision is to deny the activity confirms that they have the requester access to the information. requested records, or verifies that they (6) Included in the notification will are the proper custodian for that type be: of record. The requester will be noti- (i) Denying Official’s name, position fied of the referral. In cases where the title, and business address; DA activity receiving the request has reason to believe that the existence or (ii) Date of the denial; nonexistence of the record may in (iii) The specific reason for the de- itself be classified, that activity will nial, citing the appropriate subsections consult the Component or activity hav- of the Privacy Act, the Freedom of In- ing cognizance over the records in formation Act, AR 25–55, The Depart- question before referring the request. If ment of the Army Freedom of Informa- the Component or activity that is con- tion Act Program and this part; and sulted determines that the existence or (iv) The individual’s right to admin- nonexistence of the records is in itself istratively appeal the denial within 60 classified, the requester shall be so no- calendar days of the mailing date of tified by the DA activity originally re- the notice, through the Denial Author- ceiving the request that it can neither ity, to the Office of the General Coun- confirm nor deny the existence of the sel, Secretary of the Army, 104 Army record, and no referral shall take place. Pentagon, Washington, DC 20310–0104. (2) A DA activity shall refer a Pri- (7) The appeal must be in writing and vacy Act request for a classified record the requester should provide a copy of that it holds to another DOD Compo- the denial letter and a statement of nent, DA activity, or agency outside their reasons for seeking review. the Department of Defense, if the (8) For denials made by the DA when record originated in the other DOD the record is maintained in a Govern- Component, DA activity, or outside ment-wide system of records, an indi- agency, or if the classification is deriv- vidual’s request for further review ative. The referring DA activity will must be addressed to each of the appro- provide the records and a release rec- priate government Privacy Act offices ommendation with the referral action. listed in the Privacy Act system of (3) Any DA activity receiving a re- records notices. For a current listing of quest that has been misaddressed will Government-wide Privacy Act system refer the request to the proper address of records notices see the Defense Pri- and advise the requester. vacy Office’s Web site http:// (4) Within DA, referrals will be made www.defenselink.mil/privacy or DA PAM directly to offices having custody of 25–51. the requested records (unless the De- (j) No records determinations. (1) Since nial Authority is the custodian of the a no record response may be considered requested records). If the office receiv- an ‘‘adverse’’ determination, the De- ing the Privacy Act request does not nial Authority must make the final de- know where the requested records are termination that no records exist. The located, the office will contact the DA originating agency shall notify the re- FOIA/P Office, to determine the appro- quester that an initial determination priate office for referral. has been made that there are no re- (5) The requester will be informed of sponsive records, however the final de- the referral whenever records or a por- termination will be made by the Denial tion of records are, after prior con- Authority. A no records certificate sultation, referred to another activity must accompany a no records deter- for a release determination and direct

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response. Additionally, the DA activity above; referrals between offices of the referral letter will accomplish the fol- same DA activity are authorized. lowing— (l) Reproduction fees. (1) Use fees only (i) Fully describe the Privacy Act to recoup direct reproduction costs as- system of records from which the docu- sociated with granting access. ment was retrieved; and (2) DA activities may use discretion (ii) Indicate whether the referring ac- in their decision to charge for the first tivity claims any exemptions in the copy of records provided to an indi- Privacy Act system of records notice. vidual to whom the records pertain. (6) Within the DA, an activity will Thereafter, fees will be computed pur- refer a Privacy Act request for records suant to the fee schedule set forth in that it holds but was originated by an- AR 25–55, including the fee waiver pro- other activity, to the originating activ- visions. ity for direct response. An activity will (3) Checks or money orders for fees not, in any case, release or deny such should be made payable to the Treas- records without prior consultation urer of the United States and will be with the originating activity. The re- deposited in the miscellaneous receipts quester will be notified of such refer- of the treasury account maintained at ral. the activity’s finance office. (7) A DA activity may refer a Privacy (4) Reproduction costs shall only in- Act request for records that originated clude the direct costs of reproduction in an agency outside of DOD, or that is and shall not include costs of— based on information obtained from an (i) Time or effort devoted to search- agency outside the DOD, to that agen- ing for or reviewing the records by per- cy for direct response to the requester, sonnel; only if that agency is subject to the Privacy Act. Otherwise, the DA activ- (ii) Fees not associated with the ac- ity must respond to the request. tual cost of reproduction; (8) DA activities will not honor any (iii) Producing a copy when it must Privacy Act requests for investigative, be provided to the individual without intelligence, or any other type of cost under another regulation, direc- records that are on loan to the Depart- tive, or law; ment of Defense for a specific purpose, (iv) Normal postage; if the records are restricted from fur- (v) Transportation of records or per- ther release in writing. Such requests sonnel; or will be referred to the agency that pro- (vi) Producing a copy when the indi- vided the records. vidual has requested only to review the (9) A DA activity will notify request- records and has not requested a copy, ers seeking National Security Council and the only means of allowing review (NSC) or White House documents that is to make a copy (e.g., the records are they should write directly to the NSC stored in a computer and a copy must or White House for such documents. be printed to provide individual access, DA documents in which the NSC or or the activity does not wish to sur- White House have a concurrent review- render temporarily the original records ing interest will be forwarded to the for the individual to review). Department of Defense, Office of Free- (m) Privacy Act case files. (1) When- dom of Information and Security Re- ever an individual submits a Privacy view, which will coordinate with the Act request, a case file will be estab- NSC or White House, and return the lished. This Privacy Act case file is a documents to the originating DA activ- specific type of file that is governed by ity after NSC or White House review. a specific Privacy Act system of NSC or White House documents discov- records notice. In no instance will the ered in DA activity files which are re- individual’s Privacy Act request and sponsive to a Privacy Act request will corresponding Army actions be in- be forwarded to DOD for coordination cluded in the individual’s military per- and return with a release determina- sonnel file or other military filing sys- tion. tems, such as adverse action files or (10) To the extent referrals are con- general legal files, and in no instance sistent with the policies expressed will the Privacy Act case file be used

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to make an adverse determination (ii) The record is not identical to the about the individual. individual’s copy; or (2) The case file will be comprised of (iii) The document was not con- the request for access/amendment, structed in accordance with the appli- grants, refusals, coordination action(s), cable recordkeeping requirements pre- and all related papers. scribed in AR 25–400–2, The Army Records Information Management Sys- § 505.6 Amendment of records. tem (ARIMS). (a) Amended records. (1) Individuals (4) Under the amendment provisions, are encouraged to periodically review an individual may not challenge the the information maintained about merits of an adverse determination. them in Privacy Act systems of records (5) U.S. Army Criminal Investigation and to familiarize themselves with the Command (USACIDC) reports of inves- amendment procedures established by tigations (PA system of records notice this part. A0195–2a USACIDC, Source Register; (2) An individual may request to A0195–2b USACIDC, Criminal Investiga- amend records that are retrieved by his tion and Crime Laboratory Files) have or her name or personal identifier from been exempted from the amendment a system of records unless the system provisions of the Privacy Act. Requests has been exempted from the amend- to amend these reports will be consid- ment provisions of the Act. The stand- ered under AR 195–2. Actions taken by ard for amendment is that the records the Commander of U.S. Army Criminal are inaccurate as a matter of fact rath- Investigation Command will constitute er than judgment, irrelevant, un- final action on behalf of the Secretary timely, or incomplete. The burden of of the Army under that regulation. proof is on the requester. (6) Records placed in the National Ar- (3) The system manager or custodian chives are exempt from the Privacy must review Privacy Act records for accuracy, relevance, timeliness, and Act provision allowing individuals to completeness. request amendment of records. Most provisions of the Privacy Act apply (4) Amendment procedures are not intended to permit individuals to chal- only to those systems of records that lenge events in records that have actu- are under the legal control of the origi- ally occurred. Amendment procedures nating agency; for example, an agen- only allow individuals to amend those cy’s current operating files or records items that are factually inaccurate and stored at a Federal Records Center. not matters of official judgment (e.g., (7) Inspector General investigative performance ratings, promotion poten- files and action request/complaint files tial, and job performance appraisals). (records in system notice A0021–1 In addition, an individual is not per- SAIG, Inspector General Records) have mitted to amend records for events been exempted from the amendment that have been the subject of judicial provisions of the Privacy Act. Requests or quasi-judicial actions/proceedings. to amend these reports will be consid- (b) Proper amendment requests. (1) ered under AR 20–1 by the Inspector Amendment requests, except for rou- General. Action by the Inspector Gen- tine administrative changes, will be in eral will constitute final action on be- writing. half of the Secretary of the Army (2) When acting on behalf of a first under that regulation. party requester, an individual must (8) Other records that are exempt provide written documentation of the from the amendment provisions of the first party requester’s consent to allow Privacy Act are listed in the applicable the individual to view his or her PA system of records notices. records. (c) Amendment procedures. (1) Re- (3) Amendment is appropriate if it quests to amend records should be ad- can be shown that— dressed to the custodian or system (i) Circumstances leading up to the manager of the records. The request recorded event were found to be inac- must reasonably describe the records curately reflected in the document; to be amended and the changes sought

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(e.g., deletion, addition, or amend- the refusal or renders the case comment). The burden of proof is on the re- plete; quester. The system manager or (ii) Within 5 working days of receipt, records custodian will provide the indi- forward the appeal to the DA Privacy vidual with a written acknowledgment Act Review Board; and of the request within 10 working days (iii) Append the servicing Judge Ad- and will make a final response within vocate’s legal review, including a de- 30 working days of the date the request termination that the Privacy Act Re- was received. The acknowledgment view Board packet is complete. must clearly identify the request and (d) DA Privacy Act Review Board. (1) inform the individual that final action The DA Privacy Act Review Board acts will be forthcoming within 30 working on behalf of the Secretary of the Army days. in deciding appeals of the appropriate (2) Records for which amendment is Denial Authority’s refusal to amend sought must be reviewed by the proper records. system manager or custodian for accu- (2) The Board will process an appeal racy, relevance, timeliness, and com- within 30 working days of its receipt. pleteness. The General Counsel may authorize an (3) If the amendment is appropriate, additional 30 days when unusual cir- the system manager or custodian will cumstances and good cause so warrant. physically amend the records accord- (3) The Board membership consists of ingly. The requester will be notified of the following principal members, com- such action. prised of three voting and two non-vot- (4) If the amendment is not war- ing members, or their delegates. ranted, the request and all relevant (4) Three voting members include— documents, including reasons for not (i) Administrative Assistant to the amending, will be forwarded to the Secretary of the Army (AASA) who proper Denial Authority within 10 acts as the Chairman of the Board; working days to ensure that the 30 day (ii) The Judge Advocate General; and time limit for the final response is (iii) The Chief, DA Freedom of Infor- met. In addition, the requester will be mation and Privacy Division, U.S. notified of the referral. Army Records Management and De- (5) Based on the documentation pro- classification Agency. vided, the Denial Authority will either (5) In addition, two non-voting mem- amend the records and notify the re- bers include— quester and the custodian of the (i) The Chief Attorney, OAASA (or records of all actions taken, or deny designee) who serves as the legal advi- the request. If the records are amend- sor and will be present at all Board ses- ed, those who have received the records sions to provide legal advice as re- in the past will receive notice of the quired; and amendment. (ii) Recording Secretary provided by (6) If the Denial Authority deter- the Office of the Administrative Assist- mines that the amendment is not war- ant to the Secretary of the Army. ranted, he or she will provide the re- (e) DA Privacy Act Review Board meet- quester and the custodian of the ings. (1) The meeting of the Board re- records reason(s) for not amending. In quires the presence of all five members addition, the Denial Authority will or their designated representatives. send the requester an explanation re- Other non-voting members with sub- garding his or her right to seek further ject matter expertise may participate review by the DA Privacy Act Review in a meeting of the Board, at the dis- Board, through the Denial Authority, cretion of the Chairman. and the right to file a concise ‘‘State- (2) Majority vote of the voting mem- ment of Disagreement’’ to append to bers is required to make a final deter- the individual’s records. mination on a request before the (i) On receipt of a request for further Board. review by the Privacy Act Review (3) Board members, who have denial Board, the Denial Authority will ap- authority, may not vote on a matter pend any additional records or back- upon which they took Denial Author- ground information that substantiates ity action. However, an individual who

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took Denial Authority action, or his or the release of personal information her representative, may serve as a non- without the individual’s/subject’s con- voting member when the Board consent (See appendix C of this part). siders matters in the Denial (ii) The FOIA requires the release of Authority’s area of functional speciali- the record. One of the twelve excep- zation. tions to Privacy Act is the FOIA Ex- (4) The Board may seek additional inception. If the FOIA requires the reformation, including the requester’s of- lease of information, the information ficial personnel file, if relevant and must be released. The Privacy Act can necessary to decide the appeal. not prevent release to a third party if (5) If the Board determines that an the FOIA requires release. However, in- amendment is warranted (the record is formation must not be discretionarily inaccurate as a matter of fact rather released under the FOIA if the informa- than judgment, irrelevant, untimely, tion is subject to the Privacy Act’s ‘‘no or incomplete) it will amend the record disclosure without consent’’ rule. and notify the requester, the Denial (iii) A routine use applies. Another Authority, the custodian of the record, major exception to the ‘‘no disclosure and any prior recipients of the record, without consent’’ rule is the routine of the amendment. use exception. The Privacy Act allows (6) If the Board determines that federal agencies to publish routine use amendment is unwarranted, they will— exceptions to the Privacy Act. Some (i) Obtain the General Counsel’s con- routine uses are Army specific, DOD currence in writing; specific, and Governmentwide. Routine (ii) Respond to the requester with the uses exceptions are listed in the Pri- reasons for denial; and vacy Act system of records notice(s) (iii) Inform the requester of the right applicable to the Privacy Act records to file a ‘‘Statement of Disagreement’’ in question. The Army and other agen- with the Board’s action and to seek ju- cies’ system of records notices may be dicial review of the Army’s refusal to accessed at the Defense Privacy Of- amend. A ‘‘Statement of Disagree- fice’s Web site http:// ment’’ must be received by the system www.defenselink.mil/privacy. manager within 120 days and it will be (2) The approved twelve exceptions to made an integral part of the pertinent the Privacy Act ‘‘no disclosure without record. Anyone who may have access consent’’ rule are listed at appendix C to, use of, or need to disclose informa- of this part. tion from the record will be aware that the record was disputed. The disclosing (b) Disclosing records to other DOD authority may include a brief summary components and to federal agencies out- of the Board’s reasons for not amend- side the DOD. (1) The twelve Privacy ing the disputed record. Act exceptions referred to in appendix (7) It is inappropriate for the Privacy C of this part are available to other Act Review Board to consider any DOD components and to federal agen- record which is exempt from the cies outside the DOD as exceptions to amendment provision of the Privacy the Privacy Act’s ‘‘no disclosure with- Act. out consent’’ rule, with the exception of the FOIA exception. The FOIA is not § 505.7 Disclosure of personal informa- an appropriate mechanism for pro- tion to other agencies and third viding information to other DOD com- parties. ponents and to federal agencies outside (a) Disclosing records to third parties. the DOD. (1) DA is prohibited from disclosing a (2) A widely used exception to re- record from a Privacy Act system of quests for information from local and records to any person or agency with- state government agencies and federal out the prior written consent of the agencies not within the DOD is the subject of the record, except when— routine use exception to the Privacy (i) Pursuant to the twelve Privacy Act. Act exceptions. The twelve exceptions (3) The most widely used exception to to the ‘‘no disclosure without consent’’ requests for information from other rule are those exceptions which permit DOD components is the ‘‘intra-agency

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need to know’’ exception to the Pri- (A) Present and past position titles, vacy Act. Officers and employees of the occupational series, and grade; DOD who have an official need for the (B) Present and past annual salary records in the performance of their of- rates (including performance awards or ficial duties are entitled to Privacy bonuses, incentive awards, merit pay Act protected information. Rank, posi- amount, Meritorious or Distinguished tion, or title alone does not authorize Executive Ranks, and allowances and access to personal information about differentials); others. An official need for the infor- (C) Present and past duty stations; mation must exist before disclosure. (D) Office or duty telephone number (4) For the purposes of disclosure and (DOD policy may require withholding disclosure accounting, the Department of this information in certain cir- of Defense (DOD) is considered a single cumstances); and agency. (E) Position descriptions, identifica- (c) Disclosures under AR 25–55, the tion of job elements, and performance Freedom of Information Act (FOIA) Pro- standards (but not actual performance gram. (1) Despite Privacy Act protec- appraisals), the release of which would tions, all records must be disclosed if not interfere with law enforcement the Freedom of Information Act (FOIA) programs or severely inhibit agency ef- requires their release. The FOIA re- fectiveness. Performance elements and quires release unless the information is standards (or work expectations) may exempted by one or more of the nine also be withheld when they are so FOIA exemptions. intertwined with performance apprais- (2) Required release under the FOIA. als, the disclosure would reveal an indi- The following are examples of personal vidual’s performance appraisal. information that is generally not ex- (d) Personal information that requires empt from the FOIA; therefore, it must protection. (1) The following are exam- be released to the public, unless cov- ples of information that is generally ered by paragraphs (d)(2) and (d)(3) of NOT releasable without the written this section. The following list is not consent of the subject. This list is not all inclusive: all inclusive— (i) Military Personnel— (i) Marital status; (A) Rank, date of rank, active duty (ii) Dependents’ names, sex and SSN entry date, basic pay entry date, and numbers; gross pay (including base pay, special (iii) Civilian educational degrees and pay, and all allowances except Basic major areas of study (unless the re- Allowance for Housing); quest for the information relates to the (B) Present and past duty assign- professional qualifications for Federal ments, future stateside assignments; employment); (C) Office/unit name, duties address (iv) School and year of graduation; and telephone number (DOD policy may require withholding of this infor- (v) Home of record; mation in certain circumstances); (vi) Home address and phone; (D) Source of commission, promotion (vii) Age and date of birth; sequence number, military awards and (viii) Overseas assignments (present decorations, and professional military or future); education; (ix) Overseas office or unit mailing (E) Duty status, at any given time; address and duty phone of routinely (F) Separation or retirement dates; deployable or sensitive units; (G) Military occupational specialty (x) Race/ethnic origin; (MOS); (xi) Educational level (unless the re- (H) Active duty official attendance at quest for the information relates to technical, scientific or professional professional qualifications for federal meetings; and employment); (I) Biographies and photos of key per- (xii) Social Security Number (SSN); sonnel (DOD policy may require with- and holding of this information in certain (xiii) The information that would circumstances). otherwise be protected from mandatory (ii) Federal civilian employees— disclosure under a FOIA exemption.

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(2) The Office of the Secretary of De- or the ‘‘intra-agency need to know’’ ex- fense issued a policy memorandum in ception to the Privacy Act. 2001 that provided greater protection of (2) A request for a home address or DOD personnel in the aftermath of 9/11 telephone number may be referred to by requiring information that person- the last known address of the indi- ally identifies DOD personnel be more vidual for a direct reply by the indi- carefully scrutinized and limited. In vidual to the requester. In such cases, general, the Department of Defense has the requester shall be notified of the specifically advised that DOD compo- referral. nents are not to release lists of names, (3) Do not sell or rent lists of indi- duty addresses, present or past position vidual names and addresses unless such titles, grades, salaries, and perform- action is specifically authorized by the ance standards of DOD military mem- appropriate authority. bers and civilian employees. At the of- (f) Emergency recall rosters. (1) The re- fice director level or above, the release lease of emergency recall rosters nor- of information will be limited to the mally is prohibited. Their release is name, official title, organization, and normally considered a clearly ‘‘unwar- telephone number, provided a deter- ranted invasion’’ of personal privacy mination is made that disclosure does and is exempt from mandatory release not raise security or privacy concerns. under the FOIA. Emergency recall ros- No other information, including room ters should only be shared with those numbers, will normally be released who have an ‘‘official need to know’’ about these officials. Consistent with the information, and they should be current policy, information on officials marked ‘‘For Official Use Only’’ (See below the office director level may con- AR 25–55). tinue to be released if their positions (2) Do not include a person’s SSN on or duties require frequent interaction an emergency recall roster or their with the public. spouse’s name. (3) Disclosure of records pertaining to (3) Commanders and supervisors personnel of overseas, sensitive, or rou- should give consideration to those indi- tinely deployed units shall be prohib- viduals with unlisted phone numbers. ited to the extent authorized by 10 Commanders and supervisors should U.S.C. 130b. consider limiting access to an unlisted (e) Release of home addresses and home number within the unit. telephone numbers. (1) The release of (g) Social rosters. (1) Before including home addresses and home telephone personal information such as a spouse’s numbers normally is prohibited. This name, home addresses, home phone release is normally considered a clear- numbers, and similar information on ly ‘‘unwarranted invasion’’ of personal social rosters or social directories, privacy and is exempt from mandatory which will be shared with individuals, release under the FOIA. However, home always ask for the individual’s written addresses and home telephone numbers consent. Without their written con- may still be released if— sent, do not include this information. (i) The individual has indicated pre- (2) Collection of this information will viously in writing that he or she has no require a Privacy Act Statement which objection to the release; clearly tells the individual what infor- (ii) The source of the information to mation is being solicited, the purpose, be released is a public document such to whom the disclosure of the informa- as commercial telephone directory or tion is made, and whether collection of other public listing; the information is voluntary or manda- (iii) The release is required by Fed- tory. eral statute (for example, pursuant to (h) Disclosure of personal information federally funded state programs to lo- on group orders. (1) Personal informa- cate parents who have defaulted on tion will not be posted on group orders child support payments) (See 42 U.S.C. so that everyone on the orders can 653); or view it. Such a disclosure of personal (iv) The releasing of information is information violates the Privacy Act pursuant to the routine use exception and this part.

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(2) The following are some examples (i) Enable an individual to ascertain of personal information that should those persons or agencies that have re- not be contained in group orders. The ceived information about them; following list is not all-inclusive— (ii) Enable the DA to notify past re- (i) Complete SSN; cipients of subsequent amendments or (ii) Home addresses and phone num- ‘‘Statements of Dispute’’ concerning bers; or the record; and (iii) Date of birth. (iii) Provide a record of DA compli- (i) Disclosures for established routine ance with the Privacy Act of 1974, if uses. (1) Records may be disclosed out- necessary. side the DOD without the consent of (3) Since the characteristics of the individual to whom they pertain records maintained within DA vary for an established routine use. widely, no uniform method for keeping (2) A routine use shall— the disclosure accounting is prescribed. (i) Be compatible with and related to (4) Essential elements to include in the purpose for which the record was each disclosure accounting report are— compiled; (i) The name, position title, and ad- (ii) Identify the persons or organiza- dress of the person making the disclo- tions to which the records may be re- sure; leased; and (ii) Description of the record dis- (iii) Have been published previously closed; in the FEDERAL REGISTER. (iii) The date, method, and purpose of (3) Establish a routine use for each the disclosure; and user of the information outside the De- (iv) The name, position title, and ad- partment of Defense who needs official dress of the person or agency to which access to the records. the disclosure was made. (4) Routine uses may be established, (5) The record subject has the right of discontinued, or amended without the access to the disclosure accounting ex- consent of the individuals involved. cept when— However, new or changed routine uses (i) The disclosure was made for law must be published in the FEDERAL REG- enforcement purposes under 5 U.S.C. ISTER at least 30 days before actually 552a(b)(7); or disclosing any records. (ii) The disclosure was made from a (5) In addition to the routine uses system of records for which an exemp- listed in the applicable systems of tion from 5 U.S.C. 552a(c)(3) has been records notices, ‘‘Blanket Routine claimed. Uses’’ for all DOD maintained systems (6) There are no approved filing proof records have been established. These cedures for the disclosure of account- ‘‘Blanket Routine Uses’’ are applicable ing records; however, system managers to every record system maintained must be able to retrieve upon request. within the DOD unless specifically With this said, keep disclosure ac- stated otherwise within a particular countings for 5 years after the disclo- record system. The ‘‘Blanket Routine sure, or for the life of the record, Uses’’ are listed at appendix C of this whichever is longer. part. (7) When an individual requests such (j) Disclosure accounting. (1) System an accounting, the system manager or managers must keep an accurate designee will respond within 20 work- record of all disclosures made from DA ing days. Privacy Act system of records, including those made with the consent of the § 505.8 Training requirements. individual, except when records are— (a) Training. (1) The Privacy Act re- (i) Disclosed to DOD officials who quires all heads of Army Staff agen- have a ‘‘need to know’’ the information cies, field operating agencies, direct re- to perform official government duties; porting units, Major Commands, subor- or dinate commands, and installations to (ii) Required to be disclosed under establish rules of conduct for all per- the Freedom of Information Act. sonnel involved in the design, develop- (2) The purpose for the accounting of ment, operation, and maintenance of disclosure is to— any Privacy Act system of records and

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to train the appropriate personnel with accessed at the Web site www.usdoj.gov/ respect to the privacy rules including usao/eousa/ole.html. the penalties for non-compliance (See 5 U.S.C. 552a(e)(9)). § 505.9 Reporting requirements. (2) To meet the training require- The Department of the Army will ments, three general levels of training submit reports, consistent with the re- must be established. They are— quirements of DOD 5400.11–R, OMB Cir- (i) Orientation. Training that provides cular A–130, and as otherwise directed basic understanding of this part as it by the Defense Privacy Office. Contact applies to the individual’s job perform- the DA FOIA/P Office for further guidance. This training will be provided to ance regarding reporting requirements. personnel, as appropriate, and should be a prerequisite to all other levels of § 505.10 Use and establishment of ex- training; emptions. (ii) Specialized training. Training that (a) Three types of exemptions. (1) There provides information as to the applica- are three types of exemptions application of specific provisions of this part ble to an individual’s right to access to specialized areas of job performance. permitted by the Privacy Act. They are Personnel of particular concern in- the Special, General, and Specific exclude, but are not limited to, personnel emptions. specialists, finance officers, DOD per- (2) Special exemption (d)(5)—Relieves sonnel who may be expected to deal systems of records from the access pro- with the news media or the public, spe- vision of the Privacy Act only. This ex- cial investigators, paperwork man- emption applies to information com- agers, individuals working with med- piled in reasonable anticipation of a ical and security records, records man- civil action or proceeding. agers, computer systems development (3) General exemption (j)(2)—Relieves personnel, computer systems oper- systems of records from most require- ations personnel, statisticians dealing ments of the Act. Only Army activities with personal data and program eval- actually engaged in the enforcement of uations, contractors and anyone re- criminal laws as their primary func- sponsible for implementing or carrying tion may claim this exemption. out functions under this part. Special- (4) Specific exemptions (k)(1)–(k)(7)– ized training should be provided on a Relieves systems of records from only a periodic basis; and few provisions of the Act. (iii) Managerial training. Training de- (5) To find out if an exemption is signed to identify for responsible man- available for a particular record, refer agers (such as senior system managers, to the applicable system of records no- Denial Authorities, and functional tices. System of records notices will managers described in this section) state which exemptions apply to a par- issues that they should consider when ticular type of record. System of making management decisions affected records notices that are applicable to by the Privacy Act Program. the Army are contained in DA Pam 25– (b) Training tools. Helpful resources 51 (available at the Army Publishing include— Directorate Web site http:// (1) Privacy Act training slides for www.usapa.army.mil/), the Defense Pri- Major Commands and Privacy Act Offi- vacy Office’s Web site http:// cers: Contact the DA FOIA/P Office, or www.defenselink.mil/privacy/), or in this slides can be accessed at the Web site section). Some of the system of records https://www.rmda.belvoir.army.mil/ notices apply only to the Army and the rmdaxml/rmda/FPHomePage.asp. DOD and some notices are applicable (2) The ‘‘DOJ Freedom of Information government-wide. Act Guide and Privacy Act Overview’’: (6) Descriptions of current exemp- The U.S. Department of Justice, Exec- tions are listed in detail at appendix C utive Office for United States Attor- of this part. neys, Office of Legal Education, 600 E. (b) Exemption procedures. (1) For the Street, NW., Room 7600, Washington, General and Specific exemptions to be DC 20530, or training programs can be applicable to the Army, the Secretary

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of the Army must promulgate exemp- (1) Civil remedies. The DA is subject to tion rules to implement them. This re- civil remedies for violations of the Pri- quirement is not applicable to the one vacy Act. In addition to specific reme- Special exemption which is self-exe- dial actions, 5 U.S.C. 552a(g) may pro- cuting. Once an exemption is made ap- vide for the payment of damages, court plicable to the Army through the ex- costs, and attorney’s fees. emption rules, it will be listed in the (2) Criminal penalties. A DA official or applicable system of records notices to employee may be found guilty of a mis- give notice of which specific types of demeanor and fined not more than records the exemption applies to. When $5,000 for willfully— a system manager seeks to have an ex- (i) Disclosing individually identifi- emption applied to a certain Privacy able personal information to one not Act system of records that is not cur- entitled to the information; rently provided for by an existing sys- (ii) Requesting or obtaining informa- tem of records notice, the following in- tion from another’s record under false formation will be furnished to the DA pretenses; or FOIA/P Office— (iii) Maintaining a system of records (i) Applicable system of records no- without first meeting the public notice tice; requirements of the Act. (ii) Exemption sought; and (b) Litigation Status Sheet. (1) When a (iii) Justification. complaint citing the Privacy Act is (2) After appropriate staffing and ap- filed in a U.S. District Court against proval by the Secretary of the Army the Department of the Army, an Army and the Defense Privacy Office, it will Component, a DA Official, or any Army be published in the FEDERAL REGISTER employee, the responsible system man- as a proposed rule, followed by a final ager will promptly notify the Army rule 60 days later. No exemption may Litigation Division, U.S. Army Legal be invoked until these steps have been Services Agency (USALSA), 9275 completed. Gunston Road, Fort Belvoir, VA 22060. (2) The Litigation Status Sheet at § 505.11 Federal Register publishing appendix E of this part provides a requirements. standard format for this notification. (a) The Federal Register. There are At a minimum, the initial notification three types of documents relating to will have items (a) through (f) pro- the Privacy Act Program that must be vided. published in the FEDERAL REGISTER. (3) A revised Litigation Status Sheet They are the DA Privacy Program pol- must be provided at each stage of the icy and procedures (AR 340–21), the DA litigation. exemption rules, and Privacy Act sys- (4) When a court renders a formal tem of records notices. opinion or judgment, copies must be (b) Rulemaking procedures. (1) DA Pri- provided to the Defense Privacy Office vacy Program procedures and exemp- by the Army Litigation Division. tion rules are subject to the formal (c) Administrative remedies—Privacy rulemaking process. Act complaints. (1) The installation (2) Privacy Act system of records no- level Privacy Act Officer is responsible tices are not subject to formal rule- for processing Privacy Act complaints making and are published in the FED- or allegations of Privacy Act viola- ERAL REGISTER as Notices, not Rules. tions. Guidance should be sought from (3) The Privacy Program procedures the local Staff Judge Advocate and co- and exemption rules are incorporated ordination made with the system man- into the Code of Federal Regulations ager to assist in the resolution of Pri- (CFR). Privacy Act system of records vacy Act complaints. The local Privacy notices are not published in the CFR. Act officer is responsible for— (i) Reviewing allegations of Privacy § 505.12 Privacy Act enforcement ac- Act violations and the evidence pro- tions. vided by the complainants; (a) Judicial sanctions. The Act has (ii) Making an initial assessment as both civil remedies and criminal pen- to the validity of the complaint, and alties for violations of its provisions. taking appropriate corrective action;

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(iii) Coordinating with the local Staff the restrictions of the Act such as Judge Advocate to determine whether matches used for statistics, pilot pro- a more formal investigation such as a grams, law enforcement, tax adminis- commander’s inquiry or an AR 15–6 in- tration, routine administration, back- vestigation is appropriate; and ground checks, and foreign counter- (iv) Ensuring the decision at the intelligence. The DA FOIA/P Office local level from either the Privacy Act should be consulted if there is a ques- Officer or other individual who dition as to whether the Act governs a rected a more formal investigation is specific type of computer matching. provided to the complainant in writing. (2) The decision at the local level § 505.14 Recordkeeping requirements may be appealed to the next higher under the Privacy Act. command level Privacy Act Officer. (a) AR 25–400–2, The Army Records In- (3) A legal review from the next high- formation Management System (ARIMS). er command level Privacy Act Officer’s To maintain privacy records are re- servicing Staff Judge Advocate is required by the Army Records Informa- quired prior to action on the appeal. tion Management System (ARIMS) to [71 FR 46052, Aug. 10, 2006, as amended at 78 provide adequate and proper docu- FR 18473, Mar. 27, 2013] mentation of the conduct of Army business so that the rights and inter- § 505.13 Computer Matching Agree- ests of individuals and the Federal ment Program. Government are protected. (a) General provisions. (1) Pursuant to (b) A full description of the records the Privacy Act and this part, DA prescribed by this part and their dis- records may be subject to computer position/retention requirements are matching, i.e., the computer compari- found on the ARIMS Web site at https:// son of automated systems of records. www.arims.army.mil. (2) There are two specific kinds of Matching Programs covered by the Pri- APPENDIX A TO PART 505—REFERENCES vacy Act— (a) The Privacy Act of 1974 (5 U.S.C. 552a, (i) Matches using records from Fed- as amended). eral personnel or payroll systems of (b) OMB Circular No. A–130, Management records; and of Federal Information Resources. (ii) Matches involving Federal ben- (c) AR 25–55, The Department of the Army efit programs to accomplish one or Freedom of Information Program. more of the following purposes— (d) DA PAM 25–51, The Army Privacy Pro- (A) To determine eligibility for a gram—System of Records Notices and Ex- Federal benefit; emption Rules. (B) To comply with benefit program (e) DOD Directive 5400.11, Department of requirements; and Defense Privacy Program. (C) To effect recovery of improper (f) DOD 5400.11–R, Department of Defense Privacy Program. payments or delinquent debts from cur- (g) AR 25–2, Information Assurance rent or former beneficiaries. (h) AR 25–400–2, The Army Records Infor- (3) The comparison of records must mation Management System (ARIMS). be computerized. Manual comparisons (i) AR 27–10, Military Justice. are not covered. (j) AR 40–66, Medical Record Administra- (4) Any activity that expects to par- tion and Health Care Documentation. ticipate in a Computer Matching Pro- (k) AR 60–20 and AFR 147–14, Army and Air gram must contact the DA FOIA/P Of- Force Exchange Service Operating Policies. fice immediately. (l) AR 190–45, Law Enforcement Reporting. (5) In all cases, Computer Matching (m) AR 195–2, Criminal Investigation Ac- Agreements are processed by the De- tivities. fense Privacy Office and approved by (n) AR 380–5, Department of Army Informa- the Defense Data Integrity Board. tion Security Program. (o) DOD Directive 5400–7, DOD Freedom of Agreements will be conducted in ac- Information Act (FOIA) Program. cordance with the requirements of 5 (q) DOD 5400.7–R, DOD Freedom of Infor- U.S.C. 552a, and OMB Circular A–130. mation Program. (b) Other matching. Several types of (r) DOD 6025.18–R, DOD Health Information computer matching are exempt from Privacy Regulation (HIPAA).

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(s) U.S. Department of Justice, Freedom of from former civilian employees to amend a Information Act Guide and Privacy Act record in an Office of Personnel Management Overview. system of records, such as the Official Per- (t) Office of Secretary of Defense memo- sonnel Folder, should be sent to the Office of randum, dated July 15, 2005, subject: Noti- Personnel Management, Assistant Director fying Individuals when Personal Information for Workforce Information, Compliance, and is Lost, Stolen, or Compromised located at Investigations Group: 1900 E. Street, NW., http://www.army.mil/ciog6/referencs/policy/dos/ Washington, DC 20415–0001). OSDprivateinfo.pdf. (e) The Chief Information Officer G–6 is authorized to act on requests for records per- APPENDIX B TO PART 505—DENIAL AU- taining to Army Information Technology, THORITIES FOR RECORDS UNDER command, control communications and com- THEIR AUTHORITY (FORMERLY AC- puter systems and the Information Re- CESS AND AMENDMENT REFUSAL AU- sources Management Program (automation, telecommunications, visual information, THORITIES) records management, publications and print- (a) The Administrative Assistant to the ing). Secretary of the Army is authorized to act (f) The Inspector General is authorized to for the Secretary of the Army on requests act on requests for all Inspector General for all records maintained by the Office of Records. the Secretary of the Army and its serviced (g) The Auditor General is authorized to activities, as well as requests requiring the act on requests for records relating to audits personal attention of the Secretary of the done by the U.S. Army Audit Agency under Army. This also includes civilian Equal Em- AR 10–2. This includes requests for related ployment Opportunity (EEO) actions. (See records developed by the Audit Agency. DCS, G–1 for Military Equal Opportunity (h) The Director of the Army Staff is au- (EO) actions.) The Administrative Assistant thorized to act on requests for all records of to the Secretary of the Army has delegated the Chief of Staff and its Field Operating this authority to the Chief Attorney, OAASA Agencies. The Director of the Army Staff has (See DCS, G1 for Military Equal Opportunity delegated this authority to the Chief Attor- (EO) actions). ney and Legal Services Directorate, U.S. (b) The Assistant Secretary of the Army Army Resources & Programs Agency (See (Financial Management and Comptroller) is The Judge Advocate General for the General authorized to act on requests for finance and Officer Management Office actions). The accounting records. Requests for CONUS fi- Chief Attorney and Legal Services Director, nance and accounting records should be re- U.S. Army Resources & Programs Agency ferred to the Defense Finance and Account- acts on requests for records of the Chief of ing Service (DFAS). The Chief Attorney, Staff and its Field Operating Agencies (See OAASA, acts on requests for non-finance and The Judge Advocate General for the General accounting records of the Assistant Sec- Officer Management Office actions). retary of the Army (Financial Management (i) The Deputy Chief of Staff, G–3/5/7 is au- and Comptroller). thorized to act on requests for records relat- (c) The Assistant Secretary of the Army ing to International Affairs policy, planning, (Acquisition, Logistics, & Technology) is au- integration and assessments, strategy for- thorized to act on requests for procurement mulation, force development, individual and records other than those under the purview unit training policy, strategic and tactical of the Chief of Engineers and the Com- command and control systems, nuclear and mander, U.S. Army Materiel Command. The chemical matters, use of DA forces. Chief Attorney, OAASA, acts on requests for (j) The Deputy Chief of Staff, G–8 is au- non-procurement records of the Assistant thorized to act on requests for records relat- Secretary of the Army (Acquisition, Logis- ing to programming, material integration tics and Technology). and externally directed reviews. (d) The Deputy Assistant Secretary of the (k) The Deputy Chief of Staff, G–1 is au- Army (Civilian Personnel Policy)/Director of thorized to act on the following records: Per- Civilian Personnel, Office of the Assistant sonnel board records, Equal Opportunity Secretary of the Army (Manpower and Re- (military) and sexual harassment, health serve Affairs) is authorized to act on re- promotions, physical fitness and well-being, quests for civilian personnel records, per- command and leadership policy records, HIV sonnel administration and other civilian per- and suicide policy, substance abuse programs sonnel matters, except for EEO (civilian) except for individual treatment records matters which will be acted on by the Ad- which are the responsibility of the Surgeon ministrative Assistant to the Secretary of General, retiree benefits, services, and pro- the Army. The Deputy Assistant Secretary grams (excluding individual personnel of the Army (Civilian Personnel Policy)/Di- records of retired military personnel, which rector of Civilian Personnel has delegated are the responsibility of the U.S. Army this authority to the Chief, Policy and Pro- Human Resources Command-St. Louis), DA gram Development Division (NOTE: Requests dealings with Veterans Affairs, U.S. Soldier’s

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and Airmen’s Home; all retention, pro- authorized to act on requests for all per- motion, and separation records; all military sonnel and medical records of retired, sepa- education records including records related rated, discharged, deceased, and reserve com- to the removal or suspension from a military ponent military personnel, and all U.S. school or class; Junior Reserve Officer Train- Army Reserve (USAR) records, unless such ing Corps (JROTC) and Senior Reserve Offi- records clearly fall within another Denial cer Training Corps (SROTC) records; SROTC Authority’s responsibility. Records under instructor records; U.S. Military Academy the responsibility of the Chief, Army Reserve Cadet Records; recruiting and MOS policy and the Commander, U.S. Army Reserve issues, personnel travel and transportation Command include records relating to USAR entitlements, military strength and statis- plans, policies, and operations; changes in tics, The Army Librarian, demographics, and the organizational status of USAR units; Manprint. mobilization and demobilization policies, ac- (l) The Deputy Chief of Staff, G–4 is au- tive duty tours, and the Individual Mobiliza- thorized to act on requests for records relat- tion Augmentation program; and all other ing to DA logistical requirements and determinations, policy concerning materiel main- Office of the Chief, Army Reserve (OCAR) tenance and use, equipment standards, and records and Headquarters, U.S. Army Re- logistical readiness. serve Command records. (m) The Chief of Engineers is authorized to (s) The Commander, United States Army act on requests for records involving civil Materiel Command (AMC) is authorized to works, military construction, engineer pro- act on requests for the records of AMC head- curement, and ecology; and the records of quarters and to subordinate commands, the U.S. Army Engineer divisions, districts, units, and activities that relate to procure- laboratories, and field operating agencies. ment, logistics, research and development, (n) The Surgeon General/Commander, U.S. and supply and maintenance operations. Army Medical Command, is authorized to (t) The Provost Marshal General is author- act on requests for medical research and de- ized to act on all requests for provost mar- velopment records, and the medical records shal activities and law enforcement func- of active duty military personnel, depend- tions for the Army, all matters relating to ents, and persons given physical examination police intelligence, physical security, crimi- or treatment at DA medical facilities, to in- nal investigations, corrections and intern- clude alcohol and drug treatment/test ment (to include confinement and correc- records. tional programs for U.S. prisoners, criminal (o) The Chief of Chaplains is authorized to investigations, provost marshal activities, act on requests for records involving ecclesi- and military police support. The Provost astical relationships, rites performed by DA Marshal General is responsible for the Office chaplains, and nonprivileged communica- of Security, Force Protection, and Law En- tions relating to clergy and active duty forcement Division and is the functional pro- chaplains’ military personnel files. ponent for AR 190-series (Military Police) (p) The Judge Advocate General is author- and 195-series (Criminal Investigation), AR ized to act on requests for records relating to 630–10 Absent Without Leave, Desertion, and claims, courts-martial, legal services, ad- Administration of Personnel Involved in Ci- ministrative vilian Court Proceedings, and AR 633–30, (q) The Chief, National Guard Bureau, is Military Sentences to Confinement. authorized to act on requests for all personnel and medical records of retired, sepa- (u) The Commander, U.S. Army Criminal rated, discharged, deceased, and active Army Investigation Command, is authorized to act National Guard military personnel, includ- on requests for criminal investigative ing technician personnel, unless such records records of USACIDC headquarters, and its clearly fall within another Denial subordinate activities, and military police Authority’s responsibility. This authority reports. This includes criminal investigation includes, but is not limited to, National records, investigation-in-progress records, Guard organization and training files; plans, and all military police records and reports operations, and readiness files, policy files, that result in criminal investigation reports. historical files, files relating to National This authority has been delegated to the Di- Guard military support, drug interdiction, rector, U.S. Army Crime Records Center. and civil disturbances; construction, civil (v) The Commander, U.S. Army Human Re- works, and ecology records dealing with ar- sources Command, is authorized to act on re- mories, facilities within the States, ranges, quests for military personnel files relating etc.; Equal Opportunity investigative to active duty personnel including, but not records; aviation program records and finan- limited to military personnel matters, mili- cial records dealing with personnel, oper- tary education records including records re- ation and maintenance, and equipment budg- lated to the removal or suspension from a ets. military school or class; personnel locator, (r) The Chief, Army Reserve and Com- physical disability determinations, and mander, U.S. Army Reserve Command are other military personnel administration

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records; records relating to military cas- tional area responsibilities relating to the ualty and memorialization activities; heral- administration and confinement of indi- dic activities, voting, records relating to vidual military prisoners at the USDB. This identification cards, naturalization and citi- includes, but is not limited to, all records zenship, commercial solicitation, Military pertaining to the treatment of military pris- Postal Service Agency and Army postal and oners; investigation of prisoner misconduct; unofficial mail service. The Commander, management, operation, and administration U.S. Army Human Resources Command, is of the USDB confinement facility; and re- also authorized to act on requests con- lated programs which fall directly within the cerning all personnel and medical records of scope of the Commandant’s functional area retired, separated, discharged, deceased, and of command and control. reserve component military personnel, un- (dd) The Commander, U.S. Army Commu- less such records clearly fall within another nity and Family Support Center (USACFSC) Denial Authority’s authority. is authorized to act on requests for records (w) The Commander, U.S. Army Resources pertaining to morale, welfare, recreation, Command-St. Louis has been delegated au- and entertainment programs; community thority to act on behalf of the U.S. Army and family action programs; child develop- Human Resources Commander for requests ment centers; non-appropriated funds issues, concerning all personnel and medical records and private organizations on Army installa- of retired, separated, discharged, deceased, tions. and reserve component military personnel, (ee) The Commander, Military Surface De- unless such records clearly fall within an- ployment and Distribution Command (for- other Denial Authority’s authority. The au- merly Military Traffic Management Com- thority does not include records relating to mand) is authorized to act on requests for USAR plans, policies, and operations; records pertaining to military and commer- changes in the organizational status of cial transportation and traffic management USAR units, mobilization and demobiliza- records. tion policies; active duty tours, and the indi- (ff) The Director, Installation Management vidual mobilization augmentation program. Agency (IMA) is authorized to act on re- (x) The Assistant Chief of Staff for Instal- quests for all IMA records. lation Management is authorized to act on (gg) Special Denial Authority’s authority requests for records relating to planning, for time-event related records may be des- programming, execution and operation of ignated on a case-by-case basis. These will be Army installations. This includes base re- published in the FEDERAL REGISTER. You alignment and closure activities, environ- may contact the Department of the Army, mental activities other than litigation, fa- Freedom of Information and Privacy Office cilities and housing activities, and installa- to obtain current information on special del- tion management support activities. egations. (y) The Commander, U.S. Army Intel- ligence and Security Command, is author- APPENDIX C TO PART 505—PRIVACY ACT ized to act on requests for intelligence and STATEMENT FORMAT security records, foreign scientific and technological records, intelligence training, in- (a) Authority: The specific federal statute telligence threat assessments, and foreign li- or Executive Order that authorizes collec- aison information, mapping and geodesy in- tion of the requested information. formation, ground surveillance records, in- (b) Principal Purpose(s): The principal pur- telligence threat assessment, and missile in- pose or purposes for which the information is telligence data relating to tactical land war- to be used. fare systems. (c) Routine Uses(s): Disclosure of the infor- (z) The Commander, U.S. Army Combat mation outside DOD. Readiness Center (formerly U.S. Army Safe- (d) Disclosure: Whether providing the infor- ty Center), is authorized to act on requests mation is voluntary or mandatory and the for Army safety records. effects on the individual if he or she chooses (aa) The Commander, U.S. Army Test and not to provide the requested information. Evaluation Command (ATEC), is authorized (1) Example of a Privacy Act Statement to act on requests for the records of ATEC (i) Authority: Emergency Supplement Act headquarters, its subordinate commands, of 2000; Public Law 106–246; 5 U.S.C. 3013, Sec- units, and activities that relate to test and retary of the Army; 10 U.S.C. 5013, Secretary evaluation operations. of the Navy; 10 U.S.C. 8013, Secretary of the (bb) The General Counsel, Army and Air Air Force; Department of Defense Directive Force Exchange Service, is authorized to act 8500.aa, Information Assurance (IA); and E.O. on requests for Army and Air Force Ex- 9397 (SSN). change Service records, under AR 60–20/AFR (ii) Principal Purpose(s): To control access 147–14. to DOD information, information based sys- (cc) The Commandant, United States Dis- tems and facilities by authenticating the ciplinary Barracks (USDB) is authorized to identity of a person using a measurable act on records pertaining to USDB func- physical characteristic(s). This computer

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system uses software programs to create bio- record that has sufficient historical or other metrics templates and summary statistics, value to warrant its continued preservation which are used for purposes such as assessing by the U.S. Government, or for evaluation by system performance or identifying problem the Archivist of the United States or the des- areas. ignee of the Archivist to determine whether (iii) Routine Use(s): None. The DoD ‘‘Blan- the record has such value. ket Routine Uses’’ set forth at the beginning NOTE: Records transferred to the Federal of the Army’s Compilations of System of Records Centers for storage remain under Records Notices applies to this system. the control of the DA and no accounting for (iv) Disclosure: Voluntary; however, failure disclosure is required under the Privacy Act. to provide the requested information may re- (7) 5 U.S.C. 552a(b)(7)—To another agency sult in denial of access to DOD information or instrumentality of any governmental ju- based systems and/or DOD facilities. risdiction within or under the control of the (2) [Reserved] United States for a civil or criminal law enforcement activity, if the activity is author- APPENDIX D TO PART 505—EXEMPTIONS; ized by law, and if the head of the agency or EXCEPTIONS; AND DOD BLANKET instrumentality has made a written request ROUTINE USES to the Army or the DOD specifying the particular portion desired and the law enforce- (a) Special Exemption. 5 U.S.C. 552a(d)(5)— ment activity for which the record is sought. Denies individual access to any information (8) 5 U.S.C. 552a(b)(8)—To a person pursu- compiled in reasonable anticipation of civil ant to a showing of compelling cir- action or proceeding. cumstances affecting the health or safety of (b) General and Specific Exemptions. The an individual if upon such disclosure, notifi- Secretary of the Army may exempt Army cation is transmitted to the last known ad- systems of records from certain require- dress of such individual. ments of the Privacy Act. The two kinds of exemptions that require Secretary of the (9) 5 U.S.C. 552a(b)(9)—To either House of Army enactment are General and Specific Congress, or, to the extent the matter is exemptions. The Army system of records no- within its jurisdiction, any committee or tices for a particular type of record will subcommittee thereof, or any joint com- state whether the Secretary of the Army has mittee of Congress or subcommittee of any authorized a particular General and Specific such joint committee. Requests from a Con- exemption to a certain type of record. The gressional member acting on behalf of a con- Army system of records notices are pub- stituent are not included in this exception, lished in DA Pam 25–51 and on the Defense but may be covered by a routine use excep- Privacy Office’s Web site http:// tion to the Privacy Act (See applicable Army www.defenselink.mil/privacy/. system of records notice). (c) Twelve Exceptions to the ‘‘No Disclosure (10) 5 U.S.C. 552a(b)(10)—To the Comp- without Consent’’ rule of the Privacy Act. (1) 5 troller General or authorized representa- U.S.C. 552a(b)(1)—To DOD officers and em- tives, in the course of the performance of the ployees who have a need for the record in the duties of the Government Accountability Of- performance of their official duties. This is fice. the ‘‘official need to know concept. (11) 5 U.S.C. 552a(b)(11)—Pursuant to the (2) 5 U.S.C. 552a(b)(2)—FOIA requires reorder of a court of competent jurisdiction. lease of the information. The order must be signed by a judge. (3) 5 U.S.C. 552a(b)(3)—The Routine Use Ex- (12) 5 U.S.C. 552a(b)(12)—To a consumer re- ception. The Routine Use must be published porting agency in accordance with section in the FEDERAL REGISTER and the purpose of 3711(e) of Title 31 of the U.S. Code. The name, the disclosure must be compatible with the address, SSN, and other information identi- purpose for the published Routine Use. The fying the individual; amount, status, and applicable Routine Uses for a particular history of the claim; and the agency or pro- record will be listed in the applicable Army gram under which the case arose may be dis- Systems Notice. closed. However, before doing so, agencies (4) 5 U.S.C. 552a(b)(4)—To the Bureau of the must complete a series of steps designed to Census to plan or carry out a census or sur- validate the debt and to offer the individual vey, or related activity pursuant to Title 13 an opportunity to repay it. of the U.S. Code. (d) DOD Blanket Routine Uses. In addition (5) 5 U.S.C. 552a(b)(5)—To a recipient who to specific routine uses which are listed in has provided DA or DOD with advance ade- the applicable Army system of record no- quate written assurance that the record will tices, certain ‘‘Blanket Routine Uses’’ apply be used solely as a statistical research or re- to all DOD maintained systems of records. porting record, and the record is to be trans- These are listed on the Defense Privacy Of- ferred in a form that is not individually iden- fice’s Web site http://www.defenselink.mil/pri- tifiable. vacy/. These ‘‘Blanket Routine Uses’’ are not (6) 5 U.S.C. 552a(b)(6)—To the National Ar- specifically listed in each system of records chives and Records Administration as a notice as the specific routine uses are. The

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current DOD ‘‘Blanket Routine Uses’’ are as quirements imposed by, or to claim rights follows— conferred in, international agreements and (1) Law Enforcement Routine Use. If a sys- arrangements including those regulating the tem of records maintained by a DOD compo- stationing and status in foreign countries of nent to carry out its functions indicates a DOD military and civilian personnel. violation or potential violation of law, (7) Disclosure to State and Local Taxing Au- whether civil, criminal or regulatory in na- thorities Routine Use. Any information nor- ture, and whether arising by general statute mally contained in Internal Revenue Service or by regulation, rule, or order issued pursu- Form W–2, which is maintained in a record ant thereto, the relevant records in the sys- from a system of records maintained by a tem of records may be referred, as a routine DOD component, may be disclosed to state use, to the agency concerned, whether fed- and local taxing authorities with which the eral, state, local, or foreign, charged with Secretary of the Treasury has entered into the responsibility of investigating or pros- agreements pursuant to 5 U.S.C. sections ecuting such violation or charged with en- 5516, 5517, and 5520 and only to those state forcing or implementing the statute, rule, and local taxing authorities for which an em- regulation or order issued pursuant thereto. ployee or military member is or was subject (2) Disclosure When Requesting Information to tax regardless of whether tax is or was Routine Use. A record from a system of withheld. This routine use is in accordance records maintained by a DOD component with Treasury Fiscal Requirements Manual may be disclosed as a routine use to a Fed- Bulletin 76–07. eral, State, or local agency maintaining (8) Disclosure to the Office of Personnel Man- civil, criminal, or other relevant enforce- agement Routine Use. A record from a system ment information or other pertinent infor- of records subject to the Privacy Act and mation, such as current licenses, if necessary maintained by a DA activity may be dis- to obtain information relevant to a DOD closed to the Office of Personnel Manage- Component decision concerning the hiring or ment concerning information on pay and retention of an employee, the issuance of a leave, benefits, retirement deductions, and security clearance, the letting of a contract, any other information necessary for Office of or the issuance of a license, grant or other Personnel Management to carry out its le- benefit. (3) Disclosure of Requested Information Rou- gally authorized Government-wide personnel tine Use. A record from a system of records management functions and studies. maintained by a DOD component may be dis- (9) Disclosure to the Department of Justice for closed to a Federal agency, in response to its Litigation Routine Use. A record from a sys- request, in connection with the hiring or re- tem of records maintained by a DOD compo- tention of an employee, the issuance of a se- nent may be disclosed as a routine use to curity clearance, the reporting of an inves- any component of the Department of Justice tigation of an employee, the letting of a con- for the purpose of representing the Depart- tract, or the issuance of a license, grant, or ment of Defense, or any officer, employee, or other benefit by the requesting agency, to member of the Department in pending or po- the extent that the information is relevant tential litigation to which the record is per- and necessary to the requesting agency’s de- tinent. cision on the matter. (10) Disclosure to Military Banking Facilities (4) Congressional Inquiries Disclosure Routine Overseas Routine Use. Information as to cur- Use. Disclosure from a system of records rent military addresses and assignments maintained by a DOD component may be may be provided to military banking facili- made to a congressional office from the ties who provide banking services overseas record of an individual in response to an in- and who are reimbursed by the Government quiry from the congressional office made at for certain checking and loan losses. For per- the request of that individual. sonnel separated, discharged, or retired from (5) Private Relief Legislation Routine Use. the Armed forces, information as to last Relevant information contained in all sys- known residential or home of record address tems of records of DOD published on or be- may be provided to the military banking fa- fore August 22, 1975, may be disclosed to Of- cility upon certification by a banking facil- fice of Management and Budget in connec- ity officer that the facility has a returned or tion with the review of private relief legisla- dishonored check negotiated by the indi- tion, as set forth in OMB Circular A–19, at vidual or the individual has defaulted on a any stage of the legislative coordination and loan and that if restitution is not made by clearance process as set forth in that Cir- the individual, the U.S. Government will be cular. liable for the losses the facility may incur. (6) Disclosures Required by International (11) Disclosure of Information to the General Agreements Routine Use. A record from a sys- Services Administration Routine Use. A record tem of records maintained by a DOD Compo- from a system of records maintained by a nent may be disclosed to foreign law enforce- DOD component may be disclosed as a rou- ment, security, investigatory, or administra- tine use to the General Services Administra- tive authorities in order to comply with re- tion for the purpose of records management

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inspections conducted under authority of 44 records notice for publication in the FED- U.S.C. Sections 2904 and 2906. ERAL REGISTER: (12) Disclosure of Information to National Ar- (b) System Identifier: A0025–55 AHRC—DA chives and Records Administration Routine Use. FOIA/P Office assigns the notice number, for A record from a system of records main- example, A0025–55, where ‘‘A’’ indicates tained by a DOD component may be dis- ‘‘Army,’’ the next number represents the closed as a routine use to NATIONAL AR- publication series number related to the sub- CHIVES AND RECORDS ADMINISTRATION ject matter, and the final letter group shows for the purpose of records management in- the system manager’s command. In this spections conducted under authority of 44 case, it would be U.S. Army Human Re- U.S.C. sections 2904 and 2906. sources Command. (13) Disclosure to the Merit Systems Protection (c) System Name: Use a short, specific, plain Board Routine Use. A record from a system of language title that identifies the system’s records maintained by a DOD component general purpose (limited to 55 characters). may be disclosed as a routine use to the (d) System Location: Specify the address of Merit Systems Protection Board, including the primary system and any decentralized the Office of the Special Counsel for the pur- elements, including automated data systems pose of litigation, including administrative with a central computer facility and input or procedures, appeals, special studies of the output terminals at separate locations. Use civil service and other merit systems, review street address, 2-letter state abbreviations of Office of Personnel Management or com- and 9-digit ZIP Codes. Spell out office ponent rules and regulations, investigation names. Do not use office symbols. of alleged or possible prohibited personnel (e) Categories of Individuals: Describe the practices, including administrative pro- individuals covered by the system. Use non- ceedings involving any individual subject of technical, specific categories of individuals a DOD investigation, and such other func- about whom the Department of Army keeps tions, promulgated in 5 U.S.C. sections 1205 records. Do not use categories like ’’all and 1206, or as may be authorized by law. Army personnel’’ unless that is truly accu- (14) Counterintelligence Purposes Routine rate. Use. A record from a system of records main- (f) Categories of Records in the System: De- tained by a DOD component may be dis- scribe in clear, plain language, all categories closed as a routine use outside the DOD or of records in the system. List only docu- the U.S. Government for the purpose of ments actually kept in the system. Do not counterintelligence activities authorized by identify source documents that are used to U.S. Law or Executive Order or for the pur- collect data and then destroyed. Do not list pose of enforcing laws, which protect the na- form numbers. tional security of the United States. (g) Authority for Maintenance of the System: Cite the specific law or Executive Order that APPENDIX E TO PART 505—LITIGATION authorizes the maintenance of the system. Cite the DOD directive/instruction or De- STATUS SHEET partment of the Army Regulation(s) that au- (a) Case Number: The number used by a DA thorizes the Privacy Act system of records. activity for reference purposes; Requester; Always include titles with the citations. (b) Document Title or Description: Indi- Note: Executive Order 9397 authorizes using cates the nature of the case, such as ‘‘Denial the SSN as a personal identifier. Include this of access’’, ‘‘Refusal to amend,’’ ‘‘Incorrect authority whenever the SSN is used to re- records’’, or other violations of the Act trieve records. (specify); (h) Purpose(s): List the specific purposes for (c) Litigation: Date complaint filed, Court, maintaining the system of records by the ac- and Case File Number; tivity. (d) Defendants: DOD component and indi- (i) Routine Use(s): The blanket routine uses vidual; that appear at the beginning of each Compo- (e) Remarks: Brief explanation of what the nent compilation apply to all systems notice case is about; unless the individual system notice specifi- (f) Court action: Court’s finding and dis- cally states that one or more of them do not ciplinary action (if applicable); and apply to the system. Blanket Routine Uses (g) Appeal (If applicable): Date complaint are located at the beginning of the Compo- filed, court, case File Number, court’s find- nent listing of systems notices and are not ing, disciplinary action (if applicable). contained in individual system of records notices. However, specific routine uses are list- APPENDIX F TO PART 505—EXAMPLE OF ed in each applicable system of records no- A SYSTEM OF RECORDS NOTICE tice. List the specific activity to which the record may be released, for example ‘‘To the (a) Additional information and guidance on Veterans Administration’’ or ‘‘To state and Privacy Act system of records notices are local health agencies’’. For each routine user found in DA PAM 25–51. The following ele- identified, include a statement as to the pur- ments comprise a Privacy Act system of pose or purposes for which the record is to

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release to that activity. Do not use general APPENDIX G TO PART 505—MANAGEMENT statements, such as ‘‘To other federal agen- CONTROL EVALUATION CHECKLIST cies as required’’ or ‘‘To any other appropriate federal agency’’. (a) Function. The function covered by this (j) Polices and Practices for Storing, Retriev- checklist is DA Privacy Act Program. ing, Accessing, Retaining, and Disposing of (b) Purpose. The purpose of this checklist is Records in the System: to assist Denial Authorities and Activity (k) Storage: State the medium in which DA Program Coordinators in evaluating the key maintains the records; for example, in file management controls listed below. This folders, card files, microfiche, computer, or a checklist is not intended to cover all con- combination of those methods. Storage does trols. not refer to the storage container. (c) Instructions. Answer should be based on (l) Retrievability: State how the Army re- the actual testing of key management con- trieves the records; for example, by name, trols (e.g., document analysis, direct obser- fingerprints or voiceprints. vation, sampling, simulation, other). An- (m) Safeguards: Identify the system safe- swers that indicate deficiencies should be ex- guards; for example, storage in safes, vaults, plained and corrective action indicated in locked cabinets or rooms, use of guards, vis- supporting documentation. These manage- itor controls, personnel screening, computer ment controls must be evaluated at least systems software, and so on. Describe safe- once every five years. Certificate of this guards fully without compromising system evaluation has been conducted and should be security. accomplished on DA Form 11–2–R (Manage- (n) Retention and Disposal. State how long ment Control Evaluation Certification AR 25–400–2 requires the activity to maintain Statement). the records. Indicate when or if the records TEST QUESTIONS may be transferred to a Federal Records Cen- ter and how long the record stays there. a. Is a Privacy Act Program established Specify when the Records Center sends the and implemented in your organization? record to the National Archives or destroys b. Is an individual appointed to implement it. Indicate how the records may be de- the Privacy Act requirements? stroyed. c. Are provisions of AR 25–71 concerning (o) System Manager(s) and Address: List the protection of OPSEC sensitive information position title and duty address of the system regularly brought to the attention of man- manager. For decentralized systems, show agers responsible for responding to Privacy the locations, the position, or duty title of Act requests and those responsible for con- each category of officials responsible for any trol of the Army’s records? segment of the system. d. When more than twenty working days (p) Notification Procedures: List the title are required to respond, is the Privacy Act and duty address of the official authorized to requester informed, explaining the cir- tell requesters if their records are in the sys- cumstance requiring the delay and provided tem. Specify the information a requester an appropriate date for completion. must submit; for example, full name, mili- e. Are Accounting Disclosures Logs being tary status, SSN, date of birth, or proof of maintained? identity, and so on. Comments: Assist in making this a better (q) Record Access Procedures: Explain how tool for evaluating management controls. individuals may arrange to access their Submit comments to the Department of records. Include the titles or categories of of- Army, Freedom of Information and Privacy ficials who may assist; for example, the sys- Division. tem manager. (r) Contesting Records Procedures: The APPENDIX H TO PART 505—DEFINITIONS standard language to use is ‘‘The Army’s FUNCTION rules for accessing records, and for contesting contents and appealing initial agency (a) Access. Review or copying a record or determinations are contained in Army Regu- parts thereof contained in a Privacy Act sys- lation 25–71; 32 CFR part 505; or may be ob- tem of records by an individual. tained from the system manager.’’ (b) Agency. For the purposes of disclosing (s) Record Source Categories: Show cat- records subject to the Privacy Act, Compo- egories of individuals or other information nents of the Department of Defense are con- sources for the system. Do not list confiden- sidered a single agency. For other purposes tial sources protected by 5 U.S.C. 552a(k)(2), including access, amendment, appeals from (k)(5), or (k)(7). denials of access or amendment, exempting (t) Exemptions Claimed for the System: Spe- systems of records, and recordkeeping for re- cifically list any approved exemption includ- lease to non-DOD agencies, the Department ing the subsection in the Act. When a system of the Army is considered its own agency. has no approved exemption, write ‘‘none’’ (c) Amendment. The process of adding, de- under this heading. leting, or changing information in a system

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of records to make the data accurate, rel- tinue to protect the SSN of deceased individ- evant, timely, or complete. uals. (d) Computer Matching Agreement. An agree- (j) Individual. A living person who is a cit- ment to conduct a computerized comparison izen of the United States or an alien lawfully of two or more automated systems of records admitted for permanent residence. The par- to verify eligibility for payments under Fed- ent or legal guardian of a minor also may act eral benefit programs or to recover delin- on behalf of an individual. Members of the quent debts for these programs. United States Armed Forces are individuals. (e) Confidential Source. A person or organi- Corporations, partnerships, sole proprietor- zation who has furnished information to the ships, professional groups, businesses, wheth- Federal Government under an express prom- er incorporated or unincorporated, and other ise that the person’s or the organization’s commercial entities are not individuals. identity would be held in confidence or under (k) Individual Access. The subject of a Pri- an implied promise of such confidentiality if vacy Act file or his or her designated agent this implied promise was made before Sep- or legal guardian has access to information tember 27, 1975. about them contained in the Privacy Act (f) Cookie. A mechanism that allows the file. The term individual generally does not server to store its own information about a embrace a person acting on behalf of a com- user on the user’s own computer. Cookies are mercial entity (for example, sole proprietor- embedded in the HTML information flowing ship or partnership). back and forth between the user’s computer (l) Denial Authority (formerly Access and and the servers. They allow user-side Amendment Refusal Authority). The Army customization of Web information. Nor- Staff agency head or major Army com- mally, cookies will expire after a single ses- mander designated authority by this part to sion. deny access to, or refuse amendment of, (g) Defense Data Integrity Board. The Board records in his or her assigned area or func- oversees and coordinates all computer tional specialization. matching programs involving personal (m) Maintain. Includes keep, collect, use or records contained in systems of records disseminate. maintained by the DOD Component; reviews (n) Members of the Public. Individuals or and approves all computer matching agree- parties acting in a private capacity. ments between the Department of Defense (o) Minor. An individual under 18 years of (DOD) and other Federal, State, and local age, who is not married and who is not a governmental agencies, as well as memo- member of the Department of the Army. randa of understanding when the match is (p) Official Use. Within the context of this internal to the DOD. part, this term is used when Department of (h) Disclosure. The transfer of any personal the Army officials and employees have dem- information from a Privacy Act system of onstrated a need for the use of any record or records by any means of communication the information contained therein in the per- (such as oral, written, electronic mechan- formance of their official duties. ical, or actual review) to any persons, pri- (q) Personal Information. Information about vate entity, or government agency, other an individual that identifies, relates, or is than the subject of the record, the subject’s unique to, or describes him or her, e.g., a so- designated agent or the subject’s legal cial security number, age, military rank, ci- guardian. Within the context of the Privacy vilian grade, marital status, race, salary, Act and this part, this term applies only to home/office phone numbers, etc. personal information that is a part of a Pri- (r) Persistent cookies. Cookies that can be vacy Act system of records. used to track users over time and across dif- (i) Deceased Individuals. The Privacy Act ferent Web sites to collect personal informa- confers no rights on deceased persons, nor tion. may their next-of-kin exercise any rights for (s) Personal Identifier. A name, number, or them. However, family members of deceased symbol that is unique to an individual, usu- individuals have their own privacy right in ally the person’s name or SSN. particularly sensitive, graphic, personal de- (t) System of Records. A group of records tails about the circumstances surrounding under the control of the DA from which in- an individual’s death. This information may formation is filed and retrieved by individ- be withheld when necessary to protect the uals’ names or other personal identifiers as- privacy interests of surviving family mem- signed to the individuals. System notices for bers. Even information that is not particu- all systems of records must be published in larly sensitive in and of itself may be with- the FEDERAL REGISTER. A grouping of held to protect the privacy interests of sur- records arranged chronologically or subjec- viving family members if disclosure would tively that are not retrieved by individuals’ rekindle grief, anguish, pain, embarrass- names or identifiers is not a Privacy Act sys- ment, or cause a disruption of their peace tem of records, even though individual infor- minds. Because surviving family members mation could be retrieved by individuals’ use the deceased’s Social Security Number names or personal identifiers, such as to obtain benefits, DA personnel should con- through a paper-by-paper search.

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(u) Privacy Advisory. A statement required (ee) Third-party cookies. Cookies placed on when soliciting personally identifying infor- a user’s hard drive by Internet advertising mation by a Department of the Army Web networks. The most common third-party site and the information is not maintained cookies are placed by the various companies in a system of records. The Privacy Advisory that serve the banner ads that appear across informs the individual why the information many Web sites. is being solicited and how it will be used. (ff) Working Days. Days excluding Satur- (v) Privacy Impact Assessment (PIA). An day, Sunday, and legal holidays. analysis, which considers information sensitivity, vulnerability, and cost to a computer facility or word processing center in safe- PART 507—MANUFACTURE AND guarding personal information processed or SALE OF DECORATIONS, MED- stored in the facility. (w) Privacy Act (PA) Request. A request ALS, BADGES, INSIGNIA, COM- from an individual for information about the MERCIAL USE OF HERALDIC DE- existence of, access to, or amendment of SIGNS AND HERALDIC QUALITY records pertaining to that individual located in a Privacy Act system of records. The re- CONTROL PROGRAM quest must cite or implicitly refer to the Privacy Act of 1974. Subpart A—Introduction (x) Protected Personal Information. Informa- tion about an individual that identifies, re- Sec. lates to, is unique to, or describes him or her 507.1 Purpose. (e.g., home address, date of birth, social se- 507.2 References. curity number, credit card, or charge card 507.3 Explanation of abbreviations and account, etc.). terms. (y) Records. Any item, collection, or group- 507.4 Responsibilities. ing of information, whatever the storage media (e.g., paper, electronic, etc), about an 507.5 Statutory authority. individual that is maintained by a DOD Com- ponent, including but not limited to, his or Subpart B—Manufacture and Sale of her education, financial transactions, med- Decorations, Medals, Badges, and Insignia ical history, criminal or employment history and that contains his or her name, or the 507.6 Authority to manufacture. identifying number, symbol, or other identi- 507.7 Authority to sell. fying particular assigned to the individual, 507.8 Articles authorized for manufacture such as a finger or voice print or a photo- and sale. graph. 507.9 Articles not authorized for manufac- (z) Records Maintenance and Use. Any ac- ture or sale. tion involving the storage, retrieval, and handling of records kept in offices by or for Subpart C—Commercial Use of Heraldic the agency. Designs (aa) Review Authority. An official charged with the responsibility to rule on adminis- 507.10 Incorporation of designs or likenesses trative appeals of initial denials of requests of approved designs in commercial arti- for notification, access, or amendment of cles. records. Additionally, the Office of Personnel 507.11 Reproduction of designs. Management is the review authority for civilian official personnel folders or records 507.12 Possession and wearing. contained in any other OMP record. (bb) Routine Use. Disclosure of a record Subpart D—Heraldic Quality Control outside DOD without the consent of the sub- Program ject individual for a use that is compatible with the purpose for which the information 507.13 General. was collected and maintained by DA. A rou- 507.14 Controlled heraldic items. tine use must be included in the notice for 507.15 Certification of heraldic items. the Privacy Act system of records published 507.16 Violations and penalties. in the FEDERAL REGISTER. 507.17 Procurement and wear of heraldic (cc) Statistical record. A record in a system items. of records maintained for statistical re- 507.18 Processing complaints of alleged search or reporting purposes and not used in breach of policies. whole or in part in making determinations about specific individuals. AUTHORITY: 10 U.S.C. 3012, 18 U.S.C. 701, 18 (dd) System Manager. An official who has U.S.C. 702 overall responsibility for policies and procedures for operating and safeguarding a Pri- SOURCE: 63 FR 27208, May 18, 1998, unless vacy Act system of records. otherwise noted.

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Subpart A—Introduction (9) USAF—United States Air Force. (b) Terms—(1) Cartoon. A drawing six § 507.1 Purpose. times actual size, showing placement This part prescribes the Department of stitches, color and size of yarn and of the Army and the Air Force policy number of stitches. governing the manufacture, sale, repro- (2) Certificate of authority to manufac- duction, possession, and wearing of ture. A certificate assigning manufac- military decorations, medals, badges, turers a hallmark and authorizing and insignia. It also establishes the He- manufacture of heraldic items. raldic Item Quality Control Program (3) Hallmark. A distinguishing mark to improve the appearance of the Army consisting of a letter and numbers as- and Air Force by controlling the qual- signed to certified manufacturers for ity of heraldic items purchased from use in identifying manufacturers of in- commercial sources. signia. (4) Heraldic items. All items worn on § 507.2 References. the uniform to indicate unit, skill, Related publications are listed in branch, award or identification and a paragraphs (a) through (f) of this sec- design has been established by TIOH on tion. (A related publication is merely a an official drawing. source of additional information. The (5) Letter of agreement. A form signed user does not have to read it to under- by manufacturers before certification, stand this part). Copies of referenced stating that the manufacturer agrees publications may be reviewed at Army to produce heraldic items in accord- and Air Force Libraries or may be pur- ance with specific requirements chased from the National Technical In- (6) Letter of authorization. A letter formation Services, U.S. Department of issued by TIOH that authorizes the Commerce, 5285 Port Royal Road, manufacture of a specific heraldic item Springfield, VA 22161. after quality assurance inspection of a (a) AFI 36–2903, Dress and Personal preproduction sample. Appearance of Air Force Personnel. (7) Tools. Hubs, dies, cartoons, and (b) AR 360–5, Public Information. drawings used in the manufacture of (c) AR 670–1, Wear and Appearance of heraldic items. Army Uniforms and Insignia. § 507.4 Responsibilities. (d) AR 840–1, Department of the Army Seal, and Department of the Army Em- (a) Deputy Chief of Staff for Personnel blem and Branch of Service Plaques. (DCSPER), Army. The DCSPER has (e) AR 840–10, Heraldic Activities, staff responsibility for heraldic activi- Flags, Guidons, Streamers, Tabards ties in the Army. and Automobile Plates. (b) The Director, The Institute of Her- (f) AFR 900–3, Department of the Air aldry (TIOH). The Director, TIOH, Force Seal, Organizational Emblems, will— Use and Display of Flags, Guidons, (1) Monitor the overall operation of Streamers, and Automobile and Air- the Heraldic Quality Control Program. craft Plates. (2) Authorize the use of insignia designs in commercial items. § 507.3 Explanation of abbreviations (3) Certify insignia manufacturers. and terms. (4) Inspect the quality of heraldic (a) Abbreviations. (1) AFB—Air Force items. Base. (c) The Commander, Air Force Per- (2) DA—Department of the Army. sonnel Center, Randolph AFB, TX 78150– (3) DCSPER—Deputy Chief of Staff 4739. The Commander has staff respon- for Personnel. sibility for heraldic activities in the (4) DSCP—Defense Supply Center Air Force. Philadelphia. (d) The Chief, Air Force Personnel Cen- (5) DUI—distinctive unit insignia. ter Commander’s Programs Branch (HQ (6) ROTC—Reserve Officers’ Training AFPC/DPSFC), 550 C Street West, Suite Corps. 37, Randolph AFB, TX 78150–4739. The (7) SSI—shoulder sleeve insignia. Chief, Commander’s Programs Branch (8) TIOH—The Institute of Heraldry. is responsible for granting permission

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for the incorporation of certain Air (b) A certificate of authority may be Force badges and rank insignia designs revoked or suspended under the proce- in commercial items. dures prescribed in subpart D of this (e) Commander, Air Force Historical Re- part. search Agency (AFHRA/RSO), Maxwell (c) Manufacturers will submit a AFB, AL 36112–6424. The Commander, preproduction sample to TIOH of each AFHRA/RSO, is responsible for grant- item they manufacture for certifi- ing permission for use of the Air Force cation under the Heraldic Quality Con- seal, coat of arms, and crest. trol Program. A letter of certification (f) Commanders. Commanders are re- authorizing manufacture of each spe- sponsible for purchasing heraldic items cific item will be issued provided the that have been produced by manufac- sample meets quality assurance stand- turers certified by TIOH. Commanders ards. will ensure that only those heraldic (d) A copy of the certified manufac- items that are of quality and design tures list will be furnished to the Army covered in the specification and that and Air Force Exchange Service and, have been produced by certified manu- upon request, to Army and Air Force facturers are worn by personnel under commanders. their command. § 507.7 Authority to sell. § 507.5 Statutory authority. No certificate of authority to manu- (a) The wear, manufacture, and sale facture is required to sell articles list- of military decorations, medals, ed in § 507.8 of this part; however, sell- badges, their components and appur- ers are responsible for insuring that tenances, or colorable imitations of any article they sell is manufactured them, are governed by section 704, title in accordance with Government speci- 18, United States Code (18 U.S.C. 704). fications using government furnished (b) The manufacture, sale, posses- tools, bears a hallmark assigned by sion, and reproduction of badges, iden- TIOH, and that the manufacturer has tification cards, insignia, or other de- received a certification to manufacture signs, prescribed by the head of a U.S. that specific item prior to sale. department or agency, or colorable imitations of them, are governed by § 507.8 Articles authorized for manu- Title 18, United States Code, Section facture and sale. 701 (18 U.S.C. 701). (a) The articles listed in paragraphs (c) This part incorporates the statu- (a) (1) through (10) of this section are tory provisions. authorized for manufacture and sale when made in accordance with ap- Subpart B—Manufacture and Sale proved specifications, purchase descrip- of Decorations, Medals, tions or drawings. Badges, and Insignia (1) All authorized insignia (AR 670–1 and AFI 36–2903). § 507.6 Authority to manufacture. (2) Appurtenances and devices for (a) A certificate of authority to man- decorations, medals, and ribbons such ufacture heraldic articles may be as oak leaf clusters, service stars, ar- granted by the Institute of Heraldry. rowheads, V-devices, and clasps. (1) Certificates of authority will be (3) Combat, special skill, occupa- issued only to companies who have tional and qualification badges and manufacturing capability and agree to bars. manufacture heraldic items according (4) Identification badges. to applicable specifications or purchase (5) Fourrageres and lanyards. descriptions. (6) Lapel buttons. (2) The certificate of authority is (7) Decorations, service medals, and valid only for the individual or cor- ribbons, except for the Medal of Honor. poration indicated. (8) Replicas of decorations and serv- (3) A hallmark will be assigned to ice medals for grave markers. Replicas each certified manufacturer. All insig- are to be at least twice the size pre- nia manufactured will bear the manu- scribed for decorations and service facturer’s hallmark. medals.

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(9) Service ribbons for decorations, (1) Designs approved for use of the service medals, and unit awards. Army. The Director, The Institute of (10) Rosettes. Heraldry, 9325 Gunston Road, Room S– (11) Army emblem and branch of 112, Fort Belvoir, VA 22060–5579, is re- service plaques. sponsible for granting permission for (b) Variations from the prescribed the incorporation of certain Army in- specifications for the items listed in signia designs and the Army emblem in paragraph (a) of this section are not commercial articles manufactured for permitted without prior approval, in sale. Permission for such use will be in writing, by TIOH. writing. Commanders of units authorized a SSI or DUI may authorize the re- § 507.9 Articles not authorized for production of their SSI or DUI on com- manufacture or sale. mercial articles such as shirts, tie The following articles are not au- tacks, cups, or plaques. Permission for thorized for manufacture and sale, ex- use of a SSI or DUI will be submitted cept under contract with DSCP: in writing to the commander con- (a) The Medal of Honor. cerned. Authorization for incorpora- (b) Service ribbon for the Medal of tion of designs or likenesses of designs Honor. in commercial items will be granted (c) Rosette for the Medal of Honor. only to those manufacturers who agree (d) Service flags (prescribed in AR to offer these items for sale only to 840–10 or AFR 900–3). Army and Air Force Exchange Service (e) Army seal. and outlets that sell primarily to mili- (f) Commercial articles for public tary personnel and their dependents. sale that incorporate designs or (2) likenesses of decorations, service med- Designs approved for use of the Air als, and service ribbons. Force. Headquarters, Air Force Per- (g) Commercial articles for public sonnel Center, Chief, Commander’s sale that incorporate designs or Programs Branch (HQ AFPC/DPSFC), likenesses of designs of insignia listed 550 C Street West, Suite 37, Randolph in § 507.8 of this part, except when au- AFB, TX 78150–4739, is responsible for thorized by the Service concerned. granting permission for the incorporation of certain Air Force designs for Subpart C—Commercial Use of commercial articles manufactured for Heraldic Designs sale. The Commander, Air Force His- torical Research Agency, AFHRA/RSO, § 507.10 Incorporation of designs or Maxwell AFB, AL 36112–6678, is respon- likenesses of approved designs in sible for granting permission for the in- commercial articles. corporation of the coat of arms, crest, The policy of the Department of the seal and organizational emblems. Such Army and the Department of the Air permission will be in writing. Author- Force is to restrict the use of military ization for incorporation of designs or designs for the needs or the benefit of likenesses of designs in commercial personnel of their Services. items will be granted only to those (a) Except as authorized in writing manufacturers who agree to offer these by the Department of the Army or the items for sale only to the Army and Department of the Air Force, as appli- Air Force Exchange Service, or to cable, the manufacture of commercial those outlets that sell primarily to articles incorporating designs or military personnel and their depend- likenesses of official Army/Air Force ents. heraldic items is prohibited. However, (b) In the case of the Honorable Serv- certain designs or likenesses of insig- ice lapel button, a general exception is nia such as badges or organizational in- made to permit the incorporation of signia may be incorporated in articles that design in articles manufactured manufactured for sale provided that for public sale provided that such arti- permission has been granted as speci- cles are not suitable for wear as lapel fied in paragraphs (a) (1) and (2) of this buttons or pins. section.

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§ 507.11 Reproduction of designs. scribed in the statutes referred to in (a) The photographing, printing, or, § 507.5 of this part. in any manner making or executing (b) Mere possession by a person of any engraving, photograph, print, or any of the articles prescribed in § 507.8 impression in the likeness of any deco- of this part is authorized provided that ration, service medal, service ribbon, such possession is not used to defraud badge, lapel button, insignia, or other or misrepresent the identification or device, or the colorable imitation status of the individual concerned. thereof, of a design prescribed by the (c) Articles specified in § 507.8 of this Secretary of the Army or the Secretary part, or any distinctive parts including of the Air Force for use by members of suspension ribbons and service ribbons) the Army or the Air Force is author- or colorable imitations thereof, will ized provided that such reproduction not be used by any organization, soci- does not bring discredit upon the mili- ety, or other group of persons without tary service and is not used to defraud prior approval in writing by the Sec- or to misrepresent the identification or retary of the Army or the Secretary of status of an individual, organization, the Air Force. society, or other group of persons. (b) The use for advertising purposes Subpart D—Heraldic Quality of any engraving, photograph, print, or Control Program impression of the likeness of any De- partment of the Army or Department § 507.13 General. of the Air Force decoration, service The heraldic quality control program medal, service ribbon, badge, lapel but- provides a method of ensuring that in- ton, insignia, or other device (except signia items are manufactured with the Honorable Service lapel button) is tools and specifications provided by prohibited without prior approval, in TIOH. writing, by the Secretary of the Army or the Secretary of the Air Force ex- § 507.14 Controlled heraldic items. cept when used to illustrate a particular article that is offered for sale. The articles listed in § 507.8 of this Request for use of Army insignia in ad- part are controlled heraldic items and vertisements or promotional materials will be manufactured in accordance will be processed through public affairs with Government specifications using channels in accordance with AR 360–5, Government furnished tools or car- paragraph 3–37. toons. Tools and cartoons are not pro- (c) The reproduction in any manner vided to manufacturers for the items in of the likeness of any identification paragraphs (a) through (e) of this sec- card prescribed by Department of the tion. However, manufacture will be in Army or Department of the Air Force accordance with the Government fur- is prohibited without prior approval in nished drawings. writing by the Secretary of the Army (a) Shoulder loop insignia, ROTC, or Secretary of the Air Force. U.S. Army. (b) Institutional SSI, ROTC, U.S. § 507.12 Possession and wearing. Army. (a) The wearing of any decoration, (c) Background trimming/flashes, service medal, badge, service ribbon, U.S. Army. lapel button, or insignia prescribed or (d) U.S. Air Force organizational em- authorized by the Department of the blems for other than major commands. Army and the Department of the Air (e) Hand embroidered bullion insig- Force by any person not properly au- nia. thorized to wear such device, or the use of any decoration, service medal, § 507.15 Certification of heraldic items. badge, service ribbon, lapel button, or A letter of certification to manufac- insignia to misrepresent the identifica- ture each heraldic item, except those tion or status of the person by whom listed in § 507.14 (a) through (e) of this such is worn is prohibited. Any person part, will be provided to the manufac- who violates the provision of this sec- turer upon submission of a tion is subject to punishment as pre- preproduction sample. Manufacture

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and sale of these items is not author- quality control policies by the manu- ized until the manufacturer receives a facturer. As used in this paragraph, the certification letter from TIOH. term quality control policies include the obligation of a manufacturer under § 507.16 Violations and penalties. his or her ‘‘Agreement to Manufac- A certificate of authority to manu- ture,’’ the quality control provisions of facture will be revoked by TIOH upon this part, and other applicable instruc- intentional violation by the holder tions provided by TIOH. thereof of any of the provisions of this (a) Initial processing. (1) Complaints part, or as a result of not complying and reports of an alleged breach of with the agreement signed by the man- quality control policies will be for- ufacturer in order to receive a certifi- warded to the Director, The Institute cate. Such violations are also subject of Heraldry, 9325 Gunston Road, Room to penalties prescribed in the Acts of S–112, Fort Belvoir, VA 22060–5579 Congress (§ 507.5 of this part). A repeti- (hereinafter referred to as Director). tion or continuation of violations after (2) The Director may direct that an official notice thereof will be deemed informal investigation of the com- prima facie evidence of intentional vio- plaint or report be conducted. lation. (3) If such investigation is initiated, it will be the duty of the investigator § 507.17 Procurement and wear of he- to ascertain the facts in an impartial raldic items. manner. Upon conclusion of the inves- (a) The provisions of this part do not tigation, the investigator will submit a apply to contracts awarded by the De- report to the appointing authority con- fense Personnel Support Center for taining a summarized record of the in- manufacture and sale to the U.S. Gov- vestigation together with such findings ernment. and recommendations as may be appro- (b) All Army and Air Force service priate and warranted by the facts. personnel who wear quality controlled (4) The report of investigation will be heraldic items that were purchased forwarded to the Director for review. If from commercial sources will be re- it is determined that a possible breach sponsible for ensuring that the items of quality control policies has oc- were produced by a certified manufac- curred, the Director will follow the turer. Items manufactured by certified procedures outlined in paragraphs (b) manufacturers will be identified by a through (g) of this section. hallmark and/or a certificate label cer- (b) Voluntary performance. The Direc- tifying the item was produced in ac- tor will transmit a registered letter to cordance with specifications. the manufacturer advising of the de- (c) Commanders will ensure that only tailed allegations of breach and re- those heraldic items that are of the questing assurances of voluntary com- quality and design covered in the speci- pliance with quality control policies. fications and that have been produced No further action is taken if the manu- by certified manufacturers are worn by facturer voluntarily complies with the personnel under their command. Con- quality control policies; however, any trolled heraldic items will be procured further reoccurrence of the same only from manufacturers certified by breach will be considered refusal to TIOH. Commanders procuring con- perform. trolled heraldic items, when authorized (c) Refusal to perform. (1) If the manu- by local procurement procedures, may facturer fails to reply within a reason- forward a sample insignia to TIOH for able time to the letter authorized by quality assurance inspection if the paragraph (b) of this section, or refuses commander feels the quality does not to give adequate assurances that future meet standards. performance will conform to quality control policies, or indicates by subse- § 507.18 Processing complaints of al- quent conduct that the breach is con- leged breach of policies. tinuous or repetitive, or disputes the The Institute of Heraldry may revoke allegations of breach, the Director will or suspend the certificate of authority direct that a public hearing be con- to manufacture if there are breaches of ducted on the allegations.

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(2) A hearing examiner will be ap- (i) A verbatim record of the pro- pointed by appropriate orders. The exceeding will be maintained. aminer may be either a commissioned (ii) All previous material received by officer or a civilian employee above the the examiner will be introduced into grade of GS–7. evidence and made part of the record. (3) The specific written allegations, (iii) The Government may be rep- together with other pertinent material, resented by counsel at the hearing. will be transmitted to the hearing ex- (2) Subsequent to the conclusion of aminer for introduction as evidence at the hearing, the examiner will make the hearing. specific findings on the record before (4) Manufacturers may be suspended him or her concerning each allegation. for failure to return a loaned tool with- (3) The complete record of the case out referral to a hearing specified in will be forwarded to the Director. paragraph (c)(1) of this section; how- (f) Action by the Director. (1) The Di- ever, the manufacturer will be advised, rector will review the record of the in writing, that tools are overdue and hearing and either approve or dis- suspension will take effect if not re- approve the findings. turned within the specified time. (2) Upon arrival of a finding of breach of quality control policies, the manu- (d) Notification to the manufacturer by facturer will be so advised. examiner. Within a 7 day period fol- (3) After review of the findings, the lowing receipt by the examiner of the certificate of authority may be re- allegations and other pertinent mate- voked or suspended. If the certificate rial, the examiner will transmit a reg- of authority is revoked or suspended, istered letter of notification to the the Director will— manufacturer informing him or her of (i) Notify the manufacturer of the the following: revocation or suspension. (1) Specific allegations. (ii) Remove the manufacturer from (2) Directive of the Director requiring the list of certified manufacturers. the holding of a public hearing on the (iii) Inform the Army and Air Force allegations. Exchange Service of the action. (3) Examiner’s decision to hold the (g) Reinstatement of certificate of au- public hearing at a specific time, date, thority. The Director may, upon receipt and place that will be not earlier than of adequate assurance that the manu- 30 days from the date of the letter of facturer will comply with quality con- notification. trol policies, reinstate a certificate of (4) Ultimate authority of the Direc- authority that has been suspended or tor to suspend or revoke the certificate revoked. of authority should the record developed at the hearing so warrant. PART 508—COMPETITION WITH (5) Right to— CIVILIAN BANDS (i) A full and fair public hearing. (ii) Be represented by counsel at the AUTHORITY: Secs. 3012, 3634, 70A Stat. 157, hearing. 207; 10 U.S.C. 3012, 3634. (iii) Request a change in the date, time, or place of the hearing for pur- § 508.1 Utilization of Army bands. poses of having reasonable time in (a) General. Participation of Army which to prepare the case. bandsmen in performances off military (iv) Submit evidence and present wit- reservations will not interfere with the nesses in his or her own behalf. customary employment and regular en- (v) Obtain, upon written request filed gagement of local civilians in the re- before the commencement of the hear- spective arts, trades, or professions. ing, at no cost, a verbatim transcript Such participation will not directly or of the proceedings. indirectly benefit or appear to benefit (e) Public hearing by examiner. (1) At or favor any private individual, com- the time, date, and place designated in mercial venture, sect, or political or accordance with paragraph (d) (3) of fraternal group, except as may be spe- this section, the examiner will conduct cifically authorized by the Secretary of the public hearing. Defense. The authority to determine

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whether the use of an Army band at a the marriage is to be solemnized and public gathering is prohibited by this provided all parties concerned have section is delegated to major com- complied with the requirements of the manders. denomination the chaplain represents (b) Suitability. Commanders author- and with any directives which may izing participation by Army bands (ex- have been issued by the military com- cept the U.S. Army Band and the U.S. mand or higher headquarters. The Army Field Band) in their official scope of the chaplains’ work will in- capacties and in the performance of of- clude such ministrations as are held by ficial duties will be guided by the fol- some denominations or religious bodies lowing conditions of suitability: as sacraments and by others as rites or (1) When participation is an appro- ordinances. Chaplains will administer priate part of official occasions at- or arrange for rites and sacraments for tended by the senior officers of the military personnel and civilians under Government or the Department of De- military jurisdiction according to the fense in their official capacities and in respective beliefs and conscientious the performance of official duties. practices of all concerned. (2) For parades and ceremonies which [16 FR 12931, Dec. 27, 1951] are incident to gatherings of personnel of the Armed Forces, veterans, and patriotic organizations. PART 516—LITIGATION (3) At public rallies and parades intended to stimulate national interest Subpart A—General in the Armed Forces and/or to further Sec. the community relation program. 516.1 Purpose. (4) For fund drives for officially rec- 516.2 References. ognized Armed Forces relief agencies 516.3 Explanation of abbreviations and or charitable organizations such as the terms. Red Cross when the proceeds are do- 516.4 Responsibilities. nated to such agencies. 516.5 Restriction on contact with DOJ. (5) For athletic contests in which one 516.6 Appearance as counsel. or more Armed Forces teams are par- 516.7 Mailing addresses. ticipating. Subpart B—Service of Process (6) In connection with recruiting activities for the Armed Forces. 516.8 General. (7) At official occasions and free so- 516.9 Service of criminal process within the cial and entertainment activities held United States. on or off Armed Forces installations, 516.10 Service of civil process within the provided that such free social enter- United States. tainment activities are conducted ex- 516.11 Service of criminal process outside the United States. clusively for the benefit of personnel of 516.12 Service of civil process outside the the Armed Forces and their guests. United States. [25 FR 10700, Nov. 9, 1960] 516.13 Assistance in serving process overseas. 516.14 Service of process on DA or Secretary PART 510—CHAPLAINS of Army.

Subpart C—Reporting Legal Proceedings AUTHORITY: R.S. 1125; 10 U.S.C. 238. to HQDA § 510.1 Private ministrations, sacra- 516.15 General. ments, and ordinances. 516.16 Individual and supervisory procedures Chaplains will conduct or arrange for upon commencement of legal pro- appropriate burial services at the in- ceedings. terment of members of the military 516.17 SJA or legal adviser procedures. service, active and retired, and for 516.18 Litigation alleging individual liability. members of their families upon re- 516.19 Injunctive relief. quest. A chaplain may perform the 516.20 Habeas Corpus. marriage rite, provided he complies 516.21 Litigation against government con- with the civil law of the place where tractors.

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516.22 Miscellaneous reporting require- LITIGATION IN WHICH THE UNITED STATES HAS ments. AN INTEREST 516.23 Litigation reports. 516.51 Response to subpoenas, orders, or re- 516.24 Preservation of evidence. quests for witnesses. 516.25 DA Form 4. 516.52 Expert witnesses. 516.26 Unsworn declarations under penalty 516.53 News media and other inquiries. of perjury. STATUS, TRAVEL, AND EXPENSES OF Subpart D—Individual Liability WITNESSES 516.27 Scope. 516.54 Witnesses for the United States. 516.28 Policy. 516.55 Witnesses for a State or private liti- 516.29 Federal statutes and regulations. gant. 516.30 Procedures for obtaining certification 516.56 Witnesses before foreign tribunals. and DOJ representation. 516.31 Private counsel at government ex- Subpart H—Remedies in Procurement pense. Fraud and Corruption 516.32 Requests for indemnification. 516.57 Purpose. 516.58 Policies. Subpart E—Legal Proceedings Initiated by 516.59 Duties and procedures. the United States Medical Care and 516.60 Procurement fraud and irregularities Property Claims programs at MACOMs. 516.33 General. 516.61 Reporting requirements. 516.34 Referral of medical care and property 516.62 PFD and HQ USACIDC coordination. claims for litigation. 516.63 Coordination with DOJ. 516.35 Preparation of claims for litigation. 516.64 Comprehensive remedies plan. 516.65 Litigation reports in civil recovery ASSERTION OF OTHER CLAIMS cases. 516.66 Administrative and contractual ac- 516.36 Referral to Litigation Division. tions. 516.37 Proceedings to repossess government 516.67 Overseas cases of fraud or corruption. real property or quarters or to collect de- 516.68 Program Fraud Civil Remedies Act linquent rent. (PFCRA).

Subpart F—Environmental Litigation Subpart I—Cooperation With the Office of 516.38 Scope. Special Counsel 516.39 Duties and procedures. 516.69 Introduction. 516.70 Policy. Subpart G—Release of Information and 516.71 Duties. Appearance of Witnesses Scope 516.72 Procedures. 516.40 General. 516.73 Assistance from HQDA. 516.41 Policy. 516.42 Reference to HQDA. Subpart J—Soldiers Summoned To Serve on State and Local Juries RELEASE OF RECORDS IN CONNECTION WITH LITIGATION 516.74 General. 516.75 Policy. 516.43 Release of Army and other agency 516.76 Exemption determination authority. records. 516.77 Procedures for exemption. 516.44 Determination of release authoriza- 516.78 Status, fees, and expenses. tion. APPENDIX A TO PART 516—REFERENCES 516.45 Records determined to be releasable. APPENDIX B TO PART 516—MAILING ADDRESS- 516.46 Records determined not to be releas- ES able. APPENDIX C TO PART 516—DEPARTMENT OF DA PERSONNEL AS WITNESSES IN PRIVATE DEFENSE DIRECTIVE 5405.2, RELEASE OF LITIGATION OFFICIAL INFORMATION IN LITIGATION AND TESTIMONY BY DOD PERSONNEL AS WIT- 516.47 Response to subpoenas, orders, or re- NESSES quests for witnesses. APPENDIX D TO PART 516—DEPARTMENT OF 516.48 Official information. DEFENSE DIRECTIVE 7050.5, COORDINATION 516.49 Expert witnesses. OF REMEDIES FOR FRAUD AND CORRUPTION 516.50 Interference with mission. RELATED TO PROCUREMENT ACTIVITIES

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APPENDIX E TO PART 516—DEPARTMENT OF U.S. Attorney Offices, under the over- DEFENSE DIRECTIVE 5505.5, IMPLEMENTA- sight of the Attorney General, will con- TION OF THE PROGRAM FRAUD CIVIL REM- duct much of the representation. EDIES ACT APPENDIX F TO PART 516—GLOSSARY (b) The Judge Advocate General APPENDIX G TO PART 516—FIGURES (TJAG). Subject to the ultimate control of litigation by DOJ (including the var- AUTHORITY: 5 U.S.C. 552; 10 U.S.C. 218, 1037, 1089, 1552, 1553, 2036; 18 U.S.C. 219, 3401; 28 ious U.S. Attorney Offices), and to the U.S.C. 50, 513, 515, 543; 31 U.S.C. 3729 and 41 general oversight of litigation by the U.S.C. 51; 42 U.S.C. 290, 2651; 43 U.S.C. 666 Army General Counsel, TJAG is re- SOURCE: 59 FR 38236, July 27, 1994, unless sponsible for litigation in which the otherwise noted. Army has an interest except with respect to proceedings addressed in para- Subpart A—General graph (i) of this section, only TJAG (or Chief, Litigation Division) will commu- § 516.1 Purpose. nicate to DOJ the army’s position with (a) This part prescribes policies and regard to settlement of a case. procedures for the following: (c) Assistant Judge Advocate General (1) Defensive and affirmative litiga- For Civil Law and Litigation (AJAG-CL). tion in Federal and state civilian Responsible to TJAG for litigation courts where the Army or DOD has an issues; supervises Chief, Litigation Di- interest in the matter. vision. (2) Proceedings before Federal or (d) Chief, Litigation Division. Reports state administrative bodies, such as to AJAG-CL and is responsible for the utility rate commissions. following: (3) Release of official information (1) Supervising litigation in which and testimony by DA personnel with the Army has an interest. regard to litigation. (4) Remedies for procurement fraud (2) Acting for TJAG and Secretary of and corruption. the Army on litigation issues, includ- (5) Environmental civil litigation and ing the authority to settle or com- administrative proceedings. promise cases, subject to the super- (6) Proceedings before the Office of vision of TJAG and AJAG-CL. Special Counsel. (3) Delegating cases if appropriate. (b) This regulation does not apply to (4) Serving as primary contact with DA or DOD proceedings such as courts- DOJ on litigation. martial or administrative boards. (5) Accepting service of process for DA and for the Secretary of the Army § 516.2 References. in his official capacity. See 32 CFR Applicable publications and forms § 257.5). are listed in appendix A to this part. (e) Special Assistant U.S. Attorneys (SAUSAs) and DOJ Special Attorneys. § 516.3 Explanation of abbreviations and terms. Army judge advocates and civilian attorneys, when appointed as SAUSAs (a) The Glossary contains expla- under 28 U.S.C. 543, will represent the nations of abbreviations and terms. Army’s interests in either criminal or (b) The masculine gender has been civil matters in Federal court under used throughout this regulation for the following circumstances: simplicity and consistency. Any reference to the masculine gender is in- (1) Felony and misdemeanor prosecu- tended to include women. tions in Federal court. Army attorneys, at the installation level, after being § 516.4 Responsibilities. duly appointed (See AR 27–10), will (a) United States Department of Justice prosecute cases, in which the Army has (DOJ). DOJ will defend litigation in do- an interest, in Federal court. Army at- mestic and foreign courts, against the torneys who prosecute criminal cases United States, its agencies and instru- will not represent the United States in mentalities, and employees whose offi- civil litigation without authorization cial conduct is involved. The various from Chief, Litigation Division.

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(2) SAUSAs for civil litigation. By as- Contract Appeals Division, and attor- signment of TJAG and upon the ap- neys designated by the Chief Trial At- proval of the U.S. Attorney, Judge Ad- torney will represent the government vocates will serve within a U.S. Attor- before the Armed Services Board of ney’s office to represent the govern- Contract Appeals and the General ment in litigation in which the Army Services Board of Contract Appeals. or DOD has an interest. These Judge They will maintain direct liaison with Advocates have the same general au- DOJ concerning appeals from ASBCA thority and responsibility as an Assist- and GSBCA decisions. The Chief Trial ant U.S. Attorney. Attorney has designated COE attor- (3) Special Attorneys assigned to DOJ. neys to act as trial attorneys in con- By assignment of TJAG and with the nection with COE contract appeals. concurrence of the appropriate DOJ of- (k) Chief, Regulatory Law Office, ficial, Judge Advocates will work as USALSA. The Chief, Regulatory Law Special Attorneys for DOJ. Special At- Office, attorneys assigned to the Regu- torneys are authorized to represent the latory Law Office, and other attorneys United States in civil litigation in designated by the Chief, will represent which the Army or DOD has an inter- DA consumer interests in regulatory est. matters before state and Federal ad- (f) Attorneys at Army activities or com- ministrative agencies and commis- mands. SJAs or legal advisers, or attor- sions, including but not limited to pro- neys assigned to them, will represent ceedings involving rates and conditions the United States in litigation only if for the purchase of services for commu- authorized by this regulation or dele- nications (except long-distance tele- gated authority in individual cases by phone), transportation, and utilities the Chief, Litigation Division. (gas, electric, water and sewer). They (g) Commander, U.S. Army Claims Serv- will maintain direct liaison with DOJ ice (USARCS). The Commander, for communications, transportation, USARCS, and USARCS attorneys, sub- and utilities litigation. ject to AR 27–20, Chapter 4, will maintain direct liaison with DOJ in regard (l) Chief, Intellectual Property Law Di- to administrative settlement of claims vision, USALSA. The Chief, Intellectual under the Federal Tort Claims Act. Property Law Division, and the attor- (h) Chief, Contract Law Division, neys assigned thereto will represent OTJAG. The Chief, Contract Law Divi- DA in matters pertaining to patents, sion, attorneys assigned to the Con- copyrights, and trademarks. They will tract Law Division, and other attor- maintain direct liaison with DOJ con- neys designated by the Chief, Contract cerning intellectual property issues. Law Division, in litigation involving (m) Chief, Labor and Employment Law taxation, will represent DA in negotia- Office, OTJAG. The Chief, Labor and tion, administrative proceedings, and Employment Law Office, attorneys as- litigation, and maintain liaison with signed thereto, and attorneys identi- DOJ and other governmental authori- fied as labor counselors will represent ties. DA in matters pertaining to labor rela- (i) Legal Representatives of the Chief of tions, civilian personnel, and Federal Engineers. The Office of Chief Counsel, labor standards enforcement before the attorneys assigned thereto, and other following: Federal Labor Relations Au- attorneys designated by the Chief thority; Merit Systems Protection Counsel will maintain direct liaison Board; Equal Employment Opportunity with DOJ and represent DA in litiga- Commission; Department of Labor; Na- tion and administrative proceedings a tional Labor Relations Board; and, rising from the navigation, civil works, state workmen’s compensation com- Clean Water Act 404 permit authority, missions. In the event any individual environmental response activities, and mentioned in this subparagraph in- real property functions of the U.S. tends to make a recommendation to Army Corps of Engineers. DOJ concerning an appeal of any case (j) Chief Trial Attorney, Contract Ap- to a U.S. Court of Appeals, such rec- peals Division, USALSA. The Chief Trial ommendation will first be coordinated Attorney, attorneys assigned to the with Litigation Division.

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(n) Chief, Procurement Fraud Division, maintain a working relationship with USALSA. The Chief, Procurement the U.S. Attorney in each district Fraud Division, attorneys assigned within his geographical area. An SJA thereto, and other attorneys des- or legal adviser should request the U.S. ignated by the Chief will represent DA Attorney to advise him immediately in all procurement fraud and corrup- when litigation involving DA or its tion matters before the Army suspen- personnel is served on the U.S. Attor- sion and debarment authority and be- ney. fore any civil fraud recovery adminis- [59 FR 38236, July 27, 1994; 59 FR 45974, Sept. trative body. They will maintain liai- 6, 1994] son and coordinate remedies with DOJ and other agencies in matters of pro- § 516.6 Appearance as counsel. curement fraud and corruption. (a) General. Military personnel on ac- (o) Chief, Environmental Law Division, tive duty and DA civilian personnel USALSA. The Chief, Environmental will not appear as counsel before any Law Division, attorneys assigned civilian court or in any preliminary thereto, and other attorneys des- proceeding, for example, deposition, in ignated by the Chief, ELD, will main- litigation in which the Army has an in- tain direct liaison with DOJ and rep- terest without the prior written ap- resent DA in all environmental and proval of TJAG, except under the fol- natural resources civil litigation and lowing conditions: administrative proceedings involving (1) The appearance is authorized by missions and functions of DA, its major this regulation. and subordinate commands, installa- (2) The individual is a party to the tions presently or previously managed proceeding. by DA, and other sites or issues in (3) The appearance is authorized which DA has a substantial interest, under an expanded legal assistance pro- except as otherwise specifically program (See AR 27–3). vided in this part. (4) The individual is a judge advocate (p) Chief, Criminal Law Division, assigned or detailed by TJAG to DOJ OTJAG. The Chief, Criminal Law Divi- to represent the United States in civil sion, will have general oversight of fel- or criminal cases, for example, a Spe- ony and magistrate court prosecutions cial Assistant U.S. Attorney, or an at- conducted by Army lawyers acting as torney assigned to Litigation Division. Special Assistant U.S. Attorneys. (See (b) Procedure. All requests for appear- subpart G of this part). The Chief will ance as counsel will be made through coordinate with DOJ and other govern- Litigation Division to the Personnel, mental agencies concerning the overall Plans and Training Office, OTJAG. Re- conduct of these prosecutions. quests for DA military or civilian at- [59 FR 38236, July 27, 1994; 59 FR 45974, Sept. torneys to appear in any civilian court 6, 1994] or proceeding on behalf of a soldier who is also facing UCMJ action will be de- § 516.5 Restriction on contact with livered to the SJA, legal adviser, or Re- DOJ. gional Defense Counsel, as appropriate. (a) General rule. Except as authorized The SJA or legal adviser will forward by TJAG, the General Counsel, the the request to Litigation Division with Chief of Litigation Division, or this an evaluation of the case and rec- regulation, no Army personnel will ommendation. Regional Defense Coun- confer or correspond with DOJ con- sel should send requests for USATDS cerning legal proceedings in which the counsel to Chief, USATDS, who will Army has an interest. forward the request to Litigation Divi- (b) Exceptions. This prohibition does sion. Privileged or otherwise sensitive not preclude contact with DOJ re- client information should only be sub- quired by the Memorandum of Under- mitted through USATDS channels. standing between DOJ and DOD relating to the investigation and prosecu- § 516.7 Mailing addresses. tion of certain crimes. (See AR 27–10, Mailing addresses for organizations para 2–7). In addition, an installation referenced in this regulation are in ap- SJA or legal adviser is expected to pendix B to this part.

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Subpart B—Service of Process cerning voluntary acceptance of process. § 516.8 General. (b) Request for witnesses or evidence in (a) Defined. Process is a legal docu- civil proceedings. See subpart G to this ment that compels a defendant in an part. action to appear in court or to comply (c) Process of Federal courts. Subject with the court’s demands, for example, to reasonable restrictions imposed by in a civil case a summons or subpoena, the commander, civil officials will be or in a criminal case, a warrant for ar- permitted to serve Federal process. rest, indictment, contempt order, sub- (See Fed. R. Civ. P. 4, 45). poena, or summons. Service of process (d) Process of state courts. (1) In areas is the delivery of the document to a de- of exclusive Federal jurisdiction that fendant to notify him of a claim or are not subject to the right to serve charge against him. state process, the commander or super- (b) Policy. DA personnel will follow visor will determine whether the indi- the guidance of this chapter when civil vidual to be served wishes to accept officials attempt to serve civil or service voluntarily. A JA or other DA criminal process on individuals on Fed- attorney will inform the individual of eral property. the legal effect of voluntary accept- (c) Procedures. Provost marshals shall ance. If the individual does not desire ensure that installation law enforce- to accept service, the party requesting ment personnel are adequately trained service will be notified that the nature to respond to situations which arise of the exclusive Federal jurisdiction with regard to service of civil and precludes service by state authorities criminal process. SJAs or legal advis- on the military installation. ers shall provide guidance to law enforcement personnel in these matters. (2) On Federal property where the right to serve process is reserved by or § 516.9 Service of criminal process granted to the state, in areas of con- within the United States. current jurisdiction, or where the (a) Surrender of personnel. Guidance United States has only a proprietary for surrender of military personnel to interest, Army officials asked to facili- civilian law enforcement officials is in tate service of process will initially Chapter 7 of AR 630–10 and AR l90–9. proceed as provided in the preceding Army officials will cooperate with ci- subparagraph. If the individual de- vilian law enforcement authorities who clines to accept service, the requesting seek the surrender of a soldier in con- party will be allowed to serve the proc- nection with criminal charges. Special ess in accordance with applicable state rules apply when a bail bondsman or law, subject to reasonable restrictions other surety seeks custody of a soldier. imposed by the commander. (b) Requests for witnesses or evidence in (e) Process of foreign courts. A U.S. criminal proceedings. See subpart G to District Court may order service upon this part. a person who resides in the judicial dis- [59 FR 38236, July 27, 1994; 59 FR 45975, Sept. trict of any document issued in connec- 6, 1994] tion with a proceeding in a foreign or international tribunal. (28 U.S.C. 1696). § 516.10 Service of civil process within In addition, the U.S. State Department the United States. has the power to receive a letter roga- (a) Policy. DA officials will not pre- tory issued by a foreign or inter- vent or evade the service or process in national tribunal, to transmit it to a legal actions brought against the tribunal, officer or agency in the United States or against themselves in United States, and to return it after their official capacities. If acceptance execution. (28 U.S.C. 1781). Absent a of service of process would interfere treaty or agreement to the contrary, with the performance of military du- these provisions will govern. ties, Army officials may designate a (f) Seizure of personal property. State representative to accept service. DA and Federal courts issue orders (for ex- personnel sued in their individual ca- ample, writ of attachment) authorizing pacity should seek legal counsel con- a levy (seizure) of property to secure

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satisfaction of a judgment. DA per- the foreign country concerned. (See, sonnel will comply with valid state or for example, The Hague Convention, re- Federal court orders commanding or printed in 28 USCA Federal Rules of authorizing the seizure of private prop- Civil Procedure, following Rule 4). erty to the same extent that state or (d) Suits against the United States. DA Federal process is served. personnel served with foreign civil process will notify the appropriate SJA [59 FR 38236, July 27, 1994; 59 FR 45975, Sept. 6, 1994] or legal adviser, who will return the document to the issuing authority ex- § 516.11 Service of criminal process plaining the lack of authority to ac- outside the United States. cept service for the United States. Army Regulation 630–10 and inter- Service on the United States must be national treaties, such as status of made upon DOJ through established forces agreements, govern the service diplomatic channels. of criminal process of foreign courts § 516.13 Assistance in serving process and the surrender of soldiers to foreign overseas. civilian law enforcement officials. (a) Europe. For information and as- § 516.12 Service of civil process out- sistance concerning service of process side the United States. of persons assigned to or accompanying (a) Process of foreign courts. In foreign U.S. Forces in Europe, contact the For- countries service of process issued by eign Law Branch, International Law foreign courts will be made under the Division, Office of The Judge Advocate, law of the place of service, as modified Headquarters U.S. Army, Europe, and by status of forces agreements, treaties Seventh Army, Unit 29351, (Heidelberg, or other agreements. In foreign areas Germany) APO AE 09014. under exclusive U.S. jurisdiction, serv- (b) Korea. For information and assist- ice of process issued by foreign courts ance concerning service of process of will be made under the law specified by persons assigned to or accompanying appropriate U.S. authority. U.S. Forces in Korea, contact Staff (b) Process of Federal courts. Service Judge Advocate, US Forces Korea of process on U.S. citizens or residents (Seoul, Republic of Korea), APO AP may be accomplished under the fol- 96205. lowing provisions: The Hague Conven- (c) Panama, Central and South Amer- tion, reprinted in 28 USCA Federal ica. For information and assistance Rules of Civil Procedure, following concerning service of process of persons Rule 4; Fed. R. Civ. P. 4(i); 28 USC 1781 assigned to or accompanying forces in and 1783; and, the rules of the Federal the U.S. Army Southern Command, court concerned. If a DA official re- contact Staff Judge Advocate, HQ, US ceives a request to serve Federal proc- Army South, Fort Clayton, Panama, ess on a person overseas, he will deter- APO AA 34004–5000. mine if the individual wishes to accept § 516.14 Service of process on DA or service voluntarily. Individuals will be Secretary of Army. permitted to seek counsel. If the person will not accept service voluntarily, The Chief, Litigation Division, shall the party requesting service will be no- accept service of process for Depart- tified and advised to follow procedures ment of the Army or for the Secretary prescribed by the law of the foreign of the Army in his official capacity. country concerned. (c) Process of state courts. If a DA offi- Subpart C—Reporting Legal cial receives a request to serve state Proceedings to HQDA court process on a person overseas, he will determine if the individual wishes § 516.15 General. to accept service voluntarily. Individ- (a) Legal proceedings requiring report- uals will be permitted to seek counsel. ing. Actions must be taken upon com- If the person will not accept service mencement of litigation or administra- voluntarily, the party requesting serv- tive proceedings in which the United ice will be notified and advised to fol- States has an interest. Typically, the low procedures prescribed by the law of Secretary of the Army, DA, the United

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States, or DA personnel are named as (6) Reports involving the felony pros- defendant in a lawsuit or as respondent ecution program and magistrate court in an administrative proceeding. A prosecutions will be made to Criminal nonexclusive listing of cases in which Law Division, OTJAG. the United States has an interest in- (7) Cases before the Armed Services clude the following: Board of Contract Appeals and the (1) Suits for damages, injunctive re- General Services Board of Contract Ap- lief, or other action filed against the peals will be made to Contract Appeals government or against DA personnel in Division. their official capacity. (d) Classified information. Information (2) Suits alleging individual liability required by this regulation will be sub- arising from performance of official du- mitted in an unclassified form if pos- ties by DA personnel. sible. If downgrading or declassifica- (3) Actions affecting DA operations tion is not feasible, the classified mate- or activities or which might require of- rial should be separated from the re- ficial action by DA personnel. port and forwarded under separate (4) Actions arising out of DA con- cover. tracts, subcontracts, or purchase or- (e) Other reporting requirements. Re- ders wherein the government might be ports required by this chapter are in required to reimburse a contractor for addition to and do not satisfy any litigation expenses. other reporting requirement, such as (5) Bankruptcy proceedings in which the following: notifying the FBI of of- the United States or its instrumental- fenses pursuant to AR 27–10; submit- ities may have an interest, including ting serious incident reports pursuant bankruptcies involving government to AR 190–40; reporting procurement contractors. fraud or other irregularities per De- (b) Command and agency responsibility. fense Federal Acquisition Regulation Commanders and supervisors of Army Supplement, section 209.406–3 (48 CFR units, installations, or organizations 209.406–3); reporting the exercise of will ensure reports required by this criminal jurisdiction by foreign tribu- section are promptly submitted. nals over U.S. personnel pursuant to (c) Reports to HQDA. Reports required AR 27–50; or, reporting bankruptcies by this regulation will be made tele- per AR 37–103. phonically or mailed to the responsible (f) Reports control exemption. The re- organization at DA. Appendix B to this ports required herein are exempt from part contains mailing addresses for reports control under AR 335–15, para- these offices. Except in the situations graphs 3–3a(5) and 5–2e(4). described below, reports required by this chapter will be made to Litigation § 516.16 Individual and supervisory Division: procedures upon commencement of (1) Actual or potential litigation (or legal proceedings. administrative infringement claims) (a) Individual procedures. DA per- involving patents, copyrights, or trade- sonnel served with civil or criminal marks will be made to Intellectual process concerning a proceeding in Property Law Division. which the United States has an inter- (2) Reports of pending or prospective est (§ 516.15) will immediately inform litigation involving taxation will be their supervisor and furnish copies of made to Contract Law Division. process and pleadings. There is no re- (3) Communications, transportation, quirement to notify supervisors of and utility services reports will be purely private litigation. made to Regulatory Law Office. (b) Supervisory procedures. When su- (4) Reports involving environmental pervisors learn that legal proceedings and natural resource litigation and ad- in which the United States has an in- ministrative proceedings will be made terest have commenced, the supervisor to Environmental Law Division. will forward a copy of all process and (5) Potential civil recovery reports in pleadings, along with other readily cases of procurement fraud and corrup- available information, to the SJA or tion will be made to Procurement legal adviser. If no legal officer is Fraud Division. available locally, the documents will

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be forwarded to the SJA or legal ad- performance of official duties, are ei- viser of the next higher headquarters. ther sued in their individual capacities or face criminal charges. § 516.17 SJA or legal adviser procedures. § 516.19 Injunctive relief. (a) Immediate notice to HQDA. When (a) General. Plaintiffs may attempt to an SJA or legal adviser learns of litiga- force government action or restraint in tion in which the United States has an important operational matters or pend- interest, and it appears that HQDA is ing personnel actions through motions not aware of the action, the SJA or for temporary restraining orders (TRO) legal adviser will telephonically notify or preliminary injunctions (PI). Be- the responsible HQDA office. (See cause these actions can quickly impede § 516.15(c)). Immediate notice is par- military functions, immediate and de- ticularly important when litigation in- cisive action must be taken. volves one of the following: a lawsuit (b) Notification to HQDA and U.S. At- against an employee in his individual torney. The SJA or legal adviser will capacity; a motion for a temporary re- immediately notify Litigation Division straining order or preliminary injunc- or other appropriate office at HQDA tion; a habeas corpus proceeding; a ju- when a motion for TRO or PI has been, dicial or administrative proceeding in- or is about to be, filed. The SJA or volving less than 60 days to file an an- legal adviser will also notify the re- swer; and, actions with possible Con- sponsible U.S. Attorney. gressional, Secretarial, or Army Staff (c) Actions by SJA or legal adviser. The interest. For legal proceedings insti- SJA or legal adviser will assist the tuted in foreign tribunals, the SJA or DOJ or DA attorney responsible for the legal adviser will also notify the major litigation. Installation attorneys or overseas commander concerned and the support personnel should begin accu- appropriate U.S. Embassy or Legation. mulating relevant documentary evi- A telephonic report to HQDA should in- dence and identifying witnesses. If re- clude the following: quested, installation attorneys will (1) Title or style of the proceeding. prepare a legal memorandum con- (2) Full names and addresses of the cerning the motion, giving particular parties. attention to the following issues rel- (3) Tribunal in which the action is evant to a court granting injunctive re- filed, date filed, docket number, when lief: and on whom service of process was (1) Plaintiff’s likelihood of success on made, and date by which pleading or the merits. response is required. (2) Whether plaintiff will be irrep- (4) Nature of the action, amount arably harmed if injunctive relief is claimed or relief sought. not granted. (5) Reasons for immediate action. (3) Harm to defendant and other par- (b) Transmission of process, pleadings, ties if injunctive relief is granted. and related papers. Unless instructed (4) The public interest. otherwise by HQDA, the SJA or legal adviser will FAX or mail HQDA a copy § 516.20 Habeas Corpus. of all process, pleadings, and related (a) General. A soldier may file a writ papers. Use of express mail or over- of habeas corpus to challenge his con- night delivery service is authorized. tinued custody (usually in a post court- (c) Notice to U.S. Attorney. If the legal martial situation) or retention in the proceeding is instituted in the United Army. As is the case with injunctive States, the SJA or legal adviser, unless relief in the preceding paragraph, in- instructed otherwise by HQDA, will no- stallation SJAs and legal advisers tify the appropriate U.S. Attorney and must take immediate action. render assistance as required. (b) Notification to Litigation Division and U.S. Attorney. The SJA or legal ad- § 516.18 Litigation alleging individual viser will notify Litigation Division liability. and the responsible U.S. Attorney’s Of- See subpart D for procedures to fol- fice immediately upon learning that a low when DA personnel, as a result of petition for writ of habeas corpus has

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been filed. All relevant documentary tractor will obtain private counsel to evidence supporting the challenged ac- defend the case. If the contract so al- tion should be assembled immediately. lows, however, the contractor may re- (c) Procedures in habeas corpus. Upon quest and HQDA may recommend that the filing of a petition for a writ of ha- DOJ represent the contractor if it is in beas corpus, the court will dismiss the the best interests of the United States. petition, issue the writ, or order the re- (b) Actions by SJA or legal adviser. If a spondent to show cause why it should contractor or subcontractor faces liti- not be granted. If a writ or order to gation and the underlying contract show cause is issued, the SJA or legal with the government requires reim- adviser should be prepared to assist the bursement for adverse judgments or responsible Litigation Division or DOJ costs of the litigation, the SJA or legal attorney in preparing a return and an- adviser, through the contracting offi- swer. If so directed, the SJA will also cer, should determine if the contractor prepare a memorandum of points and desires representation by DOJ. If so, authorities to accompany the return the contractor or authorized agent will and answer. The government’s response sign a request for representation. (See should cover the following: whether the figure D–3, appendix G, of this part.) Army has custody of petitioner; wheth- The SJA or legal adviser will deter- er respondent and petitioner are within mine whether, in his opinion, represen- the judicial district; and, whether ap- tation by DOJ should be granted. He pellate or administrative remedies will prepare a memorandum to support have been exhausted. his recommendation, especially con- (d) Writs or orders issued by state cerning any issue regarding the govern- courts. No state court, after being judi- ment’s obligation to reimburse the cially informed that a petitioner is in contractor under the contract. The custody under the authority of the SJA or legal adviser will forward his United States, should interfere with memorandum, along with the contrac- that custody or require that petitioner tor’s request, to Litigation Division. be brought before the state court. A de- (c) Actions by Litigation Division. The serter, apprehended by any civil officer Chief, Litigation Division, will evalu- having authority to apprehend offend- ate the submission and decide if it is in ers under the laws of the United States the Army’s best interest that the re- or of any state, district, territory, or quest be granted. He will prepare a possession of the United States, is in memorandum supporting his decision custody by authority of the United and send the packet to DOJ. The States. If a writ of habeas corpus is Chief’s decision constitutes the final issued by a state court, the SJA or DA position on the matter. If DOJ legal adviser will seek guidance from grants the contractor’s request, the Litigation Division. Chief, Litigation Division, will ensure (e) Foreign court orders. A foreign that the contractor is notified through court should not inquire into the legal- the SJA or legal adviser and the con- ity of restraint of a person held by U.S. tracting officer. military authority. If a foreign court (d) Private Counsel. A contractor rep- issues any process in the nature of a resented by DOJ may ask that private writ of habeas corpus, the SJA or legal counsel assist the DOJ attorney in the adviser will immediately report the litigation. The DOJ attorney will re- matter to the appropriate U.S. forces main in control of the litigation, and commander and to Litigation Division. the fees for private counsel will not be reimbursable except under unusual cir- § 516.21 Litigation against government cumstances. The contractor must seek contractors. both DOJ and DA approval to employ (a) General. A contract might require private counsel when DOJ representa- that the government reimburse a con- tion has been granted. Even if DOJ and tractor (or subcontractor) for adverse DA grant authority to employ private judgments or litigation expenses. Un- counsel, the contracting officer will de- less a contractor or subcontractor fac- termine whether a contractor will be ing a lawsuit requests representation reimbursed under the contract for pri- by DOJ, the Army presumes the con- vate counsel.

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(e) Settlement. The contractor, unless (4) A recommendation whether the the contract specifies otherwise, will Army should intervene in the action or ultimately decide whether to com- proceeding. If intervention is rec- promise a suit. Reimbursement under ommended, provide a memorandum to the contract is determined by the con- support the recommendation. tracting officer, with the advice of his (e) Legal proceedings overseas. Foreign attorney. communications, transportation, and utility service proceedings need not be § 516.22 Miscellaneous reporting re- reported. In other legal proceedings in- quirements. stituted in a foreign country, the SJA SJAs or legal advisers will comply or legal adviser will take the actions with the directives cited below con- prescribed in § 516.17 of this part. cerning actual or prospective litigation (f) Maritime claims. Admiralty and involving the following types of cases: maritime claims within the purview of (a) Taxation. (1) Contractor trans- Chapter 8, AR 27–20, which have been actions. (FAR and DFARS, 48 CFR investigated and processed under AR parts 29 and 229). 55–19 or other applicable regulations, (2) Army and Air Force Exchange will be referred to USARCS. Service (AAFES) activities. (AR 60–20). (g) Army and Air Force Exchange Serv- ice litigation. The SJA or legal adviser (3) Purchase or sale of alcoholic bev- will send a copy of all documents relat- erages. (AR 215–2). ing to litigation against AAFES to (4) Nonappropriated fund and related General Counsel, AAFES, P.O. Box activities. (AR 215–1). 660202, Dallas, TX 75266–0202. (b) Tort and contract claims, insurance (h) Bankruptcy. Reports of bank- and litigation involving nonappropriated ruptcy or insolvency proceedings shall fund activities. (AR 215–1). be made in accordance with this regu- (c) Annexation of Army lands. (AR 405– lation and AR 37–103. 25). (d) Communications, transportation, § 516.23 Litigation reports. and utility services administrative pro- The SJA or legal adviser will prepare ceedings. Any contracting officer or a litigation report when directed by other Army official responsible for the HQDA. The report will contain the fol- acquisition of communications, trans- lowing sections: Statement of Facts; portation, utilities (gas, electric, water Setoff or Counterclaim; Responses to and sewer), or military mail services, Pleadings; Memorandum of Law; Wit- who becomes aware of any action or ness List; and, Exhibits. proceeding of interest to the Army, (a) Statement of Facts. Include a com- will promptly refer the matter to the plete statement of the facts upon SJA or legal adviser, who will take the which the action and any defense actions prescribed in § 516.17 of this thereto are based. Where possible, sup- part. Examples of actions requiring report facts by reference to documents or ferral follow: new or amended rates, witness statements. Include details of regulations, or conditions of service; previous administrative actions, such applications for authority to dis- as the filing and results of an adminis- continue or initiate service; changes in trative claim. If the action is predi- electromagnetic patterns causing ad- cated on the Federal Tort Claims Act, verse communications interference; or, include a description of the plaintiff’s zoning proposals affecting historic or relationship to the United States, its aesthetic preservation. In addition, the instrumentalities, or its contractors. SJA or legal adviser will transmit the Also include a statement whether an following to Regulatory Law Office: insurance company or other third (1) The names and addresses of any party has an interest in the plaintiff’s parties intervening and the substance claim by subrogation or otherwise and of their positions. whether there are additional claims re- (2) Names of government users af- lated to the same incident. fected by any change. (b) Setoff or Counterclaim. Discuss (3) Copy of any proposed rates, rules, whether setoff or counterclaim exists. or regulations. If so, highlight the supportive facts.

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(c) Responses to Pleadings. Prepare a copy to the U.S. Attorney’s Office han- draft answer or other appropriate re- dling the case. If possible, record the sponse to the pleadings. (See figure C– litigation report onto a magnetic disk- 1, to this part). Discuss whether allega- ette, using either WordPerfect, Enable, tions of fact are well-founded. Refer to or ACSII, and send it to Litigation Di- evidence that refutes factual allega- vision. tions. (d) Memorandum of Law. Include a § 516.24 Preservation of evidence. brief statement of the applicable law Because documents needed for litiga- with citations to legal authority. Dis- tion or administrative proceedings are cussions of local law, if applicable, subject to routine destruction, the SJA should cover relevant issues such as or legal adviser will ensure that all rel- measure of damages, scope of employ- evant documents are preserved. ment, effect of contributory negligence, or limitations upon death and § 516.25 DA Form 4. survival actions. Do not unduly delay (a) General. The DA Form 4 (See fig- submission of a litigation report to ure C–2, appendix G, of this part) is prepare a comprehensive memorandum used to authenticate Army records or of law. documents. Documents attached to a (e) Potential witness information. List properly prepared and sealed DA Form each person having information rel- 4 are self-authenticating. (See Fed. R. evant to the case and provide an office Evid. 902). address and telephone number. If there (b) Preparation at the installation level. is no objection, provide the individual’s A DA Form 4 need not be prepared social security account number, home until the trial attorney presenting the address, and telephone number. This is government’s case identifies docu- ‘‘core information’’ required by Execu- ments maintained at the installation tive Order No. 12778 (Civil Justice Re- level which he will need at trial. Once form). Finally, summarize the informa- documents are identified, the custo- tion or potential testimony that each dian of the documents will execute his person listed could provide. portion of the DA Form 4. (See figure (f) Exhibits. (1) Attach a copy of all C–2, appendix G, of this part). The cus- relevant documents. This is ‘‘core in- todian certifies that the documents at- formation’’ required by Executive tached to the DA Form 4 are true cop- Order No. 12778 (Civil Justice Reform). ies of official documents. Documents Unless otherwise directed by HQDA, attached to each form should be gen- each exhibit should be tabbed and in- erally identified; each document need ternally paginated. References to ex- not be mentioned specifically. Only the hibits in the litigation report should be upper portion of the form should be ex- to page numbers of particular exhibits. ecuted at the local level. (2) Copies of relevant reports of (c) Actions at HQDA. Upon receipt of claims officers, investigating officers, the DA Form 4 with documents at- boards or similar data should be attached thereto, HQDA will affix a rib- tached, although such reports will not bon and seal and deliver it to the Office obviate the requirement for prepara- of the Administrative Assistant to the tion of a complete litigation report. Secretary of the Army. That office will (3) Prepare an index of tabs and ex- place the official Army seal on the hibits. packet. (4) Where a relevant document has been released pursuant to a FOIA re- § 516.26 Unsworn declarations under quest, provide a copy of the response, penalty of perjury. or otherwise identify the requestor and (a) General. Under the provisions of 28 the records released. U.S.C. l746, whenever any matter is re- (g) Distribution and number of copies. quired or permitted to be established Unless HQDA directs otherwise, SJAs or proven by a sworn statement, oath or legal advisers will mail (first class) or affidavit, such matter may also be an original and one copy of the litiga- established or proven by an unsworn tion report to the responsible HQDA of- written declaration under penalty of fice (See § 516.15 of this part) and one perjury. Because such declaration does

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not require a notary or other official to agency that he was acting within the administer oaths, individuals preparing scope of his employment, DOJ may rep- statements for use in litigation should resent present and former DA per- consider using this format. (See figure sonnel sued individually as a result of C–3, appendix G, of this part). actions taken within the scope of their (b) When executed within the United employment. Representation can be de- States. Place the following at the end of clined for a variety of reasons, includ- the witness statement: ing but not limited to the following: I declare under penalty of perjury that the the employee was not acting within the foregoing is true and correct. (28 U.S.C. 1746). scope of his office; there is a conflict of Executed on interest; or, actions were not taken in llllllllllllllllllllllll a good faith effort to conform to law. (Date) (Signature) (c) When executed outside the United § 516.29 Federal statutes and regula- States. Place the following at the end of tions. the witness statement: (a) Federal Tort Claims Act (FTCA). (28 I declare under penalty of perjury under U.S.C. 1346(b), 2671–2680). A waiver of the laws of the United States of America that the foregoing is true and correct. (28 sovereign immunity which, with cer- U.S.C. 1746). tain exceptions, makes the United Executed on States liable for tort claims in the llllllllllllllllllllllll same manner as a private individual. (Date) (Signature) (b) Federal Employees Liability Reform and Tort Compensation Act of l988 Subpart D—Individual Liability (FELRTCA or the Westfall Act, Pub. L. No. 100–694, 102 Stat. 4563 (1988) (codified § 516.27 Scope. at and amending 28 U.S.C. 2671, 2674, This subpart guidance when DA per- 2679). FELRTCA, by amending the Fed- sonnel, as a result of the performance eral Tort Claims Act, makes the FTCA of their official duties, are either sued the exclusive remedy for common law in their personal capacity, or are tort claims arising from actions taken charged in a criminal proceeding. Ex- by Federal employees acting within the amples of civil actions alleging indi- scope of employment. The law was vidual liability include the following: a medical malpractice lawsuit against passed to eliminate problems caused by health care providers; suits resulting Westfall v. Erwin, 484 U.S. 292 (1988). from motor vehicle accidents; constitu- (c) 10 U.S.C. 1089 (Defense of certain tional torts; or, common law torts such suits arising out of medical malpractice). as assault, libel, or intentional inflic- This provision, commonly referred to tion of emotional distress. Likewise, as the Gonzales Act, makes the FTCA state or Federal criminal charges can the exclusive remedy for suits alleging arise from the performance of official medical malpractice against a military duties, including environmental crimes health care provider. or motor vehicle accidents. (d) 28 CFR 50.15 (Representation of Fed- eral officials and employees by Depart- § 516.28 Policy. ment of Justice attorneys [. . .] in civil, (a) General. Commanders, super- criminal, and congressional proceedings visors, and SJAs or legal advisers will in which Federal employees are sued, sub- give highest priority to compliance poenaed, or charged in their individual with the requirements of this chapter capacities). These DOJ regulations set with regard to current or former DA out the policy and procedures for re- personnel who face criminal charges or questing representation in individual civil litigation in their individual ca- liability cases. See also 28 CFR part 15 pacity as a result of performance of (Defense of Certain Suits Against Fed- their official duties. eral Employees, etc.). (b) DOJ policy on representation. If in the best interest of the United States, (e) 28 CFR 50.16 (Representation of upon request of the individual con- Federal employees by private counsel cerned, and upon certification by his at Federal expense).

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§ 516.30 Procedures for obtaining cer- (6) In cases involving National Guard tification and DOJ representation. personnel, address also the following: (a) SJA or legal adviser procedures. whether defendant was acting in a When an SJA or legal adviser learns of state (Title 32 U.S.C.) or Federal (Title a criminal charge or of a lawsuit alleg- 10 U.S.C.) capacity during relevant pe- ing individual liability against DA per- riods (include orders); if defendant was sonnel as a result of performance of of- acting under state authority, is it nev- ficial duties, he will take the following ertheless in the interest of the United actions: States to represent the individual; any impact on policies or practices of DA, (1) Immediately notify Litigation Di- the National Guard Bureau, or DOD; vision and the appropriate U.S. Attor- whether the relief requested can be ney and FAX or express deliver copies granted only by a Federal officer or of process and pleadings to each office. agency; and, whether Federal law or Where time for response is limited, re- regulation required actions by state of- quest that the U.S. Attorney either pe- ficials. tition the court for an extension of (7) Send the report, request for rep- time, or provide temporary counsel and resentation, and scope of employment representation pending formal ap- statements to Chief, Litigation Divi- proval. sion. (2) Investigate whether the employee (b) Chief, Litigation Division, proce- was acting within the scope of his of- dures. The Chief, Litigation Division, fice or employment. Obtain, if possible, will review the report and evidence re- statements from the defendant, super- garding representation and scope of visors, and witnesses. employment and will determine wheth- (3) Advise the individual defendant of er certification and representation are the rights and conditions set out in 28 appropriate. He will send his rec- CFR 50.15, which include the following: ommendation to the appropriate U.S. (i) His right to request representa- Attorney or office within DOJ. The tion by a DOJ attorney and, in appro- Chief, Litigation Division, will notify priate cases, certification that he was the defendant of DOJ’s decision. acting within the scope of employment. (See 28 U.S.C. 2679; 28 CFR 50.15). § 516.31 Private counsel at government (ii) The right to request private coun- expense. sel at government expense, subject to (a) General. DA personnel, sued in the availability of funds. (See 28 CFR their individual capacity or facing 50.16). criminal charges as a result of per- (iii) That the United States is not ob- formance of official duties, have no ligated to pay or indemnify defendant right to employ a private sector coun- for any judgment rendered against him sel at government expense or to expect in his individual capacity. reimbursement for the same. For pro- (4) If the defendant desires certifi- ceedings in the United States, a re- cation or DOJ representation, have quest for employment of counsel at him sign a request. (See figure D–1, ap- government expense may be approved pendix G, of this part). Obtain a signed by DOJ, contingent among other scope of employment statement from things upon availability of funds and a the defendant’s supervisor. (Figure D–2, determination that employment of pri- appendix G, of this part). vate counsel at government expense is (5) Prepare a report with, at a min- in the best interests of the United imum, the following information: facts States. (See 28 CFR 50.16). Special rules surrounding the incident for which de- apply in overseas areas. (See paragraph fendant is being sued and those relat- (e) of this section). ing to scope of employment; the SJA’s (b) Individual request procedures. The or legal adviser’s conclusions con- individual will prepare a request that cerning scope of employment; and, a private counsel be employed for him at recommendation whether certification government expense. The request must by the Attorney General or representa- also contain the following statement: tion by a DOJ attorney should be ‘‘I understand that the United States is granted. not required to employ private counsel

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on my behalf, and that I may be re- statements: ‘‘I understand that accept- sponsible for expenses incurred prior to ance of this request for indemnifica- proper authorization by the Depart- tion for processing by DA does not con- ment of the Army or the Department stitute an acceptance of any obligation of Justice.’’ to make such a payment. I also under- (c) Supervisory and legal adviser proce- stand that payment is contingent on dures. The request will be submitted availability of funds and that it will through the individual’s supervisors, only be made if such is determined to who will make a recommendation and be in the best interests of the United forward the packet to the local SJA or States.’’ The individual should attach a legal adviser. The SJA or legal adviser copy of relevant documents, for exam- will prepare his own recommendation ple, court’s opinion, judgment, and and forward the matter to Litigation other allied papers. Division. (c) Supervisory and SJA procedures. (d) Chief, Litigation Division, proce- The request for indemnification will be dures. If the Chief, Litigation Division, submitted through supervisory chan- determines that the request for private nels to the local SJA or legal adviser. counsel is meritorious, he will prepare Each supervisor will make a rec- an appropriate recommendation and ommendation on the propriety of reim- forward the packet to Civil Division, bursement. DOJ, for final approval. (d) Chief, Litigation Division, proce- (e) Special actions in foreign countries. dures. Requests for indemnification Employment of private counsel in for- will be forwarded to Chief, Litigation eign proceedings is governed by AR 27– Division. The Chief, Litigation Divi- 50 (Status of Forces Policies, Proce- sion, will examine the submission and, dures, and Information). Under the au- after consultation with DOJ or other thority of 10 U.S.C. 1037, soldiers, as agencies, forward the packet with his well as employees or those accom- recommendation to the Army General panying the armed forces overseas, Counsel. The General Counsel will ob- may be granted individual counsel in tain a final decision by the Secretary civil and criminal proceedings, under of the Army or his designee on the the criteria of AR 27–50. matter. There is no administrative appeal of the Secretary’s (or his des- § 516.32 Requests for indemnification. ignee’s) decision. (a) Policy. An individual liable for a judgment rendered against him in his Subpart E—Legal Proceedings Ini- individual capacity has no right to re- tiated by the United States imbursement from DA. DA will con- Medical Care and Property sider, however, a request for indem- Claims nification from DA personnel where conduct within the scope of official du- § 516.33 General. ties has resulted in personal liability (a) Authorities. (1) Federal Medical and indemnification is in the best in- Care Recovery Act (42 U.S.C. 2651). The terests of the United States. Indem- act provides for the recovery of med- nification is strictly contingent upon ical care expenses incurred because of a an appropriation to pay the judgment, tortfeasor’s actions. as well as availability of such funds. (2) Federal Claims Collection Act (31 (b) Individual request procedures. An U.S.C. 3711). The act provides for the individual against whom an adverse collection of claims for money or prop- judgment has been rendered may re- erty arising from the activities of Fed- quest indemnification. The request eral agencies. must include, at a minimum, the fol- (3) Third-party Collection Program lowing: how the employee was acting (10 U.S.C. 1095). The statute provides within the scope of his employment; for collection of reasonable costs of whether the requestor has insurance or health-care services, provided in facili- any other source of indemnification; ties of the uniformed services to cov- and, how reimbursement is in the best ered beneficiaries, from private insur- interests of the United States. The re- ers or third-party payers. In accord- quest must also contain the following ance with DOD Instruction 6010.15,

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‘‘Third Party Collection (TPC) Pro- liability and the jurisdiction involved. gram,’’ 7 March 1991, the authority to RJAs must be alert to the applicable settle or waive a DOD claim under the period of limitations. A case referred act is delegated to TJAG or to his des- for litigation should arrive at Litiga- ignee. tion Division at least 6 months before (4) Executive Order No. 12778, (56 FR the expiration of the limitations pe- 55195; 3 CFR, 1991 Comp. p. 359), Civil riod. Justice Reform. This order establishes (e) Reporting of recoveries. Amounts several requirements on Federal agen- recovered through litigation will be re- cies involved in litigation or contem- ported to USARCS by Tort Branch, plating filing an action on behalf of the Litigation Division, or, where referred United States. directly to a U.S. Attorney or the Na- (5) AR 27–20, Claims. Chapter l4 (Af- firmative Claims) contains comprehen- tionwide Central Intake Facility sive guidance for Recovery Judge Ad- (NCIF), by the responsible RJA. vocates (RJAs) in the administrative § 516.34 Referral of medical care and determination, assertion, collection, property claims for litigation. settlement, and waiver of claims in favor of the U.S. for property damage (a) Criteria for referral. The RJA will and for medical care claims. forward the claims file and a litigation (b) Duties and procedures. In accord- report (See § 516.35 of this part) through ance with Chapter 14, AR 27–20, Com- USARCS to Litigation Division when mander, USARCS, has supervisory re- the claim has not been resolved admin- sponsibility over the administrative istratively and any of the following processing of property and medical conditions exist: care claims by RJAs. The Commander, (1) The claim exceeds $5,000; U.S. Army Health Services Command (2) It involves collection from the in- (HSC), has supervisory responsibility jured party or his attorney; over the Third Party Collection Pro- (3) The claim raises an important gram (TPCP). The HSC TPCP Imple- question of policy; or, mentation Plan effects DOD Instruc- (4) There is potential for a significant tion 6010.15 and establishes procedures for processing TPC claims. Litigation precedent. Division, in conjunction with DOJ and (b) Alternative methods. When none of U.S. Attorneys, is responsible for pur- the conditions cited in the preceding suing, through litigation, claims not subparagraph are present, the RJA resolved administratively. DOJ is ulti- may refer the claim directly to the mately responsible for initiating litiga- U.S. Attorney for the district in which tion for the United States. (28 U.S.C. the prospective defendant resides. 515). Similar property claims may be re- (c) Assertion of claims on behalf of the ferred through USARCS to DOJ’s Na- United States by private attorneys. The tionwide Central Intake Facility Army incurs potentially recoverable (NCIF) rather than directly to the U.S. expenses when it provides medical care Attorney. Notice of all such referrals to soldiers or dependents injured by shall be provided through USARCS to tortfeasors (for example, a soldier is Tort Branch, Litigation Division. The hospitalized after an automobile acci- RJA should be ready to provide support dent). When injured personnel employ a to the U.S. Attorney if requested. private attorney to sue the tortfeasor, (c) Closing files. A file referred di- it may be in the Government’s best in- rectly to the U.S. Attorney will be terests to enter into an agreement with closed if the U.S. Attorney determines the private attorney to include the further action is unwarranted. If the Army’s medical care claim. (d) Statute of limitations. There is a RJA disagrees, the file should be for- three year statute of limitations for warded with the RJA’s recommenda- actions in favor of the U.S. for money tion through USARCS to Litigation Di- damages founded upon tort. (28 U.S.C. vision. 2415(b)). Limitations periods can vary, however, depending upon the theory of

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§ 516.35 Preparation of claims for liti- initiate an action to recover possession gation. of real property from tenants, tres- (a) General. In preparing a referral for passers, and others; to enjoin tres- litigation the RJA will ensure the file passes on Federal property; and, to col- contains at least the following: lect delinquent rentals or damages for (1) A litigation report (See § 516.23 of use and occupancy of real property for this part) that demonstrates a factual amounts less than $200,000. basis for the claim and a theory of re- (b) Procedures. When eviction or an covery under applicable state law. (See action to collect delinquent rent is necessary, the SJA or legal adviser will Fed. R. Civ. P. 11) notify General Litigation Branch, Liti- (2) Copies of all medical records and gation Division, of the situation. If ap- bills reflecting the reasonable value of proved by Litigation Division, the SJA the medical care furnished to the in- or legal adviser may ask the U.S. At- jured party, including DA Form 2631–R torney to file suit. A copy of the com- (Medical Care-Third Party Liability plaint will be sent to Litigation Divi- Notification), and DA Form 3154 (MSA sion. DOJ can take action to evict the Invoice and Receipt). These documents occupants for violation of the terms of should be authenticated as necessary occupancy and collect delinquent rent on a DA Form 4. or other charges. Once the matter has (3) Copies of all documents necessary been referred to the U.S. Attorney, to establish the value of lost or dam- payments for rent should be sent to the aged property. U.S. Attorney. (See AR 210–50, chap 2.) (b) Transmittal letter. The letter of transmittal referring the claim for litigation should briefly summarize the Subpart F—Environmental facts giving rise to the claim and the Litigation collection actions previously taken by § 516.38 Scope. the Army and the injured party. This subpart contains guidance, poli- ASSERTION OF OTHER CLAIMS cies, and procedures applicable to all environmental and natural resources § 516.36 Referral to Litigation Divi- civil litigation and administrative pro- sion. ceedings involving missions and func- (a) General. The majority of cases tions of DA, its major and subordinate filed on behalf of the United States will commands, all installations presently fall under this subpart E. All other or previously managed by DA, and all civil cases which cannot be resolved other sites or issues in which DA has a administratively or by direct referral substantial interest. In this chapter, to DOJ will be forwarded through chan- ‘‘litigation’’ includes civil administra- nels to Litigation Division with a liti- tive proceedings. gation report. (See § 516.23 of this part). (b) Government contractors. It may be § 516.39 Duties and procedures. in the Government’s best interest to (a) Water rights. Environmental Law authorize a Government contractor, Division will conduct direct liaison whose contract provides for the reim- with DOJ and will represent DA in bursement of necessary legal expenses, State and Federal litigation relating to to employ private counsel to initiate availability and allocation of surface legal proceedings against a third party. and ground water and the establish- To obtain authorization to employ pri- ment and protection of water rights for vate counsel in such instances the con- Army military installations and activi- tractor should follow the procedures in ties. This will include litigation in § 516.21(c) of this part. State general adjudications of water rights under the McCarran Amend- § 516.37 Proceedings to repossess gov- ment, 43 U.S.C. 666, for Army military ernment real property or quarters installations and activities. Such liti- or to collect delinquent rent. gation relating solely to COE civil (a) General. U.S. Attorneys are au- works projects or activities will be thorized to accept a Federal agency’s handled by attorneys under the tech- request for the following purposes: to nical supervision of the Chief Counsel,

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COE. With respect to any general adju- tially responsible party due to the re- dication which could affect the civil sponse actions of the COE or its con- works or real property functions of tractors. COE, The Judge Advocate General, act- (f) Fish and wildlife, and plants. Envi- ing through the Chief, Environmental ronmental Law Division will conduct Law Division, and Chief Counsel, COE, direct liaison with DOJ and represent will jointly determine which office DA in civil litigation involving citizen should maintain primary direct liaison or State enforcement of applicable with DOJ and will scope and execute State, Federal, and local laws gov- appropriate coordination with each erning conservation of plant, fish, and other and with the General Counsel wildlife resources at Federal facilities with respect to that litigation. owned or controlled by DA, except that (b) Navigable waters. The Chief Coun- sel, COE, will conduct direct liaison such litigation relating solely to the with DOJ and represent DA in civil real estate, civil works, navigation and litigation involving activities in or Clean Water Act section 404 (See 33 across navigable waters of the United U.S.C. 1344) permit functions and ac- States or other activities regulated tivities of the COE will be handled by under the Rivers and Harbors Act of attorneys under the technical super- 1899, 33 U.S.C. 401 et seq. vision of the Chief Counsel, COE. (c) Waters of the United States. The (g) Toxic torts. (1) Except as otherwise Chief Counsel, COE, will conduct direct provided in this part, Environmental liaison with DOJ and represent DA in Law Division will conduct direct liai- civil litigation involving The Clean son with DOJ and represent DA in all Water Act section 404 (See 33 U.S.C. civil litigation involving claims of tort 1344) permit authority of COE over the liability for exposure to environmental discharge of dredged or fill material contamination emanating from Fed- into waters of the United States. eral facilities owned or controlled by (d) Enforcement. Environmental Law DA. Division will conduct direct liaison (2) Litigation Division will conduct with DOJ and represent DA in all civil liaison with DOJ and represent DA in litigation involving citizen or State en- civil litigation involving claims of tort forcement of applicable State, Federal liability for singular and discrete inci- and local requirements respecting the dents of exposure to environmental control or abatement of pollution and involving the management of haz- contamination emanating from any ardous wastes, with respect to the mis- Federal facility owned or controlled by sions and functions of, and Federal fa- DA. cilities owned or controlled by, DA, ex- (3) The Chief Counsel, COE, will concept for civil works facilities. duct direct liaison with DOJ and will (e) Environmental response—(1) Except represent DA in civil litigation involv- as provided in (a)(2) of this section. Envi- ing claims of tort liability for exposure ronmental Law Division will conduct to environmental contamination (indirect liaison with DOJ and represent cluding singular and discrete incidents) DA in all civil litigation seeking de- emanating from any civil works activi- claratory or injunctive relief or involv- ties under the jurisdiction of the Sec- ing claims of Army liability for the retary of the Army. costs of response at Federal facilities (4) The Chief Counsel, COE, and currently owned or controlled by DA Chief, Environmental Law Division, and at other sites where the Army is a will confer and jointly determine potentially responsible party. which office will conduct direct liaison (2) The Chief Counsel, COE, will con- with DOJ and represent DA in civil duct direct liaison with DOJ and rep- litigation involving all other claims of resent DA in all civil litigation seeking toxic tort liability. declaratory or injunctive relief or involving claims of Army liability for the costs of response at civil works facilities, at former defense sites or at other sites where the Army is a poten-

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Subpart G—Release of Informa- accordance with §§ 516.43 through 516.50 tion and Appearance of Wit- of this subpart, he should consult with nesses Scope Litigation Division. (d) Requesters’ responsibilities. Individ- § 516.40 General. uals seeking official information must submit, at least 14 days before the de- (a) Introduction. This subpart imple- sired date of production, a specific ments DOD Directive 5405.2 (See appen- written request setting forth the na- dix C to this part and 32 CFR part 97). ture and relevance of the official infor- It governs the release of official information sought. (Requesters can be re- mation and the appearance of present and former DA personnel as witnesses ferred to this subpart G). Subject to in response to requests for interviews, § 516.47(a), present and former DA per- notices of depositions, subpoenas, and sonnel may only produce, disclose, re- other requests or orders related to judi- lease, comment upon, or testify con- cial or quasi-judicial proceedings. Re- cerning those matters specified in writ- quests for records, if not in the nature ing and properly approved by the SJA, of legal process, should be processed legal adviser, or Litigation Division. under AR 25–55 (The Department of the (See United States ex. rel. Touhy v. Army Freedom of Information Act Pro- Ragen, 340 U.S. 462 (1951)). gram) or AR 340–21 (The Army Privacy (e) Litigation in which the United Program). This subpart pertains to any States has an interest. If a subpoena, request for witnesses, documents, or order, or request relates to litigation information for all types of litigation, in which the United States has an in- including requests by private litigants, terest and for which litigation respon- requests by State or U.S. attorneys, re- sibility has not been delegated, the quests by foreign officials or tribunals, SJA or legal adviser will coordinate subpoenas for records or testimony, no- with Litigation Division under § 516.42. tices of depositions, interview requests, (f) Motions to stay or quash subpoenas. civil cases, criminal proceedings, pri- A subpoena should never be ignored, vate litigation, or litigation in which and an SJA or legal adviser should the United States has an interest. seek assistance from Litigation Divi- (b) Definitions. (See appendix F to sion or the U.S. Attorney’s office when- this part). ever necessary. If a response to a subpoena or order is required before a re- § 516.41 Policy. lease determination can be made or be- (a) General Rule. Except as authorized fore Litigation Division or the U.S. At- by this subpart, present or former DA torney can be contacted, the SJA or personnel will not disclose official in- legal adviser will do the following: formation (See appendix F—Glossary) (1) Furnish the court or tribunal a in response to subpoenas, court orders, copy of this regulation (32 CFR part or requests. 516, subpart G) and applicable case law (b) Exception. Present or former DA (See United States ex. rel. Touhy v. personnel may disclose official infor- Ragen, 340 U.S. 462 (1951)); mation if they obtain the written ap- (2) Inform the court or tribunal that proval of the appropriate SJA, legal ad- the requesting individual has not com- viser, or Litigation Division. plied with this Chapter, as set out in 32 (c) Referral to deciding official. If CFR 97 & 516, or that the subpoena or present or former DA personnel receive order is being reviewed; a subpoena, court order, request for at- (3) Seek to stay the subpoena or tendance at a judicial or quasi-judicial order pending the requestor’s compli- proceeding, or request for an interview ance with this chapter or final deter- related to actual or potential litiga- mination by Litigation Division; and, tion, and it appears the subpoena, (4) If the court or other tribunal de- order, or request seeks disclosures declines to quash or stay the subpoena or scribed in a above, the individual order, inform Litigation Division im- should immediately advise the appro- mediately so a decision can be made priate SJA or legal adviser. If the SJA whether to challenge the subpoena or or legal adviser cannot informally sat- order. If Litigation Division decides isfy the subpoena, order, or request in not to challenge the subpoena or order,

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the affected personnel will comply with will be submitted to that branch (ap- the subpoena or order. If Litigation Di- pendix B to this part). vision decides to challenge the sub- (2) Those involving affirmative liti- poena or order, it will direct the af- gation (for example, medical care re- fected personnel to respectfully decline covery or Army property damage or to comply with the subpoena or order. loss cases) under subpart E will be sub- (See United States ex. rel. Touhy v. mitted to Tort Branch. Ragen, 340 U.S. 462 (1951)). (3) Those involving patents, copy- (g) Classified or sensitive information. rights, privately developed technical Only Litigation Division may author- information, or trademarks will be sub- ize the release of official information mitted to Intellectual Property Law or appearance of DA personnel as wit- Division. nesses in litigation involving ter- (4) Those involving taxation will be rorism, espionage, nuclear weapons, or submitted to Contract Law Division. intelligence sources and methods. (5) Those involving communication, (h) Requests for Inspector General transportation, or utility service pro- records or testimony. IG records, and in- ceedings will be submitted to the Regu- formation obtained through perform- latory Law Office. ance of IG duties, are official informa- (6) Those involving environmental tion under the exclusive control of the matters will be submitted to the Envi- Secretary of the Army. (See AR 20–l, ronmental Law Division. Chapter 3.) IG records frequently con- (7) Those involving contract appeals tain sensitive official information that cases before the ASBCA will be sub- may be classified or obtained under mitted to the Contract Appeals Divi- guarantees of confidentiality. When sion. justification exists, DA attorneys will (8) Those involving procurement seek court protection from disclosure fraud, including Qui Tam cases, will be of IG records and information. No DA submitted to the Procurement Fraud personnel will release IG records or dis- Division. close information obtained through (b) Information to be submitted. When performance of IG duties without the referring matters pursuant to para- approval of The Secretary of the Army, graph (a) of this section, the following The Inspector General, TIG Legal Advi- data should be provided: sor, or Chief, Litigation Division. When IG personnel receive a subpoena, court (1) Parties (named or prospective) to order, request for attendance at a judi- the proceeding, their attorneys, and cial or quasi-judicial proceeding, or a case number, where appropriate. request for an interview which the IG (2) Party making the request (if a reasonably believes is related to actual subpoena, indicate moving party) and or potential litigation concerning IG his attorney. records or related information, they (3) Name of tribunal in which the should immediately notify the Inspec- proceeding is pending. tor General Legal Adviser or the Chief, (4) Nature of the proceeding. Litigation Division. IG personnel will (5) Date of receipt of request or date follow the guidance of this subpart con- and place of service of subpoena. cerning actions to be taken regarding (6) Name, grade, position, and organi- disclosure and testimony. zation of person receiving request or served with subpoena. § 516.42 Reference to HQDA. (7) Date, time, and place designated (a) General. If the SJA or legal ad- in request or subpoena for production viser is unable to resolve the matter, it of information or appearance of wit- will be referred for approval or action ness. by Litigation Division under this chap- (8) Nature of information sought or ter, by the most expeditious means, to document requested, and place where General Litigation Branch, Litigation document is maintained. Division, with the following excep- (9) A copy of each document re- tions: quested. Contact the appropriate office (1) Those involving a case assigned to at HQDA if this would be burdensome another branch of Litigation Division and unnecessary to a decision whether

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to release, redact, or withhold a par- information, the deciding official ticular document. should consider the following: (10) Name of requested witness, ex- (1) Has the requester complied with pected testimony, requested appear- DA policy governing the release of offi- ance time and date, and whether wit- cial documents in § 516.41(d) of this ness is reasonably available. part. (11) Analysis of the problem with rec- (2) Is the request unduly burdensome ommendations. or otherwise inappropriate under the applicable court rules? RELEASE OF RECORDS IN CONNECTION (3) Is the disclosure appropriate WITH LITIGATION under the rules of procedure governing the matter in which the request arose? § 516.43 Release of Army and other (4) Would the disclosure violate a agency records. statute, executive order, regulation, or (a) Preservation of originals. To pre- directive? serve the integrity of DA records, DA (5) Is the disclosure appropriate personnel will submit properly authen- under the relevant substantive law ticated copies rather than originals of concerning privilege? documents or records for use in legal (6) Would the disclosure reveal infor- proceedings, unless directed otherwise mation properly classified pursuant to by Litigation Division. (See 28 U.S.C. the DOD Information Security Pro- 1733.) gram under AR 380–5, unclassified tech- (b) Authentication of copies. Copies of nical data withheld from public release DA records approved for release can be pursuant to 32 CFR § 250, or other mat- authenticated for introduction in evi- ters exempt from unrestricted disclo- dence by use of DA Form 4. (See § 516.25 sure? for instructions.) (7) Would disclosure interfere with (1) Records maintained in U.S. Army ongoing enforcement proceedings, com- Engineer Districts and Divisions will promise constitutional rights, reveal be forwarded to HQDA(CECC-K), WASH the identity of an intelligence source DC 20314–1000. or confidential informant, disclose (2) All other records will be for- trade secrets or confidential commer- warded to the appropriate office at cial or financial information, or, other- HQDA (See § 516.42). wise be inappropriate under the cir- (c) Fees and charges. AR 37–60 pre- cumstances? scribes the schedule of fees and charges (8) Would the disclosure violate any for searching, copying, and certifying person’s expectation of confidentiality Army records for release in response to or privacy? litigation-related requests. (d) Release of records of other agencies. § 516.45 Records determined to be re- Normally an individual requesting leasable. records originating in agencies outside If the deciding official, after consid- DA (that is, FBI reports, local police ering the factors set forth in § 536.44, reports, civilian hospital records) that determines that all or part of requested are also included in Army records official records are releasable, copies of should be advised to direct his inquiry the records should be furnished to the to the originating agency. requester.

§ 516.44 Determination of release au- § 516.46 Records determined not to be thorization. releasable. (a) Policy. DA policy is to make offi- (a) General. If the deciding official, cial information reasonably available after considering the factors in § 516.44, for use in Federal and state courts and determines that all or part of requested by other governmental bodies unless official records should not be released, the information is classified, privi- he will promptly communicate directly leged, or otherwise protected from pub- with the attorney or individual who lic disclosure. caused the issuance of the subpoena, (b) Releasability factors. In deciding order, or request and seek to resolve whether to authorize release of official the matter informally. If the subpoena

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or order is invalid, he should explain (iv) Upon request, SJAs and legal ad- the basis of the invalidity. The decid- visers may furnish to the attorney for ing official should also explain why the the injured party or the tortfeasor’s at- records requested are privileged from torney or insurance company a copy of release. The deciding official should at- the narrative summary of medical care tempt to obtain the agreement of the that relates to a claim under subpart E requester to withdraw the subpoena, of this part. If additional medical order, or request or to modify the sub- records are requested, only those that poena, order, or request so that it per- directly pertain to the pending action tains only to records which may be re- will be furnished. If furnishing copies leased. (See figure G–1, appendix G, of of medical records would prejudice the this part.) cause of action, the matter will be re- (b) Information protected by the Pri- ported to Litigation Division. vacy Act. (1) A subpoena duces tecum or (c) Referral to Litigation Division. If other legal process signed by an attorney or clerk of court for records pro- the SJA or legal adviser is not able to tected by the Privacy Act, 5 U.S.C. resolve a request for Army records in- 552a, does not justify the release of the formally, he should contact Litigation protected records. The deciding official Division. should explain to the requester that (1) Litigation Division may respond the Privacy Act precludes disclosure of to subpoenas or orders for records priv- records in a system of records without ileged from release by informing the the written consent of the subject of local U.S. Attorney about the subpoena the records or ‘‘pursuant to the order and requesting that office file a motion of a court of competent jurisdiction.’’ to quash the subpoena or a motion for (See 5 U.S.C. 552a(b)(11)). An ‘‘order of a protective order. The records privi- the court’’ for the purpose of sub- leged from release should be retained section 5 U.S.C. 552a(b)(11) is an order by the custodian pending the court’s or writ requiring the production of the ruling upon the government’s motion. records, signed by a judge or mag- (2) When a motion to quash or for a istrate. protective order is not filed, or the mo- (2) Unclassified records otherwise tion is unsuccessful, and the appro- privileged from release under 5 U.S.C. priate DA official has determined that 552a may be released to the court under no further efforts will be made to pro- either of the following conditions: tect the records, copies of the records (i) The subpoena is accompanied by (authenticated if necessary) will be an order signed by a judge or mag- submitted to the court (or to the clerk istrate, or such order is separately of court) in response to the subpoena or served, that orders the person to whom order. the records pertain to release the spe- (d) Classified and privileged materials. cific records, or that orders copies of the records be delivered to the clerk of Requests from DOJ, U.S. Attorneys, or court, and indicates that the court has attorneys for other governmental enti- determined the materiality of the ties for records which are classified or records and the nonavailability of a otherwise privileged from release will claim of privilege. be referred to Litigation Division. (See (ii) The clerk of the court is empow- § 516.41(g). ered by local statute or practice to receive the records under seal subject to DA PERSONNEL AS WITNESSES IN request that they be withheld from the PRIVATE LITIGATION parties until the court determines § 516.47 Response to subpoenas, or- whether the records are material to the ders, or requests for witnesses. issues and until any question of privilege is resolved. (a) Policy. The involvement of present (iii) Subpoenas for alcohol abuse or or former DA personnel in private liti- drug abuse treatment records must be gation is solely a personal matter be- processed under 42 U.S.C. 290dd-3 and tween the witness and the requesting 290ee-3, and Public Health Service reg- party, unless one or more of the fol- ulations published at 42 CFR 2.1–2.67. lowing conditions apply:

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(1) The testimony involves official in- authorized for release, the legal rep- formation. (See appendix F—Glossary resentative will advise the witness not to this part). to answer. If necessary to avoid release (2) The witness is to testify as an ex- of the information, the legal represent- pert. ative will advise the witness to termi- (3) The absence of the witness from nate the interview or deposition, or in duty will seriously interfere with the the case of testimony in court, advise accomplishment of a military mission. the judge that DOD directives and (b) Former DA personnel. Former DA Army regulations preclude the witness personnel may freely respond to re- from answering without HQDA ap- quests for interviews and subpoenas ex- proval. Every effort should be made, cept in instances involving official in- however, to substitute releasable infor- formation (paragraph (a)(1) of this sec- mation and to continue the interview tion) or concerning expert testimony or testimony. prohibited by § 516.49. In those instances, the subject of the request or § 516.49 Expert witnesses. subpoena should take the action speci- (a) General rule. Present DA personnel fied in §§ 516.41(c) and 516.42. will not provide, with or without com- (c) Present DA personnel. Present DA pensation, opinion or expert testimony personnel will refer all requests for either in private litigation or in litiga- interviews and subpoenas for testi- tion in which the United States has an mony in private litigation through interest for a party other than the their supervisor to the appropriate SJA United States. Former DA personnel or legal adviser. will not provide, with or without com- (d) Discretion to testify. Any individual pensation, opinion or expert testimony not wishing to grant an interview or to concerning official information, sub- testify concerning private litigation jects, or activities either in private may seek the advice of an Army attor- litigation or in litigation in which the ney concerning the consequences, if United States has an interest for a any, of refusal. Any individual not au- party other than the United States. thorized to consult with Army counsel (See figure G–3, appendix G of this should consult with private counsel, at part). An SJA or legal adviser is au- no expense to the government. thorized to deny a request for expert testimony, which decision may be ap- § 516.48 Official information. pealed to Litigation Division. (a) In instances involving (b) Exception to the general prohibition. § 516.47(a)(1), the matter will be referred If a requester can show exceptional to the SJA or legal adviser serving the need or unique circumstances, and the organization of the individual whose anticipated testimony will not be ad- testimony is requested, or to HQDA verse to the interests of the United pursuant to § 516.47(a). The deciding of- States, Litigation Division may grant ficial will determine whether to release special written authorization for the information sought under the prin- present or former DA personnel to tes- ciples established in § 516.44. If funding tify as expert or opinion witnesses at by the United States is requested, see no expense to the United States. In no § 516.55(d). event may present or former DA per- (b) If the deciding official determines sonnel furnish expert or opinion testi- that the information may be released, mony in a case in which the United the individual will be permitted to be States has an interest for a party interviewed, deposed, or to appear as a whose interests are adverse to the in- witness in court provided such inter- terests of the United States. view or appearance is consistent with (c) Exception for AMEDD personnel. the requirements of §§ 516.49 and 516.50. Members of the Army medical depart- (See, for example, figure G–2, appendix ment or other qualified specialists may G, to this part). A JA or DA civilian at- testify in private litigation with the torney should be present during any following limitations (See figure G–4, interview or testimony to act as legal appendix G, of this part): representative of the Army. If a ques- (1) The litigation involves patients tion seeks information not previously they have treated, investigations they

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have made, laboratory tests they have part. Litigation Division will be con- conducted, or other actions taken in sulted on issues that cannot be re- the regular course of their duties. solved by the SJA or legal adviser. (2) They limit their testimony to fac- (b) Reassignment of witnesses. When tual matters such as the following: requested by the U.S. Attorney, the their observations of the patient or SJA or legal adviser will ensure that other operative facts; the treatment no witnesses are reassigned from the prescribed or corrective action taken; judicial district without advising the course of recovery or steps required for DOJ attorney. If a witness is vital to repair of damage suffered; and, con- the government’s case and trial is im- templated future treatment. minent, the SJA or legal adviser (3) Their testimony may not extend should make informal arrangements to to expert or opinion testimony, to hy- retain the witness in the command pothetical questions, or to a prognosis. (d) Court-ordered expert or opinion tes- until trial. If this is not feasible, or if timony. If a court or other appropriate a satisfactory arrangement cannot be authority orders expert or opinion tes- reached with the DOJ attorney, the timony, the witness will immediately SJA or legal adviser should notify Liti- notify Litigation Division. If Litiga- gation Division. tion Division determines it will not challenge the subpoena or order, the § 516.52 Expert witnesses. witness will comply with the subpoena Requests for present or former DA or order. If directed by Litigation Divi- personnel as expert or opinion wit- sion, however, the witness will respect- nesses from DOJ or other attorneys fully decline to comply with the sub- representing the United States will be poena or order. (See United States ex. referred to Litigation Division unless rel. Touhy v. Ragen, 340 U.S. 462 (1951)). the request involves a matter that has (e) Expert witness fees. All fees ten- been delegated by Litigation Division dered to present DA personnel as an ex- to an SJA or legal adviser. In no event, pert or opinion witness, to the extent may present or former DA personnel they exceed actual travel, meals, and furnish expert or opinion testimony in lodging expenses of the witness, will be a case in which the United States has remitted to the Treasurer of the United an interest for a party whose interests States. are adverse to the interests of the § 516.50 Interference with mission. United States. If the absence of a witness from duty § 516.53 News media and other inquir- will seriously interfere with the ac- ies. complishment of a military mission, the SJA or legal adviser will advise the News media inquiries regarding liti- requesting party and attempt to make gation or potential litigation will be alternative arrangements. If these ef- referred to the appropriate public af- forts fail, the SJA or legal adviser will fairs office. DA personnel will not com- refer the matter to Litigation Division. ment on any matter presently or potentially in litigation without proper LITIGATION IN WHICH THE UNITED clearance. Local public affairs officers STATES HAS AN INTEREST will refer press inquiries to HQDA (SAPA), WASH DC 20310–1500, with ap- § 516.51 Response to subpoenas, orders, or requests for witnesses. propriate recommendations for review and approval by the Office of the Chief (a) Referral to a deciding official. Re- of Public Affairs. All releases of infor- quests, subpoenas, or orders for official mation regarding actual or potential information, interviews or testimony litigation will be coordinated with of present or former DA personnel in Litigation Division prior to release. litigation or potential litigation in which the United States has an interest, including requests from DOJ, will be resolved by the SJA or legal adviser pursuant to the principles of this sub-

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STATUS, TRAVEL, AND EXPENSES OF any per diem expenses are the responsi- WITNESSES bility of the U.S. Attorney. (2) An attorney asserting the govern- § 516.54 Witnesses for the United ment’s medical care or property claim States. may be required to advance local trav- (a) Status of witness. A military mem- el expense money to the witness re- ber authorized to appear as a witness quested and to include these in recov- for the United States, including those erable costs where the government’s authorized to appear under § 516.55(d), claim is not large enough to justify ex- will be placed on temporary duty. If penditures of government travel funds. USAR or NG personnel are requested as (3) Other local travel and per diem witnesses for the United States, and if expense for cases involving Army ac- their testimony arises from their activities or claims are proper expenses tive duty service, they should be placed of the command issuing the orders. on active duty to testify. The status of (4) Litigation Division will furnish a civilian employee will be determined travel expense and per diem funds for under Federal Personnel Manual 630, other than local travel and will receive subchapter 10. DA personnel who ap- reimbursement from DOJ or other gov- pear as necessary witnesses for a party ernment agencies as appropriate. asserting the government’s claim for § 516.55 Witnesses for a State or pri- medical care expenses are witnesses for vate litigant. the United States. (a) Status of witness. If authorized to (b) Travel arrangements. Travel ar- appear as a witness for a state or pri- rangements for witnesses for the vate litigant, and the testimony to be United States normally are made by given relates to information obtained DOJ through Litigation Division for in the performance of official duties, a other than local travel. Litigation Di- military member will attend in a pervision will issue instructions for this missive TDY status. If authorized to travel, including fund citation, to the appear as a witness, but the testimony appropriate commander. A U.S. Attor- does not relate to information obtained ney, or an attorney asserting the gov- in the performance of official duties, a ernment’s medical care claim under military member may be granted a subpart E, may make arrangements for pass or permissive TDY under AR 630– local travel through the SJA or legal 5, or be required to take ordinary adviser for attendance of a witness who leave. The status of a civilian em- is stationed at an installation within ployee will be determined under 5 CFR the same judicial district, or not more Chapter I. than 100 miles from the place where (b) Travel arrangements. The request- testifying. Other requests, including ing party or state agency will make all those under § 516.55(d), will be referred travel arrangements for attendance of to Litigation Division. The instruc- DA personnel authorized to appear as tions from Litigation Division, or the witnesses for a state or private liti- request from the U.S. Attorney or the gant. The local commander may issue attorney asserting the government’s appropriate orders when necessary. claim, will serve as a basis for the (c) Travel expenses. The United States issuance of appropriate travel orders may not pay travel, meals, and lodging by the local commander. expenses of the witness, other than (c) Travel and per diem expenses. The normal allowances for subsistence pur- witness’ commander or supervisor suant to the DOD Military Pay and Al- should ensure the witness has suffi- lowances Entitlements Manual. These cient funds to defray expenses. The expenses are solely a matter between SJA or legal adviser will provide as- the witness and the party seeking his sistance. appearance. Witnesses ordinarily (1) Where local travel is performed at should be advised to require advance the request of a U.S. Attorney and the payment of such expenses. Military testimony does not involve informa- personnel authorized to appear in a tion acquired in the performance of du- pass or permissive TDY status are not ties, transportation arrangements and entitled to receive witness attendance

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fees, but may accept travel, meals, and gation if it is bound by treaty or other lodging expense money from the re- international agreement to ensure the questing litigant. All witness fees ten- attendance of such personnel. dered the military member, to the ex- (c) United States has no interest in the tent they exceed such actual expenses litigation. If the SJA determines that of the member, will be remitted to the the United States does not have an in- Treasurer of the United States. A civil- terest in the litigation, the commander ian employee authorized to appear in may authorize the interview or the ap- his or her official capacity will accept pearance of the witness under the prin- the authorized witness fees, in addition ciples established in § 516.47 through to the allowance for travel and subsist- § 516.50. ence, and make disposition of the wit- (d) Witnesses located outside the re- ness fees as instructed by his or her quester’s country. If the requested wit- personnel office. ness is stationed in a country other (d) Funding by the United States. Re- than the requester’s, the matter will be quests for DA personnel to appear at referred to Litigation Division. government expense as witnesses in state or local proceedings for a party Subpart H—Remedies in Procure- other than the United States, including ment Fraud and Corruption cases involving domestic violence or child abuse, will be referred to Litiga- § 516.57 Purpose. tion Division. Litigation Division may This subpart delineates the policies, authorize travel and per diem expenses procedures, and responsibilities for re- under § 516.54 when the case is one in porting and resolving allegations of which the United States has a signifi- procurement fraud or irregularities cant interest. (PFI) within DA. It implements DOD Directive 7050.5. (See appendix D to § 516.56 Witnesses before foreign tribu- this part.) nals. (a) Referral to the SJA. Requests or § 516.58 Policies. subpoenas from a foreign government (a) Procurement fraud and irregular- or tribunal for present DA personnel ities will be promptly and thoroughly stationed or employed within that addressed whenever encountered. Re- country to be interviewed or to appear ports will be initiated in a timely man- as witnesses will be forwarded to the ner and will be supplemented as appro- SJA of the command exercising gen- priate. eral court-martial jurisdiction over the (b) Investigations will be monitored unit to which the individual is as- to see that interim corrective action is signed, attached, or employed. The taken and that final action is taken as SJA will determine the following: expeditiously as possible. (1) Whether a consideration listed in (c) This regulation establishes the § 516.47(a)(1) through (a)(3) applies. Procurement Fraud Division (PFD), (2) Whether the information re- U.S. Army Legal Services Agency, as quested is releasable under the prin- the single centralized organization ciples established in § 516.43 through within the Army to coordinate and § 516.46. monitor criminal, civil, contractual, (3) Whether the approval of the and administrative remedies in signifi- American Embassy should be obtained cant cases of fraud or corruption relat- because the person is attached to the ing to Army procurement. Embassy staff or a question of diplo- (d) The key elements of the Army’s matic immunity may be involved. procurement fraud program follow: (b) United States has an interest in the centralized policy making and program litigation. If the SJA determines that direction; fraud remedies coordination; the United States has an interest in decentralized responsibility for oper- the litigation, the commander may au- ational matters, such as reporting and thorize the interview or order the indi- remedial action; continuous case vidual’s attendance in a temporary monitorship by PFD from the initial duty status. The United States will be report until final disposition; and, com- deemed to have an interest in the liti- mand-wide fraud awareness training.

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(e) Remedies for PFI will be pursued corruption cases and their coordination in a timely manner and properly co- with prosecutive authorities. ordinated with other agencies. Every (5) Ensuring that all criminal, civil, effort will be made to support criminal contractual, and administrative rem- investigation and prosecution of fraud- edies are considered in each significant ulent activity. fraud or corruption case and that time- (f) A specific remedies plan will be ly and applicable remedies are under- formulated for each significant case of taken by commanders, contracting of- fraud or corruption involving procure- ficers, and suspension and debarment ment. authorities. For example, consider- (g) Coordination on the status and ation of suspension or debarment of a disposition of cases will be maintained contractor or individual should nor- between PFD, OTJAG, PFI Coordina- mally be initiated within 30 days of in- tors at MACOMs, and Procurement dictment or conviction. Fraud Advisers at subordinate com- (6) Coordinating, as appropriate, with mands. Coordination of procurement other DOD components affected by a and personnel actions will be accom- significant fraud or corruption case plished with investigative agencies as being monitored by the Army. required by those agencies. (7) Developing, with the responsible (h) Training which relates to fraud DOD investigative organization, Pro- and corruption in the procurement curement Fraud Coordinators and Ad- process is a significant element of this visers, and other involved agencies, a program. specific comprehensive remedies plan for each significant fraud or corruption § 516.59 Duties and procedures. case. (8) Coordinating remedies with DOJ. In (a) TJAG has overall responsibility the case of ongoing criminal investiga- for the coordination of remedies in pro- tions, coordinate remedies through, or curement fraud and corruption within with the prior knowledge of, the DOD the Army. This responsibility has been criminal investigative organization re- delegated to PFD. Functions of PFD sponsible for the case. will include the following: (9) In significant fraud or corruption (1) Serving as the single centralized cases, identifying and documenting any organization in the Army to monitor known adverse impact on a DOD mis- the status of, and ensure the coordina- sion, and including the information in tion of, criminal, civil, contractual, any remedies plan. and administrative remedies for each (10) Providing the appropriate DOD significant case of fraud or corruption. criminal investigative organization (2) Receiving reports of procurement with information concerning final rem- fraud and corruption from any source edies as a result of an investigation by including, but not limited to the fol- that organization. lowing: DOD criminal investigative or- (11) Receiving notifications from ganizations; audit agencies; con- criminal investigative agencies contracting officers; inspectors general of cerning substituted, defective, and the executive branch; correspondence counterfeit hardware in which a seri- from the public; and, commanders. ous hazard to health, safety or oper- This provision does not repeal any ational readiness is indicated; ensuring other reporting requirement but estab- that appropriate safety, procurement lishes PFD as a recipient of PFI infor- and program officials are informed in mation at the earliest possible time. accordance with enclosure 3 of DOD Di- (3) Establishing a monitoring system rective 7050.5. PFD will specifically en- within OTJAG for all cases of fraud sure that contract reviews (DD 350 re- and corruption that relate to Army ports) and adverse impact statements procurement. (See § 516.64(c)(2) are prepared, and that (4) Discussing regularly with the U.S. such information is used to determine Army Criminal Investigation Com- if further inquiry is warranted to pre- mand (USACIDC) or the assigned DOD vent reoccurrence and to detect other criminal investigative organization the possible fraud. Impact statements will current status of significant fraud or not be released to prosecutive agencies

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until reviewed by PFD. When appro- ess, or reduction or loss of mission priate, PFD will coordinate with other readiness. DOD agencies to establish a lead agen- (7) Discuss regularly with Procure- cy for victim impact statements in ment Fraud Advisers the status of sig- multi-DOD agency cases. nificant investigations of fraud or cor- (b) The Commanding General, ruption and their coordination with USACIDC, will take the following ac- prosecutive authorities and provide tions: documents and reports resulting from (1) Notify PFD of any investigations the investigations. involving fraud or corruption related (c) Commanders of service schools to procurement activities. conducting procurement or procure- (2) Notify other DOD component ment-related training (such as The criminal investigative organizations Judge Advocate General’s School, the when investigations involving fraud or U.S. Military Police School, and the corruption affect that component. This U.S. Army Logistics Management Cen- includes evidence of fraud by a con- ter) will ensure the following: tractor, subcontractor, or employee of (1) All procurement and procure- either, on current or past contracts ment-related training includes a period with, or affecting, that component. of instruction on fraud and corruption (3) Notify the Defense Investigative in the procurement process. The length Service of any investigations that de- of the period of instruction will be ap- velop evidence which affects DOD propriate to the duration and nature of cleared industrial facilities or per- the training. sonnel. (2) Training materials are developed (4) Determine the effect on any ongo- to support that training. ing investigations or prosecutions of (3) Training materials developed will any criminal, civil, contractual, or ad- be sent to MACOM PFI Coordinators. ministrative actions being considered (d) MACOM commanders and heads of by a centralized organization and ad- contracting activities will ensure the vise of any adverse impact. following: (5) Promptly provide commanders, (1) Substantial indications of fraud or contracting officers, Procurement corruption relating to Army contracts Fraud Advisers, and suspension and de- or Army administered contracts are re- barment authorities, when needed to ported promptly to the supporting allow consideration of applicable rem- USACIDC element and the Procure- edies, any court records, documents, or ment Fraud Division. other evidence of fraud or corruption (2) Information provided includes re- from ongoing or completed criminal in- ports by contracting officers under vestigations. In cases of indictment or DFARS 209.406–3. conviction of a contractor or individual, the information will be pro- § 516.60 Procurement fraud and irreg- vided in time for initiation, if appro- ularities programs at MACOMs. priate, of suspension or debarment ac- (a) Command counsel and SJAs at tion within 30 days of the indictment MACOMs will develop a program and or conviction. appoint an attorney as PFI Coordi- (6) Provide prosecutive authorities nator for their command. Chief counsel and centralized organizations with and SJAs at commands with procure- timely information on the adverse im- ment advisory responsibility will ap- pact on a DOD mission of fraud or cor- point an attorney as a Procurement ruption that relates to DOD procure- Fraud Adviser (PFA) to manage the ment activities. This information will PFI program at their installations as be obtained from individuals such as well. the head of the contracting agency, ap- (b) Provision may be made for activi- propriate commanders, and staff agen- ties not having sufficient attorney as- cies. Some examples of adverse impact sets to obtain assistance from nearby on a DOD mission are endangerment of installations that have a PFA. personnel or property, monetary loss, (c) Reports and recommendations compromise of the procurement proc- will be transmitted through command

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channels to the PFI coordinator for the (d) All personnel will cooperate to affected MACOM. ensure that investigations and prosecu- (d) Command counsel, chief counsel, tions of procurement fraud are com- and SJAs will exercise supervisory au- pleted in a timely and thorough man- thority to ensure effective operation of ner. Requests for assistance from fed- the fraud program and coordination of eral prosecutors should be processed remedies within their organizations. through the local PFA whenever pos- (e) The MACOM PFI Coordinator will sible. Requests for federal investigators have overall responsibility for the de- will be processed through the sup- sign and implementation of the porting USACIDC and the PFA will be MACOM’s procurement fraud program. notified. When the conduct of criminal (f) PFAs and PFI Coordinators will investigations and prosecutions con- coordinate with the appropriate local flict with the progress of procure- CID or Defense Criminal Investigative ments, reasonable deference will be Service (DCIS) activity to assure the given to criminal investigators and prompt notification and coordination prosecutors whenever possible. Any se- of all Procurement Fraud cases. rious conflict that cannot be resolved at a local level will be immediately re- § 516.61 Reporting requirements. ported to the PFI Coordinator or PFD (a) Typical fraud indicators during for action. the procurement cycle are listed in fig- (e) PFI Coordinators and PFAs may ure D–1, appendix G, to this part. The request access to information obtained mere presence of one or more of these during criminal investigations that is indicators does not, by itself, require not protected by Fed. R. Crim. P. 6(e) reporting under paragraph b of this and use this information to assist them section. Reports should be submitted if in taking appropriate administrative, there is a reasonable suspicion of pro- contractual, and civil remedies. Re- curement fraud or irregularity or the quests for this information should be procuring agency refers the matter for made directly to the appropriate fed- investigation. eral investigative agency. The inves- (b) ‘‘Procurement Flash Reports’’ tigative organization may withhold re- will be transmitted by FAX directly to quested information if release would PFD whenever a PFI Coordinator or compromise an investigation. Difficul- PFA receives notice of a PFI involving ties in obtaining information which the Army. To facilitate filing, a sepa- cannot be resolved locally will be re- rate sheet should be used for each case ferred to PFD for appropriate action. reported. These reports will provide a (f) USACIDC will notify, in writing, succinct summary of the following local PFAs as well as PFD within 30 available information: days, of initiation of a significant in- (1) Name and address of contractor. vestigation of fraud or corruption re- (2) Known subsidiaries of parent lated to Army procurement activities. firms. Such notification will include the fol- (3) Contracts involved in potential lowing: fraud. (1) Case title. (4) Nature of potential fraud. (5) Summary of pertinent facts. (2) USACIDC Report of Investigation (6) Possible damages. number. (7) Investigative agencies involved. (3) Responsible investigative agency (8) Local PFAs (name and phone or agencies. numbers). (4) Office of primary responsibility. Any of the above categories that can- (5) Date opened. not be completed will be annotated as (6) Summary of facts. ‘‘unknown at present.’’ (7) Suspected offense. (c) When a report is required by (g) The transmission of the informa- DFARS or is requested by PFD, the tion in f above may be delayed if the provisions of DFARS 209.406–3 (48 CFR Commanding General, USACIDC, or 209.406–3) will be followed. That para- the head of another DOD criminal in- graph provides the basic content and vestigation organization determines format for PFI reports. the transmission would compromise

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the success of any case or its prosecu- determine the advisability of initiating tion. The prosecutive authorities deal- any civil, contractual, or administra- ing with the case will be consulted, tive actions. when appropriate, in making such de- (2) USACIDC will advise PFD of any terminations. adverse effect on an investigation or (h) USACIDC will obtain the fol- prosecution by the initiation of civil, lowing information at the earliest pos- contractual, or administrative actions. sible point in an investigation of fraud or corruption that relates to DOD pro- § 516.63 Coordination with DOJ. curement activities, whenever possible (a) PFD will establish and maintain without reliance on grand jury sub- liaison with DOJ and the Defense Pro- poenas: curement Fraud Unit on significant (1) The individuals suspected to be re- fraud and corruption cases to accom- sponsible. plish the following: (2) The suspected firm’s organiza- (1) Monitor criminal prosecutions. tional structure. (2) Initiate litigation for civil recov- (3) The firm’s financial and contract ery. history. (3) Coordinate administrative or con- (4) The firm’s organizational docu- tractual actions while criminal or civil ments and records. proceedings are pending. (5) Statements of witnesses. (4) Coordinate settlement agreements (6) Monetary loss to the government. or proposed settlements of criminal, (7) Other relevant information. civil, and administrative actions. This information will be provided to (5) Respond to DOJ requests for infor- PFD or other cognizant DOD central- mation and assistance. ized organization. (b) In cases where there is an ongoing (i) PFD will provide written notifica- criminal investigation, coordination tion to the Defense Investigative Serv- with DOJ by any member of the Army ice of all suspension or debarment ac- normally will be accomplished by or tions taken by the Army. through USACIDC or the cognizant DOD criminal investigative organiza- § 516.62 PFD and HQ USACIDC coordi- tion, or with the investigative organi- nation. zation’s advance knowledge. This does PFD and HQ USACIDC will coordi- not apply to the routine exchange of nate as follows: information between government at- (a) Discuss the status of significant torneys in the course of civil litigation procurement fraud or corruption inves- or the routine referral of cases to DOJ tigations being conducted by USACIDC for civil recovery. and possible remedies. These discus- (c) Initial contact by any attorney sions should take place on a regular associated with the U.S. Army with a basis. U.S. Attorney’s office or DOJ, whether (b) Discuss the coordination of pos- initiated by the Army attorney or not, sible criminal, civil, contractual, or ad- will be reported to PFD. Activity after ministrative remedies with prosecutive the initial contact will only be re- authorities. ported to PFD when the Army attorney (c) PFD will maintain liaison with feels there has been a significant event other DOD centralized organizations in the case. If the Army attorney is not and will coordinate remedies with a PFI Coordinator or a PFA, the mat- those centralized organizations after should be referred to one of these fected by a significant investigation of two attorneys as soon as possible. Rou- fraud or corruption that relates to DOD tine exchanges between Army attor- procurement activities. neys and U.S. Attorney’s offices or DOJ (d) Ascertain the effect on any ongo- do not need to be brought to the atten- ing investigation of the initiation of tion of PFD. civil, contractual, or administrative remedies as follows: § 516.64 Comprehensive remedies plan. (1) PFD will maintain liaison with (a) A specific, comprehensive rem- USACIDC and other DOD criminal in- edies plan will be developed in each sig- vestigative organizations in order to nificant investigation involving fraud

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or corruption that relates to Army pro- whether it is appropriate to rec- curement activities. When possible, ommend civil recovery proceedings. these plans should be forwarded with (b) Recovery should be considered the DFARS 209.406–3 reports. In no under both statutory and common law case, however, should the report be de- theories, including but not limited to layed an appreciable time pending the following: completion of the plan. The format for (1) False Claims Act, 31 USC 3729. a remedies plan is at figure H–2, appen- (2) Anti-Kickback Act, 41 USC 51. dix G, to this part. (3) Sherman Act, 15 USC 1–7. (b) The plan will be developed ini- (4) Racketeer Influenced and Corrupt tially by the PFA with the participa- Organizations Act, 18 USC 1961–1968. tion of the appropriate criminal inves- (5) Common law fraud. tigators and other relevant personnel (6) Unjust enrichment. such as the contracting officer. In sig- (7) Constructive trust. nificant cases the PFA should also co- (8) Cases where contracts have been ordinate a remedies plan early with procured in violation of the conflict of PFD. Defective product/product substi- interest statute, 18 USC 218. See K&R tution remedies plans must comply Engineering Co. v. United States, 616 F.2d with the requirements of appendix D to 469 (Ct. Cl., 1980). this part. (c) When civil recovery appears pos- (c) A comprehensive remedies plan sible, PFD should be consulted to de- will include at a minimum the fol- termine if a litigation report is nec- lowing information and considerations: essary. If requested by PFD, the report (1) Summary of allegations and in- should summarize the available evi- vestigative results. dence and applicable theories of recov- (2) Statement of any adverse impact ery and be prepared under § 516.23 of on a DOD mission. DOD investigative this part. To avoid unnecessary dupli- organizations, commanders, or pro- cation of effort, recovery reports may curement officials will also provide include and make liberal references to this information to prosecutive au- other reports previously prepared on a thorities to enhance prosecution of of- given case such as the DFARS 209.406– fenses or to prepare a victim impact 3 (48 CFR 209.406–3) report. statement pursuant to Fed. R. Crim. P. (d) The MACOM PFI coordinator and 32(c)(2). PFA will monitor all civil fraud recov- (3) The impact upon combat readi- ery efforts throughout the command ness and safety. and will provide training and technical (4) Consideration of each criminal, assistance as required. Status reports civil, contractual, and administrative of all civil fraud recovery efforts will remedy available, and documentation be provided through channels as re- of those remedies, either planned, in quired by PFD. progress, or completed. (5) Restrictions on the pursuit of any § 516.66 Administrative and contrac- remedies such as grand jury informa- tual actions. tion or possible compromise of the in- (a) The following remedial options vestigation. should be considered in response to (d) When remedies plans are received confirmed fraudulent activity: by PFD they will be coordinated with (1) Contractual. the headquarters of the appropriate (i) Termination of contract for de- DOD criminal investigative organiza- fault. tion involved. (ii) Nonaward of contract based upon (e) Testing necessary to support the a finding of contractor nonresponsi- investigation and remedies plan should bility. (If this appears to be a valid op- comply with figure H–3, appendix G, to tion, a DFARS 209.406–3 (48 CFR this part. 209.406–3) report must be prepared where contractor nonresponsibility is § 516.65 Litigation reports in civil re- based on lack of integrity). covery cases. (iii) Rescission of contract. (a) All substantiated PFI cases will (iv) Revocation of acceptance. be evaluated by PFAs to determine (v) Use of contract warranties.

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(vi) Withholding of payments to con- List of Parties Excluded From Federal tractor. In the case of withholding pur- Procurement or NonProcurement Pro- suant to DFARS 2032.173, the Chief, grams. PFD, is the Army Remedy Coordi- (c) Overseas cases of fraud or corrup- nating Official. tion related to the procurement proc- (vii) Offset of payments due to con- ess that involve U.S. firms or U.S. citi- tractor from other contracts. zens may be referred to PFD for coordi- (viii) Revocation of facility security nation of remedies under this regula- clearances. tion. (ix) Increased level of quality assurance. § 516.68 Program Fraud Civil Rem- (x) Refusal to accept nonconforming edies Act (PFCRA). goods. (a) PFCRA was enacted on 21 October (xi) Denial of claims submitted by 1986 (Public Law 99–509) and imple- contractors. mented by DOD on 30 August 1988 (DOD (xii) Removal of contract from auto- Directive 5505.5). (See appendix E to mated solicitation or payment system. this part.) (2) Administrative. (b) PFCRA expands the capability of (i) Change in contracting forms and the government to deter and recover procedures. losses from false, fictitious or fraudu- (ii) Removal or reassignment of gov- lent claims and statements. It is also ernment personnel. applicable to program fraud and pro- (iii) Review of contract administra- vides an administrative remedy in ad- tion and payment controls. dition to those otherwise available to (iv) Revocation of warrant of con- the Army in procurement fraud or pay tracting officer. and entitlements fraud cases. (v) Suspension of contractor. (c) As part of the Army implementa- (vi) Debarment of contractor. tion, the Secretary of the Army’s du- (b) In cases which are pending review ties and responsibilities under PFCRA or action by DOJ, PFAs should coordi- as Authority Head are delegated to the nate with the DOJ attorney handling Army General Counsel. The Chief, In- the case prior to initiating any con- tellectual Property Law Division, is tractual or administrative remedy. In the Army’s Reviewing Official within the case of ongoing criminal investiga- the meaning of PFCRA. Army imple- tions, this coordination will be accom- mentation also requires DA to follow plished through the appropriate DOD the policies and procedures prescribed criminal investigation organization. in enclosure 2 of DOD Directive 5505.5. (See appendix E to this part.) § 516.67 Overseas cases of fraud or cor- (d) The DOD Inspector General (IG) is ruption. the Investigating Official within DOD. (a) Commanders of overseas major The duties of this position will be per- commands will establish procedures, formed by the Assistant IG For Inves- similar to this regulation and con- tigations. This individual is vested sistent with the DFARS, and regula- with the authority to investigate all tions and directives of their respective allegations of liability under PFCRA. unified commands, for reporting and That authority includes the power to coordination of available remedies in task subordinate investigative agen- overseas procurement fraud and cor- cies to review and report on allegations ruption cases involving foreign firms that are subject to PFCRA. If the In- and individuals. Overseas major com- vestigative Official concludes that an mands will also maintain liaison with action under PFCRA is warranted in an PFD and provide periodic reports of Army case, the official will submit a remedies coordination results. report containing the findings and con- (b) Overseas suspension and debar- clusions of such investigation through ment actions are governed by DFARS PFD to the Army Reviewing Official. 209.403 (48 CFR 209.403). The names of (e) Pursuant to DOD IG guidance, all firms and individuals suspended or USACIDC will forward appropriate debarred will be expeditiously for- cases that appear to qualify for resolu- warded to PFD for inclusion on the tion under PFCRA to the Investigating

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Official in a timely manner. Addition- Subpart I—Cooperation With the ally, USACIDC will forward current in- Office of Special Counsel formation regarding the status of remedies pending or concluded. USACIDC § 516.69 Introduction. may obtain remedies information by This subpart prescribes procedures coordinating with PFD and the cog- for cooperation with the Office of Spe- nizant command. cial Counsel (OSC) when OSC is inves- (f) In pay and entitlement or trans- tigating alleged prohibited personnel portation operation fraud cases, practices or other allegations of im- USACIDC will coordinate with the Of- proper or illegal conduct within DA ac- fice of the Secretary of the Army, Fi- tivities. nancial Management, Review and Over- sight Directorate (SAFM-RO), to deter- § 516.70 Policy. mine the status of any pending or pro- (a) DA policy follows: posed action under the Debt Collection (1) Civilian personnel actions taken Act. This information, in addition to by management officials, civilian and information obtained under § 517.68(e), military, will conform to laws and reg- will be forwarded with appropriate ulations implementing established cases to the Investigating Official. merit system principles and will be (g) In those cases where the Inves- free of any prohibited personnel practices. tigating Official has submitted a report (2) Management officials will take to the Army Reviewing Official for ac- vigorous corrective action when pro- tion under PFCRA, PFD will, at the di- hibited personnel practices occur. Dis- rection of the Reviewing Official, pre- ciplinary measures under AR 690–700, pare all legal memoranda as necessary Chapter 751, may be initiated after con- to transmit the Reviewing Official’s in- sultation and coordination with appro- tention to issue a complaint. As part of priate civilian personnel office and this responsibility PFD will do the fol- labor counselor. lowing: coordinate with the affected (b) DA activities will cooperate with command or agency to ensure that all OSC in the following ways: appropriate remedies have been consid- (1) Promoting merit system prin- ered; evaluate the overall potential ciples in civilian employment pro- benefits to the Army; and, ensure that grams within DA. action under PFCRA is not duplicative (2) Investigating and reporting alle- of other remedies already taken. In gations of improper or illegal conduct order to fully supplement the Review- forwarded to the activity by HQDA. ing Official’s file, PFD may request a (3) Facilitating orderly investiga- litigation report. tions by the OSC of alleged prohibited (h) PFD will coordinate all cases in- personnel practices and other matters assigned for investigation to the OSC, volving transportation operations ema- such as violations of the Whistleblower nating from Military Traffic Manage- Protection Act of 1989, the Freedom of ment Command (MTMC) activity, Information Act, or the Hatch Act. under the military transportation exception to the FAR, and all cases in- § 516.71 Duties. volving pay and entitlements fraud (a) DA General Counsel. The DA Gen- with SAFM-RO, for comments and rec- eral Counsel is responsible for the fol- ommendations. These matters will be lowing: forwarded with the case file to the Re- (1) Provide overall guidance on all viewing Official. issues concerning cooperation with (i) If the Attorney General approves OSC, including the investigation of al- the issuance of a complaint, PFD, at leged prohibited personnel practices the direction of the Army Reviewing and allegations of improper or illegal Official, shall prepare the complaint conduct. and all necessary memoranda as re- (2) Review for adequacy and legal suf- quired. PFD shall also designate attor- ficiency each OSC report of investiga- neys to represent the Authority in tion that must be personally reviewed hearings under PFCRA. by the Secretary of the Army.

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(3) Ensure compliance with the Civil whether disciplinary action should be Service Reform Act of 1978 by obtain- taken against DA civilian employees or ing a suitable investigation of allega- military members, and whether the in- tions of improper or illegal conduct reformation warrants referral to appro- ceived from OSC. This includes compli- priate authorities for corrective and ance with time limits for reporting re- disciplinary action. sults of the investigation and personal (8) Seek OSC approval of DA proposed review of the report by the Secretary disciplinary action against an em- of the Army when required. ployee for an alleged prohibited per- (4) Forward to the DOD Inspector sonnel practice or other misconduct General (DODIG) copies of each allega- which is the subject of or related to tion of improper or illegal conduct re- any OSC investigation. ferred to DA by OSC. (9) Review and prepare recommenda- (5) Delegate to The Judge Advocate tions for DA General Counsel con- General the authority to act on behalf cerning requests for counsel, to include of the DA General Counsel in all OSC identifying available DA attorneys to investigations of prohibited personnel act as individual representatives. Upon practices. approval of DA General Counsel, ap- (6) Act upon requests for counsel point DA civilian and military attor- from ‘‘accused’’ or ‘‘suspected’’ em- neys, to include attorneys from the ployees. U.S. Army Materiel Command and the (b) Chief, Labor and Employment Law Corps of Engineers, to represent indi- Office. The Chief, Labor and Employ- vidual military members or employees. ment Law Office, OTJAG (DAJA-LE) is (10) Determine, to the extent prac- responsible for the following: ticable, whether an investigation is (1) Act for TJAG as the Senior Man- being or has been conducted which du- agement Official in cooperating with plicates, in whole or in part, a proposed OSC. As Senior Management Official, or incomplete OSC investigation, and the Chief, DAJA-LE, through TJAG, convey that information to the OSC will be responsible to the DA General whenever it might avoid redundant in- Counsel for administration of the poli- vestigative efforts. cies and procedures contained in this (11) Provide guidance and assistance chapter. to activity Labor Counselors in ful- (2) Promptly inform the DA General filling their duties as Liaison Officers. Counsel of any OSC investigation and (c) Activity Labor Counselor. The ac- consult with the DA General Counsel tivity Labor Counselor will do the fol- on any legal or policy issue arising lowing: from an OSC investigation. (1) Act as Liaison Officer for OSC in- (3) Serve as the HQDA point of con- vestigations arising within the com- tact in providing assistance to OSC. mand, activity or installation serviced (4) Act as DA attorney-of-record in by the Labor Counselor’s client Em- administrative matters initiated by ployment Office. OSC before the MSPB which arise from (2) Promptly inform the MACOM an OSC investigation. As DA attorney- labor counselor and the Chief, DAJA- of-record, the Chief, DAJA-LE, will file LE, of any OSC inquiry or investiga- necessary pleadings and make nection. essary appearances before the MSPB to (3) Act as the legal representative of represent DA interests. the command, activity, or installation. (5) Monitor ongoing OSC investiga- (4) Assist the OSC investigator with tions within DA. administrative matters related to the (6) Ensure that appropriate DA per- investigation, such as requests for wit- sonnel are fully apprised of their nesses and documents. rights, duties and the nature and basis (5) Process all OSC requests for docu- for an OSC investigation. ments. (7) Review and prepare recommenda- (6) Make appropriate arrangements tions to the General Counsel con- for OSC requests to interview civilian cerning any OSC recommended correc- employees and military members. tive action referred to DA. Such review (7) Ensure that personnel involved and recommendations will address are advised of the nature and basis for

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an OSC investigation, the authority of ployee or a military member as an the OSC, and their rights and duties. ‘‘accused’’ or ‘‘suspected’’ individual, (8) Consult with the Chief, DAJA-LE, or if the Labor Counselor concludes on policy and legal issues arising from that an individual is a ‘‘suspect,’’ the the OSC investigation. Labor Counselor will inform the indi- (9) Keep the Chief, DAJA-LE, in- vidual. The Labor Counselor also will formed of the status of the OSC inves- advise the individual of the avail- tigation. ability of counsel for representation (l0) Act as agency representative be- upon approval by DA General Counsel. fore the MSPB in actions initiated by (See Glossary, Counsel for Representa- employees (individual right of action tion). appeals). (2) If the ‘‘suspected’’ individual desires legal representation by DA, the § 516.72 Procedures. individual must request counsel by (a) Witnesses and counsel for consulta- submitting a written request through tion. (1) DA military and civilian man- DAJA-LE to DA General Counsel. (See agers, supervisors, and employees who figure I-1, appendix G, to this part). are requested by OSC for an interview (3) During the investigation but prior will be made available in accordance to DA General Counsel approval of the with arrangements the Labor Coun- request for counsel, an ‘‘accused’’ or selor will establish. Requests for the ‘‘suspected’’ individual will be provided testimony of IGs will be coordinated the assistance of counsel for consulta- with the Inspector General Legal Of- tion in the same manner as any other fice, SAIG-ZXL, DSN 227–9734 or Com- OSC requested witness. ‘‘Accused’’ or mercial (703) 697–9734. ‘‘suspected’’ individuals who do not re- (2) The Labor Counselor will ensure quest counsel for representation will be that witnesses are aware of their obli- provided counsel for consultation in gation to answer OSC questions, their the same manner as any other OSC re- potential to be considered ‘‘suspects’’ quested witness. in OSC investigations, and their right (4) If the DA General Counsel ap- to the assistance of counsel during proves the request for counsel, the interviews with OSC representatives. If Chief, DAJA-LE, will appoint a DA at- the requested witness is not an ‘‘ac- torney to represent the individual. cused’’ or ‘‘suspected’’ individual and This appointment may be made tele- the witness asks for assistance of coun- phonically but will be confirmed in sel, a DA attorney will be made avail- writing. The Chief, DAJA-LE, will able for the limited purpose of con- make appropriate coordination with sultation regarding the witness’ rights MACOM SJAs and command counsel to and obligations. An attorney-client re- confirm availability of the attorney. lationship will not be established. (See (5) An attorney appointed by DA may appendix F to this part). represent a civilian employee in any (3) The Labor Counselor will arrange proceeding initiated by OSC before the for individual counsel for consultation MSPB. However, counsel provided by from local assets. If local assets are not DA may not represent the employee in sufficient, assistance may be requested any proceeding initiated by DA, in any from other DOD activities in the area appeal from a final decision by the or from HQDA, DAJA-LE. DA attor- MSPB, or in any collateral proceeding neys tasked to consult with one or before any forum other than the more witnesses individually will not be MSPB. tasked to represent the DA activity (6) OSC may not bring a disciplinary concerned. action before the MSPB against a mili- (4) The Labor Counselor, as the legal tary member. Accordingly, DA counsel representative of the activity, is pre- will not be required to represent the cluded from assisting or representing military member in any MSPB discipli- individual witnesses during OSC inter- nary proceeding. However, counsel may views. represent the member during the OSC (b) ‘‘Accused’’ or ‘‘suspected’’ DA per- investigation with the understanding sonnel and counsel for representation. (1) that the evidence obtained by OSC may If the OSC identifies a DA civilian em- be referred to the member’s command

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for possible disciplinary action under lishes Army policy concerning soldiers the UCMJ or appropriate regulations. on active duty who are summoned to If DA initiates action against the mili- serve on state and local juries. tary member for misconduct disclosed (b) This subpart does not apply to in the OSC investigation, the member Army National Guard soldiers in an an- will obtain counsel as provided under nual training or full-time AGR (Active the UCMJ or relevant regulations. Guard Reserve) status under Title 32, (c) Records. (1) OSC requests for U.S. Code. Soldiers in a Title 32 status records must be in writing. The Labor must refer to their respective state law Counselor will assist OSC representa- for relief from state or local jury duty. tives in identifying the custodian of specific records sought during the in- § 516.75 Policy. quiry. (a) Active duty soldiers should fulfill (2) Generally, requested records their civic responsibility by serving on should be furnished to OSC representa- state and local juries, so long as it does tives if such records would be released not interfere with military duties. under AR 25–55 or AR 340–21 to other government agencies in the normal (b) The following active duty soldiers course of official business. Records are exempt from complying with sum- constituting attorney work product mons to serve on state and local juries: should not be released without ap- (1) General officers. proval of the Chief, DAJA-LE. IG (2) Commanders. records will not be released without (3) Active duty soldiers stationed the approval of the Inspector General. outside the United States, Puerto Rico, (AR 20–1). The Labor Counselor should Guam, the Northern Mariana Islands, seek guidance from the Chief, DAJA- American Samoa, and the Virgin Is- LE, if there is any doubt concerning lands. the release of records. (4) Active duty soldiers in a training (3) If, after completion of the OSC in- status. vestigation, the OSC files a complaint (5) Active duty soldiers assigned to against DA or a DA employee, release forces engaged in operations. of records and other information will (c) Other active duty soldiers may be be accomplished pursuant to MSPB exempted from serving on local juries rules of discovery (5 CFR part 1201, sub- if compliance with such summons part B). would have either of the following ef- (d) Funding. The command, activity, fects: or installation within which the allega- (1) It would unreasonably interfere tions of misconduct arose will provide with performance of the soldier’s mili- funding for travel, per diem and other tary duties; or, necessary expenses related to the OSC (2) It would adversely affect the read- investigation. These expenses may in- iness of a summoned soldier’s unit, clude appropriate funding for wit- command, or activity. nesses, counsel for consultation and DA General Counsel approved counsel § 516.76 Exemption determination au- for representation. thority. § 516.73 Assistance from HQDA. (a) The commander exercising special court-martial convening authority Labor Counselors may seek guidance (SPCMCA) over a unit has the author- on questions arising from implementa- ity to determine whether a soldier of tion of this chapter by calling the that unit, who has been served with a Chief, DAJA-LE, DSN 225–9476/9481 or summons, is exempt from serving on a Commercial (703) 695–9476/9481. state or local jury unless that authority has been limited or withheld in ac- Subpart J—Soldiers Summoned To cordance with paragraph (b) or (c) of Serve on State and Local Juries this section. This authority may not be delegated to a subordinate commander § 516.74 General. who does not exercise SPCMCA. (a) This subpart implements 10 U.S.C. (b) A commander superior to the § 982 and DOD Directive 5525.8. It estab- SPCMCA, who also exercises SPCMCA

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or general court-martial convening au- § 516.78 Status, fees, and expenses. thority (GCMCA) over a unit, may (a) Soldiers who are required to com- limit or withhold the exemption deter- ply with summons to serve on state or mination authority of subordinate local juries will be placed on permis- commanders. sive TDY under the provisions of AR (c) A GCMCA, who orders a unit or 630–5. soldier assigned to one command to be (b) Jury fees accruing to soldiers for attached or detailed to another com- complying with the summons to serve mand for disciplinary purposes (for ex- on state and local juries must be ample, ‘‘for administration’’ or ‘‘for ad- turned over to the appropriate finance ministration of military justice’’), may office for deposit into the U.S. Treas- reserve exemption determination au- ury. Commands will establish proce- thority to the commander exercising dures with local authorities and their SPCMCA in the chain of command to servicing finance and accounting activ- which the unit or soldier is assigned ity to ensure that such jury fees are so rather than the chain of command to deposited. Soldiers, however, may keep which the unit or soldier is attached or any reimbursement from state or local detailed. authority for expenses incurred in the performance of jury duty, including § 516.77 Procedures for exemption. transportation, meals, and parking. (a) Active duty soldiers served with a APPENDIX A TO PART 516—REFERENCES summons to serve on a state or local jury will promptly advise their com- Publications referenced in this part can be mander and provide copies of pertinent obtained at the National Technical Informa- documents. tion Services, U.S. Department of Com- (b) Unit commanders will evaluate merce, 5285 Port Royal Road, Springfield, VA 22161. the summons considering both the individual soldier’s duties and the unit Required Publications mission. Coordination with the serv- AR 25–55, The Department of the Army Free- icing judge advocate or legal adviser dom of Information Act Program. (Cited and with the appropriate state or local in §§ 516.40, 516.72) official may be necessary to determine AR 27–10, Military Justice. (Cited in § 516.4) any impact on the soldier’s duties or AR 27–20, Claims. (Cited in §§ 516.4, 516.33, on unit readiness. 516.22) AR 27–60, Patents, Inventions, and Copy- (1) If the soldier is not exempt under rights. § 516.75 (b) or (c), the commander will AR 37–60, Pricing for Material and Services. process the soldier for permissive TDY (Cited in § 516.43.) in accordance with AR 630–5, Leaves AR 37–103, Finance and Accounting for In- and Passes. stallations: Disbursing Operations. (Cited (2) If the soldier is exempt under in § 516.22.) § 516.75 (b) or (c), the commander will AR 60–20, Operating Policies. (Cited in § 516.22.) forward the summons and any related AR 190–9, Absentee Deserter Apprehension documentation, with recommenda- Program and Surrender of Military Per- tions, through the chain of command sonnel to Civilian Law Enforcement to the commander with exemption de- Agencies. (Cited in § 516.9) termination authority over the soldier AR 210–47, State and Local Taxation of Les- concerned. see’s Interest in Wherry Act Housing (Title VIII of the National Housing Act). (c) The commander with exemption AR 215–1, Administration of Army Morale, determination authority over the sol- Welfare, and Recreation Activities and dier concerned will determine whether Nonappropriated Fund Instrumentalities. the soldier is exempt. His determina- (Cited in § 516.22.) tion is final. AR 215–2, The Management and Operation of (d) The exemption determination au- Army Morale, Welfare, and Recreation thority will notify responsible state or Activities and Nonappropriated Fund In- strumentalities. (Cited in § 516.22.) local officials whenever a soldier sum- AR 310–1, Publications, Blank Forms, and moned for jury duty is exempt. The no- Printing Management. tification will cite 10 U.S.C. 982 as au- AR 340–21, The Army Privacy Program. thority. (Cited in §§ 516.40, 516.72.)

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AR 380–5, Department of the Army Informa- (1) PERSONNEL CLAIMS AND RECOV- tion Security Program. ERY DIVISION (JACS-PC), U.S. ARMY AR 405–25, Annexation. (Cited in § 516.22.) CLAIMS SERVICE, OTJAG, BUILDING AR 630–5, Leaves and Passes. (Cited in 4411, ROOM 206, LLEWELLYN AVENUE, §§ 516.55, 516.77, 516.78.) FORT GEORGE G. MEADE, MD 20755– AR 630–10, Absence Without Leave, Deser- 5360 tion, and Administration of Personnel (2) TORT CLAIMS DIVISION (JACS-TC), Involved in Civilian Court Proceedings. U.S. ARMY CLAIMS SERVICE, OTJAG, (Cited in § 516.9) BUILDING 4411, ROOM 206, LLEWELLYN AVENUE, FORT GEORGE Related Publications G. MEADE, MD 20755–5360 A related publication is merely a source of CONTRACT APPEALS DIVISION, additional information. The user does not HQDA(DAJA-CA), 901 NORTH STUART have to read it to understand the regulation. STREET, ARLINGTON, VA 22203–1837 AR 20–1, Inspector General Activities and CONTRACT LAW DIVISION, THE JUDGE Procedures. (Cited in §§ 516.41, 516.72.) ADVOCATE GENERAL, 2200 ARMY AR 27–1, Judge Advocate Legal Service. PENTAGON, WASHINGTON, DC 20310– AR 27–3, Legal Assistance. (Cited in § 516.6.) 2200 AR 27–10, Military Justice. (Cited in §§ 516.4, CRIMINAL LAW DIVISION, THE JUDGE 516.5, 516.15.) ADVOCATE GENERAL, 2200 ARMY AR 27–50, Status of Forces Policies, Proce- PENTAGON, WASHINGTON, DC 20310– dures, and Information. (Cited in § 516.15.) 2200 AR 37–104–3, Military Pay and Allowances ENVIRONMENTAL LAW DIVISION, Procedures. HQDA(DAJA-EL), 901 NORTH STUART AR 37–105, Finance and Accounting for In- STREET, ARLINGTON, VA 22203–1837 stallations: Civilian Pay Procedures. LABOR AND EMPLOYMENT LAW DIVI- AR 55–19, Marine Casualties. (Cited in SION, THE JUDGE ADVOCATE GEN- § 516.22.) ERAL, 2200 ARMY PENTAGON, WASH- AR 190–29, Misdemeanors and Uniform Viola- INGTON, DC 20310–2200, tion Notices Referred to U.S. Magistrates LITIGATION DIVISION, HQDA(DAJA-LT), or District Courts. 901 NORTH STUART STREET, ARLING- AR 190–40, Serious Incident Report. (Cited in TON, VA 22203–1837 § 516.15.) (1) CIVILIAN PERSONNEL BRANCH, AR 210–50, Family Housing Management. HQDA(DAJA-LTC), 901 NORTH STUART (Cited in § 516.37.) STREET, ARLINGTON, VA 22203–1837 AR 335–15, Management Information Control (2) GENERAL LITIGATION BRANCH, System. (Cited in § 516.15.) HQDA(DAJA-LTG), 901 NORTH STUART AR 600–40, Apprehension, Restraint, and Re- STREET, ARLINGTON, VA 22203–1837 lease to Civil Authorities. (3) MILITARY PERSONNEL BRANCH, AR 600–50, Standards of Conduct for Depart- HQDA(DAJA-LTM), 901 NORTH STUART ment of the Army Personnel. STREET, ARLINGTON, VA 22203–1837 AR 690–700, Personnel Relations and Serv- (4) TORT BRANCH, HQDA(DAJA-LTT), 901 ices. (Cited in § 516.70.) NORTH STUART STREET, ARLING- TON, VA 22203–1837 Prescribed Form PERSONNEL, PLANS, AND TRAINING OF- FICE, THE JUDGE ADVOCATE GEN- DA Form 4, Department of the Army Certifi- ERAL, 2200 ARMY PENTAGON, WASH- cation for Authentication of Records. INGTON, DC 20310–2200 (Prescribed in § 516.25, 516.35.) PROCUREMENT FRAUD DIVISION, Referenced Forms HQDA(DAJA-PF), 901 NORTH STUART STREET, ARLINGTON, VA 22203–1837 DA Form 2631–R, Medical Care-Third Party INTELLECTUAL PROPERTY DIVISION, Liability Notification. HQDA(JALS-IP), 901 NORTH STUART DA Form 3154, MSA Invoice and Receipt. STREET, ARLINGTON, VA 22203–1837 REGULATORY LAW OFFICE, HQDA(JALS- APPENDIX B TO PART 516—MAILING RL), 901 NORTH STUART STREET, AR- ADDRESSES LINGTON, VA 22203–1837 THE JUDGE ADVOCATE GENERAL, 2200 The following is a list of frequently re- ARMY PENTAGON, WASHINGTON, DC ferred to Department of the Army Services/ 20310–2200 Divisions/Offices and their mailing address- THE AJAG FOR CIVIL LAW & LITIGATION, es: THE JUDGE ADVOCATE GENERAL, COMMANDER (JACS-Z), U.S. ARMY 2200 ARMY PENTAGON, WASHINGTON, CLAIMS SERVICE, OTJAG, BUILDING DC 20310–2200 4411, ROOM 206, LLEWELLYN AVENUE, U.S. ARMY TRIAL DEFENSE SERVICE, FORT GEORGE G. MEADE, MD 20755– HQDA(JALS-TD), NASSIF BUILDING, 5360 FALLS CHURCH, VA 22041–5013

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APPENDIX C TO PART 516—DEPARTMENT c. In response to requests by Federal Gov- OF DEFENSE DIRECTIVE 5405.2, RE- ernment counsel in litigation conducted on LEASE OF OFFICIAL INFORMATION IN behalf of the United States; d. As part of the assistance required in ac- LITIGATION AND TESTIMONY BY DOD cordance with the Defense Industrial Per- PERSONNEL AS WITNESSES sonnel Security Clearance Program under Department of Defense Directive DoD Directive 5220.6 (reference (c)); or e. Pursuant to disclosure of information to July 23, 1985, Number 5405.2, GC, DOD Federal, State, and local prosecuting and law enforcement authorities, in conjunction with Subject: Release of Official Information in an investigation conducted by a DoD crimi- Litigation and Testimony by DoD Per- nal investigative organization. sonnel as Witnesses References: 3. This Directive does not supersede or (a) Title 5, United States Code, Sections 301, modify existing laws or DoD programs gov- 552, and 552a erning the testimony of DoD personnel or (b) Title 10, United States Code, Section 133 the release of official DoD information dur- (c) DoD Directive 5220.6, ‘‘Industrial Per- ing grand jury proceedings, the release of of- sonnel Security Clearance Program,’’ De- ficial information not involved in litigation, cember 20, 1976 or the release of official information pursu- (d) DoD Directive 5200.1–R, ‘‘Information Se- ant to the Freedom of Information Act, 5 curity Program Regulation,’’ August U.S.C. Section 552 (reference (a)) or the Pri- 1982, authorized by DoD Directive 5200.1, vacy Act, 5 U.S.C. Section 552a (reference June 7, 1982 (a)), nor does this Directive preclude treat- (e) DoD Directive 5230.25, ‘‘Withholding of ing any written request for agency records Unclassified Technical Data from Public that is not in the nature of legal process as Disclosure,’’ November 6, 1984 a request under the Freedom of Information (f) DoD Instruction 7230.7, ‘‘User Charges,’’ or Privacy Acts. January 29, 1985 4. This Directive is not intended to infringe (g) DoD Directive 5400.7–R, ‘‘DoD Freedom of upon or displace the responsibilities com- Information Act Program,’’ December mitted to the Department of Justice in con- 1980, authorized by DoD Directive 5400.7, ducting litigation on behalf of the United March 24, 1980 States in appropriate cases. 5. This Directive does not preclude official A. Purpose comment on matters in litigation in appro- Under Section 301 reference (a) and ref- priate cases. erence (b), this Directive establishes policy, 6. This Directive is intended only to pro- assigns responsibilities, and prescribes provide guidance for the internal operation of cedures for the release of official DoD infor- the Department of Defense and is not in- mation in litigation and for testimony by tended to, does not, and may not be relied DoD personnel as witnesses during litiga- upon to create any right or benefit, sub- tion. stantive or procedural, enforceable at law against the United States or the Department B. Applicability and Scope of Defense.

1. This Directive applies to the Office of C. Definitions the Secretary of Defense (OSD), the Military Departments, the Organization of the Joint 1. Demand. Subpoena, order, or other de- Chiefs of Staff (OJCS), the Unified and Speci- mand of a court of competent jurisdiction, or fied Commands, and the Defense Agencies other specific authority for the production, (hereafter referred to as ‘‘DoD Compo- disclosure, or release of official DoD infor- nents’’), and to all personnel of such DoD mation or for the appearance and testimony Components. of DoD personnel as witnesses. 2. This Directive does not apply to the re- 2. DoD Personnel. Present and former U.S. lease of official information or testimony by military personnel; Service Academy cadets DoD personnel in the following situations: and midshipmen; and present and former ci- a. Before courts-martial convened by the vilian employees of any Component of the authority of the Military Departments or in Department of Defense, including non- administrative proceedings conducted by or appropriated fund activity employees; non- on behalf of a DoD Component; U.S. nationals who perform services over- b. Pursuant to administrative proceedings seas, under the provisions of status of forces conducted by or on behalf of the Equal Em- agreements, for the United States Armed ployment Opportunity Commission (EEOC) Forces; and other specific individuals hired or the Merit Systems Protection Board through contractual agreements by or on be- (MSPB), or pursuant to a negotiated griev- half of the Department of Defense. ance procedure under a collective bargaining 3. Litigation. All pretrial, trial, and post- agreement to which the Government is a trial stages of all existing or reasonably an- party; ticipated judicial or administrative actions,

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hearings, investigations, or similar pro- be imposed upon such release, interview, ceedings before civilian courts, commissions, contact, or testimony. Delegation of this au- boards (including the Armed Services Board thority, to include the authority to invoke of Contract Appeals), or other tribunals, for- appropriate claims of privilege before any eign and domestic. This term includes re- tribunal, is permitted. sponses to discovery requests, depositions, b. In the event that a DoD Component re- and other pretrial proceedings, as well as receives a litigation request or demand for of- sponses to formal or informal requests by at- ficial information originated by another torneys or others in situations involving liti- Component, the receiving Component shall gation. forward the appropriate portions of the re- 4. Official Information. All information of quest or demand to the originating Compo- any kind, however stored, that is in the cus- nent for action in accordance with this Di- tody and control of the Department of De- rective. The receiving Component shall also fense, relates to information in the custody notify the requestor, court, or other author- and control of the Department, or was ac- ity of its transfer of the request or demand. quired by DoD personnel as part of their offi- c. Notwithstanding the provisions of para- cial duties or because of their official status graphs F.1.a. and b., the GC, DoD, in litiga- within the Department while such personnel tion involving terrorism, espionage, nuclear were employed by or on behalf of the Depart- weapons, intelligence means or sources, or ment or on active duty with the United otherwise as deemed necessary, may notify States Armed Forces. Components that GC, DoD, will assume pri- D. Policy mary responsibility for coordinating all litigation requests and demands for official DoD It is DoD policy that official information information or the testimony of DoD per- should generally be made reasonably avail- sonnel, or both; consulting with the Depart- able for use in Federal and state courts and ment of Justice, as required; and taking final by other governmental bodies unless the in- action on such requests and demands. formation is classified, privileged, or otherwise protected from public disclosure. 2. Factors To Consider E. Responsibilities In deciding whether to authorize the release of official DoD information or the tes- 1. The General Counsel, Department of De- timony of DoD personnel concerning official fense (GC, DoD), shall provide general policy information (hereinafter referred to as ‘‘the and procedural guidance by the issuance of disclosure’’) pursuant to paragraph F.1., DoD supplemental instructions or specific orders officials should consider the following types concerning the release of official DoD infor- of factors: mation in litigation and the testimony of a. Whether the request or demand is un- DoD personnel as witnesses during litiga- duly burdensome or otherwise inappropriate tion. under the applicable court rules; 2. The Heads of DoD Components shall issue appropriate regulations to implement b. Whether the disclosure, including re- this Directive and to identify official infor- lease in camera, is appropriate under the mation that is involved in litigation. rules of procedure governing the case or matter in which the request or demand arose; F. Procedures c. Whether the disclosure would violate a statute, executive order, regulation, or di- 1. Authority To Act rective; a. In response to a litigation request or de- d. Whether the disclosure, including re- mand for official DoD information or the tes- lease in camera, is appropriate or necessary timony of DoD personnel as witnesses, the under the relevant substantive law con- General Counsels of DoD, Navy, and the De- cerning privilege; fense Agencies; the Judge Advocates General e. Whether the disclosure, except when in of the Military Departments; and the Chief camera and necessary to assert a claim of Legal Advisors to the JCS and the Unified privilege, would reveal information properly and Specified Commands, with regard to classified pursuant to the DoD Information their respective Components, are author- Security Program under DoD 5200.1–R (ref- ized—after consulting and coordinating with erence (d)), unclassified technical data with- the appropriate Department of Justice liti- held from public release pursuant to DoD Di- gation attorneys, as required—to determine rective 5230.25 (reference (e)), or other mat- whether official information originated by ters exempt from unrestricted disclosure; the Component may be released in litigation; and whether DoD personnel assigned to or affili- f. Whether disclosure would interfere with ated with the Component may be inter- ongoing enforcement proceedings, com- viewed, contacted, or used as witnesses con- promise constitutional rights, reveal the cerning official DoD information or as expert identity of an intelligence source or con- witnesses; and what, if any, conditions will fidential informant, disclose trade secrets or

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similarly confidential commercial or finan- the effect of the request or demand in re- cial information, or otherwise be inappro- sponse to action taken pursuant to para- priate under the circumstances. graph F.3.d., or if such court or other authority orders that the request or demand must 3. Decisions on Litigation Requests and be complied with notwithstanding the final Demands decision of the appropriate DoD official, the a. Subject to paragraph F.3.e., DoD per- DoD personnel upon whom the request or de- sonnel shall not, in response to a litigation mand was made shall notify the responsible request or demand, produce, disclose, re- DoD official of such ruling or order. If the lease, comment upon, or testify concerning DoD official determines that no further legal any official DoD information without the review of or challenge to the court’s ruling prior written approval of the appropriate or order will be sought, the affected DoD per- DoD official designated in paragraph F.1. sonnel shall comply with the request, de- Oral approval may be granted, but a record mand, or order. If directed by the appro- of such approval shall be made and retained priate DoD official, however, the affected in accordance with the applicable imple- DoD personnel shall respectfully decline to menting regulations. comply with the demand. See United States b. If official DoD information is sought, ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). through testimony or otherwise, by a litigation request or demand, the individual seek- 4. Fees ing such release or testimony must set forth, Consistent with the guidelines in DoD In- in writing and with as much specificity as struction 7230.7 (reference (f)), the appro- possible, the nature and relevance of the offi- priate officials designated in paragraph F.1. cial information sought. Subject to para- are authorized to charge reasonable fees, as graph F.3.e., DoD personnel may only established by regulation and to the extent produce, disclose, release, comment upon, or not prohibited by law, to parties seeking, by testify concerning those matters that were request or demand, official DoD information specified in writing and properly approved by not otherwise available under the DoD Free- the appropriate DoD official designated in dom of Information Act Program (reference paragraph F.1. See United States ex rel. (g)). Such fees, in amounts calculated to re- Touhy v. Ragen, 340 U.S. 462 (1951). imburse the Government for the expense of c. Whenever a litigation request or demand providing such information, may include the is made upon DoD personnel for official DoD costs of time expended by DoD employees to information or for testimony concerning process and respond to the request or de- such information, the personnel upon whom mand; attorney time for reviewing the re- the request or demand was made shall imme- quest or demand and any information lo- diately notify the DoD official designated in cated in response thereto and for related paragraph F.1. for the Component to which legal work in connection with the request or the individual contacted is or, for former demand; and expenses generated by mate- personnel, was last assigned. In appropriate rials and equipment used to search for, cases, the responsible DoD official shall produce, and copy the responsive informa- thereupon notify the Department of Justice tion. See Oppenheimer Fund, Inc. v. Sanders, of the request or demands. After due con- 437 U.S. 340 (1978). sultation and coordination with the Depart- ment of Justice, as required, the DoD official 5. Expert or Opinion Testimony shall determine whether the individual is required to comply with the request or demand DoD personnel shall not provide, with or and shall notify the requestor or the court or without compensation, opinion or expert tes- other authority of the determination timony concerning official DoD information, reached. subjects, or activities, except on behalf of d. If, after DoD personnel have received a the United States or a party represented by litigation request or demand and have in the Department of Justice. Upon a showing turn notified the appropriate DoD official in by the requestor of exceptional need or accordance with paragraph F.3.c., a response unique circumstances and that the antici- to the request or demand is required before pated testimony will not be adverse to the instructions from the responsible official are interests of the Department of Defense or received, the responsible official designated the United States, the appropriate DoD offi- in paragraph F.1. shall furnish the requestor cial designated in paragraph F.1. may, in or the court or other authority with a copy writing, grant special authorization for DoD of this Directive and applicable imple- personnel to appear and testify at no expense menting regulations, inform the requestor or to the United States. If, despite the final de- the court or other authority that the request termination of the responsible DoD official, or demand is being reviewed, and seek a stay a court of competent jurisdiction, or other of the request or demand pending a final de- appropriate authority, orders the appearance termination by the Component concerned. and expert or opinion testimony of DoD per- e. If a court of competent jurisdiction or sonnel, the personnel shall notify the respon- other appropriate authority declines to stay sible DoD official of such order. If the DoD

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official determines that no further legal re- C. Definitions view of or challenge to the court’s order will 1. DoD Criminal Investigative Organizations. be sought, the affected DoD personnel shall Refers to the U.S. Army Criminal Investiga- comply with the order. If directed by the ap- tion Command; the Naval Investigative propriate DoD official, however, the affected Service Command; the U.S. Air Force Office DoD personnel shall respectfully decline to of Special Investigations; and the Defense comply with the demand. See United States Criminal Investigative Service, Office of the ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). IG, DoD (OIG, DoD). G. Effective Date and Implementation 2. Significant. Refers to all fraud cases involving an alleged loss of $100,000, or more; This Directive is effective immediately. all corruption cases related to procurement Forward two copies of implementing docu- that involved bribery, gratuities, or conflicts ments to the General Counsel, DoD, within of interest; and any investigation into defec- 120 days. tive products or product substitution in Signed by William H. Taft, IV which a SERIOUS HAZARD to health, safe- Deputy Secretary of Defense. ty, or operational readiness is indicated, regardless of loss value. APPENDIX D TO PART 516—DEPARTMENT D. Policy OF DEFENSE DIRECTIVE 7050.5, CO- ORDINATION OF REMEDIES FOR FRAUD It is DoD policy that: AND CORRUPTION RELATED TO PRO- 1. Each of the DoD Components shall monitor, from its inception, all significant inves- CUREMENT ACTIVITIES tigations of fraud or corruption related to Department of Defense Directive procurement activities affecting its organizations, for the purpose of ensuring that all June 7, 1989, Number 7050.5, IG, DOD possible criminal, civil, administrative, and contractual remedies in such cases are iden- Subject: Coordination of Remedies for Fraud tified to cognizant procurement and com- and Corruption Related to Procurement mand officials and that appropriate remedies Activities are pursued expeditiously. This process shall References: include appropriate coordination with all (a) DoD Directive 7050.5, subject as above, other affected DoD Components. June 28, 1985 (hereby canceled) 2. All investigations of fraud or corruption (b) Public Law 97–291, ‘‘The Victim and Wit- related to procurement activities shall be re- ness Protection Act of 1982,’’ October 12, viewed to determine and implement the ap- 1982 propriate contractual and administrative ac- (c) Defense FAR Supplement (DFARS), Sub- tions that are necessary to recover funds lost part 4.6, ‘‘Contract Reporting’’ through fraud or corruption and to ensure (d) DoD Instruction 4105.61, ‘‘DoD Procure- the integrity of DoD programs and oper- ment Coding Manual,’’ May 4, 1973 ations. (e) DoD 4105.61–M, ‘‘Procurement Coding 3. Appropriate civil, contractual, and ad- Manual’’ (Volume I), October 1988, au- ministrative actions, including those set thorized by DoD Instruction 4105.61 May forth in enclosure 1, shall be taken expedi- 4, 1973 tiously. During an investigation and before A. Reissuance and Purpose prosecution or litigation, and when based in whole or in part on evidence developed dur- This Directive reissues reference (a) to up- ing an investigation, such actions shall be date policies, procedures, and responsibil- taken with the advance knowledge of the re- ities for the coordination of criminal, civil, sponsible DoD criminal investigative organi- administrative, and contractual remedies zation and, when necessary, the appropriate stemming from investigation of fraud or cor- legal counsel in the Department of Defense ruption related to procurement activities. and the Department of Justice (DoJ). When More effective and timely communication of appropriate, such actions shall be taken be- information developed during such investiga- fore final resolution of the criminal or civil tions will enable the Department of Defense case. to take the most appropriate of the available measures. E. Responsibilities 1. The Heads of DoD Components shall: B. Applicability a. Establish a centralized organization This Directive applies to the Office of the (hereafter referred to as ‘‘the centralized or- Secretary of Defense (OSD); the Inspector ganization’’) to monitor and ensure the co- General, Department of Defense (IG, DoD); ordination of criminal, civil, administrative, the Military Departments; the Defense Agen- and contractual remedies for each signifi- cies; and the DoD Field Activities (hereafter cant investigation of fraud or corruption re- referred to collectively as ‘‘DoD Compo- lated to procurement activities affecting the nents’’). DoD Component.

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b. Establish procedures requiring the cen- h. Ensure training materials are developed tralized organization to discuss regularly on fraud and corruption in the procurement with the assigned DoD criminal investigative process, and that all procurement and pro- organization(s) such issues as the current curement-related training includes a period status of significant investigations and their of such instruction appropriate to the dura- coordination with prosecutive authorities. tion and nature of the training. c. Establish procedures requiring that all i. Establish procedures enabling the cen- coordination involving the DoJ, during the tralized organization to ensure that safety pendency of a criminal investigation, is ac- and readiness issues are examined and appro- complished by or with the advance knowl- priately dealt with for all cases in which a edge of the appropriate DoD criminal inves- notice is required under paragraph E.2.i., tigative organization(s). below. The minimum procedures to be fol- d. Establish procedures to ensure appro- lowed by the centralized organization are in priate coordination of actions between the enclosure 3. centralized organizations of any DoD Compo- j. Ensure that appropriate command, pro- nents affected by a significant investigation curement, and investigative organizations of fraud or corruption related to procure- are provided sufficient information to deter- ment activities. mine if further inquiry is warranted on their e. Establish procedures to ensure that all part to prevent reoccurrence and detect proper and effective civil, administrative, other possible fraud within their activity. and contractual remedies available to the 2. The Secretaries of the Military Departments Department of Defense are, when found ap- and the Inspector General, Department of De- plicable and appropriate, considered and un- fense (IG, DoD), or their designees, shall es- dertaken promptly by the necessary DoD of- tablish procedures that ensure that their re- ficials (e.g., commanders, programs officials, spective criminal investigative organizations and contracting officers). This includes initi- will: ation of any suspension and debarment ac- a. Notify, in writing, the centralized orga- tion within 30 days of an indictment or con- nization for the affected DoD Component of viction. The centralized organization shall the start of all significant investigations in- ensure that all proposed actions are coordi- volving fraud or corruption that are related nated with appropriate investigative organi- to procurement activities. Initial notifica- zation. tion shall include the following elements: f. Establish procedures to ensure that a (1) Case title. specific comprehensive remedies plan is de- (2) Case control number. veloped for each significant investigation in- (3) Investigative agency and office of pri- volving fraud or corruption related to pro- mary responsibility. curement activities. These procedures shall (4) Date opened. include the participation of the appropriate (5) Predication. DoD criminal investigative organization in (6) Suspected offense(s). the development of the plan. b. Notify expeditiously the Defense Inves- g. Establish procedures to ensure that in tigative Service (DIS) of any investigations those significant investigations of fraud or that develop evidence that would impact on corruption related to procurement activities DoD-cleared industrial facilities or per- when adverse impact on a DoD mission can sonnel. be determined, such adverse impact is identi- c. Discuss regularly with the centralized fied and documented by the centralized orga- organization such issues as the current sta- nization. This information is to be used by tus of significant investigations and their co- the centralized organization of the DoD ordination with prosecutive authorities. If Component concerned in development of the the DoD criminal investigative organization remedies plan required in paragraph E.1.f., has prepared any documents summarizing above, and shall be furnished to prosecutors the current status of the investigation, such as stated in paragraph E.2.e., below. The in- documents shall be provided to the central- formation shall also be used by the centralized organization. Completed reports of sig- ized organizations in development and prepa- nificant investigations also should be proration of ‘‘Victim Impact Statements’’ for vided to the centralized organization. use in sentencing proceedings, as provided d. Provide to the appropriate procurement for P.L. 97–291 (reference (b)). Some examples officials, commanders, and suspension and of adverse impact on a DoD mission are as debarment authorities, when needed to allow follows: consideration of applicable remedies, any (1) Endangerment of personnel or property. court records, documents, or other evidence (2) Monetary loss. of fraud or corruption related to procure- (3) Denigration of program or personnel in- ment activities. Such information shall be tegrity. provided in a timely manner to enable the (4) Compromise of the procurement proc- suspension and debarment authority to ini- ess. tiate suspension and debarment action with- (5) Reduction or loss of mission readiness. in 30 days of an indictment or conviction.

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e. Provide expeditiously to prosecutive au- F. Procedures thorities the information regarding any ad- Transmissions of information by DoD verse impact on a DoD mission, that is gath- criminal investigative organizations re- ered under paragraph E.1.g., above, for the quired by subsection E.2., above, shall be purpose of enhancing the prosecutability of a made as expeditiously as possible, consistent case. Such information also should be used with efforts not to compromise any ongoing in preparing a victim impact statement for criminal investigation. The transmission of use in sentencing proceedings as provided for the information may be delayed when, in the in Public Law 97–291. judgment of the head of the DoD criminal in- f. Gather, at the earliest practical point in vestigative organization, failure to delay the investigation, without reliance on grand would compromise the success of any inves- jury subpoenas whenever possible, relevant tigation or prosecution. The prosecutive au- information concerning responsible individ- thorities dealing with the investigation shall uals, the organizational structure, finances, be consulted, when appropriate, in making and contract history of DoD contractors such determinations. under investigation for fraud or corruption related to procurement activities, to facili- G. Effective Date and Implementation tate the criminal investigation as well as This Directive is effective immediately. any civil, administrative, or contractual ac- Forward two copies of implementing docu- tions or remedies that may be taken. Some ments to the Inspector General, Department available sources of such information are of Defense, within 120 days. listed in enclosure 2. g. Provide timely notice to other cognizant Donald J. Atwood, DoD criminal investigative organizations of Deputy Secretary of Defense. evidence of fraud by a contractor, subcon- Enclosures—3 tractor, or employees of either, on current or past contracts with, or affecting, other DoD 1. Civil Contractual and Administrative Components. Actions That Can Be Taken in Response to h. Ascertain the impact upon any ongoing Evidence of Procurement Fraud investigation or prosecution of civil, con- 2. Sources of Information Relating to Gov- tractual, and administrative actions being ernment Contractors considered and advise the appropriate cen- 3. Actions to be Taken in Product Substi- tralized organization of any adverse impact. tution Investigations i. Obtain a DD 350 report in every investigation into defective products or product Civil, Contractual, and Administrative Ac- substitution in which a SERIOUS HAZARD tions That Can Be Taken in Response to to health, safety, or operational readiness is Evidence of Procurement Fraud indicated. Timely notification shall be made A. Civil to the centralized organization of each DoD Component that is identified as having con- 1. Statutory tract actions with the subject of the investigation. a. False Claims Act (31 USC 3729 et seq.). b. Anti-Kickback Act (41 USC 51 et seq.). j. Obtain a DD 350 report in all significant c. Voiding Contracts (18 USC 218). fraud investigations, as defined in subsection d. Truth in Negotiations Act (10 USC C.2. above, whether or not the case involved 2306(f)). defective products or product substitution. e. Fraudulent Claims-Contract Disputes Timely notification shall be made to the Act (41 USC 604) centralized organization of each DoD Compo- nent that is identified as having contract ac- 2. Nonstatutory tions with the subject of the investigation. 3. The Inspector General, Department of De- a. Breach of contract. fense (IG, DoD), shall: b. Breach of warranty. a. Develop training materials relating to c. Money paid under mistake of fact. fraud and corruption in procurement related d. Unjust enrichment. activities which shall be utilized in all pro- e. Fraud and/or Deceit. curement related training in conjunction f. Conversion. with training materials developed by the g. Recision and/or Cancellation. DoD Components. (See paragraph E.1.h., h. Reformation. above.) i. Enforcement of performance bond/guar- b. Establish procedures for providing to the antee agreement. DoD criminal investigative organizations, 3. Contractual through the Office of the Assistant Inspector General for Auditing (OAIG-AUD), reports of a. Termination of contract for default. data contained in the Individual Procure- b. Termination of contract for convenience ment Action Report (DD Form 350) System. of Government.

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c. Termination for default and exemplary 4. Administrative damages under the gratuities clause. a. Change in contracting forms and proce- d. Recision of contract. dures. e. Contract warranties. b. Removal or reassignment of Government f. Withholding of payments to contractor. personnel. g. Offset of payments due to contractor c. Review of contract administration and from other contracts. payment controls. h. Price reduction. d. Revocation of warrant contracting offi- i. Correction of defects (or cost of correc- cer. tion). e. Suspension of contractor and contractor j. Refusal to accept nonconforming goods. employees. f. Debarment of contractor and contractor k. Revocation of acceptance. employees. l. Denial of claims submitted by contrac- g. Revocation of facility security clear- tors. ances. m. Disallowance of contract costs. h. Nonaward of contract based upon a find- n. Removal of the contractor from auto- ing of contractor nonresponsibility. mated solicitation or payment system. i. Voluntary refunds.

SOURCES OF INFORMATION RELATING TO GOVERNMENT CONTRACTORS

Type of information Possible source

Location, dollar value, type, and number of current contracts a. DD Form 350 Report.1 with the Department of Defense. b. Defense Logistics Agency’s (DLA) ‘‘Contract Administration Defense Logistics Agency’s (DLA) Contract Administration Report (CAR Report) on contracts DLA administers. 2. Financial status of corporation, history of corporation, own- a. Dunn and Bradstreet Reports. ers, and officers. b. Corporate filings with local secretaries of the State, or corporate recorders. c. Securities and Exchange Commission (public corporations). d. Small Business Administration (SBA) (small businesses). e. General Accounting Office (bid protests, and contractors indebted to the Government). f. Armed Services Board of Contract Appeals (ASBCA) or court litigation. g. List of Contractors Indebted to the United States (maintained, published and distributed by the U.S. Army Finance and Accounting Center, Indianapolis, Indiana 46249). 3. Security clearance background information on facility and of- a. Defense Investigative Service. ficers. 4. Performance history of contractor ...... a. Local contracting officers. b. Defense Contract Administration Service preaward surveys. c. SBA Certificate of Competency records. 5. Name, location, offense alleged, and previous investigative DLA Automated Criminal Case Management System. (Avail- efforts involving DLA-awarded or DLA-administered contracts. able through field offices of the DLA Counsel’s office.) 6. Bid protests, litigation, and bankruptcy involving DLA-award- Field offices of the DLA Counsel’s office. ed or DLA-administered contracts. 1 A determination as to the contract history of any DoD contractor with contracts in excess of $25,000 annually can be made through a review of the ‘‘Individual Procurement Action Report’’ (DD Form 350) system, as prescribed by Subpart 4.6 of the DoD FAR Supplement, DoD Instruction 4105.61, and DoD 4105.61–M (references (c), (d), and (e)).

ACTIONS TO BE TAKEN IN PRODUCT 3. Obtain a complete assessment from safe- SUBSTITUTION INVESTIGATIONS ty, procurement, and program officials of the adverse impact of the fraud on DoD pro- A. The centralized organization, in all cases involving allegations of product substi- grams and operations. tution in which a SERIOUS HAZARD to 4. Ensure that the DoD Component pro- health, safety, or operational readiness is in- vides the Defense criminal investigative or- dicated shall: ganization with full testing support to com- 1. Review the notice of the case imme- pletely identify the defective nature of the diately after receiving it from the Defense substituted products. Costs associated with criminal investigative organization. Review the testing shall be assumed by the appro- the notice to determine any potential safety priate procurement program. or readiness issues indicated by the sus- 5. Prepare a comprehensive impact state- pected fraud. ment describing the adverse impact of the 2. Notify all appropriate safety, procure- fraud on DoD programs for use in any crimi- ment, and program officials of the existence nal, civil, or contractual action related to of the case. the case.

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B. In all cases involving allegations of FAR: Federal Acquisition Regulation product substitution that affect more than FAX: Facsimile Transmission one DoD Component, that centralized orga- FBI: Federal Bureau of Investigation nizations of the affected DoD Components Fed. R. Civ. P.: Federal Rules of Civil Proce- shall identify a lead Agency. The lead cen- dure tralized organization shall ensure that infor- Fed. R. Crim. P.: Federal Rules of Criminal mation on the fraud is provided to the cen- Procedure tralized organization of all other affected FOIA: Freedom of Information Act DoD Components. The lead centralized orga- GAO: General Accounting Office nization shall ensure compliance with the re- HQDA: Headquarters, Department of the quirements of section A., above. The lead Army centralized organization shall then be re- i.e.: An abbreviation for id est, meaning ‘‘that sponsible for preparing a comprehensive is’’ ‘‘Victim Impact Statement’’ as required by paragraph E.1.g. of this Directive. IG: Inspector General C. In all cases involving allegations of JA: Judge Advocate product substitution, the Defense Criminal MACOM: Major Command Investigative Organization shall: MSPB: Merit Systems Protection Board 1. Immediately notify the appropriate cen- NAF: Nonappropriated Fund tralized organization of the beginning of the OTJAG: Office of The Judge Advocate Gen- case. eral 2. Continue to provide to the centralized OSC: Office of Special Counsel organization any information developed dur- PFA: Procurement Fraud Advisor ing the course of the investigation that indi- PFCRA: Program Fraud Civil Remedies Act cates substituted products have been, or PFD: Procurement Fraud Division might be, provided to the Department of De- PFI: Procurement Fraud or Irregularities fense. RJA: Recovery Judge Advocate 3. Ensure that any request for testing of SAUSA: Special Assistant U.S. Attorney substituted products is provided to the cen- SJA: Staff Judge Advocate tralized organization. TDY: temporary Duty TJAG: The Judge Advocate General APPENDIX E TO PART 516—DEPARTMENT UCMJ: Uniform Code of Military Justice OF DEFENSE DIRECTIVE 5505.5, IM- USACIDC: U.S. Army Criminal Investigation PLEMENTATION OF THE PROGRAM Command FRAUD CIVIL REMEDIES ACT USALSA: U.S. Army Legal Services Agency DOD Directive 5505.5 is contained in 32 USARCS: U.S. Army Claims Service CFR part 277. USATDS: U.S. Army Trial Defense Service USMA: United States Military Academy APPENDIX F TO PART 516—GLOSSARY U.S.C.: United States Code Abbreviations Terms AAFES: Army and Air Force Exchange Serv- Active Duty ice AMEDD: Army Medical Department Full-time duty in the active military serv- AFARS: Army Federal Acquisition Regula- ice of the United States. Includes: full-time tion Supplement training duty; annual training duty; active ASBCA: Armed Services Board of Contract duty for training; attendance, while in the Appeals active military service, at a school des- AUSA: Assistant United States Attorney ignated as a Service School by law or by the CFR: Code of Federal Regulations Secretary of the military department con- COE: United States Army Corps of Engineers cerned; and, attendance, while in the active DA: Department of the Army military service, at advanced civil schooling DFARS: Defense Federal Acquisition Regula- and training with industry. It does not in- tion Supplement clude full-time National Guard duty under DOD: Department of Defense Title 32, United States Code. DOJ: Department of Justice. In this regula- Army Activities tion, reference to DOJ means either United States Attorneys’ Offices or The (main) Activities of or under the control of the Department of Justice in Washington, DC Army, one of its instrumentalities, or the DCIS: Defense Criminal Investigative Serv- Army National Guard, including activities ice for which the Army has been designated the e.g.: An abbreviation for exempli gratia, administrative agency, and those designated meaning ‘‘for example’’ activities located in an area in which the et seq.: An abbreviation for et sequentes, Army has been assigned single service claims meaning ‘‘and the following’’ responsibility by DOD directive.

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Army Property Counsel for Representation Real or personal property of the United An attorney, provided by DA at no expense States or its instrumentalities and, if the to the military member or civilian em- United States is responsible therefore, real ployee, who will act as the individual’s law- or personal property of a foreign government yer in all contacts with the MSPB and the which is in the possession or control of the OSC during the pendancy of the OSC inves- Army, one of its instrumentalities, or the tigation and any subsequent OSC initiated Army National Guard, including property of action before the MSPB. An attorney-client an activity for which the Army has been des- relationship will be established between the ignated the administrative agency, and prop- individual and counsel for representation. erty located in an area in which the Army has been assigned single service claims re- DA Personnel sponsibility. DA personnel includes the following: a. Military and civilian personnel of the Centralized Organization Active Army and The U.S. Army Reserve. That organization of a DOD component re- b. Soldiers of the Army National Guard of sponsible for coordinating and monitoring of the United States (Title 10, U.S.C.) and, criminal, civil, contractual, and administra- when specified by statute or where a Federal tive remedies relating to contract fraud. For interest is involved, soldiers in the Army Na- DOD components other than the Army, the tional Guard (Title 32, U.S.C.). It also in- Centralized organizations are as follows: the cludes technicians under 32 U.S.C. 709(a)(d). Office of General Counsel, Department of the c. USMA cadets. Air Force; the Office of the Inspector Gen- d. Nonappropriated fund employees. eral, Department of the Navy; and the Office e. Foreign nationals who perform services of General Counsel, Defense Logistics Agen- for DA overseas. cy. f. Other individuals hired by or for the Army. Claim Debarment The Government’s right to recover money or property from any individual, partnership, Administrative action taken by a debar- association, corporation, governmental body, ring authority to exclude a contractor from or other legal entity (foreign and domestic) Government contracting and Government- except an instrumentality of the United approved subcontracting for a specified pe- States. A claim against several joint debtors riod. or tortfeasors arising from a single transaction or incident will be considered one Deciding Official (Chapter 7) claim. SJA, legal adviser, or Litigation Division attorney who makes the final determination Claims Officer concerning release of official information. A commissioned officer, warrant officer, or qualified civilian employee designated by the DOD Criminal Investigation Organizations responsible commander and trained or expe- Refers to the USACIDC; the Naval Inves- rienced in the conduct of investigations and tigative Service; the U.S. Air Force Office of the processing of claims. Special Investigations; and the Defense Criminal Investigative Service, Office of the Corruption Inspector General, DOD. Practices that include, but are not limited to, solicitation, offer, payment, or accept- Fraud ance of bribes or gratuities; kickbacks; con- Any intentional deception of DOD (includ- flicts of interest; or unauthorized disclosure ing attempts and conspiracies to effect such of official information related to procure- deception) for the purpose of inducing DOD ment matters. action or reliance on that deception. Such practices include, but are not limited to, the Counsel for Consultation following: bid-rigging; making or submitting An attorney, provided by DA at no expense false statements; submission of false claims; to the military member or civilian em- use of false weights or measures; submission ployee, who will provide legal advice to the of false testing certificates; adulterating or witness concerning the authority of OSC, the substituting materials; or conspiring to use nature of an OSC interview and their indi- any of these devices. vidual rights and obligations. The counsel Improper or Illegal Conduct may accompany the witness to the interview and advise the witness during the interview. a. A violation of any law, rule, or regula- No attorney-client relationship is estab- tion in connection with Government mis- lished in this procedure. conduct; or

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b. Mismanagement, a gross waste of funds, the Department of Defense, relates to infor- an abuse of authority, or a substantial and mation in the custody and control of the De- specific danger to public health or safety. partment, or was acquired by DoD personnel as part of their official duties or because of Information Exempt From Release To The their official status within the Department Public while such personnel were employed by or on Those categories of information which may behalf of the Department or on active duty be withheld from the public under one or with the United States Armed Forces. more provisions of law. Operating Forces Judge Advocate Those forces whose primary missions are An officer so designated (AR 27–1). to participate in combat and the integral supporting elements thereof. Within DA, the Legal Adviser operating forces consist of tactical units or- A civilian attorney who is the principal ganized to conform to tables of organization legal adviser to the commander or operating and equipment (TOE). head of any Army command or agency. Personnel Action Litigation These include— Legal action or process involving civil pro- a. Appointment. ceedings, i.e., noncriminal. b. Promotion. c. Adverse action under 5 U.S.C. 7501 et seq. Litigation in Which The United States Has or other disciplinary or corrective action. an Interest d. Detail, transfer, or reassignment. a. A suit in which the United States or one e. Reinstatement. of its agencies or instrumentalities has been, f. Restoration. or probably will be, named as a party. g. Reemployment. b. A suit against DA personnel and arises h. Performance evaluation under 5 U.S.C. out of the individual’s performance of offi- 4301 et seq. cial duties. i. Decision concerning pay, benefits, or c. A suit concerning an Army contract, awards, or concerning education or training subcontract, or purchase order under the if the education or training may reasonably terms of which the United States may be re- be expected to lead to an appointment, pro- quired to reimburse the contractor for recov- motion, performance evaluation, or other eries, fees, or costs of the litigation. personnel action. d. A suit involving administrative pro- j. Any other significant change in duties or ceedings before Federal, state, municipal, or responsibilities that is inconsistent with the foreign tribunals or regulatory bodies that employee’s salary or grade level. may have a financial impact upon the Army. e. A suit affecting Army operations or Private Litigation which might require, limit, or interfere with official action. Litigation other than that in which the f. A suit in which the United States has a United States has an interest. financial interest in the plaintiff’s recovery. g. Foreign litigation in which the United Process States is bound by treaty or agreement to The legal document that compels a defend- ensure attendance by military personnel or ant in an action to appear in court; e.g., in civilian employees. a civil case a summons or subpoena, or in a criminal case, a warrant for arrest, subpoena Medical Care or summons. Includes hospitalization, outpatient treatment, dental care, nursing service, drugs, Prohibited Personnel Practice and other adjuncts such as prostheses and Action taken, or the failure to take action, medical appliances furnished by or at the ex- by a person who has authority to take, direct pense of the United States. others to take, recommend, or approve any Misdemeanor personnel action— a. That discriminates for or against any An offense for which the maximum penalty employee or applicant for employment on does not exceed imprisonment for 1 year. the basis of race, color, religion, sex, na- Misdemeanors include those offenses cat- tional origin, age, handicapping condition, egorized as petty offenses (18 USC § 3559). marital status, or political affiliation, as prohibited by certain specified laws. Official Information b. To solicit or consider any recommenda- All information of any kind, however tion or statement, oral or written, with restored, that is in the custody and control of spect to any individual who requests, or is

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under consideration for, any personnel ac- torney has declined to exercise jurisdiction tion, unless the recommendation or state- over a particular case or class of cases; and ment is based on the personal knowledge or c. An SJA of a general court-martial con- records of the person furnishing it, and convening authority considering taking action sists of an evaluation of the work perform- against a person subject to the UCMJ. ance, ability, aptitude, or general qualifications of the individual, or an evaluation of Recovery JA the character, loyalty, or suitability of such A JA or legal adviser responsible for asser- individual. tion and collection of claims in favor of the c. To coerce the political activity of any United States for property claims and med- person (including the providing of any political expenses. ical contribution or service), or take any action against any employee or applicant for Significant Case of Fraud and Corruption employment as a reprisal for the refusal of any person to engage in such political activ- A procurement fraud case involving an al- ity. leged loss of $100,000 or more; all corruption d. To deceive or willfully obstruct any per- cases related to procurement that involve son with respect to such person’s right to bribery, gratuities, or conflicts of interest; compete for employment. any defective products or product substi- e. To influence any person to withdraw tution in which a serious hazard to health, from competition for any position for the safety or operational readiness is indicated, purpose of improving or injuring the pros- regardless of loss value; and, any procure- pects of any other person for employment. ment fraud case that has received or is ex- f. To grant any preference or advantage pected to receive significant media coverage. not authorized by law, rule, or regulation to Staff Judge Advocate any employee or applicant for employment (including defining the scope or manner of An officer so designated (AR 27–1). The competition or the requirements for any po- SJA of an installation, a command or agency sition) for the purpose of improving or injur- reporting directly to HQDA, or of a major ing the prospects of any particular person for subordinate command of the U.S. Army Ma- employment. teriel Command, and the senior Army JA as- g. To appoint, employ, promote, advance, signed to a joint or unified command. or advocate for appointment, employment, promotion, or advancement, in or to a civil- Subpoena ian position any individual who is a relative A process to cause a witness to appear and (as defined in 5 U.S.C. 3110) of the employee, give testimony, e.g., at a trial, hearing, or if the position is in the agency in which the deposition. employee is serving as a public official or over which the employee exercises jurisdic- Suspension tion or control as an official. Administrative action taken by a sus- h. To take or fail to take a personnel ac- pending authority to temporarily exclude a tion with respect to any employee or appli- contractor from Government contracting cant for employment as a reprisal for being and Government-approved subcontracting. a whistleblower, as defined below. i. To take or fail to take a personnel action Suspension and Debarment Authorities against an employee or applicant for employment as a reprisal for the exercise of any Officials designated in DFARS, section appeal right granted by law, rule, or regula- 9.403, as the authorized representative of the tion. Secretary concerned. j. To discriminate for or against any em- Tortfeasor ployee or applicant for employment on the basis of conduct that does not adversely af- A wrongdoer; one who commits a tort. fect the performance of the employee or applicant or the performance of others. APPENDIX G TO PART 516—FIGURES k. To take or fail to take any other personnel action if the taking of, or failure to This appendix contains figures cited or take, such action violates any law, rule, or quoted throughout the text of this part. regulation implementing, or directly con- Figure C–1. Sample Answer to Judicial cerning, the merit system principles con- Complaint, With Attached Certificate of Service tained in 5 U.S.C. 2301. In the United States District Court for the Prosecutive Authorities Southern District of Texas Corpus Christi These include— Division, No. C–90–100 a. A U.S. Attorney; John Doe, Plaintiff v. Togo D. West, Jr., Sec- b. A prosecuting attorney of a State or retary of the Army, Department of the other political subdivision when the U.S. At- Army, Defendant.

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First Affirmative Defense SAMPLE DA FORM 4

The Complaint is barred by laches. Figure C–3. Unsworn Declaration Under Pen- Figure C–3. Sample Answer to Judicial alty of Perjury Executed Within the United Complaint, with attached Certificate of States Service. This is intended to be used as a guide in preparing a draft Answer as part of Declaration Under Penalty of Perjury a Litigation Report. I am Private Paul Jones, currently as- Answer signed to Company B, 4th Battalion, 325th Parachute Infantry Regiment, Fort Bragg, For its answer to the complaint, defendant North Carolina. I have personal knowledge of admits, denies and alleges as follows: the following matters. 1. Admits. On the evening of 3 June 1970, I was present 2. Denies. at the company party at Lake Popolopen 3. Denies. when the accident occurred. I saw a bright, 4. The allegations contained in paragraph 4 full moon that evening. are conclusions of law to which no response I declare under penalty of perjury that the is required; to the extent they may be foregoing is true and correct. (28 U.S.C. deemed allegations of fact, they are denied. § 1746). 5. Denies the allegations contained in the Executed on: lllll first sentence of paragraph 5; admits the al- Paul Jones, legations contained in the second sentence of Private, U.S. Army. paragraph 5; denies the remainder of the allegations in paragraph 5. Figure D–1. Format for a Request for a Rep- 6. Denies the allegations in paragraph 6 for resentation Using an Unsworn Declaration lack of knowledge or information sufficient Under Penalty of Perjury Executed Within to form a belief as to their truth. the United States 7. Denies each allegation in the complaint not specifically admitted or otherwise quali- Request for Representation fied. I request that the Attorney General of the Prayer for Relief United States, or his agent, designate counsel to defend me in my official and individual The remainder of plaintiff’s Complaint capacities in the case of John Doe v. Private contains his prayer for relief, to which no Paul Jones, now pending in the U.S. District answer is required. Insofar as an answer is Court for the Eastern District of North Caro- required, denies that plaintiff is entitled to lina. I have read the complaint filed in this any relief whatsoever. case and I declare that all my actions were Defendant respectfully prays that the performed in my official capacity, within the Court dismiss plaintiff’s Complaint and scope of my official duties, and in a good award to defendant costs and such further faith belief that my actions conformed to the relief as the Court deems proper. law. I am not aware of any pending related Respectfully submitted, criminal investigation. Ronald M. Ford, I understand the following: if my request United States Attorney. for representation is approved, I will be rep- Roy A. Andersen, resented by a U.S. Department of Justice at- Assistant United States Attorney, 606 N. torney; that the United States is not re- Carancua, Corpus Christi, Texas 78476, (512) quired to pay any final adverse money judg- 884–3454. ment rendered against me personally, al- Captain Christopher N. Jones, though I can request indemnification; that I Department of the Army, Office of the Judge, am entitled to retain private counsel at my Advocate General, 901 N. Stuart St., Suite own expense; and, that the Army expresses 400, Arlington, Virginia 22203–1837, (703) no opinion whether I should or should not re- 696–1666. tain private counsel. Certificate of Service I declare under penalty of perjury that the foregoing is true and correct. (28 U.S.C. I hereby certify that a true and correct § 1746). copy of Defendant’s Answer has been placed Executed on: lllll in the mail, postage prepaid, this ll day of Paul Jones, lllll, 1991, addressed to plaintiff’s coun- Private, U.S. Army. sel as follows: Mr. Eugene Henderson, 777 Fourth Street, Corpus Christi, TX 78888. Roy A. Andersen, Assistant United States Attorney.

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Figure D–2. Format for Scope of Employment its personnel or the production of official Statement Using an Unsworn Declaration documents in private litigation. In this case, Under Penalty of Perjury Executed Outside the Army cannot authorize Captain Selby to the United States appear or produce the requested file absent the following: Declaration You must request in writing her appear- I am currently the Commander of HHC, 6th ance and the production of the file in accord- Armored Division, Bad Vilbel, Germany. I ance with Department of Defense directives, have read the allegations concerning Private 32 CFR § 97.6(c), and Army regulations, 32 Paul Jones in the complaint of John Doe v. CFR §§ 516.34–516.40. The request must include Private Paul Jones, now pending in the U.S. the nature of the proceeding, 32 CFR District Court for the Eastern District of § 516.34(b), and the nature and relevance of North Carolina. the official information sought. Id. § 516.35(d). At all times relevant to the complaint, I We cannot act on your request until we re- was Private Jones’ company commander. His ceive the required information. See, for exam- actions relevant to this case were performed ple, United States ex rel. Touhy v. Ragen, 340 within the scope of his official duties as As- U.S. 462 (1951); Boron Oil Co. v. Downie, 873 sistant Charge of Quarters, Company B, 4th F.2d 67 (4th Cir. 1989); United States v. Bizzard, Battalion, 325th Parachute Infantry Regi- 674 F.2d 1382 (11th Cir. 1982); United States v. ment, Fort Bragg, North Carolina. Marino, 658 F.2d 1120 (6th Cir. 1981); United I declare under penalty of perjury under States v. Allen, 554 F.2d 398 (10th Cir. 1977). the laws of the United States of America To overcome Federal statutory restric- that the foregoing is true and correct. (28 tions on the disclosure of the requested file U.S.C. § 1746). imposed by the Privacy Act, 5 U.S.C. § 552a, Executed on: lllll you must provide either a written release au- John Smith, thorization signed by the individual to whom Captain, Infantry. the file pertains (that is, SSG Kramer) or a court ordered release signed by a judge of a Figure D–3. Format for Contractor Request for court of competent jurisdiction. A subpoena Representantion signed by a clerk of court, notary, or other Request for Representation official is insufficient. See, for example, Doe v. DiGenova, 779 F.2d 74 (DC Cir. 1985). I am the President of the XYZ Corpora- In this case, because of the attorney-client tion. I request the Attorney General of the relationship between Captain Selby and SSG United States designate counsel to defend Kramer, you must produce a written waiver me and my company in Doe v. XYZ, Inc., now of the attorney-client privilege from SSG pending in the U.S. District Court for the Kramer. Because the privilege may protect Eastern District of North Carolina. both documents and testimony, Captain I understand that the assumption by the Selby may not divulge such information Attorney General of the defense of this case without SSG Kramer’s consent. See, for exam- does not alter or increase the obligations of ple, Rule of Professional Conduct for Army the United States under United States Con- tract No. WP–70–660415. Lawyers 1.6(a). I further agree that such representation In addition to the above requirements, will not be construed as waiver or estoppel Captain Selby’s supervisor must approve her to assert any rights which any interested absence from duty. See 32 CFR § 516.43. In this party may have under said contract. regard, we suggest you take the deposition Executed on: lllll at Fort Smith. In any event, however, you or D.D. Tango, your client must pay all travel expenses, as President, XYZ, Inc. this is purely private litigation and witness’ appearance must be at no expense to the Figure G–1. Sample ‘‘Touhy’’ Compliance Letter United States. See id. § 516.48(c). Finally, if Captain Selby does appear as a Department of the Army, Office of the Staff witness, she may only give factual testi- Judge Advocate, Fort Smith, North Da- mony. She may not testify as an opinion or kota 84165, 15 April 1993 expert witness. This limitation is based on Mr. T. Hudson Taylor, Department of Defense and Army policy that Attorney At Law, 105 Hay Street, Whynot, ND generally prohibits Government employees 84167 from appearing as expert witnesses in pri- Dear Mr. Taylor: We have learned that you vate litigation. See id. §§ 97.6(e), 516.42. subpoenaed Captain Roberta Selby to testify Our sole concern in this matter is to pro- at a deposition in the case Kramer v. Kramer, tect the interests of the United States Army; currently filed in state court, and that you the Army will not block access to witnesses directed her to bring her legal assistance file or documents to which you are lawfully enti- concerning her client, SSG Kramer. tled. So that the Army can adequately pro- Under 32 CFR §§ 97.6(c), 516.35, and 516.40, tect its interests in this matter, I request the Army must authorize the appearance of that you respond to this letter by 27 April

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1993. If you have any questions, please call The Army policy is one of strict impar- CPT Taylor at 919–882–4500. tiality in litigation in which the Army is not Sincerely, a named party, a real party in interest, or in Robert V. Jackansi, which the Army does not have a significant Major, JA, Chief, Administrative Law. interest. When a witness with an official connection with the Army testifies, a natural Figure G–2. Sample Fact Witness Approval tendency exists to assume that the testi- Letter mony represents the official view of the Army, despite express disclaimers to the Department of the Army, Office of the Staff contrary. Judge Advocate, Fort Smith, North Da- The Army is also interested in preventing kota 84165, 15 April 1993 the unnecessary loss of the services of its Mr. T. Hudson Taylor, personnel in connection with matters unre- Attorney At Law, l05 Hay Street, Whynot, ND lated to their official responsibilities. If 84167 Army personnel testify as expert witnesses Dear Mr. Taylor: This letter responds to in private litigation, their official duties are your request to interview and depose Captain invariably disrupted, often at the expense of Buzz Sawyer as a witness in Morgan v. Jones. the Army’s mission and the Federal tax- Subject to the following conditions, your re- payer. quest is approved. Finally, the Army is concerned about the This grant of authority is limited to fac- potential for conflict of interest inherent in tual testimony only. Captain Sawyer may the unrestricted appearance of its personnel not testify as an expert witness. This limita- as expert witnesses on behalf of parties other tion is based on Army policy prohibiting than the United States. Even the appearance Government employees from appearing as of such conflicts of interest seriously under- expert witnesses in private litigation. See 32 mines the public trust and confidence in the CFR § 516.42. Captain Sawyer may not pro- integrity of our Government. vide official information that is classified, This case does not present the extraor- privileged, or otherwise protected from pub- dinary circumstances necessary to justify lic disclosure. the requested witness’ expert testimony. You The decision whether to testify in private have demonstrated no exceptional need or litigation is within the discretion of the pro- unique circumstances that would warrant spective witness. This authorization is also (his or her) appearance. The expert testi- subject to the approval of the witness’ super- mony desired can be secured from non-Army visors to be absent during the period in- sources. Consequently, we are unable to volved. Finally, because this is private liti- grant you an exception to the Army’s policy. gation, the witness’ participation must be at If you have any questions, please call me no expense to the United States. See 32 CFR or CPT Taylor at 919–882–4500. § 516.48. Sincerely, If you have any questions, please call CPT Robert V. Jackansi, Taylor at 919–882–4500. Major, JA, Chief, Administrative Law. Sincerely, Robert V. Jackansi, Figure G–4. Sample of Doctor Approval Letter Major, JA, Chief, Administrative Law Department of the Army, Office of the Staff Figure G–3. Sample Expert Witness Denial Judge Advocate, Fort Smith, North Da- Letter kota 84165, 15 April 1993 Department of the Army, Office of the Staff Mr. T. Hudson Taylor, Attorney At Law, 105 Hay Street, Whynot, ND Judge Advocate, Fort Smith, North Da- 84167 kota 84165, 15 April 1993 Dear Mr. Taylor: This responds to your re- Mr. T. Hudson Taylor, quest to depose Dr. (MAJ) J. McDonald, Fort Attorney At Law, l05 Hay Street, Whynot, ND Smith Medical Treatment Facility. Pursu- 84167 ant to 32 CFR §§ 516.33–516.49, you may depose Dear Mr. Taylor: This responds to your re- him subject to the following conditions: quest for Mr. Charles Montrose to appear as He may testify as to his treatment of his an expert witness in private litigation: patient, Sergeant Rock, as to related labora- Smithers v. ABC Video. For the following rea- tory tests he may have conducted, or other sons, the request is denied. actions he took in the regular course of his Army Regulation 27–40 forbids Army per- duties. sonnel from providing expert testimony in He must limit his testimony to factual private litigation, with or without com- matters such as his observations of the pa- pensation, except under the most extraor- tient or other operative facts, the treatment dinary circumstances. See 32 CFR §§ 97.6(e), prescribed or corrective action taken, course 516.42. Several reasons support the exercise of recovery or steps required for treatment of strict control over such witness appear- of injuries suffered, or contemplated future ances. treatment.

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His testimony may not extend to hypo- i. Items and services are continually ob- thetical questions or to a prognosis. He may tained from the same source due to an un- not testify as an ‘‘expert.’’ This limitation is warranted lack of effort to develop second based on Department of Defense and Army sources. policy prohibiting present or former military 2. During the development of the state- personnel and Army civilian employees from ments of work and specifications. providing opinion or expert testimony con- a. Statements of work and specifications cerning official information, subjects, or ac- appear to be intentionally written to fit the tivities in private litigation. See 32 CFR products or capabilities of a single con- §§ 97.6(e), 516.42. tractor. The witnesses may not provide official in- b. Statements of work, specifications, or formation that is classified, privileged, or sole source justifications developed by or in otherwise protected from public disclosure. consultation with a preferred contractor. To protect the Army’s interests, CPT Taylor c. Information concerning requirements or another Army attorney will be present and pending contracts is released only to during the depositions. preferred contractors. To overcome restrictions imposed by the d. Allowing companies and industry per- Privacy Act, 5 U.S.C. § 552a, Dr. McDonald sonnel who participated in the preparation of may not discuss matters derived from the bid packages to perform on subsequent con- patient’s medical records absent the pa- tracts in either a prime or subcontractor ca- tient’s written consent or a court order pacity. signed by a judge. A subpoena issued by e. Release of information by firms or per- someone other than a judge or magistrate is sonnel participating in design or engineering insufficient. See Doe v. DiGenova, 779 F.2d 74 to companies competing for prime contract. (D.C. Cir. 1985); Stiles v. Atlanta Gas Light Co., f. Prequalification standards or specifica- 453 F. Supp. 798 (N.D. Ga. 1978). tions appear designed to exclude otherwise The decision whether to testify in private qualified contractors or their productions. litigation is within the discretion of the wit- g. Requirements appear split up to allow ness, subject to the approval of his super- for rotating bids, giving each contractor his visors to be absent during the period in- or her ‘‘fair share.’’ volved. h. Requirements appear split up to meet Finally, because this is private litigation, small purchase requirements (that is, $25,000) the witnesses’ participation must be at no or to avoid higher levels of approval that expense to the United States. See 32 CFR would be otherwise required. § 516.48. i. Bid specifications or statement of work If you have any questions, please call me appear inconsistent with the items described or CPT Taylor at 919–882–4500. in the general requirements. j. Specifications appear so vague that rea- Sincerely, sonable comparisons of estimate would be Robert V. Jackansi, difficult. Major, JA, Chief, Administrative Law. k. Specifications appear inconsistent with previous procurements of similar items of Figure H–1. Procurement Fraud Indicators services. Procurement Fraud Indicators 3. During the presolicitation phase. a. Sole source justifications appear unnec- 1. During the identification of the govern- essary or poorly supported. ment and services. b. Statements justifying sole source or ne- a. Need determinations for items currently gotiated procurements appear inadequate or scheduled for disposal or reprocurement, or incredible. which have predetermined reorder levels. c. Solicitation documents appear to con- b. Excessive purchase of ‘‘expendables’’ tain unnecessary requirements which tend to such as drugs or auto parts. restrict competition. c. Inadequate or vague need assessment. d. Contractors or their representatives ap- d. Frequent changes in the need assess- pear to have received advanced information ment or determination. related to the proposed procurement on a e. Mandatory stock levels and inventory preferential basis. requirements appear excessive. 4. During the solicitation phase. f. Items appear to be unnecessarily de- a. Procurement appears to be processed so clared excess or sold as surplus, while same as to exclude or impede certain contractors. items are being reprocured. b. The time for submission of bids appears g. It appears that an item or service is to be unnecessarily limited so that only being purchased more as a result of aggres- those with advance information have ade- sive marketing efforts rather than in re- quate time to prepare bids or proposals. sponse to a valid requirement. c. It appears that information concerning h. Need determination appears to be unnec- the procurement has been revealed only to essarily tailored in ways that can only be certain contractors, without being revealed met by certain contractors. to all prospective competitors.

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d. Bidders conferences are conducted in a during solicitation, evaluation, and negotia- way that apparently invites bid rigging, tion. price fixing, or other improper collusion be- e. Any apparently unauthorized release of tween contractors. procurement information to a contractor or e. There is an apparent intentional failure to non-government personnel. to fairly publish notice of the solicitation. f. Any apparent favoritism in the evalua- f. Solicitation appears vague as to the de- tion of the bid or proposal of a particular tails such as time, place and manner, of subcontractor. mitting acceptable bids. g. Apparent bias in the evaluation criteria g. There is evidence of improper commu- or in the attitude or actions of the members nications or social contract between contrac- of the evaluation panel. tors and government personnel. 7. During contract formation and adminis- h. Controls over the number and destina- tration. tion of bid packages sent to interested bid- a. Defective pricing by the contractor usu- ders appear inadequate. ally associated with submitting false cost i. Indications that government personnel and pricing data under the Truth in Negotia- or their families may own stock or have tion Act. some other financial interest in either a con- b. Cost/Labor mischarging. tractor or subcontractor. c. Product substitution. j. Indications that government personnel d. Progress payment fraud. For more de- are discussing possible employment for tails on these subjects see DA PAM 27–153, themselves or a family member with a con- Contract Law, paragraph 23–5. tractor or subcontractor or indications that a proposal for future employment from a Figure H–2. Guide for Preparing Remedies Plan contractor or subcontractor to a government Guide for Preparing a Remedies Plan employee or his or her family members has not been firmly rejected. (Date of Plan) k. Indications that any contractor has received special assistance in preparation of Section I (Administrative Data) his or her bid or proposal. A. Subject of Allegation. l. It appears that a contract is given an ex- B. Principal Investigative Agency. pressed or implied reference to a specific C. Investigative Agency File Number. subcontractor. D. Subject’s Location. m. Failure to amend solicitation to reflect E. Location Where Offense Took Place. necessary changes or modifications. F. Responsible Action Commander. 5. During the submission of bids and pro- G. Responsible MACOM. posals. H. Contract Administrative Data (If Applica- a. Improper acceptance of a late bid. ble): b. Documents, such as receipts, appear fal- 1. Contract Number. sified to obtain acceptance of a late bid. 2. Type of Contract. c. Improperly attempting to change a bid 3. Dollar Amount of Contract. after other bidders prices are known. 4. Period of Contract. d. Indications that mistakes have been de- I. Principal Case Agent (Name and Telephone liberately planted in a bid to support correc- Number). tion after bid opening. J. Civilian Prosecutor (If Applicable) (Name, e. Withdrawal by a low bidder who may Address, and Telephone Number). later become a subcontractor to a higher bid- K. Is Grand Jury Investigating This Matter? der who gets the contract. If So, Where is Grand Jury Located? f. Apparent collusion or bid rigging among L. Audit Agency Involved (If Applicable). the bidders. Name and Telephone Number of Prin- g. Bidders apparently revealing their prices cipal Auditor. to each other. M. Suspense Date for Update of This Plan. h. Required contractor certifications appear falsified. Section II (Summary of Allegations and i. Information concerning contractor’s Investigative Results to Date) qualifications, finances, and capabilities appears falsified. (Provide sufficient detail for reviewers of 6. During the evaluation of bids and pro- the plan to evaluate the appropriateness of posals. the planned remedies. If information is a. Deliberately losing or discarding bids of ‘‘close-hold’’ or if grand jury secrecy applies, certain contractors. so state.) b. Improperly disqualifying the bids or pro- Section III (Adverse Impact Statement) posals of certain contractors. c. Accepting apparently nonresponsive bids (Describe any adverse impact on the DA/ from preferred contractors. DOD mission. Adverse impact is described in d. Unusual or unnecessary contacts be- DOD Directive 7050.5, paragraph E.1.g. Iden- tween government personnel and contractors tify impact as actual or potential. Describe

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the impact in terms of monetary loss, Section VIII (Coordination/Comments) endangerment to personnel or property, mission readiness, etc. This information should (Record the name, grade, organization, office be considered in formulating your remedies symbol, and telephone number of all officials as described below and provided to prosecu- with whom you have coordinated the Rem- tors for their use in prosecution of the of- edies Plan or who have provided comments fenses.) on your plan; append any comments provided to the Remedies Plan.) Section IV (Remedies Taken and/or Being Pursued) Figure H–3. Guide for Testing Defective Items Under Criminal or Civil Investigation A. Criminal Sanctions. (As a minimum, address the following: Are criminal sanctions Testing Defective Items Under Criminal or appropriate? If so, which ones? If not, why Civil Investigation not? Has the local U.S. Attorney or other civilian prosecutor been notified and briefed? 1. Under no circumstances is testing to What actions have been taken or are in- proceed unless the command has committed tended? If and when action is complete, de- sufficient funding to cover the entire cost of scribe action and final results of the action. the projected testing. Other pertinent comments should be in- 2. No testing will be initiated unless there cluded.) has been a written request for the testing to B. Civil Remedies. (As a minimum address the appropriate Procurement Fraud Advisor the following: Which civil remedies are ap- from a criminal investigator or Assistant propriate? Has the local U.S. Attorney or United States Attorney or Department of other civilian prosecutor been notified and Justice Attorney (AUSA is used in these pro- briefed? How, when, where and by whom are cedures to indicate either an AUSA or De- the appropriate civil remedies implemented? partment of Justice attorney). If they have If and when action is completed, describe ac- not already done so, criminal investigators tion and final results. Other pertinent com- should be requested to coordinate their test- ments should be included.) ing requests with the AUSA overseeing the C. Contractual/Administrative Remedies. investigation. (As a minimum, address the following: Are 3. Barring extraordinary circumstances, contractual and administrative remedies ap- only one test will be conducted to support propriate: If so, which ones? If not, Why? If the criminal and civil recovery efforts of a contractual or administrative remedies are procurement fraud/irregularity matter. considered appropriate, describe how, when, Early coordination with the Civil Division of and by whom the remedies are implemented. Department of Justice or the local United If and when action is completed, describe ac- States Attorneys Office is necessary to en- tion and results of the action. Other perti- sure that testing funds are not wasted. nent comments should be included.) 4. The request for testing should include a D. Restrictions on Remedies Action. (Com- clear, concise statement of the purpose of ment as to why obvious remedies are not the testing to include a statement of the al- being pursued. For example, the U.S. Attor- legations made and the contact number(s) ney requests suspension action held in abey- involved. Any test plan which requires destruc- ance pending criminal action.) tive testing must be approved by the AUSA. 5. No testing will be initiated unless a test Section V (Miscellaneous Comments/ plan has been developed which states the fol- Information) lowing: Section VI (Remedies Plan Participants) a. the contract number(s) involved (Record the name, grade, organization, and b. the National Stock Number (NSN) of the telephone number of all Remedies Plan par- item to be tested ticipants.) c. the purpose of the testing d. the alleged defect or the contractual re- Section VII (MACOM Coordination quirement violated Comments) e. the CID report of investigation (ROI) num- (Record the name, grade, office symbol, and ber or the DCIS case number telephone number of all MACOM officials f. cost of the test (a cost proposal should be providing coordination comments; record the an attachment to the test plan) date when comments are submitted and ap- g. where the test will be conducted pend to the Remedies Plan the signed com- h. how the test will be conducted ments provided.) i. the name and telephone number of the test team leader MACOM Focal Point j. the names of all test team members (Record the name, grade, office symbol, and k. the approximate dates of the testing telephone number of the MACOM focal l. the date that completion of the test is re- point.) quired

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m. a clear statement of the desired product The procedures established in paragraphs 5 (that is test report, raw data, analysis of and 6 apply for second requests for testing results, evaluation of test results) with the additional requirement that the As- n. the PRON to fund the testing sistant United States Attorney must be re- o. a retention plan. quested to approve the test plan. 6. The test plan shall be coordinated with the concurrence received in advance from Figure I-1. Guide for Seeking Legal Advice and the appropriate personnel in the Procure- Representation Before Office of Special Counsel ment Directorate, Product Assurance and Test Directorate, the Procurement Fraud Guide for Seeking Legal Advice and Rep- Advisor, and the investigator/AUSA request- resentation Before Office of Special Coun- ing the test. No testing will be initiated sel until the criminal investigator/AUSA who requested the testing has approved the test 1. Overview plan. a. DA employees or military members 7. If the items tested are to be retained as asked to provide information (testimonial or evidence, the criminal investigator should documentary) to OSC may obtain legal ad- arrange for retention of the evidence. While vice through the Labor Counselor from DA the Command will support evidence reten- attorneys concerning their rights and obligation, this is primarily the responsibility of tions. This includes assistance at any inter- the criminal investigators. Agents should be views with OSC investigators. However, an advised that putting items in Code L or simi- attorney-client relationship will not be es- lar non-use status is insufficient to protect tablished unless the employee or military it from being released to the field. A decision member— not to retain the tested items as evidence must (1) Is suspected or accused by the OSC of have the approval of the AUSA. committing a prohibited personnel practice 8. All items to be tested should be from a or other illegal or improper act; and statistically valid random sample. The sam- (2) Has been assigned counsel by the DA ple should conform with the inspection re- General Counsel. quirements of the contract or be in conform- b. Any military member or employee who ance with a random sample specifically de- reasonably believes that he or she is sus- veloped for the instant test plan. It is rec- pected or has been accused by OSC of com- ommended that a statistician be consulted mitting a prohibited personnel practice or to determine the feasibility of a random other illegal or improper act may obtain sample specifically created to support the legal representation from DA. The counsel test plan. assigned will be from another DOD compo- 9. Results of testing should be available to nent whenever a DA attorney is likely to Command and DA personnel for appropriate contractual and administrative remedies. face a conflict between the attorney’s eth- Any request for testing results that indi- ical obligation to the client and DA, or when cates that dissemination of the testing re- the suspected or accused individual has results will be limited by Rule 6(e) of the Fed- quested representation from another DOD eral Rules of Criminal Procedure is to be for- component. Outside legal counsel may be re- warded through the MACOM or AMC Pro- tained by DA on behalf of the member or em- curement Fraud Coordinator to DA Procure- ployee under unusual circumstances and ment Fraud Division prior to the initiation only with the personal approval of the DOD of any testing. General Counsel. 10. Resolution of problems associated with c. The DA General Counsel will determine testing requests should be conducted at the whether a conflict is likely to occur if a DA local level. In AMC the authority to refuse a attorney is assigned to represent a military testing request resides with the Office of member or civilian. If the DA General Coun- Command Counsel. Any disputes which can- sel determines a conflict may occur, or if the not be resolved at the local level will be for- suspected or accused employee has requested warded to the AMC or MACOM Procurement representation from another DOD compo- Fraud Coordinator for resolution. This in- nent, the DA General Counsel will seek the cludes disputes regarding funding or any assistance of another General Counsel in ob- time sensitive issues. taining representation outside DA. 11. Second requests for testing of the same 2. Requests for Representation item due to a change in the investigative plan require coordination by the PFA with a. To obtain legal representation, military the investigator and AUSA overseeing the members or civilian employees must— investigation to determine the deficiencies (1) Submit a written request for legal rep- in the earlier test. Disputes which cannot be resentation through the Labor and Employ- resolved between the AUSA, PFA, and inves- ment Law Office, Office of the Judge Advo- tigator regarding testing are to be forwarded cate General, Department of the Army, to simultaneously to the MACOM Procurement DA General Counsel, explaining the cir- Fraud Coordinator and PFD for resolution. cumstances that justify legal representation.

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Copies of all process and pleadings served d. The DA attorney designated as counsel should accompany the request. may request relief from the duties of rep- (2) Indicate whether private counsel, at resentation or counseling without being re- personal expense, has been retained. quired to furnish explanatory information (3) Obtain written certification from their that might compromise confidential commu- supervisor that— nications between the client and the attor- (a) They were acting within the scope of of- ney. ficial duties; and (b) DA has not initiated any adverse or dis- 5. Funding ciplinary action against them for the con- This regulation authorizes cognizant DA duct being investigated by the OSC. officials to approve requests from military b. Requests for DA legal representation members or civilian employees for travel, must be approved by the DA General Coun- sel. per diem, witness appearances, or other de- c. The conditions of legal representation partmental support necessary to ensure ef- must be explained and accepted in writing by fective legal representation by the des- the member or employee. ignated counsel.

3. Limitations on Representation 6. Status a. DA will not provide legal representation A military member’s or civilian employ- with respect to a DA initiated disciplinary ee’s participation in OSC investigations, action against a civilian employee for com- MSPB hearings, and other related pro- mitting or participating in a prohibited per- ceedings will be considered official depart- sonnel practice or for engaging in illegal or mental business for time and attendance re- improper conduct. This prohibition applies quirements and similar purposes. regardless of whether the participation or conduct is also the basis for the disciplinary 7. Advice to Witnesses action proposed by the OSC. The following advice to military members b. In certain situations, counsel provided and civilian employees questioned during the by DA may be limited to representing the in- course of an OSC investigation may be ap- dividual only with respect to some of the propriate in response to these frequent in- pending matters, if other specific matters of concern to the OSC or MSPB do not satisfy quiries: the requirements contained in this regula- a. A witness may decline to provide a tion. ‘‘yes’’ or ‘‘no’’ answer in favor of a more qualified answer when this is necessary to 4. Attorney-Client Relationship ensure accuracy in responding to an OSC interviewer’s question. a. An attorney-client relationship will be established and continued between the sus- b. Requests for clarification of both ques- pected or accused individual and assigned DA tions and answers are appropriate to avoid counsel. misinterpretation. b. In representing a DA employee or mili- c. Means to ensure verifications of an tary member, the DA attorney designated as interview by OSC investigators are appro- counsel will act as a vigorous advocate of the priate, whether or not the military member individual’s legal interests before the OSC or or civilian employee is accompanied by MSPB. The attorney’s professional responsi- counsel. Tape recorders may only be used for bility to DA will be satisfied by fulfilling this purpose when— this responsibility to the employee or mili- (1) The recorder is used in full view. tary member. Legal representation may be (2) All attendees are informed. terminated only with the approval of the DA (3) The OSC investigator agrees to record General Counsel and normally only on the the proceeding. basis of information not available at the d. Any errors that appear in a written sum- time the attorney was assigned. mary of an interview prepared by the inves- c. The attorney-client relationship may be tigator should be corrected before the mem- terminated if the assigned DA counsel determines, with the approval of the DA General ber or employee signs the statement. The Counsel, that— military member or civilian employee is not (1) The military member or civilian em- required to sign any written summary that ployee was acting outside the scope of his or is not completely accurate. A military mem- her official duties when engaging in the con- ber or civilian employee may receive a copy duct that is the basis for the OSC investiga- of the summary as a condition of signing. tion or charge; and (2) Termination is not in violation of the rules of professional conduct applicable to the assigned counsel.

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PART 518—THE FREEDOM OF Subpart A—General Provisions INFORMATION ACT PROGRAM § 518.1 Purpose. Subpart A—General Provisions This part provides policies and procedures for implementation of the Free- Sec. dom of Information Act (5 U.S.C. 552, 518.1 Purpose. as amended) and Department of De- 518.2 References. fense Directive (DoDD) 5400.7 and pro- 518.3 Explanation of abbreviations and motes uniformity in the Department of terms. Defense (DoD) Freedom of Information 518.4 Responsibilities. Act (FOIA) Program. This Army regu- 518.5 Authority. lation implements provisions for access 518.6 Public information. and release of information from all 518.7 FOIA terms defined. Army information systems (automated 518.8 Freedom of Information requirements. and manual) in support of Army Infor- mation Management (AR 25–1). Subpart B—FOIA Reading Rooms

518.9 Reading room. § 518.2 References. 518.10 ‘‘(a)(2)’’ materials. Required and related publications are 518.11 Other materials. listed in Appendix A of this part.

Subpart C—Exemptions § 518.3 Explanation of abbreviations and terms. 518.12 General. Abbreviations and special terms used 518.13 FOIA exemptions. in this part are explained in the glossary of AR 25–55. Subpart D—For Official Use Only

518.14 General. § 518.4 Responsibilities. (a) The Administrative Assistant to Subpart E—Release and Processing the Secretary of the Army (AASA) is Procedures responsible for issuing policy and establishing guidance for the Army FOIA 518.15 General provisions. Program. AASA has the responsibility 518.16 Initial determinations. to approve exceptions to this regula- 518.17 Appeals. tion that are consistent with control- 518.18 Judicial actions. ling law and regulations. AASA may delegate the approval authority, in Subpart F—Fee Schedule writing, to a division chief, under its 518.19 General provisions. supervision, within that agency in the 518.20 Collection of fees and fee rates. grade of O6 or civilian equivalent. 518.21 Collection of fees and fee rates for (b) The Administrative Assistant to technical data. the Secretary of the Army, (AASA), The Records and Programs Agency, Subpart G—Reports (RPA), Records Management and De- classification Agency (RMDA), is re- 518.22 Reports control. sponsible for developing and recom- 518.23 Annual report content. mending policy to AASA concerning APPENDIXES TO PART 518 the Army FOIA program and overall APPENDIX A TO PART 518—REFERENCES. execution of the program under the APPENDIX B TO PART 518—ADDRESSING FOIA policy and guidance of AASA. REQUESTS. (c) The Chief of Information Officer AUTHORITY: 5 U.S.C. 551, 552, 552a, 5101–5108, (CIO), G6 will provide oversight of the 5110–5113, 5115, 5332–5334, 5341–42, 5504–5509, FOIA program as necessary in compli- 7154; 10 U.S.C. 130, 1102, 2320–2321, 2328; 18 ance with Federal Statutes, regula- U.S.C. 798, 3500; 31 U.S.C. 3710; 35 U.S.C. 181– tions, Office of Management and Budg- 188; 42 U.S.C. 2162; 44 U.S.C. 33; and Executive et (OMB), and the Office of Secretary Order 12600. of Defense (OSD). SOURCE: 71 FR 9222, Feb. 22, 2006, unless (d) Heads of Army Staff agencies, otherwise noted. field operating agencies, major Army

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commands (MACOMS), and subordinate (7) AR 40–66, AR 40–68, and AR 40–400 commands are responsible for the su- (medical records); pervision and execution of the FOIA (8) AR 70–31 (technical reports); program in functional areas and activi- (9) AR 20–1, AR 385–40 and DA Pam ties under their command. 385–40 (aircraft accident investiga- (e) Heads of Joint Service agencies or tions); commands for which the Army is the (10) AR 195–2 (criminal investigation Executive Agent, or otherwise has re- activities); sponsibility for providing fiscal, (11) AR 190–45 (Military Police logistical, or administrative support, records and reports); will adhere to the policies and proce- (12) AR 360–1 (Army public affairs: dures in this regulation. public information, general policies on (f) Commander, Army and Air Force release of information to the public); Exchange Service (AAFES), is respon- (13) AR 380–5 and DoD 5200.1–R (na- sible for the supervision of the FOIA tional security classified information); program within that command pursu- (14) AR 380–5 paragraph 7–101e (poli- ant to this part. cies and procedures for allowing persons outside the Executive Branch to § 518.5 Authority. do unofficial historical research in classified Army records); (a) This part governs written FOIA (15) AR 380–10 (Technology Transfer requests from members of the public. It for disclosure of information and con- does not preclude the release of per- tacts with foreign representatives; sonnel or other records to agencies or (16) AR 381–45 (U.S. Army Intel- individuals in the Federal Government ligence and Security Command inves- for use in official work. tigation files); (b) Soldiers and civilian employees of (17) AR 385–40 (safety reports and the Department of the Army (DA) may, records); as private citizens, request DA or other (18) AR 600–8–104 (military personnel agencies’ records under the FOIA. They information management records); must prepare requests at their own ex- (19) AR 600–85 (alcohol and drug abuse pense and on their own time. They may records); not use Government equipment, sup- (20) AR 608–19 (family advocacy plies, or postage to prepare personal records); and FOIA requests. It is not necessary for (21) AR 690 (series civilian personnel soldiers or civilian employees to go records, FAR, DoD Federal Acquisition through the chain of command to re- Regulation Supplement (DFARS) and quest information under the FOIA. the Army Federal Acquisition Regula- (c) Requests for DA records processed tion Supplement (AFARS) procure- under the FOIA may be denied only in ment matters). accordance with the FOIA (5 U.S.C. 552(b)), as implemented by this part. § 518.6 Public information. Guidance on the applicability of the (a) Public information. The public has FOIA is also found in the Federal Ac- a right to information concerning the quisition Regulation (FAR). activities of its Government. Army pol- (d) Release of some records may also icy is to conduct its activities in an be affected by the programs that cre- open manner and provide the public ated them. They are discussed in the with a maximum amount of accurate following regulations: and timely information concerning its (1) AR 20–1 (Inspector General activi- activities, consistent always with the ties and procedures); legitimate public and private interests (2) AR 27–10 (military justice); of the American people. A record re- (3) AR 27–20 (claims); quested by a member of the public who (4) AR 27–40 (litigation: release of in- follows rules established by proper au- formation and appearance of wit- thority in DA shall not be withheld in nesses); whole or in part unless the record is ex- (5) AR 27–60 (intellectual property); empt from mandatory partial or total (6) AR 36–2 (Government Accounting disclosure under the FOIA. As a matter Office audits); of policy, Army activities shall make

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discretionary disclosures of exempt electronic links to the below elements: records or information only after full the location of reading room and the and deliberate consideration of the in- types and categories of information stitutional, commercial, and personal available; the location of the World privacy interests that could be impli- Wide Web page; a reference to the cated by disclosure of the information. Army FOIA regulation and how to ob- Activities must be prepared to present tain a copy; a reference to the Army a sound legal basis in support of their FOIA annual report and how to obtain determinations. In order that the pub- a copy; and the location of the GILS lic may have timely information con- page. The DA FOIA handbook, ‘‘A Citi- cerning Army activities, records re- zen’s Guide to Request Army Records quested through public information Under the Freedom of Information Act channels by news media representa- (FOIA),’’ can be accessed on-line at tives that would not be withheld if re- http://www.rmda.belvoir.army.mil/. ‘‘The quested under the FOIA should be re- Major Automated Information Systems leased upon request. Prompt responses Descriptions’’ can be accessed at http:// to requests for information from news www.defenselink.mil/pubs/foi. media representatives should be en- (c) Control system. A request for couraged to eliminate the need for records that invokes the FOIA shall these requesters to invoke the provi- enter a formal control system designed sions of the FOIA and thereby assist in to ensure accountability and compli- providing timely information to the ance with the FOIA. Any request for public. Similarly, requests from other Army records that either explicitly or members of the public for information implicitly cites the FOIA shall be proc- that would not be withheld under the essed under the provisions of this part, FOIA should continue to be honored unless otherwise required. through appropriate means without requiring the requester to invoke the § 518.7 FOIA terms defined. FOIA. (b) FOIA handbook. The Department (a) FOIA request. A written request of the Army Freedom of Information for Army records that reasonably de- Act/Privacy Act (DA FOIA/PA) Office scribes the record(s) sought, made by shall prepare, in addition to FOIA reg- any person, including a member of the ulations, a handbook for the use of the public (U.S. or foreign citizen/entity), public in obtaining information from an organization, or a business, but not its organizations. This handbook will including a Federal Agency or a fugi- be a short, simple explanation of what tive from the law, that either explic- the FOIA is designed to do, and how a itly or implicitly invokes the FOIA, member of the public can use it to ac- DoDD 5400.7, DoD 5400.7–R, this part, or cess government records. The DA Army Activity supplementing regula- FOIA/PA Office handbook will explain tions or instructions. All requesters the types of records that can be ob- should also indicate a willingness to tained through FOIA requests, why pay fees associated with the processing some records cannot, by law, be made of their request. Requesters may ask available, and how the Army activity for a waiver of fees, but should also ex- determines whether or not the record press a willingness to pay fees in the can be released. The handbook will also event of a waiver denial. Written re- explain how to make a FOIA request, quests may be received by postal serv- how long the requester can expect to ice or other commercial delivery wait for a reply, and appeal rights. The means, by facsimile, or electronically handbook will supplement other infor- (such as e-mail). Requests received by mation locator systems, such as the facsimile or electronically must have a Government Information Locator Serv- postal mailing address included since it ice (GILS), and explain how a requester may not be practical to provide a sub- can obtain more information about stantive response electronically. The those systems. The handbook will be request is considered properly received, available on paper and through elec- or perfected, when the conditions in tronic means and contain the following this paragraph have been met and the additional information, complete with request arrives at the FOIA office of

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the Activity in possession of the If a request is received for such infor- records. mation, Army Activities shall provide (b) Agency record. The products of the requester with guidance, inclusive data compilation, such as all books, pa- of any written notice to the public, on pers, maps, photographs, and machine how to obtain the information. How- readable materials, inclusive of those ever, if the requester insists that the in electronic form or format, or other request be processed under the FOIA, documentary materials, regardless of then the request shall be processed physical form or characteristics, made under the FOIA. If there is any doubt or received by an agency of the United as to whether the request must be States Government under Federal law processed, contact DA, FOIA/PA Office. in connection with the transaction of (c) Army activity. A specific area of public business and in DA possession organizational or functional responsi- and control at the time the FOIA re- bility within DA, authorized to receive quest is made. and act independently on FOIA re- (1) The following are not included quests. within the definition of the word (d) Initial denial authority (IDA). An ‘‘record’’: Objects or articles, such as official who has been granted authority structures, furniture, vehicles and by the Secretary of the Army to deny equipment, whatever their historical records requested under the FOIA value, or value as evidence; Anything based on one or more of the nine cat- that is not a tangible or documentary egories of exemptions from mandatory record, such as an individual’s memory disclosure. An IDA also: Denies a fee or oral communication; Personal category claim by a requester; denies a records of an individual not subject to request for expedited processing due to agency creation or retention require- demonstrated compelling need; denies ments, created and maintained pri- a request for a waiver or reduction of marily for the convenience of an agen- fees; reviews a fee estimate; and con- cy employee, and not distributed to firms that no records were located in other agency employees for their offi- response to a request. cial use. Personal papers fall into three (e) Appellate authority. The Secretary categories: Those created before enter- of the Army or designee having juris- ing Government service; private mate- diction for this purpose over the rials brought into, created, or received record, or any of the other adverse de- in the office that were not created or terminations. The DA appellate au- received in the course of transacting thority is the Office of the Army Gen- Government business; and work-related eral Counsel (OGC). personal papers that are not used in (f) Administrative appeal. A request by the transaction of Government busi- a member of the general public, made ness in accordance with Public Law 86– under the FOIA, asking the appellate 36, National Security Information Ex- authority of the Army to reverse a de- emption. cision to: Withhold all or part of a re- (2) A record must exist and be in the quested record; deny a fee category possession and control of DA at the claim by a requester; deny a request time of the request to be considered for expedited processing due to dem- subject to this part and the FOIA. onstrated compelling need; deny a re- There is no obligation to create or quest for waiver or reduction of fees; compile a record to satisfy a FOIA re- deny a request to review an initial fee quest. estimate; and confirm that no records (3) Hard copy or electronic records were located during the initial search. that are subject to FOIA requests Requesters also may appeal the failure under 5 U.S.C. 552 (a)(3), and that are to receive a response determination available to the public through an es- within the statutory time limits, a fee tablished distribution system such as estimate, and any determination that the Government Printing Office (GPO), the requester believes is adverse in na- FEDERAL REGISTER, National Technical ture. Information Service (NTIS), or the (g) Public interest. The interest in ob- Internet, normally need not be proc- taining official information that sheds essed under the provisions of the FOIA. light on an activity’s performance of

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its statutory duties because the infor- (2) DA Form 4948–R. This form lists mation falls within the statutory pur- references and information frequently pose of the FOIA to inform citizens used for FOIA requests related to about what their Government is doing. OPSEC. Persons who routinely deal That statutory purpose, however, is with the public (by telephone or letter) not fostered by disclosure of informa- on such requests should keep the form tion about private citizens accumu- on their desks as a guide. lated in various governmental files (c) Avoidance of procedural obstacles. that reveals nothing about an agency’s Army Activities shall ensure that pro- or official’s own conduct. cedural matters do not unnecessarily (h) Electronic record. Records (includ- impede a requester from obtaining DA ing e-mail) that are created, stored, records promptly. The Army shall pro- and retrievable by electronic means. vide assistance to requesters to help (i) Federal agency. As defined by 5 them understand and comply with pro- U.S.C. 552 (f)(1), a Federal agency is cedures established by this part and any executive department, military de- any supplemental regulations pub- partment, Government corporation, lished by the Army Activities. Coordi- Government controlled corporation, or nation of referral of requests with DA other establishment in the executive FOIA/PA Office should be made tele- branch of the Government (including phonically in order to respond to the the Executive Office of the President), requester in a timelier manner. Re- or any independent regulatory agency. quests will not be mailed to the DA FOIA/PA Office for disposition or co- (j) Law enforcement investigation. An ordination with other IDAs. investigation conducted by a command (d) Prompt action on requests and final or activity for law enforcement pur- response determinations. Generally, poses relating to crime, waste, fraud or when a member of the public complies national security. Such investigations with the procedures established in this may include gathering evidence for part or instructions for obtaining DA criminal prosecutions and for civil or records, and after the request is re- regulatory proceedings. ceived by the official designated to respond, Army Activities shall endeavor § 518.8 Freedom of Information requirements. to provide a final response determination within the statutory 20 working (a) Compliance with the FOIA. Army days. If a significant number of re- personnel are expected to comply with quests, or the complexity of the re- the FOIA, this part, and Army FOIA quests prevent a final response deter- policy in both letter and spirit. This mination within the statutory time pe- strict adherence is necessary to provide riod, Army Activities shall advise the uniformity in the implementation of requester of this fact, and explain how the Army FOIA Program and to create the request will be responded to within conditions that will promote public its multitrack processing system. A trust. final response determination is notifi- (b) Openness with the public. The DA cation to the requester that the shall conduct its activities in an open records are released or partially re- manner consistent with the need for se- leased, or will be released on a certain curity and adherence to other require- date, or the records are withheld under ments of law and regulation. Records an appropriate FOIA exemption, or the not specifically exempt from disclosure records cannot be provided for one or under the Act shall, upon request, be more of the other reasons. Interim remade readily accessible to the public in sponses acknowledging receipt of the accordance with rules promulgated by request, negotiations with the re- competent authority, whether or not quester concerning the scope of the re- the Act is invoked. quest, the response timeframe, and fee (1) Operations Security (OPSEC). DA agreements are encouraged; however, officials who release records under the such actions do not constitute a final FOIA must also consider OPSEC. The response determination pursuant to Army implementing directive is AR the FOIA. If a request fails to meet 530–1. minimum requirements as set forth,

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Activities shall contact the requester onstrates a compelling need for the in- and inform the requester what would formation. Notice of the determination be required to perfect or correct the re- as to whether to grant expedited proc- quest, or to limit the scope to allow for essing in response to a requester’s com- the most expeditious response. The pelling need shall be provided to the re- statutory 20 working day time limit quester within 10 calendar days after applies upon receipt of a perfected or receipt of the request in the Army Ac- correct FOIA request. Before mailing a tivity’s office that will determine final response determination and those whether to grant expedited processing. records or portions thereof deemed re- Once the Army Activity has deter- leasable, records custodians will obtain mined to grant expedited processing, a written legal opinion from their serv- the request shall be processed as soon icing judge advocate concerning the as practicable. Actions by Army Ac- releasibility of the requested records. tivities to initially deny or affirm the The legal opinion must cite specific ex- initial denial on appeal of a request for emptions, appropriate justification, expedited processing and a failure to and identify if the records were proc- respond in a timely manner shall be essed under the FOIA, PA (including subject to judicial review. Initial deter- the applicable systems notice), or both. mination of denials of expedited proc- (1) Multi-track processing. When an essing will be immediately forwarded Army Activity has a significant num- to the IDA for action. If the IDA up- ber of pending requests that prevents a holds the denial, the requester will be response determination being made informed of his or her right to appeal. within 20 working days, the requests (i) Imminent threat. Compelling need shall be processed in a multitrack means that the failure to obtain the processing system, based on the date of records on an expedited basis could rea- receipt, the amount of work and time sonably be expected to pose an immi- involved in processing the requests, nent threat to the life or physical safe- and whether the request qualifies for ty of an individual. expedited processing. Army Activities (ii) Alleged Federal Government activ- may establish as many processing ity. Compelling need also means that queues as they wish; however, as a the information is urgently needed by minimum, three processing tracks an individual primarily engaged in dis- shall be established, all based on a seminating information in order to in- first-in, first-out concept, and rank or- form the public concerning actual or dered by the date of receipt of the re- alleged Federal Government activity. quest. One track shall be a processing An individual primarily engaged in dis- queue for simple requests, one track seminating information means a per- for complex requests, and one track son whose primary activity involves shall be a processing queue for expe- publishing or otherwise disseminating dited processing. Determinations as to information to the public. Representa- whether a request is simple or complex tives of the news media would nor- shall be made by each Army Activity. mally qualify as individuals primarily Army Activities shall provide a re- engaged in disseminating information. quester whose request does not qualify Other persons must demonstrate that for the fastest queue an opportunity to their primary activity involves pub- limit the scope of the request in order lishing or otherwise disseminating in- to qualify for the fastest queue. This formation to the public. multitrack processing system does not (iii) General public interest. Urgently obviate an Activity’s’ responsibility to needed means that the information has exercise due diligence in processing re- a particular value that will be lost if quests in the most expeditious manner not disseminated quickly. Ordinarily possible. this means a breaking news story of (2) Expedited processing. A separate general public interest. However, infor- queue shall be established for requests mation of historical interest only or meeting the test for expedited proc- information sought for litigation or essing. Expedited processing shall be commercial activities would not qual- granted to a requester after the re- ify, nor would a news media publica- quester requests such and dem- tion or broadcast deadline unrelated to

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the news breaking nature of the infor- under the FOIA to release exempt in- mation. formation when appropriate; he or she (iv) Certified statement. A demonstra- must exercise this discretion in a rea- tion of compelling need by a requester sonable manner, within regulations shall be made by a statement certified consistent with current policy consid- by the requester to be true and correct erations. The excised copies shall to the best of his or her knowledge. clearly reflect the denied information This statement must accompany the by the use of brackets, indicating the request in order to be considered and removal of information. Bracketed responded to within the 10 calendar areas must be sufficiently removed so days required for decisions on expe- as to reveal no information. The best dited access. means to ensure illegibility is to cut (v) Other reasons for expedited proc- out the information from a copy of the essing. Another reason that merits ex- document and reproduce the appro- pedited processing by Army FOIA of- priate pages. fices is an imminent loss of substantial (2) If the document is declassified, all due process rights. A demonstration of classification markings shall be lined imminent loss of substantial due proc- through with a single black line, which ess rights shall be made by a statement will allow the markings to be read. The certified by the requester to be true document shall then be stamped ‘‘Un- and correct to the best of his or her classified.’’ knowledge. The statement mentioned (f) Public domain. Nonexempt records in paragraph (iv) of this section must released under the authority of this accompany the request in order to be part are considered to be in the public considered and responded to within the domain. Such records may also be 10 calendar days required for decisions made available in the DA reading room on expedited access. Once the decision in paper form, as well as electronically, has been made to expedite the request to facilitate public access. Exempt for this reason, the request may be records disclosed without authoriza- processed in the expedited processing tion by the appropriate Army FOIA of- queue behind those requests qualifying ficial do not lose their exempt status. for compelling need. Also, while authority may exist to dis- (vi) Administrative appeals. These close records to individuals in their of- same procedures also apply to requests ficial capacity, the provisions of this for expedited processing of administra- part apply if the same individual seeks tive appeals. the records in a private or personal ca- (e) Use of exemptions. It is Army pol- pacity. icy to make records publicly available, (g) Creating a record. A record must unless the record qualifies for exemp- exist and be in the possession and con- tion under one or more of the nine ex- trol of DA at the time of the search to emptions. Discretionary releases of in- be considered subject to this part and formation protected under the FOIA the FOIA. There is no obligation to should be made only after full and de- create or compile a record to satisfy a liberate consideration of the institu- FOIA request. An Army Activity, how- tional, commercial, and personal pri- ever, may compile a new record when vacy interests that could be implicated so doing would result in a more useful by disclosure of the information. When response to the requester, or be less Army activities determine to withhold burdensome to the agency than pro- information using one of the nine ex- viding existing records, and the re- emptions, the Department of Justice quester does not object. Cost of cre- (DOJ) will defend the position unless it ating or compiling such a record may is found to be lacking a Sound Legal not be charged to the requester unless Basis for denial. the fee for creating the record is equal (1) Parts of a requested record may to or less than the fee that would be be exempt from disclosure under the charged for providing the existing FOIA. The proper DA official may de- record. Fee assessments shall be in ac- lete exempt information and release cordance with subpart F of this part. the remainder to the requester. The (1) Concerning electronic data, the proper official also has the discretion issue of whether records are actually

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created or merely extracted from an sonable effort. Descriptive information existing database is not always readily about a record may be divided into two apparent. Consequently, when respond- broad categories: Category I is file-re- ing to FOIA requests for electronic lated and includes information such as data where creation of a record, pro- type of record (for example, memo- gramming, or particular format are randum), title, index citation, subject questionable, Army Activities should area, date of record creation, and origi- apply a standard of reasonableness. nator; Category II is event-related and (2) If the capability exists to respond includes the circumstances that re- to the request, and the effort would be sulted in the record being created or a business as usual approach, then the the date and circumstances sur- request should be processed. However, rounding the event the record covers. the request need not be processed (2) Generally, a record is not reason- where the capability to respond does ably described unless the description not exist without a significant expendi- contains sufficient Category I informa- ture of resources, thus not being a nor- tion to permit an organized, non ran- mal business as usual approach. As dom search based on the Army Activi- used in this sense, a significant expend- ty’s filing arrangements and existing iture of resources in both time and/or retrieval systems, or unless the record manpower that would cause a signifi- contains sufficient Category II infor- cant interference with the operation of mation to permit an inference of the the Army Activity’s automated infor- Category I elements needed to conduct mation system would not be a business such a search. as usual approach. (3) The following guidelines deal with (h) Description of requested record. requests for personal records. Ordi- Identification of the record desired is narily, when personal identifiers are the responsibility of the requester. The provided only in connection with a re- requester must provide a description of quest for records concerning the re- the desired record that enables the quester, only records in a PA system of Government to locate the record with a records that can be retrieved by per- reasonable amount of effort. In order sonal identifiers need be searched. to assist Army Activities in conducting However, if an Army Activity has rea- more timely searches, requesters son to believe that records on the re- should endeavor to provide as much quester may exist in a record system identifying information as possible. other than a PA system, the Army Ac- When an Army Activity receives a re- tivity shall search that system under quest that does not reasonably describe the provisions of the FOIA. In either the requested record, it shall contact case, Army Activities may request a the requester and afford the requester reasonable description of the records the opportunity to perfect the request. desired before searching for such Army Activities are not obligated to records under the provisions of the act on the request until the requester FOIA and the PA. If the record is re- perfects the request. When practicable, quired to be released under the FOIA, Army Activities shall contact the re- the Privacy Act does not bar its disclo- quester to aid in identifying the sure. records sought and in reformulating (4) The previous guidelines notwith- the request to reduce the burden on the standing, the decision of the Army Ac- agency in complying with the Act. DA tivity concerning reasonableness of de- FOIA officials will reply to unclear re- scription must be based on knowledge quests by: Describing the defects in the of its files. If the description enables requests; explaining the types of infor- Army Activity personnel to locate the mation described below, and ask the re- record with reasonable effort, the de- quester for such information; and ex- scription is adequate. The fact that a plaining that no action will be taken FOIA request is broad or burdensome on the request until the requester re- in its magnitude does not, in and of plies to the letter. itself, entitle an Army Activity to (1) The following guidelines are pro- deny the request on the ground that it vided to deal with generalized requests does not reasonably describe the and are based on the principle of rea- records sought. The key factor is the

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ability of the Army Activity’s staff to Activity receiving a request that has reasonably ascertain and locate which been misaddressed shall refer the re- records are being requested. quest to the proper address and advise (i) Referrals. The Army FOIA referral the requester. Army Activities making policy is based upon the concept of the referrals of requests for records shall originator of a record making a release include with the referral, a point of determination on its information. If an contact by name, a telephone number, Army Activity receives a request for and an e-mail address. If the office re- records originated by another Army ceiving the FOIA request does not Activity, it will contact the Army Ac- know where the requested records are tivity to determine if it also received located, that activity will contact the the request, and if not, obtain concur- DA, FOIA/PA Office, to determine the rence from the other Army Activity to office where the request should be re- refer the request. An Army Activity ferred. shall refer a FOIA request for a classi- (1) An Army Activity shall refer for fied record that it holds to another response directly to the requester a Army Activity, DoD Component, or FOIA request for a record that it holds agency outside the DoD, if the record to another Army Activity or agency originated in another Army Activity or outside the Army, if the record origi- DoD Component or outside agency, or nated in the other Army Activity or if the classification is derivative. In outside agency. Whenever a record or a this situation, provide the record and a portion of a record is referred to an- release recommendation on the record other Army Activity or to a Govern- with the referral action. In either situ- ment Agency outside of the Army for a ation, the requester shall be advised of release determination and direct re- the action taken, unless exempt infor- sponse, the requester shall be informed mation would be revealed. While refer- of the referral, unless it has been deter- rals to originators of information re- mined that notification would reveal sult in obtaining the best possible deci- exempt information. Referred records sion on release of the information, the shall only be identified to the extent policy does not relieve Army Activities consistent with security requirements. from the responsibility of making a re- (2) An Army Activity may refer a release decision on a record should the quest for a record that it originated to requester object to referral of the re- another Army Activity or agency when quest and the record. Should this situa- the other Army Activity or agency has tion occur, Army Activities shall still a valid interest in the record, or the coordinate with the originator of the record was created for the use of the information prior to making a release other Army Activity or agency. In such determination. A request received by situations, provide the record and a re- an Army Activity having no records release recommendation on the record sponsive to a request shall be referred with the referral action. Include a routinely to another Army Activity, if point of contact with the telephone the other Army Activity has reason to number. An example of such a situa- believe it has the requested records. tion is a request for audit reports pre- Prior to notifying a requester of a re- pared by the U.S. Army Audit Agency. ferral to another Army Activity, the These advisory reports are prepared for Army Activity receiving the initial re- the use of contracting officers and quest shall consult with the other their release to the audited contractor Army Activity to determine if that shall be at the discretion of the con- Army Activity’s association with the tracting officer. A FOIA request shall material is exempt. If the association be referred to the appropriate Army is exempt, the Army Activity receiving Activity and the requester shall be no- the initial request will protect the as- tified of the referral, unless exempt in- sociation and any exempt information formation would be revealed. Another without revealing the identity of the example is a record originated by an protected Army Activity. The pro- Army Activity or agency that involves tected Army Activity should be respon- foreign relations, and could affect an sible for submitting the justifications Army Activity or organization in a required in any litigation. Any Army host foreign country. Such a request

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and any responsive records may be re- WHMO records discovered in Army Ac- ferred to the affected Army Activity or tivity’s files shall be forwarded organization for consultation prior to a through DA, FOIA/PA Office, to the final release determination within DA. Washington Headquarters Services, Of- (3) Within DA, an Army Activity fice For Freedom of Information and shall ordinarily refer a FOIA request Security Review (OFOISR). The and a copy of the record it holds but OFOISR shall coordinate with the NSC, that originated with another Army Ac- White House, or WHMO and return the tivity or that contains substantial in- records to the originating agency after formation obtained from another Army coordination. Activity, to that Activity for direct re- (7) To the extent referrals are con- sponse, after direct coordination and sistent with the policies expressed by obtaining concurrence from the Activ- this section, referrals between offices ity. The requester then shall be noti- of the same Army Activity are author- fied of such referral. Army Activities ized. shall not, in any case, release or deny (8) On occasion, the DA receives such records without prior consulta- FOIA requests for Government Ac- tion with the other Army Activity. countability Office (GAO) records con- (4) Army Activities that receive retaining Army information. Even ferred requests shall answer them in though the GAO is outside the Execu- accordance with the time limits estab- tive Branch, and not subject to the lished by the FOIA, this part, and their FOIA, all FOIA requests for GAO docu- multitrack processing queues, based ments containing Army information upon the date of initial receipt of the received either from the public or on request at the referring Activity or referral from the GAO shall be proc- agency. essed under the provisions of the FOIA. (5) Agencies outside DA that are sub- (j) Authentication. Records provided ject to the FOIA. under this part shall be authenticated (i) An Army Activity may refer a with an appropriate seal, whenever FOIA request for any record that origi- necessary, to fulfill an official Govern- nated in an agency outside DA or that ment or other legal function. This serv- is based on information obtained from ice, however, is in addition to that re- an outside agency to the agency for di- quired under the FOIA and is not in- rect response to the requester after co- cluded in the FOIA fee schedule. Army ordination with the outside agency, if Activities may charge for the service that agency is subject to FOIA. Other- at a rate of $5.20 for each authentica- wise, the Army Activity must respond tion. to the request. (k) Records management. FOIA records (ii) An Army Activity shall refer to shall be maintained and disposed of in the agency that provided the record accordance with the National Archives any FOIA request for investigative, in- and Records Administration (NARA) telligence, or any other type of records General Records Schedule and DoD that are on loan to DA for a specific Component records schedules. purpose, if the records are restricted (l) Record-keeping requirements in ac- from further release and so marked. cordance with the Army Records Informa- However, if for investigative or intel- tion Management System (ARIMS). The ligence purposes, the outside agency records listed below are required by desires anonymity, an Army Activity ARIMS in the conduct of the daily may only respond directly to the re- business of the Army to provide ade- quester after coordination with the quate and proper documentation to outside agency. protect the rights and interests of indi- (6) Army Activities that receive re- viduals and the Federal Government. quests for records of the National Secu- The full description of the records and rity Council (NSC), the White House, or their disposition is found at https:// the White House Military Office www2.arims.army.mil. (WHMO) shall process the requests. (1) FOIA requests, access, and deni- Army records in which the NSC or als; White House has a concurrent review- (2) FOIA administrative files; ing interest, and NSC, White House, or (3) FOIA appeals;

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(4) FOIA controls; from the provisions of 5 U.S.C. (5) FOIA reports; 552a(d)(1) and if the records, or any por- (6) Access to information files; tion thereof, are exempt under the (7) Safeguarded nondefense informa- FOIA, the requester shall be so advised tion releases; with the appropriate PA and FOIA ex- (8) Nonsafeguarded information re- emption. Appeals shall be processed leases; under both Acts. (9) Unauthorized disclosure reports; (5) Requesters who seek access to (10) Acknowledgement; and agency records that are not part of a (11) Initial Denial Authority designa- PA system of records, and who cite or tions/appointments. imply the PA and FOIA, will have their (m) Relationship between the FOIA and requests processed under the FOIA the Privacy Act (PA). Not all requesters since the PA does not apply to these are knowledgeable of the appropriate records. Appeals shall be processed statutory authority to cite when re- under the FOIA. Requesters who seek questing records, nor are all of them access to agency records and who cite aware of appeal procedures. In some in- or imply the FOIA will have their re- stances, they may cite neither Act, but quests and appeals processed under the will imply one or both Acts. For these FOIA. reasons, the below guidelines are pro- (6) Requesters shall be advised in the vided to ensure that requesters receive final response letter, which Act(s) was the greatest amount of access rights (were) used, inclusive of appeal rights under both Acts. as outlined in paragraphs (m)(1) (1) If the record is required to be re- through (5) of this section. leased under the FOIA, the PA does not (n) Non-responsive information in re- bar its disclosure. Unlike the FOIA, the sponsive records. Army Activities shall PA applies only to U.S. citizens and interpret FOIA requests liberally when aliens lawfully admitted for permanent determining which records are respon- residence. sive to the requests, and may release (2) Requesters who seek records non-responsive information. However, about themselves contained in a PA should Army Activities desire to with- system of records and who cite or hold non-responsive information, the imply only the PA, will have their re- following steps shall be accomplished: quests processed under the provisions (1) Consult with the requester, and of both the PA and the FOIA. If the PA ask if the requester views the informa- system of records is exempt from the tion as responsive, and if not, seek the provisions of 5 U.S.C. 552a(d)(1) and if requester’s concurrence to delete the the records, or any portion thereof, are non-responsive information without a exempt under the FOIA, the requester FOIA exemption. Reflect this concur- shall be so advised with the appro- rence in the response letter. priate PA and FOIA exemption. Ap- (2) If the responsive record is unclas- peals shall be processed under both sified, and the requester does not agree Acts. to deletion of non-responsive informa- (3) Requesters who seek records tion without a FOIA exemption, re- about themselves that are not con- lease all non-responsive and responsive tained in a Privacy Act system of information that is not exempt. For records and who cite or imply the PA non-responsive information that is ex- will have their requests processed empt, notify the requester that even if under the provisions of the FOIA, since the information were determined re- the PA does not apply to these records. sponsive, it would likely be exempt Appeals shall be processed under the under (state appropriate exemption(s)). FOIA. Advise the requester of the right to re- (4) Requesters who seek records quest this information under a sepa- about themselves that are contained in rate FOIA request. The separate re- a PA system of records and who cite or quest shall be placed in the same loca- imply the FOIA or both Acts will have tion within the processing queue as the their requests processed under the pro- original request. visions of both the PA and the FOIA. If (3) If the responsive record is classi- the PA system of records is exempt fied, and the requester does not agree

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to deletion of non-responsive informa- (b) Record availability. The FOIA re- tion without a FOIA exemption, requires that records described in 5 lease all unclassified responsive and U.S.C. 552(a)(2)(A), (B), (C), and (D) cre- non-responsive information that is not ated on or after November 1, 1996, shall exempt. The classified, non-responsive be made available electronically, as information need not be reviewed for well as in hard copy in the FOIA read- declassification at this point. Advise ing room for inspection and copying, the requester that even if the classified unless such records are published and information were determined respon- copies are offered for sale. All portions sive, it would likely be exempt under 5 determined to be exempt in accordance U.S.C. 552(b)(1), and other exemptions with 5 U.S.C. 552 (reference (a)) shall be if appropriate. Advise the requester of deleted from all 5 U.S.C. 552(a)(2) the right to request this information records made available to the general under a separate FOIA request. The public. In every case, justification for separate request shall be placed in the the deletion must be fully explained in same location within the processing writing, and the extent of such deletion queue as the original request. shall be indicated on the record that is (o) Honoring form or format requests. made publicly available, unless such Army Activities shall provide the indication would harm an interest pro- record in any form or format requested tected by an exemption under which by the requester if the record is readily the deletion was made. If technically reproducible in that form or format. feasible, the extent of the deletion in Army Activities shall make reasonable electronic records or any other form of efforts to maintain their records in record shall be indicated at the place forms or formats that are reproducible. in the record where the deletion was In responding to requests for records, made. However, the Army may publish Army Activities shall make reasonable in the FEDERAL REGISTER a description efforts to search for records in elec- of the basis upon which it will delete tronic form or format, except when identifying details of particular types such efforts would significantly inter- of records to avoid clearly unwarranted fere with the operation of the Army invasions of privacy, or competitive Activities’ automated information sys- harm to business submitters. In appro- tem. Such determinations shall be priate cases, the Army may refer to made on a case-by-case basis. this description rather than write a separate justification for each deletion. 5 U.S.C. 552(a)(2)(A), (B), (C), and (D) Subpart B—FOIA Reading Rooms records are: (1) (a)(2)(A) records. Final opinions, § 518.9 Reading room. including concurring and dissenting (a) Reading room location. The DA opinions, and orders made in the adju- shall provide an appropriate facility or dication of cases, as defined in 5 U.S.C. facilities where the public may inspect 551, that may be cited, used, or relied and copy or have copied the records de- upon as precedents in future adjudica- scribed in paragraphs (b)(1) through (4) tions; of this section. In addition to the (2) (a)(2)(B) records. Statements of records described, DA may elect to policy and interpretations that have place other records in their reading been adopted by the agency that are room, and also make them electroni- not published in the FEDERAL REG- cally available to the public. The Army ISTER; and may share reading room facilities with (3) (a)(2)(C) records. Administrative DoD Components if the public is not staff manuals and instructions, or por- unduly inconvenienced, and also may tions thereof that establish Army pol- establish decentralized reading rooms. icy or interpretations of policy that af- When appropriate, the cost of copying fect a member of the public. This pro- may be imposed on the person request- vision does not apply to instructions ing the material in accordance with for employees on tactics and tech- the provisions of subpart F of this part. niques to be used in performing their The Army FOIA Public Reading Room duties, or to instructions relating only is operated by the DA, FOIA/PA Office. to the internal management of the

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Army. Examples of manuals and in- through (4) of § 518.9, that are issued, structions not normally made available adopted, or promulgated after July 4, are: 1967. No ‘‘(a)(2)’’ materials issued, pro- (i) Those issued for audit, investiga- mulgated, or adopted after July 4, 1967 tion, and inspection purposes, or those that are not indexed and either made that prescribe operational tactics, available or published may be relied standards of performance, or criteria upon, used or cited as precedent for defense, prosecution, or settlement against any individual unless such in- of cases; and dividual has actual and timely notice (ii) Operations and maintenance of the contents of such materials. Such manuals and technical information materials issued, promulgated, or concerning munitions, equipment, sys- adopted before July 4, 1967 need not be tems, and intelligence activities. indexed, but must be made available (4) (a)(2)(D) records. Those 5 U.S.C. upon request if not exempted under 552(a)(3) records, which because of the this part. nature of the subject matter, have be- (b) The DA FOIA/PA Office shall come or are likely to become the sub- promptly publish quarterly or more ject of subsequent requests for substan- frequently, and distribute, by sale or tially the same records. These records otherwise, copies of each index of are referred to as FOIA-processed (a)(2) ‘‘(a)(2)’’ materials or supplements records. thereto unless it publishes in the FED- (i) Army Activities shall decide on a ERAL REGISTER an order containing a case by case basis whether records fall determination that publication is un- into this category, based on previous necessary and impracticable. A copy of experience of the Army Activity with each index or supplement not published similar records; particular cir- shall be provided to a requester at a cumstances of the records involved, in- cost not to exceed the direct cost of du- cluding their nature and the type of in- plication as set forth in subpart F of formation contained in them; or the this part. identity and number of requesters and (c) Each index of ‘‘(a)(2)’’ materials whether there is widespread press, his- or supplement thereto shall be ar- toric, or commercial interest in the ranged topically or by descriptive records. words rather than by case name or (ii) This provision is intended for sit- numbering system so that members of uations where public access in a timely the public can readily locate material. manner is important, and it is not in- Case name and numbering arrange- tended to apply where there may be a ments, however, may also be included limited number of requests over a short for Army convenience. period of time from a few requesters. (d) A general index of FOIA-processed Army Activities may remove the (a)(2) records shall be made available records from this access medium when to the public, both in hard copy and the appropriate officials determine electronically. that access is no longer necessary. (iii) Should a requester submit a § 518.11 Other materials. FOIA request for FOIA-processed (a)(2) (a) Any available index of Army ma- records, and insist that the request be terial published in the FEDERAL REG- processed, Army Activities shall proc- ISTER, such as material required to be ess the FOIA request. However, Army published by section 552(a)(1) of the Activities have no obligation to proc- FOIA, shall be made available in the ess a FOIA request for 5 U.S.C. Army FOIA Public Reading Room, and 552(a)(2)(A), (B), and (C) records be- electronically to the public. cause these records are required to be (b) Although not required to be made made public and not FOIA-processed available in response to FOIA requests under paragraph (a)(3) of the FOIA. or made available in FOIA Reading Rooms, ‘‘(a)(1)’’ materials shall, when § 518.10 ‘‘(a)(2)’’ materials. feasible, be made available to the pub- (a) The DA FOIA/PA Office shall lic in FOIA reading rooms for inspec- maintain in the facility an index of tion and copying, and by electronic materials described in paragraphs (b)(1) means. Examples of ‘‘(a)(1)’’ materials

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are descriptions of an agency’s central DoD 5200.1–R apply. If the information and field organization, and to the ex- qualifies as exemption 1 information, tent they affect the public, rules of there is no discretion regarding its re- procedures, descriptions of forms avail- lease. In addition, this exemption shall able, instruction as to the scope and be invoked when the following situa- contents of papers, reports, or exami- tions are apparent: nations, and any amendment, revision, (1) The fact of the existence or non- or report of the aforementioned. existence of a record would itself reveal classified information. In this sit- Subpart C—Exemptions uation, Army Activities shall neither confirm nor deny the existence or non- § 518.12 General. existence of the record being requested. Records that meet the exemption cri- A ‘‘refusal to confirm or deny’’ re- teria of the FOIA may be withheld sponse must be used consistently, not from public disclosure and need not be only when a record exists, but also published in the FEDERAL REGISTER, when a record does not exist. Other- made available in a library reading wise, the pattern of using a ‘‘no room, or provided in response to a record’’ response when a record does FOIA request. not exist, and a ‘‘refusal to confirm or deny’’ when a record does exist will § 518.13 FOIA exemptions. itself disclose national security infor- The following types of records may mation. be withheld in whole or in part from (2) Compilations of items of informa- public disclosure under the FOIA, un- tion that are individually unclassified less otherwise prescribed by law. A dis- may be classified if the compiled infor- cretionary release of a record to one re- mation reveals additional association quester shall prevent the withholding or relationship that meets the standard of the same record under a FOIA ex- for classification under an existing exemption if the record is subsequently ecutive order for classification and requested by someone else. However, a DoD 5200.1–R, and is not otherwise re- FOIA exemption may be invoked to vealed in the individual items of infor- withhold information that is similar or mation. related to that which has been the subject of a discretionary release. In ap- (b) Number 2 (5 U.S.C. 552(b)(2)). Those plying exemptions, the identity of the related solely to the internal personnel requester and the purpose for which rules and practices of the DoD or any the record is sought are irrelevant with of its Components. This exemption has the exception that an exemption may two profiles, high (b)(2) and low (b)(2). not be invoked where the particular in- Activities are encouraged to consult terest to be protected is the requester’s the DA, FOIA/PA Office, and the U.S. interest. However, if the subject of the DoJ ‘‘Freedom of Information Act record is the requester for the record Guide & Privacy Act Overview’’ for a and the record is contained in a PA more in depth discussion on the legal system of records, it may only be de- history of the use of the low (b)(2) ex- nied to the requester if withholding is emption. When only a minimal Govern- both authorized by AR 25–71 and by a ment interest would be affected (ad- FOIA exemption. ministrative burden), Army Activities (a) Number 1 (5 U.S.C. 552 (b)(1)). shall apply the sound legal basis stand- Those properly and currently classified ard regarding disclosure of the infor- in the interest of national defense or mation. Army Activities shall apply foreign policy, as specifically author- the low 2 exemption as applicable. ized under the criteria established by (1) Records qualifying under high Executive Order and implemented by (b)(2) are those containing or consti- regulations, such as DoD 5200.1–R. Al- tuting statutes, rules, regulations, or- though material is not classified at the ders, manuals, directives, instructions, time of the FOIA request, a classifica- security classification guides, and sen- tion review may be undertaken to de- sitive but unclassified information re- termine whether the information lated to America’s homeland security should be classified. The procedures in and critical infrastructure information

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the release of which would allow cir- odic basis. A few examples of such stat- cumvention of these records thereby utes are: substantially hindering the effective (1) Personnel in Overseas, Sensitive, performance or present an unwarranted or Routinely Deployable Units: non- risk of adverse impact on the ability of disclosure of personally identifying in- other agencies to protect other impor- formation, 10 U.S.C. 130(b). Addition- tant records of a significant function of ally, the names and duty addresses the DA. Examples include: (postal and/or e-mail) of Army military (i) Those operating rules, guidelines, and civilian personnel who are assigned and manuals for Army investigators, to units that are sensitive, routinely inspectors, auditors, or examiners that deployable, or stationed in foreign ter- must remain privileged in order for the ritories can constitute a clearly unwar- Army Activity to fulfill a legal re- ranted invasion of personal privacy and quirement; may also be withheld in accordance (ii) Personnel and other administra- with FOIA Exemption 3. Names and tive matters, such as examination duty addresses (postal and/or e-mail) questions and answers used in training published in telephone directories, or- courses or in the determination of the ganizational charts, rosters and similar qualifications of candidates for em- materials for personnel assigned to ployment, entrance on duty, advance- units that are sensitive, routinely ment, or promotion; and deployable, or stationed in foreign ter- (iii) Computer software, the release ritories are withholdable under this ex- of which would allow circumvention of emption, in accordance with 10 U.S.C. a statute, DoD or Army rules, regula- 130 ‘Personnel in Overseas, Sensitive, tions, orders, manuals, directives, or or Routinely Deployable Units’; instructions. In this situation, the use (2) Classification and Declassification of the software must be closely exam- of Restricted Data, 42 U.S.C. 2162; ined to ensure a circumvention possi- (3) Disclosure of Classified Informa- bility exists. tion, 18 U.S.C. 798(a); (2) Records qualifying under the low (4) Authority to Withhold from Pub- (b)(2) profile are those that are trivial lic Disclosure Certain Technical Data, and housekeeping in nature for which 10 U.S.C. 130 and DoDD 5230.25; there is no legitimate public interest (5) Confidentiality of Medical Quality or benefit to be gained by release, and Assurance Records: Qualified Immu- it would constitute an administrative nity for Participants, 10 U.S.C. 1102(f); burden to process the request in order to disclose the records. Examples in- (6) Physical Protection of Special clude rules of personnel’s use of park- Nuclear Material: Limitation on Dis- ing facilities or regulation of lunch semination of Unclassified Informa- hours, statements of policy as to sick tion, 10 U.S.C. 128; leave, and administrative data such as (7) Protection of Intelligence Sources file numbers, mail routing stamps, ini- and Methods, 50 U.S.C. 403–3(c)(6); tials, data processing notations, brief (8) Prohibition on Release of Con- references to previous communica- tractor Submitted Proposals, 10 U.S.C. tions, and other like administrative 2305(g); markings. Army Activities shall apply (9) Restrictions on Disclosing and Ob- the low 2 exemption as applicable. taining Contractor Bid or Proposal In- (c) Number 3 (5 U.S.C. 552(b)(3)). Those formation or Source Selection Infor- concerning matters that a statute spe- mation, 41 U.S.C. 423; and cifically exempts from disclosure by (10) Secrecy of Certain Inventions terms that permit no discretion on the and Filing Applications in a Foreign issue, or in accordance with criteria es- Country, 35 U.S.C. 181–188. Any records tablished by that statute for with- containing information relating to in- holding or referring to particular types ventions that are the subject of patent of matters to be withheld. The DA, applications on which Patent Secrecy FOIA/PA Office, maintains a list of Orders have been issued. (b)(3) statutes used within the DoD, (d) Number 4 (5 U.S.C. 552(b)(4)). Those and provides updated lists of these containing trade secrets or commercial statutes to Army Activities on a peri- or financial information that an Army

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Activity receives from a person or or- schedules applicable to the prevailing ganization outside the Government wage rate of employees within the DA; with the understanding that the infor- (5) Scientific and manufacturing mation or record will be retained on a processes or developments concerning privileged or confidential basis in ac- technical or scientific data or other in- cordance with the customary handling formation submitted with an applica- of such records. Records within the ex- tion for a research grant, or with a re- emption must contain trade secrets, or port while research is in progress; commercial or financial records, the (6) Technical or scientific data devel- disclosure of which is likely to cause oped by a contractor or subcontractor substantial harm to the competitive exclusively at private expense, and position of the source providing the in- technical or scientific data developed formation, impair the Government’s in part with Federal funds and in part ability to obtain necessary information at private expense, wherein the con- in the future, or impair some other legitimate Government interest. Com- tractor or subcontractor has retained mercial or financial information sub- legitimate proprietary interests in mitted on a voluntary basis, absent such data in accordance with 10 U.S.C. any exercised authority prescribing 2320–2311 and DoD Federal Acquisition criteria for submission is protected Regulation Supplement (DFARS), sub- without any requirement to show compart 27.4. Technical data developed ex- petitive harm. If the information quali- clusively with Federal funds may be fies as exemption 4 information, there withheld under Exemption Number 3 if is no discretion in its release. Exam- it meets the criteria of 10 U.S.C. 130 ples include: and DoDD 5230.25; (1) Commercial or financial informa- (7) Computer software, which is copy- tion received in confidence in connec- righted in accordance with 17 U.S.C. tion with loans, bids, contracts, or pro- 106, ‘Exclusive rights in Copyrighted posals set forth in or incorporated by Works,’ the disclosure of which would reference in a contract entered into be- have an adverse impact on the poten- tween the Army Activity and the offer- tial market value of a copyrighted or that submitted the proposal, as well work; and as other information received in con- (8) Proprietary information sub- fidence or privileged, such as trade se- mitted strictly on a voluntary basis, crets, inventions, discoveries, or other absent any exercised authority pre- proprietary data. Additionally, when scribing criteria for submission. Exam- the provisions of 10 U.S.C. 2305(g) and ples of exercised authorities pre- 41 U.S.C. 423 are met, certain propri- scribing criteria for submission are etary and source selection information statutes, Executive Orders, regula- may be withheld under exemption 3; tions, invitations for bids, requests for (2) Statistical data and commercial proposals, and contracts. Submission of or financial information concerning contract performance, income, profits, information under these authorities is losses, and expenditures, if offered and not voluntary. received in confidence from a con- (e) Number 5 (5 U.S.C. 552(b)(5)). Those tractor or potential contractor; containing information considered (3) Personal statements given in the privileged in litigation, primarily course of inspections, investigations, under the deliberative process privi- or audits, when such statements are re- lege. Except as provided in paragraphs ceived in confidence from the indi- (e)(1) through (5) of this section, inter- vidual and retained in confidence be- nal advice, recommendations, and sub- cause they reveal trade secrets or com- jective evaluations, as contrasted with mercial or financial information nor- factual matters that are reflected in mally considered confidential or privi- deliberative records pertaining to the leged; decision-making process of an agency, (4) Financial data provided in con- whether within or among agencies (as fidence by private employers in con- defined in 5 U.S.C. 552(e)), or within or nection with locality wage surveys among Army Activities. In order to that are used to fix and adjust pay meet the test of this exemption, the

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record must be both deliberative in na- (vii) Planning, programming, and ture, as well as part of a decision-mak- budgetary information that is involved ing process. Merely being an internal in the defense planning and resource record is insufficient basis for with- allocation process. holding under this exemption. Also po- (2) If any such intra- or inter-agency tentially exempted are records per- record or reasonably segregable portion taining to the attorney-client privilege of such record hypothetically would be and the attorney work-product privi- made available routinely through the lege. Discretionary disclosure decisions discovery process in the course of liti- should be made only after full and de- gation with the Army, then it should liberate consideration of the institu- not be withheld under the FOIA. If, tional, commercial, and personal pri- however, the information hypo- vacy interests that could be implicated thetically would not be released at all, by disclosure of the information. or would only be released in a par- (1) Examples of the deliberative proc- ticular case during civil discovery ess include: where a party’s particularized showing (i) The non-factual portions of staff of need might override a privilege, then papers, to include after-action reports, the record may be withheld. Discovery lessons learned, and situation reports is the formal process by which litigants containing staff evaluations, advice, obtain information from each other for opinions, or suggestions; use in the litigation. Consult with legal (ii) Advice, suggestions, or evalua- counsel to determine whether exemptions prepared on behalf of the DA by tion 5 material would be routinely individual consultants or by boards, made available through the discovery committees, councils, groups, panels, process. conferences, commissions, task forces, (3) Intra- or inter-agency memoranda or other similar groups that are formed or letters that are factual, or those for the purpose of obtaining advice and reasonably segregable portions that are recommendations; factual, are routinely made available (iii) Those non-factual portions of through discovery, and shall be made evaluations by DoD Component per- available to a requester, unless the fac- sonnel of contractors and their prod- tual material is otherwise exempt from ucts; release, inextricably intertwined with (iv) Information of a speculative, ten- the exempt information, so fragmented tative, or evaluative nature or such as to be uninformative, or so redundant matters as proposed plans to procure, of information already available to the lease or otherwise acquire and dispose requester as to provide no new sub- of materials, real estate, facilities or stantive information. functions, when such information (4) A direction or order from a supe- would provide undue or unfair competi- rior to a subordinate, though contained tive advantage to private personal in- in an internal communication, gen- terests or would impede legitimate erally cannot be withheld from a re- government functions; quester if it constitutes policy guid- (v) Trade secret or other confidential ance or a decision, as distinguished research development, or commercial from a discussion of preliminary mat- information owned by the Government, ters or a request for information or ad- where premature release is likely to af- vice that would compromise the deci- fect the Government’s negotiating po- sion-making process. sition or other commercial interest; (5) An internal communication con- (vi) Those portions of official reports cerning a decision that subsequently of inspection, reports of the Inspector has been made a matter of public Generals, audits, investigations, or sur- record must be made available to a re- veys pertaining to safety, security, or quester when the rationale for the deci- the internal management, administra- sion is expressly adopted or incor- tion, or operation of one or more Army porated by reference in the record con- Activities, when these records have taining the decision. traditionally been treated by the (f) Number 6 (5 U.S.C. 552(b)(6)). Infor- courts as privileged against disclosure mation in personnel and medical files, in litigation; and as well as similar personal information

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in other files, and lists of personally funds to prepare, index and maintain identifying information of Army per- records on personal information, and sonnel, that, if disclosed to a requester, the fact that a requester invokes FOIA other than the person about whom the to obtain these records indicates the information is about, would result in a information is not freely available. clearly unwarranted invasion of per- (ii) The right to privacy of deceased sonal privacy. Release of information persons is not entirely settled, but the about an individual contained in a Pri- majority rule is that death extin- vacy Act System of Records that would guishes their privacy rights. However, constitute a clearly unwarranted inva- particularly sensitive, graphic, per- sion of privacy is prohibited, and could sonal details about the circumstances subject the releaser to civil and crimi- surrounding an individual’s death may nal penalties. If the information quali- be withheld when necessary to protect fies as exemption 6 information, there the privacy interests of surviving fam- is no discretion regarding its release. ily members. Even information that is (1) Examples of other files containing not particularly sensitive in and of personal information similar to that itself may be withheld to protect the contained in personnel and medical privacy interests of surviving family files include: members if disclosure would rekindle (i) Those compiled to evaluate or ad- grief, anguish, pain, embarrassment, or judicate the suitability of candidates cause a disruption of their peace of for civilian employment or member- minds. Additionally, the deceased’s so- ship in the Armed Forces, and the eli- cial security number should be with- gibility of individuals (civilian, mili- held since it is used by the next of kin tary, or contractor employees) for se- to receive benefits. Disclosures of the curity clearances, or for access to par- deceased’s social security number may ticularly sensitive classified informa- be made to the immediate next of kin. tion; and (ii) Files containing reports, records, (iii) A clearly unwarranted invasion and other material pertaining to per- of the privacy of third parties identi- sonnel matters in which administrative fied in a personnel, medical or similar action, including disciplinary action, record constitutes a basis for deleting may be taken. those reasonably segregable portions of (2) Army components shall ordinarily that record. When withholding third withhold lists of names (including ac- party personal information from the tive duty military, civilian employees, subject of the record and the record is contractors, members of the National contained in a Privacy Act system of Guard and Reserves, and military de- records, consult with legal counsel. pendents) and other personally identi- (iv) This exemption also applies when fying information, including lists of e- the fact of the existence or nonexist- mail addresses of personnel currently ence of a responsive record would itself or recently assigned within a par- reveal personally private information, ticular component, unit, organization, and the public interest in disclosure is or office within the Army. Home ad- not sufficient to outweigh the privacy dresses, including private e-mail ad- interest. In this situation, Army Ac- dresses, are normally not releasable tivities shall neither confirm nor deny without the consent of the individuals the existence or nonexistence of the concerned. This includes lists of home record being requested. This is a addresses and military quarters’ ad- ‘‘Glomar’’ response, and exemption 6 dressees without the occupant’s name. must be cited in the response. Addi- (i) Privacy Interest. A privacy interest tionally, in order to ensure personal may exist in personal information even privacy is not violated during referrals, though the information has been dis- Army Activities shall coordinate tele- closed at some place and time. If per- phonically or in person with other sonal information is not freely avail- Army Activities or DoD Components or able from sources other than the Fed- Federal Agencies before referring a eral Government, a privacy interest ex- record that is exempt under the ists in its nondisclosure. The fact that ‘‘Glomar’’ concept. See Phillippi v. CIA, the Federal Government expended 546 F.2d 1009 (DC Cir. 1976).

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(v) A ‘‘refusal to confirm or deny’’ re- and the public interest in disclosure is sponse must be used consistently, not not sufficient to outweigh the privacy only when a record exists, but also interest. In this situation, Activities when a record does not exist. Other- shall neither confirm nor deny the ex- wise, the pattern of using a ‘‘no istence or nonexistence of the record records’’ response when a record does being requested. This is a ‘‘Glomar’’ re- not exist and a ‘‘refusal to confirm or sponse, and exemption (7)(C) must be deny’’ when a record does exist will cited in the response. Additionally, in itself disclose personally private infor- order to ensure personal privacy is not mation. Refusal to confirm or deny violated during referrals, Army Activi- should not be used when: ties shall coordinate with other Army (A) The person whose personal pri- Activities or DoD Components or Fed- vacy is in jeopardy has provided the re- eral Agencies before referring a record quester a waiver of his or her privacy that is exempt under the ‘‘Glomar’’ rights; concept; (B) The person initiated or directly participated in an investigation that (v) A ‘‘refusal to confirm or deny’’ re- lead to the creation of an agency sponse must be used consistently, not record seeks access to that record; or only when a record exists, but also (C) The person whose personal pri- when a record does not exist. Other- vacy is in jeopardy is deceased, the wise, the pattern of using a ‘‘no Agency is aware of that fact, and dis- records’’ response when a record does closure would not invade the privacy of not exist and a ‘‘refusal to confirm or the deceased’s family. deny’’ when a record does exist will (g) Number 7 (5 U.S.C. 552(b)(7)). itself disclose personally private infor- Records or information compiled for mation; law enforcement purposes, i.e., civil, (vi) Refusal to confirm or deny criminal, or military, including the im- should not be used when the person plementation of Executive Orders or whose personal privacy is in jeopardy regulations issued pursuant to law. has provided the requester with a waiv- This exemption may be invoked to pre- er of his or her privacy rights; or the vent disclosure of documents not origi- person whose personal privacy is in nally created for, but later gathered for jeopardy is deceased, and the Agency is law enforcement purposes. With the ex- aware of that fact and disclosure would ception of parts (C) and (F), this ex- not invade the privacy of the emption is discretionary. If informa- deceased’s family; tion qualifies as exemption (7)(C) or (vii) Could reasonably be expected to (7)(F) information, there is no discre- disclose the identity of a confidential tion in its release. source, including a source within DoD, (1) This exemption applies, however, a State, local, or foreign agency or au- only to the extent that production of thority, or any private institution that such law enforcement records or infor- furnishes the information on a con- mation could result in the following: fidential basis; and could disclose in- (i) Could reasonably be expected to interfere with law enforcement pro- formation furnished from a confiden- ceedings (5 U.S.C. 552(b)(7)(A)); tial source and obtained by a criminal (ii) Would deprive a person of the law enforcement authority in a crimi- right to a fair trial or to an impartial nal investigation or by an agency con- adjudication (5 U.S.C. 552(b)(7)(B)); ducting a lawful national security in- (iii) Could reasonably be expected to telligence investigation (5 U.S.C. constitute an unwarranted invasion of 552(b)(7)(D)); the personal privacy of a living person, (viii) Would disclose techniques and or to surviving family members of an procedures for law enforcement inves- individual identified in such a record (5 tigations or prosecutions, or would dis- U.S.C. 552(b)(7)(C)); close guidelines for law enforcement (iv) This exemption also applies when investigations or prosecutions if such the fact of the existence or nonexist- disclosure could reasonably be ex- ence of a responsive record would itself pected to risk circumvention of the law reveal personally private information, (5 U.S.C. 552(b)(7)(E)); or

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(ix) Could reasonably be expected to to the requester will state that no endanger the life or physical safety of records were found. any individual (5 U.S.C. 552(b)(7)(F)). (ii) Whenever informant records (2) Some examples of exemption 7 maintained by a criminal law enforce- are: ment organization within an Army Ac- (i) Statements of witnesses and other tivity or a DoD Component under the material developed during the course informant’s name or personal identifier of the investigation and all materials are requested by a third party using prepared in connection with related the informant’s name or personal iden- Government litigation or adjudicative tifier, the Activity may treat the proceedings; records as not subject to the FOIA, un- (ii) The identity of firms or individ- less the informant’s status as an in- uals being investigated for alleged irregularities involving contracting formant has been officially confirmed. with the DoD when no indictment has If it is determined that the records are been obtained or any civil action filed not subject to 5 U.S.C. 552(b)(7), the re- against them by the United States; and sponse to the requester will state that (iii) Information obtained in con- no records were found. fidence, expressed or implied, in the (h) Number 8 (5 U.S.C. 552 (b)(8)). course of a criminal investigation by a Those contained in or related to exam- criminal law enforcement agency or of- ination, operation or condition reports fice within an Army Activity or a DoD prepared by, on behalf of, or for the use Component, or a lawful national secu- of any agency responsible for the regu- rity intelligence investigation con- lation or supervision of financial insti- ducted by an authorized agency or of- tutions. fice within an Army Activity or a DoD (i) Number 9 (5 U.S.C. 552 (b)(9)). Those Component. National security intel- containing geological and geophysical ligence investigations include back- information and data (including maps) ground security investigations and concerning wells. those investigations conducted for the purpose of obtaining affirmative or counterintelligence information. Subpart D—For Official Use Only (3) The right of individual litigants to investigative records currently § 518.14 General. available by law (such as, the Jencks Information that has not been given Act, 18 U.S.C. 3500), is not diminished. a security classification pursuant to (4) Excluded from exemption 7 are the criteria of an Executive Order, but two situations applicable to DoD. (Ac- which may be withheld from the public tivities considering invoking an exclu- because disclosure would cause harm to sion based on the following scenarios an interest protected by one or more should first consult through legal FOIA exemptions 2 through 9 (see Sub- counsel, to the DoJ, Office of Informa- part C of this part) shall be considered tion and Privacy (DoJ OIP). as being for official use only (FOUO). (i) Whenever a request is made that No other material shall be considered involves access to records or informa- FOUO and FOUO is not authorized as tion compiled for law enforcement pur- an additional form of classification to poses, and the investigation or pro- protect national security interests. Ad- ceeding involves a possible violation of ditional information on FOUO and criminal law where there is reason to other controlled, unclassified informa- believe that the subject of the investigation or proceeding is unaware of its tion may be found in DoD 5200.1-R, pendency, and the disclosure of the ex- ‘‘Information Security Program’’ or by istence of the records could reasonably contacting the DA FOIA/PA Office. be expected to interfere with enforcement proceedings, Activities may, during only such times as that cir- cumstance continues, treat the records or information as not subject to the FOIA. In such a situation, the response

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Subpart E—Release and provides that if parts of a document Processing Procedures are not classified and can be segregated with reasonable ease, they may be re- § 518.15 General provisions. leased, but parts requiring continued (a) Since the policy of the DoD is to protection must be clearly identified. make the maximum amount of infor- (ii) The release of unclassified docu- mation available to the public con- ments could violate national security. sistent with its other responsibilities, When this appears possible, OPSEC/ written requests for an Army record FOIA advisors should request a classi- made under the provisions of 5 U.S.C. fication evaluation of the document by 552 (a)(3) of the FOIA may be denied its proponent under AR 380–5, para- only when: graphs 2–204, 2–600, 2–800, and 2–801. In (1) The record is subject to one or such cases, other FOIA exemptions more of the exemptions of the FOIA; may also apply. (2) The record has not been described (iii) A combination of unclassified well enough to enable the Army Activ- documents, or parts of them, could ity to locate it with a reasonable combine to supply information that amount of effort by an employee famil- might violate national security if re- iar with the files; or leased. When this appears possible, (3) The requester has failed to comply OPSEC/FOIA advisors should consider with the procedural requirements, in- classifying the combined information cluding the written agreement to pay per AR 380–5, paragraph 2–211. or payment of any required fee imposed (iv) A document or information may by the instructions of the Army Activ- not be properly or currently classified ity concerned. When personally identi- when a FOIA request for it is received. fiable information in a record is re- In this case, the request may not be de- quested by the subject of the record or nied on the grounds that the document his attorney, notarization of the re- or information is classified except in quest, or a statement certifying under accordance with Executive Order 12958 the penalty of perjury that their iden- as amended, section 1.6(d), and AR 380– tity is true and correct may be re- 5, paragraph 2–204, and with approval of quired. Additionally, written consent the Army OGC. of the subject of the record is required (5) OPSEC/FOIA advisors will; advise for disclosure from a PA system of persons processing FOIA requests on records, to include the subject’s attor- related OPSEC requirements; help ney. custodians of requested documents pre- (4) Release of information under the pare requests for classification evalua- FOIA can have an adverse impact on tions; and help custodians of requested OPSEC. The Army implementing direc- documents identify the parts of docu- tive for OPSEC is AR 530–1. It requires ments that must remain classified that OPSEC points of contact be under this section and AR 380–5. named for all HQDA staff agencies and (6) OPSEC/FOIA advisors do not, by for all commands down to battalion their actions, relieve FOIA personnel level. The FOIA official for the staff and custodians processing FOIA re- agency or command will use DA Form quests of their responsibility to protect 4948–R to announce the OPSEC/FOIA classified or exempted information. advisor for the command. Persons (b) The provisions of the FOIA are re- named as OPSEC points of contact will served for persons with private inter- be OPSEC/FOIA advisors. Command ests as opposed to U.S. Federal Agen- OPSEC/FOIA advisors should imple- cies seeking official information. Re- ment the policies and procedures in AR quests from private persons will be 530–1, consistent with this part and made in writing, and should clearly with the following considerations: show all other addressees within the (i) Documents or parts of documents Federal Government to which the re- properly classified in the interest of quest was also sent. This procedure national security must be protected. will reduce processing time require- Classified documents may be released ments, and ensure better inter- and in response to a FOIA request only intra-agency coordination. However, if under AR 380–5, Chapter III. AR 380–5 the requester does not show all other

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addressees to which the request was accredited agencies are eligible to re- also sent, Army Activities shall still ceive such information when they are process the request. Army Activities engaged in cooperative studies, with should encourage requesters to send re- the approval of The Surgeon General of quests by mail, facsimile, or by elec- the Army. However, certain informa- tronic means. Disclosure of records to tion on drug and alcohol use cannot be individuals under the FOIA is consid- released. AR 600–85 covers the Army’s ered public release of information, ex- substance abuse program. cept as provided in this paragraph. DA (viii) Copies of pertinent parts of a officials will release the following patient’s records can be furnished to records, upon request, to the persons the staff judge advocate or legal officer specified below, even though these of the command in connection with the records are exempt from release to the Government’s collection of a claim. If general public. The statutory 20 work- proper, the legal officer can release ing day limit applies. this information to the tortfeasor’s in- (1) Medical records. Commanders or surer without the patient’s consent. chiefs of medical treatment facilities NOTE: Information released to third parties will release information: must be accompanied by a statement of the (i) On the condition of sick or injured conditions of release. The statement will specify that the information not be disclosed patients to the patient’s relatives to to other persons except as privileged commu- the extent permitted by law and regu- nication between doctor and patient. lation. (2) Military personnel records. Military (ii) That a patient’s condition has be- personnel records will be released come critical to the nearest known rel- under these conditions: ative or to the person the patient has (i) DA must provide specific informa- named to be informed in an emergency. tion about a person’s military service (iii) That a diagnosis of psychosis has (statement of military service) in re- been made to the nearest known rel- sponse to a request by that person or ative or to the person named by the pa- with that person’s written consent to tient. his or her legal representative; (iv) On births, deaths, and cases of (ii) Papers relating to applications communicable diseases to local offi- for, designation of beneficiaries under, cials (if required by local laws). and allotments to pay premiums for, (v) Copies of records of present or National Service Life Insurance or former soldiers, dependents, civilian Serviceman’s Group Life Insurance will employees, or patients in DA medical be released to the applicant or to the facilities will be released to the patient insured. If the insured is adjudged in- or to the patient’s representative on sane (evidence of an insanity judgment written request. The attending physi- must be included) or dies, the records cian can withhold records if he or she will be released, on request, to des- thinks that release may injure the pa- ignated beneficiaries or to the next of tient’s mental or physical health; in kin; that case, copies of records will be re- (iii) Copies of DA documents that leased to the patient’s next of kin or record the death of a soldier, a depend- legal representative or to the doctor or ent, or a civilian employee will be re- dentist chosen by the patient. If the leased, on request, to that person’s patient is adjudged insane, or dies, the next of kin, life insurance carrier, and copies will be released, on written re- legal representative. A person acting quest, to the patient’s next of kin or on behalf of someone else concerned legal representative. with the death (e.g., the executor of a (vi) Copies of records may be given to will) may also obtain copies by submit- a Federal or State hospital or penal in- ting a written request that includes stitution if the person concerned is an evidence of his or her representative inmate or patient there. capacity. That representative may give (vii) Copies of records or information written consent for release to others; from them may be given to authorized or representatives of certain agencies. (iv) Papers relating to the pay and al- The National Academy of Sciences, the lowances or allotments of a present or National Research Council, and other former soldier will be released to the

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soldier or his or her authorized rep- hension and arrest or during pretrial resentative. If the soldier is deceased, custody. Statements, admissions, con- these papers will be released to the fessions, or alibis attributable to an ac- next of kin or legal representatives. cused, or the fact of refusal or failure (3) Civilian personnel records. Civilian of the accused to make a statement. Personnel Officers (CPO) with custody Reference to confidential sources, in- of papers relating to the pay and allow- vestigative techniques and procedures, ances or allotments of current or investigator notes, and activity files. former civilian employees will release This includes reference to fingerprint them to the employee or his or her au- tests, polygraph examinations, blood thorized representative. If the em- tests, firearms identification tests, or ployee is deceased, these records will similar laboratory tests or examina- be released to the next of kin or legal tions. Statements as to the identity, representative. However, a CPO cannot credibility, or testimony of prospective release statements of witnesses, med- witnesses. Statements concerning evi- ical records, or other reports or docu- dence or argument in the case, whether ments pertaining to compensation for or not that evidence or argument may injuries or death of a DA civilian em- be used at the trial. Any opinion on the ployee. accused’s guilt. Any opinion on the (4) Accused persons. Release of infor- possibility of a plea of guilty to the of- mation to the public concerning ac- fense charged, or of a plea to a lesser cused persons before determination of offense; the case. Such release may prejudice (iii) Other considerations. the accused’s opportunity for a fair and Photographing or televising the ac- impartial determination of the case. cused. DA personnel should not encour- The following procedures apply: age or volunteer assistance to news (i) The following information con- media in photographing or televising cerning persons accused of an offense an accused or suspected person being may be released by the convening au- held or transported in military cus- thority to public news agencies or tody. DA representatives should not media. The accused’s name, grade or make photographs of an accused or sus- rank, unit, regular assigned duties, and pect available unless a law enforce- other information as allowed by AR 25– ment function is served. Requests from 71, paragraph 3–3a. The substance or news media to take photographs during text of the offense of which the person courts-martial are governed by AR 360– is accused. The identity of the appre- 1; hending or investigating agency and (iv) Fugitives from justice. This section the length or scope of the investigation does not restrict the release of infor- before apprehension. The factual cir- mation to enlist public aid in appre- cumstances immediately surrounding hending a fugitive from justice; or the apprehension, including the time (v) Exceptional cases. Permission to and place of apprehension, resistance, release information from military per- or pursuit. The type and place of cus- sonnel records to public news agencies tody, if any; or media may be requested from The (ii) Information that will not be re- Judge Advocate General (TJAG). Re- leased. Before evidence has been pre- quests for information from military sented in open court, subjective obser- personnel records will be processed ac- vations or any information not incon- cording to this part. trovertibly factual will not be released. (5) Litigation, tort claims, and contract Background information or informa- disputes. Release of information or tion relating to the circumstances of records under this section are subject an apprehension may be prejudicial to to the time limitations prescribed by the best interests of the accused, and the FOIA. The requester must be ad- will not be released unless it serves a vised of the reasons for nonrelease or law enforcement function. The fol- referral. lowing kinds of information will not be (i) Litigation. Each request for a released: Observations or comments on record related to pending litigation in- an accused’s character and demeanor, volving the United States will be re- including those at the time of appre- ferred to the staff judge advocate or

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legal officer of the command. He or she (iii) Contract disputes. Each request will promptly inform the Litigation for a record that relates to a potential Division, U.S. Army Legal Services contract dispute or a dispute that has Agency (USALSA), of the substance of not reached final decision by the con- the request and the content of the tracting officer will be treated as a re- record requested. (Mailing address: quest for procurement records and not Army Litigation Division, U.S. Army as litigation. However, the officials Legal Services Agency (USALSA), 9275 will consider the effect of release on Gunston Road, Fort Belvoir, VA 22060. the potential dispute. Those officials If information is released for use in may consult with the USALSA, Con- litigation involving the United States, tract and Fiscal Law Division. (Mailing the Chief, Army Litigation Division address: Contract and Fiscal Law Divi- (AR 27–40, para 1–4d) must be advised of sion, U.S. Army Legal Services Agency the release. He or she will note the re- (USALSA), 9275 Gunston Road, Fort lease in such investigative reports. In- Belvoir, VA 22060. If the request is for formation or records normally exempt- a record that relates to a pending con- ed from release (i.e., personnel and tract appeal to the Armed Services medical records) may be releasable to Board of Contract Appeals, or to a final the judge or court concerned, for use in decision that is still subject to appeal litigation to which the United States is (i.e., 90 days have not lapsed after re- not a party. Refer such requests to the ceipt of the final decision by the con- local staff judge advocate or legal offi- tractor) then the request will be: cer, who will coordinate it with the Treated as involving a contract dis- Litigation Center, USALSA. pute; and referred to the USALSA, (ii) Tort claims. A claimant or a Contract and Fiscal Law Division. claimant’s attorney may request a (6) Special nuclear material. Dissemi- record that relates to a pending admin- nation of unclassified information con- istrative tort claim filed against the cerning physical protection of special DA. Refer such requests promptly to nuclear material. the claims approving or settlement au- (i) Unauthorized dissemination of un- thority that has monetary jurisdiction classified information pertaining to se- over the pending claim. These authorities will follow AR 27–20. The request curity measures, including security may concern an incident in which the plans, procedures, and equipment for pending claim is not as large as a po- the physical protection of special nu- tential claim; in such a case, refer the clear material, is prohibited under 10 request to the authority that has mon- U.S.C. 128. etary jurisdiction over the potential (ii) This prohibition shall be applied claim. A potential claimant or his or by the Deputy Chief of Staff, G–3 as the her attorney may request information IDA, to prohibit the dissemination of under circumstances clearly indicating any such information only if and to the that it will be used to file a tort claim, extent that it is determined that the though none has yet been filed. Refer unauthorized dissemination of such in- such requests to the staff judge advo- formation could reasonably be ex- cate or legal officer of the command. pected to have a significant adverse ef- That authority, when subordinate, will fect on the health and safety of the promptly inform the Chief, U.S. Army public or the common defense and se- Claims Service (USACS), of the sub- curity by significantly increasing the stance of the request and the content likelihood of illegal production of nu- of the record. (Mailing address: U.S. clear weapons, theft, diversion, or sab- Army Claims Service, ATTN: JACS– otage of special nuclear materials, TCC, Fort George G. Meade, MD 20755– equipment, or facilities. 5360. IDA officials who receive requests (iii) In making such a determination, will refer them directly to the Chief, Army personnel may consider what the USACS. They will also advise the re- likelihood of an illegal production, questers of the referral and the basis theft, diversion, or sabotage would be if for it. The Chief, USACS, will process the information proposed to be prohib- requests according to this part and AR ited from dissemination were at no 27–20, paragraph 1–10. time available for dissemination.

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(iv) Army personnel shall exercise Committee, Subcommittee, either the foregoing authority to prohibit the House sitting as a whole, or made on dissemination of any information de- behalf of their constituents shall be scribed so as to apply the minimum reconsidered the same as any other restrictions needed to protect the health quester. Requests from officials of for- and safety of the public or the common eign governments shall be considered defense and security, and upon a deter- the same as any other requester; how- mination that the unauthorized dis- ever, Army Intelligence elements are semination of such information could statutorily prohibited from releasing reasonably be expected to result in a records responsive to requests made by significant adverse effect on the health any foreign government or a represent- and safety of the public or the common ative of a foreign government. Re- defense and security by significantly quests from officials of foreign govern- increasing the likelihood of illegal pro- ments that do not invoke the FOIA duction of nuclear weapons, theft, di- shall be referred to appropriate foreign version, or sabotage of special nuclear disclosure channels and the requester materials, equipment, or facilities. so notified. (v) Army employees shall not use (d) Privileged release outside of the this authority to withhold information FOIA to U.S. government officials. from the appropriate committees of Records exempt from release to the Congress. public under the FOIA may be dis- (7) Names and duty addresses. Lists of closed in accordance with Army regula- names, including telephone directories, tions to agencies of the Federal Gov- organizational charts, and/or staff di- ernment, whether legislative, execu- rectories published by installations or tive, or administrative, as follows: activities, and other personally identi- (1) In response to a request of a Com- fying information will ordinarily be mittee or Subcommittee of Congress, withheld when requested under the or to either House sitting as a whole in FOIA. This does not preclude a discre- accordance with DoDD 5400.4. The tionary release of names and duty in- Army implementing directive is AR 1– formation of personnel who, by the na- 20. Commanders or chiefs will notify ture of their position and duties, fre- the Chief of Legislative Liaison of all quently interact with the public, such releases of information to members of as general officers, public affairs offi- Congress or staffs of congressional cers, and other personnel designated as committees. Organizations that in the official command spokespersons. The normal course of business are required IDA for telephone directories is dele- to provide information to Congress gated to the DA, FOIA/PA Office. Pub- may be excepted. Handle requests by lic Affairs Offices may, after careful members of Congress (or staffs of con- analysis, release information deter- gressional committees) for inspection mined to have legitimate news value, of copies of official records as follows: such as notices of personnel reassign- (i) National security classified ments to new units or installations records, follow AR 380–5; within the continental United States, (ii) Civilian personnel records, mem- results of selection/promotion boards, bers of Congressional Committees, school graduations/completions, and Subcommittees, or Joint Committees awards and similar personal achieve- may examine official personnel folders ments. They may release the names to the extent that the subject matter and duty addresses of key officials, if falls within their established jurisdic- such release is determined to be in the tions, as permitted by 5 CFR 297.401(i); interests of advancing official commu- (iii) Information related to disciplinary nity relation’s functions. action. This paragraph refers to records (c) Requests from government officials. of trial by courts-martial; nonjudicial Requests from officials of State or punishment of military personnel local Governments for Army Activity under the Uniform Code of Military records shall be considered the same as Justice, Article 15; nonpunitive meas- any other requester. Requests from ures such as administrative reprimands members of Congress not seeking and admonitions; suspensions of civil- records on behalf of a Congressional ian employees; and similar documents.

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If DA has specific instructions on the nection with the investigation being request, the following will apply. Sub- conducted. ordinate commanders will not release (ix) Other types of requests. All other any information without securing the official requests received by DA ele- consent of the proper installation comments from agencies of the executive mander. The installation commander branch (including other military de- may release the information unless the partments) will be honored, if there are request is for a classified or ‘‘FOUO’’ no compelling reasons to the contrary. document. In that case the commander If there are reasons to withhold the will refer the request promptly to the records, the requests will be submitted Chief of Legislative Liaison for action, for determination of the propriety of including the recommendations of the release to the appropriate addresses transmitting agency and copies of the shown in Appendix B of this part. requested records with the referral. (2) Army Activities shall inform offi- (iv) Military personnel records. Only cials receiving records under the provi- HQDA can release information from sions of this section that those records these records. Custodians will refer all are exempt from public release under requests from Congress directly and the FOIA. Army Activities also shall promptly to the Chief of Legislative advise officials of any special handling Liaison, HQDA, Washington DC 20310– instructions. Classified information is 1600. subject to the provisions of DoD 5200.1– (v) Criminal investigation records. Only R, and information contained in Pri- the Commanding General, U.S. Army vacy Act systems of records is subject Criminal Investigation Command to DoD 5400.11–R. (USACIDC), can release any USACIDC- (e) Consultation with affected DoD originated criminal investigation file. component. (1) When an Army Activity For further information, see AR 195–2. receives a FOIA request for a record in (vi) Other exempt records. Com- which an affected Army or DoD organi- manders or chiefs will refer requests zation (including a Combatant Com- for all other categories of exempt in- mand) has a clear and substantial information directly to the Chief of Leg- terest in the subject matter, consulta- islative Liaison. They will include a tion with that affected Army or DoD copy of the material requested and, as organization is required. As an exam- appropriate, recommendations con- ple, where an Army Activity receives a cerning release or denial. request for records related to DoD op- (vii) All other records. The commander erations in a foreign country, the cog- or chief with custody of the records nizant Combatant Command for the will furnish all other information area involved in the request shall be promptly; to other Federal Agencies, consulted before a release is made. both executive and administrative, as Consultations may be telephonic, elec- determined by the head of an Army Ac- tronic, or in hard copy. tivity or designee; or in response to an (2) The affected Activity shall review order of a Federal court, Army Activi- the circumstances of the request for ties shall release information along host-nation relations, and provide, with a description of the restrictions where appropriate, FOIA processing as- on its release to the public; sistance to the responding DoD Compo- (viii) Disciplinary actions and criminal nent regarding release of information. investigations. Requests for access to, or Responding Army Activities shall pro- information from, the records of dis- vide copies of responsive records to the ciplinary actions or criminal investiga- affected DoD Component when re- tions will be honored if proper creden- quested. The affected DoD Component tials are presented. Representatives of shall receive a courtesy copy of all re- the Office of Personnel Management leases in such circumstances. may be given information from personnel files of employees actually em- (3) Nothing in § 518.19 shall impede ployed at organizations or activities. the processing of the FOIA request ini- Each such request will be considered on tially received by an Army Activity. its merits. The information released [71 FR 9222, Feb. 22, 2006, as amended at 78 will be the minimum required in con- FR 18474, Mar. 27, 2013]

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§ 518.16 Initial determinations. gle-sided. For partially released (a) Initial denial authority. The DA of- records, mark in yellow highlighter (or ficials are designated as the Army’s other readable highlighter) those por- only IDAs. Only an IDA, his or her del- tions withheld; and (Tab F or 6) Legal egate, or the Secretary of the Army opinions(s). can deny FOIA requests for DA records. (c) The initial determination of Each IDA will act on direct and re- whether to make a record available or ferred requests for records within his grant a fee waiver upon request may be or her area of functional responsibility. made by any suitable official des- (See the proper AR in the 10 series for ignated by the Army Activity in pub- full discussions of these areas. Included lished regulations. The presence of the are records created or kept within the marking ‘‘FOUO’’ does not relieve the IDA’s area of responsibility; records redesignated official of the responsibility tired by, or referred to, the IDA’s head- to review the requested record for the quarters or office; and records of prede- purpose of determining whether an ex- cessor organizations. If a request in- emption under this part is applicable volves the areas of more than one IDA, and should be invoked. IDAs may dele- the IDA to whom the request was origi- gate all or part of their authority to a nally addressed will normally respond division chief under its supervision to it; however, the affected IDAs may within the Agency in the grade of 05/ci- consult on such requests and agree on vilian equivalent. Requests for delega- responsibility for them. IDAs will com- tion authority below this level must be plete all required coordination at ini- submitted, after coordination, to the tial denial level. This includes classi- DA FOIA/PA Office, with detailed jus- fied records retired to the NARA when tification, for approval. Such delega- a mandatory declassification review is tions must not slow FOIA actions. If an necessary. Requests and/or responsive IDA’s delegate denies a FOIA or fee documents should not be sent to the waiver request, the delegate must DA FOIA/PA Office for initial denial clearly state that he or she is acting authority or to forward to other offices for the IDA and identify the IDA by within the DA. name and position in the written re- (b) FOIA requesters may ultimately sponse to the requester. IDAs will send appeal if they are dissatisfied with ad- only the names, offices, and telephone verse determinations. It is crucial to numbers of their delegates to the DA, forward complete packets to the IDAs. FOIA/PA Office. IDAs will keep this in- Ensure cover letters list all attach- formation current. ments and describe from where the (d) The officials designated by Army records were obtained, i.e., a PA sys- Activities to make initial determina- tem of records (including the applications should consult with public affairs ble systems notice), or other. If a FOIA officers (PAOs) to become familiar action is complicated, include a chro- with subject matters that are consid- nology of events to assist the IDA in ered to be newsworthy, and advise understanding what happened in the PAOs of all requests from news media course of processing the FOIA request. representatives. In addition, the offi- If a file does not include documenta- cials should inform PAOs in advance tion described below, include the tab, when they intend to withhold or par- and insert a page marked ‘‘not applica- tially withhold a record, if it appears ble’’ or ‘‘not used.’’ The order and con- that the withholding action may be tents of FOIA file attachments follow: challenged in the media. A FOIA re- (Tab A or 1) The original FOIA request lease or denial action, appeal, or court and envelope (if applicable); (Tab B or review may generate public or press in- 2) The response letter; (Tab C or 3) Cop- terest. In such case, the IDA (or dele- ies of all records entirely released, sin- gate) should consult the Chief of Public gle-sided; (Tab D or 4) Copies of admin- Affairs or the command or organiza- istrative processing documents, includ- tion PAO. The IDA should inform the ing extension letters and ‘‘no records’’ PAO contacted of the issue and obtain certificates, in chronological order; advice and recommendations on han- (Tab E or 5) Copies of all records par- dling its public affairs aspect. Any ad- tially released or entirely denied, sin- vice or recommendations requested or

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obtained should be limited to this as- (4) The Deputy Assistant Secretary pect. Coordination must be completed of the Army (Civilian Personnel Pol- within the statutory 20 working day icy)/Director of Civilian Personnel, Of- FOIA response limit. (The point of con- fice of the Assistant Secretary of the tact for the Army Chief of Public Af- Army (Manpower and Reserve Affairs) fairs is HQDA (SAPA–OSR), Wash- is authorized to act on requests for ci- ington DC 20310–1500). If the request in- vilian personnel records, personnel ad- volves actual or potential litigation ministration and other civilian per- against the United States, release must sonnel matters, except for EEO (civil- be coordinated with The Judge Advo- ian) matters which will be acted on by cate General (TJAG). the Administrative Assistant to the (e) The following officials are des- Secretary of the Army. The Deputy As- ignated IDAs for the areas of responsi- sistant Secretary of the Army (Civilian bility outlined below: Personnel Policy)/Director of Civilian (1) The Administrative Assistant to Personnel has delegated this authority the Secretary of the Army is author- to the Chief, Policy and Program De- ized to act for the Secretary of the velopment Division. Army on requests for all records main- (5) The Chief Information Officer, G– tained by the Office of the Secretary of 6 is authorized to act on requests for the Army and its serviced activities as records pertaining to Army Informa- well as requests requiring the personal tion Technology, command, control attention of the Secretary of the communications and computer systems Army. This also includes civilian Equal and the Information Resources Man- Employment Opportunity (EEO) ac- agement Program (automation, tele- tions. (See DCS, G–1 for military Equal communications, visual information, Opportunity (EO) actions). The Admin- records management, publications and istrative Assistant to the Secretary of printing). the Army has delegated its authority (6) The Inspector General is author- to the Chief Attorney and Legal Serv- ized to act on requests for all Inspector ices Directorate, U.S. Army Resources General Records. & Programs Agency. (See DCS, G–1 for (7) The Auditor General is authorized military Equal Opportunity (EO) ac- to act on requests for records relating tions). to audits done by the U.S. Army Audit (2) The Assistant Secretary of the Agency under AR 10–2. This includes Army (Financial Management and requests for related records developed Comptroller) is authorized to act on re- by the Audit Agency. quests for finance and accounting (8) The Director of the Army Staff is records. Requests for CONUS finance authorized to act on requests for all and accounting records should be re- records of the Chief of Staff and its ferred to the Defense Finance and Ac- Field Operating Agencies. The Director counting Service (DFAS). The Chief of the Army Staff has delegated its au- Attorney and Legal Services Direc- thority to the Chief Attorney and torate, acts on requests for non-finance Legal Services Directorate, U.S. Army and accounting records of the Assist- Resources & Programs Agency. The ant Secretary of the Army (Financial Chief Attorney and Legal Services Di- Management and Comptroller). rector, U.S. Army Resources & Pro- (3) The Assistant Secretary of the grams Agency acts on requests for Army (Acquisition, Logistics, & Tech- records of the Chief of Staff and its nology) is authorized to act on requests Field Operating Agencies. (See TJAG for procurement records other than for the (GOMO) actions). those under the purview of the Chief of (9) The Deputy Chief of Staff, G–3 is Engineers and the Commander, U.S. authorized to act on requests for Army Materiel Command. The Chief records relating to International Af- Attorney and Legal Services Direc- fairs policy, planning, integration and torate, acts on requests for non-pro- assessments, strategy formulation, curement records of the Assistant Sec- force development, individual and unit retary of the Army (Acquisition, Logis- training policy, strategic and tactical tics and Technology). command and control systems, nuclear

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and chemical matters, use of DA rites performed by DA chaplains, and forces. nonprivileged communications relating (10) The Deputy Chief of Staff, G–8 is to clergy and active duty chaplains’ authorized to act on requests for military personnel files. records relating to programming, ma- (16) The Judge Advocate General is terial integration and externally di- authorized to act on requests for rected reviews. records relating to claims, courts-mar- (11) The Office of the Deputy Chief of tial, legal services, administrative in- Staff, G–1 is authorized to act on the vestigations, and similar legal records. following records: Personnel board ac- TJAG is also authorized to act on re- tions, Equal Opportunity (military) quests for the GOMO actions and and sexual harassment, health pro- records described elsewhere in this reg- motions, physical fitness and well ulation, especially if those records re- being, command and leadership policy late to litigation in which the United records, HIV and suicide policy, sub- States has an interest. In addition, stance abuse programs except for indi- TJAG is authorized to act on requests vidual treatment records which are the for records that are not within the responsibility of the Surgeon General, functional areas of responsibility of retiree benefits, services, and pro- any other IDA, including, but not lim- grams, (excluded are individual per- ited to requests for records for Com- sonnel records of retired military per- mands, and activities. sonnel, which are the responsibility of (17) The Chief, National Guard Bu- the U.S. Army Human Resources Com- reau, is authorized to act on requests mand–St. Louis (AHRC–STL), DA deal- for all personnel and medical records of ings with Veterans Affairs, U.S. Sol- dier’s and Airmen’s Home, retention, retired, separated, discharged, de- promotion, and separation; recruiting ceased, and active Army National and MOS policy issues, personnel trav- Guard military personnel, including el and transportation entitlements, technician personnel, unless such military strength and statistics, The records clearly fall within another Army Librarian, demographics, and IDA’s responsibility. This authority in- Manprint. cludes, but is not limited to, National (12) The Deputy Chief of Staff, G–4 is Guard organization and training files; authorized to act on requests for plans, operations, and readiness files, records relating to DA logistical re- policy files, historical files, files relat- quirements and determinations, policy ing to National Guard military sup- concerning materiel maintenance and port, drug interdiction, and civil dis- use, equipment standards, and turbances; construction, civil works, logistical readiness. and ecology records dealing with ar- (13) The Chief of Engineers is author- mories, facilities within the States, ized to act on requests for records in- ranges, etc. Equal Opportunity inves- volving civil works, military construc- tigative records; aviation program tion, engineer procurement, and ecol- records and financial records dealing ogy; and the records of the U.S. Army with personnel, operation and mainte- Engineer divisions, districts, labora- nance, and equipment budgets. tories, and field operating agencies. (18) The Chief of Army Reserve is au- (14) The Surgeon General, Com- thorized to act on requests for all per- mander, U.S. Army Medical Command, sonnel and medical records of retired, is authorized to act on requests for separated, discharged, deceased, and re- medical research and development serve component military personnel, records, and the medical records of ac- and all U.S. Army Reserve (USAR) tive duty military personnel, depend- records, unless such records clearly fall ents, and persons given physical exam- within another IDA’s responsibility. ination or treatment at DA medical fa- Records under the responsibility of the cilities, to include alcohol and drug Chief of Army Reserve include records treatment/test records. relating to USAR plans, policies, and (15) The Chief of Chaplains is author- operations; changes in the organiza- ized to act on requests for records in- tional status of USAR units; mobiliza- volving ecclesiastical relationships, tion and demobilization policies, active

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duty tours, and the Individual Mobili- (23) The Commander, USARC-StL has zation Augmentation program. been delegated authority to act on be- (19) The Commander, United States half of the USAHRC for requests con- Army Materiel Command (AMC) is au- cerning all personnel and medical thorized to act on requests for the records of retired, separated, dis- records of AMC headquarters and to charged, deceased, and reserve compo- subordinate commands, units, and ac- nent military personnel, unless such tivities that relate to procurement, lo- records clearly fall within another gistics, research and development, and IDA’s authority. The authority does supply and maintenance operations. not include records relating to USAR (20) The Provost Marshal General plans, policies, and operations; changes (PMG) is authorized to act on all re- in the organizational status of USAR quests for provost marshal activities units, mobilization and demobilization and law enforcement functions for the policies; active duty tours, and the in- army, all matters relating to police individual mobilization augmentation telligence, physical security, criminal program. investigations, corrections and intern- ment (to include confinement and cor- (24) The Assistant Chief of Staff for rectional programs for U.S. prisoners, Installation Management (ACSIM) is criminal investigations, provost mar- authorized to act on requests for shal activities, and military police sup- records relating to planning, program- port. The PMG is responsible for the ming, execution and operation of Army Office of Security, Force Protection, installations. This includes base re- and Law Enforcement Division and is alignment and closure activities, envi- the functional proponent for AR 190-se- ronmental activities other than litiga- ries (Military Police) and 195-series tion, facilities and housing activities, (Criminal Investigation), AR 630–10 Ab- and installation management support sent Without Leave, Desertion, and Ad- activities. ministration of Personnel Involved in (25) The Commander, United States Civilian Court Proceedings, and AR Army Intelligence and Security Com- 633–30, Military Sentences to Confine- mand, is authorized to act on requests ment. for intelligence and security records, (21) The Commander, U.S. Army foreign scientific and technological Criminal Investigation Command records, intelligence training, intel- (USACIDC), is authorized to act on re- ligence threat assessments, and foreign quests for criminal investigative liaison information. records of USACIDC headquarters, its (26) The Commander, U.S. Army subordinate activities, and military po- Safety Center, is authorized to act on lice reports. This includes criminal in- requests for Army safety records. vestigation records, investigation-in- (27) The Commander, United States progress records, and all military po- Army Test and Evaluation Command lice records and reports. (ATEC), is authorized to act on re- (22) The Commander, United States quests for the records of ATEC head- Army Human Resources Command (USAHRC), is authorized to act on re- quarters, its subordinate commands, quests for military personnel files re- units, and activities that relate to test lating to active duty (other than those and evaluation operations. of reserve and retired personnel) mili- (28) The General Counsel, Army and tary personnel matters, personnel loca- Air Force Exchange Service (AAFES), tor, physical disability determinations, is authorized to act on requests for and other military personnel adminis- AAFES records, under AR 60–20/AFR tration records; records relating to 147–14. military casualty and memorialization (29) Special IDA authority for time- activities; heraldic activities, voting, event related records may be des- records relating to identification cards, ignated on a case-by-case basis. These naturalization and citizenship, com- will be published in the FEDERAL REG- mercial solicitation, Military Postal ISTER. You may contact the DA, FOIA/ Service Agency and Army postal and PA Office to obtain current informa- unofficial mail service. tion on special delegations.

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(f) Reasons for not releasing a record. ance with procedures set forth in the The following are reasons for not com- FOIA. plying with a request for a record (g) Denial tests. To deny a requested under 5 U.S.C. 552(a)(3). record that is in the possession and (1) No records. A reasonable search of control of an Army Activity, it must files failed to identify responsive be determined that the record is ex- records. The records custodian will pre- empt under one or more of the exemp- pare a detailed no records certificate. tions of the FOIA. An outline of the This certificate must include, at a min- FOIA’s exemptions is contained in sub- imum, what areas or offices were part C of this part. searched and how the search was con- (h) Reasonably segregable portions. Al- ducted (manually, by computer, etc.). though portions of some records may The certificate will be signed by the be denied, the remaining reasonably records custodian and will include his segregable portions must be released to or her grade and title. The original cer- the requester when it reasonably can tificate will be forwarded to the IDA. be assumed that a skillful and knowl- Preprinted ‘‘check-the-block’’ or ‘‘fill- edgeable person could not reconstruct in-the-blank’’ no records certificates the excised information. Unless indi- are not authorized. cating the extent of the deletion would (2) Referrals. The request is trans- harm an interest protected by an ex- ferred to another Army Activity or emption, the amount of deleted infor- DoD Component, or to another Federal mation shall be indicated on the re- Agency. leased portion of paper records by use (3) Request withdrawn. The request is of brackets or darkened areas indi- withdrawn by the requester. cating removal of information. In no (4) Fee-related reason. The requester is case shall the deleted areas be left unwilling to pay fees associated with a ‘‘white’’ without the use of brackets to request; the requester is past due in show the bounds of deleted informa- the payment of fees from a previous tion. In the case of electronic deletion, FOIA request; or the requester dis- or deletion in audiovisual or micro- agrees with the fee estimate. fiche records, if technically feasible, (5) Records not reasonably described. A the amount of redacted information record has not been described with suf- shall be indicated at the place in the ficient particularity to enable the record such deletion was made, unless Army or DoD Component to locate it including the indication would harm an by conducting a reasonable search. interest protected by the exemption (6) Not a proper FOIA request for some under which the deletion is made. This other reason. The requester has failed may be done by use of brackets, shaded unreasonably to comply with proce- areas, or some other identifiable tech- dural requirements, other than fee-re- nique that will clearly show the limits lated, imposed by this part or Army of the deleted information. When a Activity supplementing regulations. record is denied in whole, the response (7) Not an agency record. The informa- advising the requester of that deter- tion requested is not a record within mination will specifically state that it the meaning of the FOIA and this part. is not reasonable to segregate portions (8) Duplicate request. The request is a of the record for release. duplicate request (e.g., a requester asks (i) Response to requester. Whenever for the same information more than possible, initial determinations to re- once). This includes identical requests lease or deny a record normally shall received via different means (e.g., elec- be made and the decision reported to tronic mail, facsimile, mail, and cou- the requester within 20 working days rier) at the same or different times. after receipt of a proper request by the (9) Other (specify). Any other reason a official designated to respond. When an requester does not comply with pub- Army Activity has a significant num- lished rules other than those outlined ber of pending requests which prevent a in paragraphs (f)(1) through (8) of this response determination within the 20 section. working day period, the requester shall (10) Partial or total denial. The record be so notified in an interim response, is denied in whole or in part in accord- and advised whether their request

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qualifies for the fast track or slow minute, 3 hours of professional level track within the Army Activity’s mul- search at $44 per hour, etc.) in the re- titrack processing system. Requesters sponse letter. who do not meet the criteria for fast (4) The explanation of the sub- track processing shall be given the op- stantive basis for a denial shall include portunity to limit the scope of their re- specific citation of the statutory ex- quest in order to qualify for fast track emption applied under provisions of processing. this part; e.g., 5 U.S.C. 552 (b)(1). Mere- (1) When a decision is made to release ly referring to a classification; to a a record, a copy should be made avail- ‘‘FOUO’’ marking on the requested able promptly to the requester once he record; or to this part or an Army Ac- has complied with preliminary proce- tivity’s regulation does not constitute dural requirements. a proper citation or explanation of the (2) When a request for a record is de- basis for invoking an exemption. nied in whole or in part, the official (5) When the time for response be- designated to respond shall inform the comes an issue, the official responsible requester in writing of the name and for replying shall acknowledge to the title or position of the official who requester the date of the receipt of the made the determination, and shall ex- request. plain to the requester the basis for the (6) When denying a request for determination in sufficient detail to records, in whole or in part, an Army permit the requester to make a deci- Activity shall make a reasonable effort sion concerning appeal. The requester to estimate the volume of the records specifically shall be informed of the ex- denied and provide this estimate to the emptions on which the denial is based, requester, unless providing such an es- inclusive of a brief statement describ- timate would harm an interest pro- ing what the exemption(s) cover. When tected by an exemption of the FOIA. the initial denial is based in whole or This estimate should be in number of in part on a security classification, the pages or in some other reasonable form explanation should include a summary of the applicable Executive Order cri- of estimation, unless the volume is teria for classification, as well as an otherwise indicated through deletions explanation, to the extent reasonably on records disclosed in part. feasible, of how those criteria apply to (7) When denying a request for the particular record in question. The records in accordance with a statute requester shall also be advised of the qualifying as a FOIA exemption 3 stat- opportunity and procedures for appeal- ute, Army Activities shall, in addition ing an unfavorable determination to a to stating the particular statute relied higher final authority within the Army upon to deny the information, also Activity. The IDA will inform the re- state whether a court has upheld the quester of his or her right to appeal, in decision to withhold the information whole or part, the denial of the FOIA under the particular statute, and a or fee waiver request and that the ap- concise description of the scope of the peal must be sent through the IDA to information being withheld. the Secretary of the Army (ATTN: (j) Extension of time. In unusual cir- OGC). cumstances, when additional time is (3) The final response to the re- needed to respond to the initial requester should contain information quest, the Army Activity shall ac- concerning the fee status of the re- knowledge the request in writing with- quest, consistent with the provisions of in 20 working days, describe the cir- subpart F, of this part. When a re- cumstances requiring the delay, and in- quester is assessed fees for processing a dicate the anticipated date for a sub- request, the requester’s fee category stantive response that may not exceed shall be specified in the response let- 10 additional working days, except as ter. Activities also shall provide the re- provided below: quester with a complete cost break- (1) With respect to a request for down (e.g., 115 pages of office reproduc- which a written notice has extended tion at $0.15 per page; 5 minutes of the time limits by 10 additional work- computer search time at $43.50 per ing days, and the Activity determines

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that it cannot make a response deter- request within the specified time mination within that additional 10 should be explained to the requester working day period, the requester shall with a request that he agree to await a be notified and provided an oppor- substantive response by an anticipated tunity to limit the scope of the request date. It should be made clear that any so that it may be processed within the such agreement does not prejudice the extended time limit, or an opportunity right of the requester to appeal the ini- to arrange an alternative time frame tial decision after it is made. Army Ac- for processing the request or a modified tivities are reminded that the re- request. Refusal by the requester to quester still retains the right to treat reasonably modify the request or ar- this delay as a de facto denial with full range for an alternative time frame administrative remedies. Only the re- shall be considered a factor in deter- sponsible IDA can extend it, and the mining whether exceptional cir- IDA must first coordinate with the cumstances exist with respect to Army OGC. Activity’s request backlogs. Excep- (5) As an alternative to the taking of tional circumstances do not include a formal extensions of time the negotia- delay that results from predictable action by the cognizant FOIA coordi- tivity backlogs, unless the Army Ac- nating office of informal extensions in tivity demonstrates reasonable time with requesters is encouraged progress in reducing its backlog. where appropriate. (2) Unusual circumstances that may (k) Misdirected requests. Misdirected justify delay are: The need to search requests shall be forwarded promptly for and collect the requested records to the Army Activity or other Federal from other facilities that are separate Agency with the responsibility for the from the office determined responsible records requested. The period allowed for a release or denial decision on the for responding to the request mis- requested information; the need to directed by the requester shall not search for, collect, and appropriately begin until the request is received by examine a voluminous amount of sepa- the Army Activity that manages the rate and distinct records which are re- records requested. quested in a single request; and the (l) Records of non-U.S. Government need for consultation, which shall be source. When a request is received for a conducted with all practicable speed, record that falls under exemption 4, with other agencies having a substan- that was obtained from a non-U.S. Gov- tial interest in the determination of ernment source, or for a record con- the request, or among two or more taining information clearly identified Army Activities or DoD Components as having been provided by a non-U.S. having a substantial subject-matter in- Government source, the source of the terest in the request. record or information [also known as (3) Army Activities may aggregate ‘‘the submitter’’ for matters pertaining certain requests by the same requester, to proprietary data under 5 U.S.C. 552, or by a group of requesters acting in FOIA, Exemption (b)(4)] and E.O. concert, if the Army Activity reason- 12600], shall be notified promptly of ably believes that such requests actu- that request and afforded reasonable ally constitute a single request, which time (14 calendar days) to present any would otherwise satisfy the unusual objections concerning the release, un- circumstances set forth in paragraph less it is clear that there can be no (j)(2) of this section, and the requests valid basis for objection. This practice involve clearly related matters. Mul- is required for those FOIA requests for tiple requests involving unrelated mat- data not deemed clearly exempt from ters shall not be aggregated. If the re- disclosure under exemption (b)(4) of 5 quests are aggregated under these con- U.S.C. 552, The FOIA. If, for example, ditions, the requester or requesters the record or information was provided shall be so notified. with actual or presumptive knowledge (4) In cases where the statutory time of the non-U.S. Government source and limits cannot be met and no informal established that it would be made extension of time has been agreed to, available to the public upon request, the inability to process any part of the there is no obligation to notify the

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source. Any objections shall be evalu- (2) If the record or information was ated. The final decision to disclose in- submitted on a strictly voluntary formation claimed to be exempt under basis, absent any exercised authority exemption (b)(4) shall be made by an that prescribes criteria for submission, official equivalent in rank to the offi- and after consultation with the sub- cial who would make the decision to mitter, it is absolutely clear that the withhold that information under FOIA. record or information would custom- When a substantial issue has been arily not be released to the public, the raised, the Army Activity may seek ad- submitter need not be notified. Exam- ditional information from the source of ples of exercised authorities pre- the information and afford the source scribing criteria for submission are and requester reasonable opportunities statutes, Executive Orders, regula- to present their arguments on the legal tions, invitations for bids, requests for and substantive issues involved prior proposals, and contracts. Records or in- to making an agency determination. formation submitted under these au- When the source seeks a restraining thorities are not voluntary in nature. order or take court action to prevent When it is not clear whether the infor- release of the record or information, mation was submitted on a voluntary the requester shall be notified, and ac- basis, absent any exercised authority, tion on the request normally shall not and whether it would customarily be be taken until after the outcome of released to the public by the submitter, that court action is known. When the notify the submitter and ask that it requester brings court action to compel describe its treatment of the informa- disclosure, the submitter shall be tion, and render an objective evalua- promptly notified of this action. tion. If the decision is made to release (1) If the submitted information is a the information over the objection of proposal in response to a solicitation the submitter, notify the submitter for a competitive proposal, and the pro- and afford the necessary time to allow posal is in the possession and control of the submitter to seek a restraining DA (see 10 U.S.C. 2305(g)), the proposal order, or take court action to prevent shall not be disclosed, and no sub- release of the record or information. mitter notification and subsequent (3) The coordination provisions of analysis is required. The proposal shall this section also apply to any non-U.S. be withheld from public disclosure pur- Government record in the possession suant to 10 U.S.C. 2305(g) and exemp- and control of the Army or DoD from tion (b)(3) of the FOIA. This statute multi-national organizations, such as does not apply to bids, unsolicited pro- the North Atlantic Treaty Organiza- posals, or any proposal that is set forth tion (NATO), United Nations Com- or incorporated by reference in a con- mands, the North American Aerospace tract between an Army Activity and Defense Command (NORAD), the Inter- the offeror that submitted the pro- American Defense Board, or foreign posal. In such situations, normal sub- governments. Coordination with for- mitter notice shall be conducted except eign governments under the provisions for sealed bids that are opened and read of this section may be made through to the public. The term, proposal, Department of State, or the specific means information contained in or foreign embassy. originating from any proposal, includ- (m) File of initial denials. Copies of all ing a technical, management, or cost initial withholdings or denials shall be proposal submitted by an offeror in re- maintained by each Army Activity in a sponse to solicitation for a competitive form suitable for rapid retrieval, peri- proposal, but does not include an odic statistical compilation, and man- offeror’s name or total price or unit agement evaluation. Records denied for prices when set forth in a record other any of the reasons contained in § 518.20 than the proposal itself. Submitter no- shall be maintained for a period of six tice, and analysis as appropriate, are years to meet the statute of limita- required for exemption (b)(4) matters tions requirement. Records will be that are not specifically incorporated maintained in accordance with AR 25– in 10 U.S.C. 2305(g). 400–2.

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(n) Special mail services. Army Activi- refusal. Appeal procedures also apply ties are authorized to use registered to the disapproval of a fee category mail, certified mail, certificates of claim by a requester, disapproval of a mailing, and return receipts. However, request for waiver or reduction of fees, their use should be limited to instances disputes regarding fee estimates, re- where it appears advisable to establish view on an expedited basis a deter- proof of dispatch or receipt of FOIA mination not to grant expedited access correspondence. The requester shall be to agency records, for no record deter- notified that they are responsible for minations when the requester con- the full costs of special services. siders such responses adverse in na- (o) Receipt accounts. The Treasurer of ture, not providing a response deter- the United States has established two mination to a FOIA request within the accounts for FOIA receipts, and all statutory time limits, or any deter- money orders or checks remitting mination found to be adverse in nature FOIA fees should be made payable to by the requester. Upon an IDA’s receipt the U.S. Treasurer. These accounts of a no records determination appeal, shall be used for depositing all FOIA the IDA will direct the records custo- receipts, except receipts for industri- dian to conduct another records search ally funded and non-appropriated fund- and certify, in writing, that it has ed activities. Components are reminded made a good faith effort that reason- that the below account numbers must ably could be expected to produce the be preceded by the appropriate dis- information requested. If no records bursing office two digit prefix. Indus- are again found, the original no records trially funded and non-appropriated certificate will be forwarded to the IDA funded activity FOIA receipts shall be for inclusion in the appeals packet. deposited to the applicable fund. When denials have been made under (1) Receipt Account 3210 Sale of Pub- the provisions of the FOIA and the PA, lications and Reproductions, FOIA. and the denied information is con- This account shall be used when depos- tained in a PA system of records, ap- iting funds received from providing ex- peals shall be processed under both the isting publications and forms that FOIA and the PA. If the denied infor- meet the Receipt Account Series de- mation is not maintained in a PA sys- scription found in Federal Account tem of records, the appeal shall be Symbols and Titles. Deliver collections processed under the FOIA. If a request within 30 calendar days to the serv- is merely misaddressed, and the receiv- icing finance and accounting office. ing Army Activity or DoD Component (2) Receipt Account 3210 Fees and simply advises the requester of such Other Charges for Services, FOIA. This and refers the request to the appro- account is used to deposit search fees, priate Army or DoD Component, this fees for duplicating and reviewing (in shall not be considered a no record de- the case of commercial requesters) termination. records to satisfy requests that could (1) Appeals of adverse determinations not be filled with existing publications from denial of records or ‘‘no record’’ or forms. determination, received by Army IDAs must be forwarded through the denying § 518.17 Appeals. IDA to the Secretary of the Army (a) General. If the official designated (ATTN: OGC). On receipt of an appeal, by the Army Activity to make initial the IDA will— determinations on requests for records (i) Send the appeal to the Office of declines to provide a record because the Secretary of the Army, OGC, to- the official considers it exempt under gether with a copy of the documents one or more of the exemptions of the that are the subject of the appeal. The FOIA, that decision may be appealed cover letter will list all attachments by the requester, in writing, to a des- and describe from where the records ignated appellate authority. The ap- were obtained, i.e., a PA system of peal should be accompanied by a copy records (including the applicable sys- of the letter denying the initial re- tems notice, or other. If a file does not quest. Such appeals should contain the include documentation described basis for disagreement with the initial below, include the tab, and insert a

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page marked ‘‘not applicable’’ or ‘‘not titrack processing system, based at a used.’’ The order and contents of FOIA minimum, on the three processing file attachments follow: (Tab A or 1) tracks established for initial requests. The original FOIA request and enve- All of the provisions of the FOIA apply lope (if applicable); (Tab B or 2) The also to appeals of initial determina- IDA denial letter; (Tab C or 3) Copies of tions, to include establishing addi- all records entirely released, single- tional processing queues as needed. sided; (Tab D or 4) Copies of adminis- (d) Delay in responding to an appeal. If trative processing documents, includ- additional time is needed due to the ing extension letters and ‘‘no records’’ unusual circumstances the final deci- certificates, in chronological order; sion may be delayed for the number of (Tab E or 5) Copies of all records par- working days (not to exceed 10), that tially denied or completely denied, sin- were not used as additional time for re- gle-sided. For records partially denied, sponding to the initial request. If a de- mark in yellow highlighter (or other termination cannot be made and the readable highlighter) those portions requester notified within 20 working withheld; and (Tab F or 6) Legal opin- days, the appellate authority shall ac- ions(s); and knowledge to the requester, in writing, (ii) Assist the OGC as requested dur- the date of receipt of the appeal, the ing his or her consideration of the ap- circumstances surrounding the delay, peal. and the anticipated date for sub- (2) Appeals of denial of records made stantive response. Requesters shall be by the OGC, AAFES, shall be made to advised that, if the delay exceeds the the Secretary of the Army when the statutory extension provision or is for Commander, AAFES, is an Army offi- reasons other than the unusual cir- cer. Appeals of denial of records made cumstances they may consider their by the OGC, AAFES, shall be made to administrative remedies exhausted. the Secretary of the Air Force when They may, however, without the Commander is an Air Force officer. prejudicing their right of judicial rem- (b) Time of receipt. A FOIA appeal has edy, await a substantive response. The been received by an Army Activity Army Activity will continue to process when it reaches the office of an appel- the case expeditiously. late authority having jurisdiction, the (e) Response to the requester. When the OGC. Misdirected appeals should be re- appellate authority (OGC) makes a ferred expeditiously to the OGC. final determination to release all or a (c) Time limits. The requester shall be portion of records withheld by an IDA, advised to file an appeal so that it is a written response and a copy of the postmarked no later than 60 calendar records so released should be forwarded days after the date of the initial denial promptly to the requester after compli- letter. If no appeal is received, or if the ance with any preliminary procedural appeal is postmarked after the conclu- requirements, such as payment of fees. sion of this 60-day period, the case may Final refusal of an appeal must be be considered closed. However, excep- made in writing by the appellate au- tions to the above may be considered thority or by a designated representa- on a case-by-case basis. In cases where tive. The response, at a minimum, the requester is provided several incre- shall include the following: mental determinations for a single re- (1) The basis for the refusal shall be quest, the time for the appeal shall not explained to the requester in writing, begin until the date of the final re- both with regard to the applicable stat- sponse. Records that are denied shall utory exemption or exemptions in- be retained for a period of six years to voked under provisions of the FOIA, meet the statute of limitations re- and with respect to other appeal mat- quirement. Final determinations on ap- ters; peals normally shall be made within 20 (2) When the final refusal is based in working days after receipt. When an whole or in part on a security classi- Army Activity has a significant num- fication, the explanation shall include ber of appeals preventing a response de- a determination that the record meets termination within 20 working days, the cited criteria and rationale of the the appeals shall be processed in a mul- governing Executive Order, and that

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this determination is based on a declas- trict in which the record is located, or sification review, with the explanation in the District of Columbia. of how that review confirmed the con- (c) The burden of proof is on the tinuing validity of the security classi- Army Activity to justify its refusal to fication; provide a record. The court shall evalu- (3) The final denial shall include the ate the case de novo (anew) and may name and title or position of the offi- elect to examine any requested record cial responsible for the denial; in camera (in private) to determine (4) In the case of appeals for total de- whether the denial was justified. nial of records, the response shall ad- (d) When an Army Activity has failed vise the requester that the information to make a determination within the being denied does not contain meaning- statutory time limits but can dem- ful portions that are reasonably seg- onstrate due diligence in exceptional regable; circumstances, to include negotiating (5) When the denial is based upon an with the requester to modify the scope exemption 3 statute, the response, in of their request, the court may retain addition to citing the statute relied jurisdiction and allow the Activity ad- upon to deny the information, shall ditional time to complete its review of state whether a court has upheld the the records. decision to withhold the information (1) If the court determines that the under the statute, and shall contain a requester’s complaint is substantially concise description of the scope of the correct, it may require the U. S. to pay information withheld; or reasonable attorney fees and other liti- (6) The response shall advise the re- gation costs. quester of the right to judicial review. (2) When the court orders the release (f) Consultation. Final refusal involv- of denied records, it may also issue a ing issues not previously resolved or written finding that the circumstances that the Army Activity knows to be in- surrounding the withholding raise consistent with rulings of other DoD questions whether Army Activity per- Components ordinarily should not be sonnel acted arbitrarily and capri- made before consultation with the ciously. In these cases, the special Army OGC. Tentative decisions to deny counsel of the Merit Systems Protec- records that raise new or significant tion Board shall conduct an investiga- legal issues of potential significance to tion to determine whether or not dis- other Agencies of the Government ciplinary action is warranted. The shall be provided to the Army OGC. Army Activity is obligated to take the action recommended by the special § 518.18 Judicial actions. counsel. (a) This section states current legal (3) The court may punish the respon- and procedural rules for the conven- sible official for contempt when an ience of the reader. The statements of Army Activity fails to comply with the rules do not create rights or remedies court order to produce records that it not otherwise available, nor do they determines have been withheld improp- bind the DA or DoD to particular judi- erly. cial interpretations or procedures. A (e) Non-U. S. Government source infor- requester may seek an order from a mation. A requester may bring suit in U.S. District Court to compel release of an U.S. District Court to compel the a record after administrative remedies release of records obtained from a non- have been exhausted; i.e., when refused government source or records based on a record by the head of a Component or information obtained from a non-gov- an appellate designee or when the ernment source. Such source shall be Army Activity has failed to respond notified promptly of the court action. within the time limits prescribed by When the source advises that it is seek- the FOIA and in this part. ing court action to prevent release, the (b) The requester may bring suit in Army Activity shall defer answering or the U.S. District Court in the district, otherwise pleading to the complainant in which the requester resides or is the as long as permitted by the Court or requester’s place of business, in the dis- until a decision is rendered in the court

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action of the source, whichever is soon- under the supervision of, the legal ad- er. visor. For general guidance on litiga- (f) FOIA litigation. Personnel respon- tion reports, see Army Regulation 27– sible for processing FOIA requests at 40, paragraph 3–9. Unlike the usual 60- the DoD Component level shall be day time period to respond to com- aware of litigation under the FOIA. plaints under the Federal Rules of Civil Such information will provide manage- Procedure, complaints under the FOIA ment insights into the use of the nine must be answered within 30 days of the exemptions by Component personnel. service of the complaint. Therefore, it Whenever a complaint under the FOIA is imperative to contact the Litigation is filed in an U.S. District Court, the Division immediately and to begin pre- Army Activity named in the complaint paring the litigation report without shall forward a copy of the complaint delay. by any means to HQDA, OTJAG (4) Specific guidance for FOIA litigation (DAJA–LT), with an information copy reports. The following is specific guid- to the Army OGC. In the DA, HQDA ance for preparing a litigation report OTJAG (DAJA–LT), WASH D.C. 20310– in FOIA Litigation. The required mate- 2210 is also responsible for forwarding rial should be indexed and assembled this information to the Office of the under the following categories: Army OGC and to the DA FOIA/PA Of- (i) Statement of facts. (Tab A). Provide fice. a chronological statement of all facts (1) Bases for FOIA Lawsuits. In gen- related to the FOIA request, beginning eral, there are four categories of com- with receipt of the request, responses plaints in a FOIA lawsuit: failure to re- to the request, and searches for respon- spond to a request within time frames sive records. The statement of facts established in the FOIA statute; chal- should refer to supporting enclosed ex- lenge to the adequacy of search for re- hibits whenever possible. sponsive records; challenge to applica- (ii) Responses to pleadings. (Tab B). If tion of a FOIA Exemption; and proce- you have been provided a copy of the dural challenges, such as application of complaint, provide a line-by-line an- waiver of fees. The guidance below is swer to the factual statements in the intended to cover all categories of com- pleadings, along with recommenda- plaints. In responding to litigation sup- tions on whether to admit or deny the port requests, bear in mind the type of allegation. complaint that has given rise to the (iii) Memorandum of law. (Tab C). No lawsuit and provide information, which memorandum of law is necessary in addresses the specific reason(s) for the FOIA lawsuits. If records were with- complaint. held, provide a written statement ex- (2) Responsibility for FOIA litigation. plaining the FOIA Exemption used to For the Army, under the general over- withhold the information and the ra- sight of the OGC, FOIA litigation is the tionale for its application in the par- responsibility of the General Litigation ticular facts of your case. Include here Branch, Army Litigation Division. If a copy of any legal review regarding you are notified of a FOIA lawsuit in- the withholding of the records. volving the Army, contact the General (iv) Potential witness information. (Tab Litigation Branch immediately at: D). List the names, addresses, tele- General Litigation Branch, Army Liti- phone number, facsimile number and e- gation Division, U.S. Army Legal Serv- mail addresses of all potential wit- ices Agency (USALSA), 9275 Gunston nesses. At a minimum, this must in- Road, Fort Belvoir, VA 22060. The Gen- clude all of the following: the FOIA Of- eral Litigation Branch will provide ficer or Coordinator or other person re- guidance on gathering information and sponsible for processing FOIA requests; assembling a litigation report nec- the individual(s) who actually con- essary to respond to FOIA litigation. ducted the search for responsive (3) Litigation reports for FOIA lawsuits. records; the legal advisor(s) who re- As with any lawsuit, the Army Litiga- viewed or provided advice on the re- tion Division and DOJ will require a quest; and the point of contact at any litigation report. This report should be office or agency to which the FOIA re- prepared with the assistance, and quest was referred.

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(v) Exhibits. (Tab E). Provide copies declarant and describe his or her quali- of all correspondence regarding the fications and responsibilities as they FOIA request. This includes all cor- relate to the FOIA; provide a state- respondence between the agency and ment indicating that the declarant is the requester, including any enclo- familiar with the specific request and sures; any referrals or forwarding of the general subject matter of the the request to other agencies or offices; records; include a statement of the copies of all documents released to the searcher’s understanding of the exact requester pursuant to the request in nature of the request, including any litigation. If any information is with- modification (narrowing or expanding held or redacted, provide a complete the search based on communications copy of all withheld information. Iden- with the requester); generally, the fac- tify withheld information by placing tual portion of the declaration should brackets around all information with- be organized as a chronological state- held and note in the margins of the ment beginning with receipt of the re- document the specific FOIA exemption quest; provide a specific description of applied to deny release of the docu- the system of records searched; and ment; all records and correspondence forwarded to the IDA, if applicable; all provide a description of procedures appeals by the requester; if the with- used to search for the requested held document is classified, provide a records, (manual search of records, summary of each document withheld. computer database search, etc.). This The Summary of classified documents portion of the declaration is especially should include the following: important when no records are found. (A) The classification of the docu- The declaration must reflect an ade- ment; quate and reasonable search for records (B) The date of the document; in locations where responsive records (C) The number of pages of the docu- are likely to be found. ment; (5) Special guidance for initial denial (D) The author or creator of the doc- authorities. If any information was ument; withheld, the IDA or person with spe- (E) The intended or actual recipient cific knowledge of the withholding of the document; must provide a specific statement of (F) The subject of the document and any Exemptions to the FOIA, which an unclassified description of the docu- were applied to the records. ment sufficient to inform the court of (i) Withheld records. For withheld the nature of the contents of the docu- records, describe in reasonably specific ment; and detail all records or parts of records (G) An explanation of the reason for withheld. If the number of records is withholding, including the specific pro- extensive, use an index of the records vision(s) of Executive Order 12,958 and consider numbering the documents which permit classification of the in- to facilitate reference. It is also per- formation. missible (and frequently helpful) to in- (vi) Draft declarations. (Tab F). A dec- clude redacted portions of records laration is a statement for use in liti- withheld as attachments or exhibits to gation made under penalty of perjury pursuant to specific statutory author- the declarations. ity (28 U.S.C. 1746) which need not be (ii) Exemptions. Include in the dec- notarized. Declarations may be used by laration a specific statement dem- the Army to support a motion to dis- onstrating that all the elements of miss or to grant summary judgment. each FOIA exemption are met. Depending on the basis for the lawsuit, (iii) Segregation. The FOIA requires with the assistance of their legal advi- that all information not subject to an sor, witnesses should prepare a draft exemption to the FOIA, which can be declaration to be included with the reasonably segregated from exempt in- litigation report. formation, must be released to FOIA (vii) The following is some general requesters. In any instance where an guidance on the content of a declara- entire document is withheld, the indi- tion in FOIA litigation. Identify the vidual authorizing the withholding

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must specifically address that segrega- level of fees for particular types of tion and release of non-exempt mate- records’’ (5 U.S.C. 552 FOIA, rial was not possible without rendering (a)(4)(A)(vi)) means any statute that the record essentially meaningless. If enables a Government Agency such as applicable, this issue must be specifi- the GPO or the NTIS, to set and collect cally addressed in the declaration. fees. Components should ensure that (iv) Sound Legal Basis. Army policy when documents that would be respon- promotes careful consideration of FOIA sive to a request are maintained for requests and discretionary decisions to distribution by agencies operating disclose information protected under statutory-based fee schedule programs the FOIA. Discretionary disclosures such as GPO or NTIS, they inform re- should be made only after full and de- questers of the steps necessary to ob- liberate consideration of the institu- tain records from those sources. tional, commercial, and personal pri- (1) The term ‘‘direct costs’’ means vacy interests that could be implicated those expenditures an Activity actu- by disclosure of the information. The ally makes in searching for, reviewing decision to withhold records, in whole (in the case of commercial requesters), or in part, otherwise exempt from dis- and duplicating documents to respond closure under the FOIA must exhibit a to a FOIA request. Direct costs in- sound legal basis or present an unwar- clude, for example, the salary of the ranted risk of adverse impact on the employee performing the work (the ability of other agencies to protect basic rate of pay for the employee plus other important records. 16 percent of that rate to cover bene- [71 FR 9222, Feb. 22, 2006, as amended at 78 fits), and the costs of operating dupli- FR 18474, Mar. 27, 2013] cating machinery. Not included in direct costs are overhead expenses such Subpart F—Fee Schedule as costs of space, heating or lighting the facility in which the records are § 518.19 General provisions. stored. (a) Authorities. The FOIA, as amend- (2) The term ‘‘search’’ includes all ed; the Paperwork Reduction Act (44 time spent looking, both manually and U.S.C. 35), as amended; the PA of 1974, electronically, for material that is re- as amended; the Budget and Account- sponsive to a request. Search also in- ing Act of 1921 and the Budget and Ac- cludes a page-by-page or line-by-line counting Procedures Act, as amended identification (if necessary) of material (see 31 U.S.C.); and 10 U.S.C. 2328). in the record to determine if it, or por- (b) Application. The fees described in tions thereof are responsive to the re- this Subpart apply to FOIA requests, quest. Activities should ensure that and conform to the Office of Manage- searches are done in the most efficient ment and Budget Uniform Freedom of and least expensive manner so as to Information Act Fee Schedule and minimize costs for both the Activity Guidelines. They reflect direct costs and the requester. For example, Activi- for search, review (in the case of com- ties should not engage in line-by-line mercial requesters), and duplication of searches, when duplicating an entire documents, collection of which is per- document known to contain responsive mitted by the FOIA. They are neither information, would prove to be the less intended to imply that fees must be expensive and quicker method of com- charged in connection with providing plying with the request. Time spent re- information to the public in the rou- viewing documents in order to deter- tine course of business, nor are they mine whether to apply one or more of meant as a substitute for any other the statutory exemptions is not search schedule of fees, such as DoD 7000.14–R, time, but review time. which does not supersede the collection (3) The term ‘‘duplication’’ refers to of fees under the FOIA. Nothing in this the process of making a copy of a docu- subpart shall supersede fees chargeable ment in response to a FOIA request. under a statute specifically providing Such copies can take the form of paper for setting the level of fees for par- copy, microfiche, audiovisual, or ma- ticular types of records. A ‘‘statute chine-readable documentation (e.g., specifically providing for setting the magnetic tape or disc), among others.

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Every effort will be made to ensure involved two hours and fifteen minutes that the copy provided is in a form of search time, and resulted in one that is reasonably useable, the re- hundred and twenty-five pages of docu- quester shall be notified that the copy ments, an Activity would determine provided is the best available and that the cost of only ten minutes of search the Activity’s master copy shall be time, and only five pages of reproduc- made available for review upon ap- tion. If this processing cost was equal pointment. For duplication of com- to, or less than the cost to the Activity puter-stored records, the actual cost, for billing the requester and processing including the operator’s time, shall be the fee collected, no charges would re- charged. In practice, if an Activity es- sult. timates that assessable duplication (1) Requesters receiving the first two charges are likely to exceed $25.00, it hours of search and the first one hun- shall notify the requester of the esti- dred pages of duplication without mate, unless the requester has indi- charge are entitled to such only once cated in advance his or her willingness per request. Consequently, if an Activ- to pay fees as high as those antici- ity, after completing its portion of a pated. Such a notice shall offer a re- request, finds it necessary to refer the quester the opportunity to confer with request to a subordinate office, another Activity personnel with the object of Army Activity or DoD Component, or reformulating the request to meet his another Federal Agency for action or her needs at a lower cost. their portion of the request, the refer- (4) The term ‘‘review’’ refers to the ring Activity shall inform the recipient process of examining documents lo- of the referral of the expended amount cated in response to a FOIA request to of search time and duplication cost to determine whether one or more of the date. statutory exemptions permit with- (2) The elements to be considered in holding. It also includes processing the determining the ‘‘cost of collecting a documents for disclosure, such as ex- fee’’ are the administrative costs to the cising them for release. Review does Activity of receiving and recording a not include the time spent resolving remittance, and processing the fee for general legal or policy issues regarding deposit in the Department of Treas- the application of exemptions. It ury’s special account. The cost to the should be noted that charges for com- Department of Treasury to handle such mercial requesters may be assessed remittance is negligible and shall not only for the initial review. Activities be considered in the Activity’s deter- may not charge for reviews required at minations. the administrative appeal level of an (3) For the purposes of these restric- exemption already applied. However, tions, the word ‘‘pages’’ refers to paper records or portions of records withheld copies of a standard size, which will in full under an exemption, which is normally be ‘‘81⁄2 × 11’’ or ‘‘11 × 14’’. subsequently determined not to apply, Thus, requesters would not be entitled may be reviewed again to determine to 100 microfiche or 100 computer disks, the applicability of other exemptions for example. A microfiche containing not previously considered. The costs the equivalent of 100 pages or 100 pages for such a subsequent review would be of computer printout, however, might properly assessable. meet the terms of the restriction. (c) Fee restrictions. No fees may be (4) In the case of computer searches, charged by any Army Activity if the the first two free hours will be deter- costs of routine collection and proc- mined against the salary scale of the essing of the fee are likely to equal or individual operating the computer for exceed the amount of the fee. With the the purposes of the search. As an exam- exception of requesters seeking docu- ple, when the direct costs of the comments for a commercial use, Activities puter central processing unit, input- shall provide the first two hours of output devices, and memory capacity search time, and the first one hundred equal $40.00 (two hours of equivalent pages of duplication without charge. search at the clerical level), amounts For example, for a request (other than of computer costs in excess of that one from a commercial requester) that amount are chargeable as computer

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search time. In the event the direct op- mentation. Requests of this nature erating cost of the hardware configura- must be closely reviewed consistent tion cannot be determined, computer with the requester’s stated purpose for search shall be based on the salary desiring the records and the potential scale of the operator executing the for public understanding of the oper- computer search. ations and activities of DA or DoD. (d) Fee waivers. Documents shall be (ii) The informative value of the in- furnished without charge, or at a formation to be disclosed requires a charge reduced below fees assessed to close analysis of the substantive con- the categories of requesters when the tents of a record, or portion of the Activity determines that waiver or re- record, to determine whether disclo- duction of the fees is in the public insure is meaningful, and shall inform terest because furnishing the informa- the public on the operations or activi- tion is likely to contribute signifi- ties of DA or DoD. While the subject of cantly to public understanding of the a request may contain information operations or activities of DA and is not primarily in the commercial inter- that concerns operations or activities est of the requester. of DA or DoD, it may not always hold (1) When assessable costs for a FOIA great potential for contributing to a request total $15.00 or less, fees shall be meaningful understanding of these op- waived automatically for all request- erations or activities. An example of ers, regardless of category. such would be a previously released (2) Decisions to waive or reduce fees record that has been heavily redacted, that exceed the automatic waiver the balance of which may contain only threshold shall be made on a case-by- random words, fragmented sentences, case basis. Disclosure of the informa- or paragraph headings. A determination ‘‘is in the public interest because tion as to whether a record in this situ- it is likely to contribute significantly ation will contribute to the public un- to public understanding of the oper- derstanding of the operations or activi- ations or activities of the Govern- ties of DA or DoD must be approached ment.’’ with caution, and carefully weighed (i) Activities should analyze whether against the arguments offered by the the subject matter of the request in- requester. Another example is informa- volves issues that will significantly tion already known to be in the public contribute to the public understanding domain. Disclosure of duplicative, or of the operations or activities of DA or nearly identical information already DoD. Requests for records in the pos- existing in the public domain may add session of the Army or DoD, which no meaningful new information con- were originated by non-government or- cerning the operations and activities of ganizations and are sought for their in- DA or DoD. trinsic content, rather than inform- (iii) The contribution to an under- ative value, will likely not contribute standing of the subject by the general to public understanding of the oper- public is likely to result from disclo- ations or activities of either DA or sure that will inform, or have the po- DoD. An example of such records might be press clippings, magazine articles, tential to inform the public, rather or records forwarding a particular than simply the individual requester or opinion or concern from a member of small segment of interested persons. the public regarding an Army or DoD The identity of the requester is essen- activity. Similarly, disclosures of tial in this situation in order to deter- records of considerable age may or may mine whether such requester has the not bear directly on the current activi- capability and intention to dissemi- ties of either DA or DoD; however, the nate the information to the public. age of a particular record shall not be Mere assertions of plans to author a the sole criteria for denying relative book, researching a particular subject, significance under this factor. It is pos- doing doctoral dissertation work, or in- sible to envisage an informative issue digence are insufficient without dem- concerning the current activities of DA onstrating the capacity to further dis- or DoD, based upon historical docu- close the information in a manner that

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will be informative to the general pub- as a result of that disclosure. Where lic. Requesters should be asked to de- the public interest is served above and scribe their qualifications, the nature beyond that of the requester’s commer- of their research, the purpose of the re- cial interest, a waiver or reduction of quested information, and their in- fees would be appropriate. Conversely, tended means of dissemination to the even if a significant public interest ex- public. ists, and the relative commercial inter- (iv) Activities must differentiate the est of the requester is determined to be relative significance or impact of the greater than the public interest, then a disclosure against the current level of waiver or reduction of fees would be in- public knowledge, or understanding, appropriate. As examples, news media which exists before the disclosure. In organizations have a commercial inter- other words, will disclosure on a cur- est as business organizations; however, rent subject of wide public interest be their inherent role of disseminating unique in contributing previously un- news to the general public can ordi- known facts, thereby enhancing public narily be presumed to be of a primary knowledge, or will it basically dupli- interest. Therefore, any commercial in- cate what is already known by the gen- terest becomes secondary to the pri- eral public? A decision regarding sig- mary interest in serving the public. nificance requires objective judgment, Similarly, scholars writing books or rather than subjective determination, engaged in other forms of academic re- and must be applied carefully to deter- search, may recognize a commercial mine whether disclosure will likely benefit, either directly, or indirectly lead to a significant public under- (through the institution they rep- standing of the issue. Activities shall resent); however, normally such pur- not make value judgments as to wheth- suits are primarily undertaken for edu- er the information is important enough cational purposes, and the application to be made public. of a fee charge would be inappropriate. (3) Disclosure of the information ‘‘is Conversely, data brokers or others who not primarily in the commercial inter- merely compile government informa- est of the requester.’’ tion for marketing can normally be (i) If the request is determined to be presumed to have an interest primarily of a commercial interest, Activities of a commercial nature. should address the magnitude of that (4) Activities are reminded that the interest to determine if the requester’s factors and examples used in this sec- commercial interest is primary, as option are not all inclusive. Each fee deposed to any secondary personal or cision must be considered on a case-by- non-commercial interest. In addition case basis and upon the merits of the to profit-making organizations, indi- information provided in each request. vidual persons or other organizations When the element of doubt as to may have a commercial interest in ob- whether to charge or waive the fee can- taining certain records. Where it is dif- not be clearly resolved, Activities ficult to determine whether the re- should rule in favor of the requester. quester is of a commercial nature, Ac- (5) In addition, the following addi- tivities may draw inference from the tional circumstances describe situa- requester’s identity and circumstances tions where waiver or reduction of fees of the request. Activities are reminded are most likely to be warranted: that in order to apply the commercial (i) A record is voluntarily created to standards of the FOIA, the requester’s prevent an otherwise burdensome ef- commercial benefit must clearly over- fort to provide voluminous amounts of ride any personal or non-profit inter- available records, including additional est. information not requested; or (ii) Once a requester’s commercial in- (ii) A previous denial of records is re- terest has been determined, Activities versed in total, or in part, and the as- should then determine if the disclosure sessable costs are not substantial (e.g., would be primarily in that interest. $15.00—$30.00). This requires a balancing test between (e) Fee assessment. Fees may not be the commercial interest of the request used to discourage requesters, and to against any public benefit to be derived this end, FOIA fees are limited to

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standard charges for direct document ceed the amount of the estimate or the search, review (in the case of commer- amount agreed to by the requester, the cial requesters) and duplication. amount in excess of the estimate or the (1) In order to be as responsive as requester’s agreed amount shall not be possible to FOIA requests while mini- charged without the requester’s agree- mizing unwarranted costs to the tax- ment; payer, Activities shall adhere to the (iv) No Army Activity may require following procedures: advance payment of any fee; i.e., pay- (i) Each request must be analyzed to ment before work is commenced or determine the category of the re- continued on a request, unless the requester. If the Activity determination quester has previously failed to pay regarding the category of the requester fees in a timely fashion, or the agency is different than that claimed by the has determined that the fee will exceed requester, the Activity should notify $250.00. As used in this sense, a timely the requester to provide additional jus- fashion is 30 calendar days from the tification to warrant the category date of billing (the fees have been as- claimed, and that a search for respon- sessed in writing) by the Activity; sive records will not be initiated until (v) Where an Activity estimates or agreement has been attained relative determines that allowable charges that to the category of the requester. Ab- a requester may be required to pay are sent further category justification likely to exceed $250.00, the Activity from the requester, and within a rea- shall notify the requester of the likely sonable period of time (i.e., 30 calendar cost and obtain satisfactory assurance days), the Activity shall render a final of full payment where the requester category determination, and notify the has a history of prompt payments, or requester of such determination, to in- require an advance payment of an clude normal administrative appeal amount up to the full estimated rights of the determination. The re- charges in the case of requesters with quester should be advised that, not- no history of payment; withstanding any appeal, a search for responsive records will not be initiated (vi) Where a requester has previously until the requester indicates a willing- failed to pay a fee charged in a timely ness to pay assessable costs appro- fashion (i.e., within 30 calendar days priate for the category determined by from the date of the billing), the Activ- the Activity; ity may require the requester to pay (ii) Requesters should submit a fee the full amount owed, plus any applica- declaration appropriate for the below ble interest, or demonstrate that he or categories. Commercial requesters she has paid the fee, and to make an should indicate a willingness to pay all advance payment of the full amount of search, review and duplication costs. the estimated fee before the Activity Educational or Noncommercial Sci- begins to process a new or pending re- entific Institution or News Media request from the requester. Interest will questers should indicate a willingness be at the rate prescribed in 31 U.S.C. to pay duplication charges, if applica- 3717, and confirmed with respective Fi- ble, in excess of 100 pages if more than nance and Accounting Offices; 100 pages of records are desired. All (vii) After all work is completed on a other requesters should indicate a will- request, and the documents are ready ingness to pay assessable search and for release, Activities may request pay- duplication costs; ment before forwarding the documents, (iii) Activities must be prepared to particularly for those requesters who provide an estimate of assessable fees have no payment history, or for those if desired by the requester. While it is requesters who have failed previously recognized that search situations will to pay a fee in a timely fashion (i.e., vary among Activities, and that an es- within 30 calendar days from the date timate is often difficult to obtain prior of the billing; to an actual search, requesters who de- (viii) The administrative time limits sire estimates are entitled to such be- of the FOIA will begin only after the fore committing to a willingness to Activity has received a willingness to pay. Should Activities’ actual costs ex- pay fees and satisfaction as to category

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determination, or fee payments (if ap- upon an assertion that disclosure propriate); and would be in the public interest. How- (ix) Activities may charge for time ever, because use is the exclusive de- spent searching for records, even if termining criteria, it is possible to en- that search fails to locate records revision a commercial enterprise making sponsive to the request. Activities may a request that is not for commercial also charge search and review (in the use. It is also possible that a non-profit case of commercial requesters) time if organization could make a request that records located are determined to be is for commercial use. Such situations exempt from disclosure. In practice, if must be addressed on a case-by-case the Activity estimates that search basis. charges are likely to exceed $25.00, it (3) Educational institution requesters. shall notify the requester of the esti- Fees shall be limited to only reason- mated amount of fees, unless the re- able standard charges for document du- quester has indicated in advance his or plication (excluding charges for the her willingness to pay fees as high as those anticipated. Such a notice shall first 100 pages) when the request is offer the requester the opportunity to made by an educational institution confer with Activity personnel with whose purpose is scholarly research. the object of reformulating the request Requesters must reasonably describe to meet his or her needs at a lower the records sought. The term ‘‘edu- cost. cational institution’’ refers to a pre- (2) Commercial requesters. Fees shall school, a public or private elementary be limited to reasonable standard or secondary school, an institution of charges for document search, review graduate high education, an institution and duplication when records are re- of undergraduate higher education, an quested for commercial use. Requesters institution of professional education, must reasonably describe the records and an institution of vocational edu- sought. cation, which operates a program or (i) The term ‘‘commercial use’’ re- programs of scholarly research. Fees quest refers to a request from, or on be- shall be waived or reduced in the public half of one who seeks information for a interest if the criteria above have been use or purpose that furthers the com- met. mercial, trade, or profit interest of the (4) Non-commercial scientific institution requester or the person on whose behalf requesters. Fees shall be limited to only the request is made. In determining reasonable standard charges for docu- whether a requester properly belongs ment duplication (excluding charges in this category, Activities must deter- for the first 100 pages) when the re- mine the use to which a requester will quest is made by a non-commercial sci- put the documents requested. More- entific institution whose purpose is sci- over, where an Activity has reasonable entific research. Requesters must rea- cause to doubt the use to which a re- sonably describe the records sought. quester will put the records sought, or The term ‘‘non-commercial scientific where that use is not clear from the re- institution’’ refers to an institution quest itself, Activities should seek ad- that is not operated on a ‘‘commercial’’ ditional clarification before assigning the request to a specific category. basis and that is operated solely for the (ii) When Activities receive a request purpose of conducting scientific re- for documents for commercial use, search, the results of which are not in- they should assess charges, which re- tended to promote any particular prod- cover the full direct costs of searching uct or industry. for, reviewing for release, and dupli- (5) Activities shall provide docu- cating the records sought. Commercial ments to requesters for the cost of du- requesters (unlike other requesters) are plication alone, excluding charges for not entitled to two hours of free search the first 100 pages. To be eligible for in- time, nor 100 free pages of reproduction clusion in these categories, requesters of documents. Moreover, commercial must show that the request is being requesters are not normally entitled to made under the auspices of a qualifying a waiver or reduction of fees based institution and that the records are not

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sought for commercial use, but in fur- sumed to be a request from an entity therance of scholarly (from an edu- eligible for inclusion in this category, cational institution) or scientific (from and entitled to records at the cost of a non-commercial scientific institu- reproduction alone (excluding charges tion) research. for the first 100 pages). (6) Representatives of the news media. (iii) ‘‘Representative of the news Fees shall be limited to only reason- media’’ does not include private librar- able standard charges for document du- ies, private repositories of Government plication (excluding charges for the records, information vendors, data bro- first 100 pages) when the request is kers or similar marketers of informa- made by a representative of the news tion whether to industries and busi- media. Requesters must reasonably de- nesses, or other entities. scribe the records sought. (7) All other requesters. Activities (i) The term ‘‘representative of the shall charge requesters who do not fit news media’’ refers to any person ac- into any of the categories, fees which tively gathering news for an entity recover the full direct cost of searching that is organized and operated to pub- for and duplicating records, except that lish or broadcast news to the public. the first two hours of search time and The term ‘‘news’’ means information the first 100 pages of duplication shall that is about current events or that be furnished without charge. Request- would be of current interest to the pub- ers must reasonably describe the lic. Examples of news media entities records sought. Requests from subjects include television or radio stations about themselves will continue to be broadcasting to the public at large and treated under the fee provisions of the publishers of periodicals (but only in Privacy Act of 1974, which permit fees those instances when they can qualify only for duplication. Activities are re- as disseminators of ‘‘news’’) who make minded that this category of requester their products available for purchase or may also be eligible for a waiver or re- subscription by the general public. duction of fees if disclosure of the in- These examples are not meant to be formation is in the public interest as all-inclusive. Moreover, as traditional defined in paragraph (6) (ii) in this sec- methods of news delivery evolve (e.g., tion. electronic dissemination of newspapers (f) Aggregating requests. Except for re- through telecommunications services), quests that are for a commercial use, such alternative media would be in- an Activity may not charge for the cluded in this category. In the case of first two hours of search time or for ‘‘freelance’’ journalists, they may be the first 100 pages of reproduction. regarded as working for a news organi- However, a requester may not file mul- zation if they can demonstrate a solid tiple requests at the same time, each basis for expecting publication through seeking portions of a document or doc- that organization, even though not ac- uments, solely in order to avoid pay- tually employed by it. A publication ment of fees. When an Activity reason- contract would be the clearest proof, ably believes that a requester or, on but Activities may also look to the rare occasions, a group of requesters past publication record of a requester acting in concert, is attempting to in making this determination. break a request down into a series of (ii) To be eligible for inclusion in this requests for the purpose of avoiding the category, a requester must meet the assessment of fees, the agency may ag- criteria in paragraph (e) (6) (i) of this gregate any such requests and charge section, and his or her request must accordingly. One element to be consid- not be made for commercial use. A re- ered in determining whether a belief quest for records supporting the news would be reasonable is the time period dissemination function of the requester in which the requests have occurred. shall not be considered to be a request For example, it would be reasonable to that is for a commercial use. For exam- presume that multiple requests of this ple, a document request by a newspaper type made within a 30-day period had for records relating to the investiga- been made to avoid fees. For requests tion of a defendant in a current crimi- made over a longer period, however, nal trial of public interest could be pre- such a presumption becomes harder to

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sustain and Activities should have a § 518.20 Collection of fees and fee solid basis for determining that aggre- rates. gation is warranted in such cases. Ac- (a) Collection of fees. Collection of fees tivities are cautioned that before ag- will be made at the time of providing gregating requests from more than one the documents to the requester or re- requester, they must have a concrete cipient when the requester specifically basis on which to conclude that the re- states that the costs involved shall be questers are acting in concert and are acceptable or acceptable up to a speci- acting specifically to avoid payment of fied limit that covers the anticipated fees. In no case may Activities aggre- costs. Collection of fees may not be gate multiple requests on unrelated made in advance unless the requester subjects from one requester. has failed to pay previously assessed (g) Debt Collection Act of 1982 (Pub. L. fees within 30 calendar days from the 97–365). The Debt Collection Act pro- date of the billing by the Activity, or vides for a minimum annual rate of in- the Activity has determined that the terest to be charged on overdue debts fee will be in excess of $250. owed the Federal Government. Activi- (b) Search time–(1) Costs for manual ties may levy this interest penalty for searches.

any fees that remain outstanding 30 Hourly rate calendar days from the date of billing Type Grade ($) (the first demand notice) to the re- Clerical ...... E9/GS 8 and below ... 20 quester of the amount owed. The inter- Professional ...... 1–06/GS 9–GS 15 ..... 44 est rate shall be as prescribed in 31 Executive ...... 07/ST/SL/SES–1 and 75 U.S.C. 3717. Activities should verify the above. current interest rate with respective Contractor ...... 44 Finance and Accounting Offices. After one demand letter has been sent, and 30 (2) Computer search. Fee assessments for computer search consists of two calendar days have lapsed with no pay- parts; individual time (hereafter re- ment, Activities may submit the debt ferred to as human time), and machine to respective Finance and Accounting time. Offices for collection pursuant to the (i) Human time. Human time is all the Debt Collection Act. time spent by humans performing the (h) Computation of fees. The fee sched- necessary tasks to prepare the job for a ule shall be used to compute the machine to execute the run command. search, review (in the case of commer- If execution of a run requires moni- cial requesters) and duplication costs toring by a human, that human time associated with processing a given may be also assessed as computer FOIA request. Costs shall be computed search. The terms ‘‘programmer/oper- on time actually spent. Neither time- ator’’ shall not be limited to the tradi- based nor dollar-based minimum tional programmers or operators. charges for search, review and duplica- Rather, the terms shall be interpreted tion are authorized. The appropriate in their broadest sense to incorporate fee category of the requester shall be any human involved in performing the applied before computing fees. DD computer job (e.g. technician, adminis- Form 2086 (Record of Freedom of Infor- trative support, operator, programmer, mation (FOI) Processing Cost) will be database administrator, or action offi- used to annotate fees for processing cer). FOIA information. (ii) Machine time. Machine time in- (i) Refunds. In the event that an Ac- volves only direct costs of the Central tivity discovers that it has overcharged Processing Unit (CPU), input/output a requester or a requester has overpaid, devices, and memory capacity used in the Activity shall promptly refund the the actual computer configuration. Only this CPU rate shall be charged. charge to the requester by reimburse- No other machine related costs shall be ment methods that are agreeable to charged. In situations where the capa- the requester and the Activity. bility does not exist to calculate CPU time, no machine costs can be passed

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on to the requester. When CPU calcula- § 518.21 Collection of fees and fee rates tions are not available, only human for technical data. time costs shall be assessed to request- (a) Fees for technical data. Technical ers. Should Army Activities lease com- data, other than technical data that puters, the services charged by the discloses critical technology with mili- lesser shall not be passed to the retary or space application, if required to quester under the FOIA. be released under the FOIA, shall be re- (c) Duplication costs. leased after the person requesting such technical data pays all reasonable Cost per page Type (cents) costs attributed to search, duplication and review of the records to be re- Pre-printed material ...... 02 leased. Technical data, as used in this Office Copy ...... 15 section, means recorded information, Microfiche ...... 25 regardless of the form or method of the Computer copies (tapes, Actual cost of duplicating the discs or printouts). tape, disc or printout (in- recording of a scientific or technical cludes operator’s time and nature (including computer software cost of the medium) documentation). This term does not include computer software, or data inci- (d) Review time costs (in the case of dental to contract administration, commercial requesters). such as financial and/or management information. Army Activities shall re- Hourly rate Type Grade ($) tain the amounts received by such a release, and it shall be merged with and Clerical ...... E9/GS 8 and below ... 20 available for the same purpose and the Professional ...... 01–06/GS 9–GS 15 ... 44 same time period as the appropriation Executive ...... 07/ST/SL/SES–1 and 75 from which the costs were incurred in above. Contractor ...... 44 complying with request. All reasonable costs as used in this sense are the full (e) Audiovisual documentary materials. costs to the Federal Government of Search costs are computed as for any rendering the service, or fair market other record. Duplication cost is the value of the service, whichever is high- actual direct cost of reproducing the er. Fair market value shall be deter- material, including the wage of the mined in accordance with commercial person doing the work. Audiovisual rates in the local geographical area. In materials provided to a requester need the absence of a known market value, not be in reproducible format or qual- charges shall be based on recovery of ity. Army audiovisual materials are re- full costs to the Federal Government. ferred to as ‘‘visual information.’’ The full costs shall include all direct and indirect costs to conduct the (f) Other records. Direct search and search and to duplicate the records re- duplication cost for any record not de- sponsive to the request. This cost is to scribed above shall be computed in the be differentiated from the direct costs manner described for audiovisual docu- allowable for other types of informa- mentary material. tion released under the FOIA. DD Form (g) Costs for special services. Com- 2086–1 will be used to annotate fees for plying with requests for special serv- technical data. The form is available ices is at the discretion of the Activi- through normal publication channels. ties. Neither the FOIA, nor its fee (b) Waiver. Activities shall waive the structure cover these kinds of services. payment of costs described in para- Therefore, Activities may recover the graph (a) of this section, which are costs of special services requested by greater than the costs that would be the requester after agreement has been required for release of this same infor- obtained in writing from the requester mation if the request is made by a cit- to pay for one or more of the following izen of the United States or a United services: States corporation, and such citizen or (1) Certifying that records are true corporation certifies that the technical copies; and/or data requested is required to enable it (2) Sending records by special meth- to submit an offer, or determine wheth- ods such as express mail, etc. er it is capable of submitting an offer

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to provide the product to which the Hourly technical data relates to the United Type Grade rate ($) States or a contractor with the United States. However, Activities may re- Minimum Charge ...... 8.30 quire the citizen or corporation to pay Notes: Professional and Executive (To be established at ac- a deposit in an amount equal to not tual hourly rate prior to search. A minimum charge will be established at 1⁄2 hourly rates. more than the cost of complying with the request, which will be refunded (f) Other technical data records. upon submission of an offer by the cit- Charges for any additional services not izen or corporation; specifically consistent with Volume (1) The release of technical data is re- 11A of DoD 7000.14–R, shall be made by quested in order to comply with the Activities at the following rates: terms of an international agreement; Cost or, Type ($) (2) The Activity determines that such 1. Minimum charge for office copy (up to six im- a waiver is in the interest of the United ages) ...... 3.50 States. 2. Each additional image ...... 10 (c) Fee rates–(1) Costs for a manual 3. Each typewritten page ...... 3.50 search of technical data. 4. Certification and validation with seal, each ...... 5.20 5. Hand-drawn plots and sketches, each hour or Hourly rate fraction thereof ...... 12.00 Type Grade ($) Clerical ...... E9/GS 8 and below ... 13.25 Subpart G—Reports Minimum Charge ...... 8.30 Notes: Professional and Executive (To be established at ac- § 518.22 Reports control. tual hourly rate prior to search. A minimum charge will be established at 1⁄2 hourly rates. (a) General. (1) The Annual FOIA Re- port is mandated by the statute and re- (2) Computer search is based on the ported on a fiscal year basis. Due to total cost of the cpu, input-output de- the magnitude of the requested statis- vices, and memory capacity of the ac- tics and the need to ensure accuracy of tual computer configuration. The wage reporting, Army Activities shall track for the computer operator and/or pro- this data as requests are processed. grammer determining how to conduct, This will also facilitate a quick and ac- and subsequently executing the search curate compilation of statistics. Army will be recorded as part of the com- Activities shall forward their report to puter search. DA, FOIA/PA Office, no later than Oc- (d) Duplication costs for technical data. tober 15 following the fiscal year’s close. It may be submitted electroni- Cost Type ($) cally and via hard copy accompanied by a computer diskette. In turn, DA Aerial photograph, maps, specifications, permits, and DoD will produce a consolidated charts, blueprints, and other technical engineering documents ...... 2.50 report for a submission to the Attorney Engineering data (microfilm). General and ensure that a copy of the a. Aperture cards consolidated report is placed on the Silver duplicate negative, per card ...... 75 Internet for public access. When key punched and verified, per card ...... 85 (2) Existing Army standards and reg- Diazo duplicate negative, per card ...... 65 When key punched and verified, per card ...... 75 istered data elements are to be utilized b. 35 mm roll film, per frame ...... 50 to the greatest extent possible in ac- c. 16 mm roll film, per frame ...... 45 cordance with the provisions of DoD d. Paper prints (engineering drawings), 8320.1–M, ‘‘Data Administration Proce- each ...... 1.50 dures.’’ e. Paper reprints of microfilm indices, each .10 (3) The reporting requirement outlined is assigned Report Control Sym- (e) Review time costs of technical data. bol DD–DA&M(A)1365, FOIA Report to Hourly Congress. Type Grade rate (b) Reporting time. Each DA IDA shall ($) prepare statistics and accumulate pa- Clerical ...... E9/GS 8 and below ...... 13.25 perwork for the preceding fiscal year

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on those items prescribed for the an- sponses’’ as a partial denial here, un- nual report. The IDAs will follow less a FOIA exemption is also used). guidelines below and submit the infor- (4) Denied in full. Enter the total mation to the DA, FOIA/PA Office, on number of initial FOIA requests re- or before the 15th day of each October. sponded to and denied in full based on (1) Each reporting activity will sub- one or more of the FOIA exemptions. mit the information requested on the (Do not report ‘‘Other Reason Re- DD Form 2564, ‘‘Annual Report Free- sponses’’ as denials here, unless a FOIA dom of Information Act.’’ The form is exemption is also used). available through normal publication (5) ‘‘Other Reason’’ responses. Enter channels. the total number of initial FOIA re- (2) Each IDA will submit the infor- quests in which you were unable to mation requested on the DD Form 2564, provide all or part of the requested in- excluding items 3, 4, and 9c. formation based on an ‘‘Other Reason’’ (3) The Judge Advocate General response. (DAJA) and Chief of Engineers (COE) (6) Total actions. Enter the total num- will submit the information requested ber of FOIA actions taken during the on the Form DD 2564, item 9c. fiscal year. This number will be the (4) The General Counsel (SAGC) will sum of items 1b, through 1e. Total Ac- submit the information requested on tions must be equal to or greater than the DD Form 2564, items 3 and 4. the number of Total Requests Proc- (5) The DA, FOIA/PA Office will com- essed. pile the data submitted in the Army’s (b) ITEM 2 Initial Request Exemptions Annual Report. This report will be sub- and Other Reasons—(1) Exemptions in- mitted to the DoD Office for Freedom voked on initial request determinations. of Information and Security Review on Enter the number of times an exemp- or before the 30th day of each Novem- tion was claimed for each request that ber. was denied in full or in part. Since more than one exemption may be § 518.23 Annual report content. claimed when responding to a single re- The current edition of DD Form 2564 quest, this number will be equal to or shall be used to submit Activity input. greater than the sum of (3) and (4), Instructions for completion follows: above. The (b)(7) exemption is reported (a) ITEM 1 Initial Request Determina- by subcategories (A) through (F): (A) tions. Please note that initial PA re- Interfere with Enforcement; (B) Fair quests, which are also processed as ini- Trial Right; (C) Invasion of Privacy; tial FOIA requests, are reported here. (D) Protect Confidential Source; (E) (1) Total requests processed. Enter the Disclose Techniques, and (F) Endanger total number of initial FOIA requests Life or Safety. responded to (completed) during the (2) ‘‘Other Reasons’’ cited on initial de- fiscal year. This should include pending terminations. Identify the ‘‘Other Rea- cases at the end of the prior fiscal year, son’’ response cited when responding to Total Actions is the sum of Items 1b a FOIA request and enter the number through 1e, on the DD Form 2564. This of times each was claimed. total may exceed Total Requests Proc- (i) No records. Enter the number of essed. times a reasonable search of files failed (2) Granted in full. Enter the total to identify records responsive to sub- number of initial FOIA requests re- ject request. sponded to that were granted in full (ii) Referrals. Enter the number of during the fiscal year. (This may in- times a request was referred to another clude requests granted by your office, DoD Component or Federal Agency for yet still requiring action by another of- action. fice). (iii) Request withdrawn. Enter the (3) Denied in part. Enter the total number of times a request and/or ap- number of initial FOIA requests repeal was withdrawn by a requester. sponded to and denied in part based on (iv) Fee-related reason. Requester is one or more of the FOIA exemptions. unwilling to pay the fees associated (Do not report ‘‘Other Reason Re- with a request; the requester is past

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due in the payment of fees from a pre- number of (b)(3) exemptions listed in vious FOIA request; or the requester Item 2a on the report form. disagrees with a fee estimate. (c) ITEM 3 Appeal Determinations. (v) Records not reasonably described. Please note that PA appeals, which are Enter the number of times a FOIA re- also processed as FOIA appeals, are request could not be acted upon since the ported here. record had not been described with suf- (1) Total appeal responses. Enter the ficient particularity to enable the total number of FOIA appeals re- Army Activity to locate it by con- sponded to (completed) during the fis- ducting a reasonable search. cal year. (vi) Not a proper FOIA request for some (2) Granted in full. Enter the total other reason. Enter the number of times number of FOIA appeals responded to the requester has failed unreasonably and granted in full during the year. to comply with procedural require- (3) Denied in part. Enter the total ments, other than fee-related imposed number of FOIA appeals responded to by this part or an Army Activity’s and denied in part based on one or supplementing regulation. more of the FOIA exemptions. (Do not (vii) Not an agency record. Enter the report ‘‘Other Reason Responses’’ as a number of times a requester was pro- partial denial here, unless a FOIA ex- vided a response indicating the re- emption is used also.) quested information was not a record (4) Denied in full. Enter the total within the meaning of the FOIA and number of FOIA appeals responded to this part. and denied in full based on one or more (viii) Duplicate request. Record num- of the FOIA exemptions. (Do not report ber of duplicate requests closed for ‘‘Other Reason Responses’’ as denials that reason (e.g., request for the same here, unless a FOIA exemption is used information by the same requester). also). This includes identical requests re- (5) ‘‘Other Reason’’ responses. Enter ceived via different means (e.g., elec- the total number of FOIA appeals in tronic mail, facsimile, mail, and cou- which you were unable to provide the rier) at the same or different times. requested information based on an (ix) Other (specify). Any other reason ‘‘Other Reason’’ response. a requester does not comply with pub- (6) Total actions. Enter the total num- lished rules, other than those reasons ber of FOIA appeal actions taken dur- outlined in paragraphs (b)(2)(i) through ing the fiscal year. This number will be (viii) of this section. the sum of items 3b, through 3e, and (x) Total. Enter the sum of para- should be equal to or greater than the graphs (b)(2)(i) through (ix) of this sec- number of Total Appeal Responses, tion, in the block provided on the form item 3a on the report form. (total other reasons). This number will (d) ITEM 4 Appeal Exemptions and be equal to or greater than the number Other Reasons–(1) Exemptions invoked on in item 1e on the report form, since appeal determinations. Enter the num- more than one reason may be claimed ber of times an exemption was claimed for each ‘‘Other Reason’’ response. for each appeal that was denied in full (3) (b)(3) Statutes invoked on initial de- or in part. Since more than one exemp- terminations. Identify the number of tion may be claimed when responding times you have used a specific statute to a single request, this number will be to support each (b)(3) exemption. List equal to or greater than the sum of the statutes used to support each (b)(3) items 3c, and 3d on the report form. exemption; the number of instances in Note that the (b)(7) exemption is re- which the statute was cited; note ported by subcategory (A) through (F): whether or not the statute has been (A) Interfere with Enforcement; (B) upheld in a court hearing; and provide Fair Trial Right; (C) Invasion of Pri- a concise description of the material vacy; (D) Protect Confidential Source; withheld in each individual case by the (E) Disclose Techniques, and (F) En- statute’s use. Ensure you cite the spe- danger Life or Safety. cific sections of the acts invoked. The (2) ‘‘Other Reasons’’ cited on appeal de- total number of instances reported will terminations. Identify the ‘‘Other Rea- be equal to or greater than the total son’’ response cited when responding to

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a FOIA appeal and enter the number of this case the average of middle values times each was claimed. This number 30 and 50). may be equal to or possibly greater (4) Accuracy of calculations. Activities than the number in item 3e on the re- must ensure the accuracy of calcula- port form, since more than one reason tions. As backup, the raw data used to may be claimed for each ‘‘Other Rea- perform calculations should be re- son’’ response. corded and preserved. This will enable (3) (b)(3) Statutes invoked on appeal de- recalculation of median [and mean val- terminations. Identify the number of ues] as necessary. Activities may re- times a specific statute has been used quire subordinate elements to forward to support each (b)(3) exemption identi- raw data, as deemed necessary and ap- fied in item 4a on the report form DD propriate. 2564. List the statutes used to support (5) Average. If an Activity believes each (b)(3) exemption; the number of that ‘‘average’’ (mean) processing time instances in which the statute was is a better measure of performance, cited; note whether or not the statute then report ‘‘averages’’ (means) as well has been upheld in a court hearing; and as median values (e.g., with data re- provide a concise description of the flected and plainly labeled on plain material withheld in each individual bond as an attachment to the report). case by the statute’s use. Ensure cita- However, ‘‘average’’ (mean) values will tion to the specific sections of the stat- not be included in the consolidated ute invoked. The total number of in- Army report unless all Activities re- stances reported will be equal to or port it. greater than the total number of (b)(3) (f) ITEM 6 Number of Initial Requests exemptions listed in Item 4a on the re- Received During the Fiscal Year. Enter port form. the total number of initial FOIA re- (e) ITEM 5 Number and Median Age of quests received during the reporting Initial Cases Pending: period (fiscal year being reported). (1) Total initial cases pending: (i) Beginning and ending report period: (g) ITEM 7 Types of Requests Processed Midnight, 2400 hours, September 30, of and Median Age. Information is re- the Preceding Year—or—0001 hours, Oc- ported for three types of initial re- tober 1, is the beginning of the report quests completed during the reporting period. Midnight, 2400 hours, is the period: Simple; Complex; and Expe- close of the reporting period. dited Processing. The following items (ii) The number for the beginning re- of information are reported for these port period must be the same number requests: reported as of the end of the report pe- (1) Total number of initial requests. riod from the previous report. Enter the total number of initial re- (2) Median age of initial requests pend- quests processed [completed] during ing: Report the median age in days (in- the reporting period (fiscal year) by cluding holidays and weekends) of ini- type (Simple, Complex and Expedited tial requests pending. Processing) in the appropriate row on (3) Examples of median calculation. (i) the form. If given five cases aged 10, 25, 35, 65, (2) Median age (days). Enter the me- and 100 days from date of receipt as of dian number of days [calendar days in- the previous September 30th, the total cluding holidays and weekends] re- requests pending is five (5). The median quired to process each type of case age (days) of open requests is the mid- (Simple, Complex and Expedited Proc- dle, not average value, in this set of essing) during the period in the appro- numbers (10, 25, 35, 65, and 100), 35 (the priate row on the form. middle value in the set). (3) Example. Given seven initial re- (ii) If given six pending cases, aged quests, multitrack—simple completed 10, 20, 30, 50, 120, and 200 days from date during the fiscal year, aged 10, 25, 35, of receipt, as of the previous Sep- 65, 79, 90 and 400 days when completed. tember 30th, the total requests pending The total number of requests com- is six (6). The median age (days) of open pleted was seven (7). The median age requests 40 days (the mean [average] of (days) of completed requests is 65, the the two middle numbers in the set, in middle value in the set.

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(h) ITEM 8 Fees Collected From the (3) Estimated litigation cost. Report Public. Enter the total amount of fees your best estimate of litigation costs collected from the public during the for the FY. Include all direct and indi- fiscal year. This includes search, re- rect expenses associated with FOIA view and reproduction costs only. litigation in U.S. District Courts, U.S. (i) ITEM 9 FOIA Program Costs–(1) Circuit Courts of Appeals, and the U.S. Number of full time staff. Enter the num- Supreme Court. ber of personnel your agency had dedi- (4) Total program cost. Report the cated to working FOIA full time during total cost of FOIA program operation the fiscal year. This will be expressed within your agency. Include your liti- in work-years [man-years]. For exam- gation costs in this total. While you do ple: ‘‘5.1, 3.2, 1.0, 6.5, et al.’’ not have to report detailed cost information as in the past, you should be TABLE 7–1—SAMPLE COMPUTATION OF WORK able to explain the techniques by which YEARS FOR FULL TIME STAFF you derived you agency’s total cost fig- Number of ures if the need arises. Employee months Work-years Note (i) Before the close of each fiscal worked year, the DoD OFOISR will dispatch Smith, 6 .50 Hired full time at the latest OSD Composite Rate Chart Jane. middle of fiscal for military personnel to DoD Compo- year Public, 4 .34 Dedicated to full nents. This information may be used in John Q.. time FOIA proc- computing military personnel costs. essing last quar- (ii) Army Activities should compute ter of the fiscal their civilian personnel costs using year Brown, 12 1.00 Worked FOIA full rates from local Office of Personnel Tom. time all fiscal Management (OPM) Salary Tables and year shall add 16% for benefits. Totals ..... 22 1.84 (iii) Data captured on DD Form 2086, and DD Form 2086–1, shall be summa- (2) Number of part time staff. Enter the rized and used in computing total number of personnel your agency had costs. dedicated to working FOIA part time (iv) An overhead rate of 25% shall be during the fiscal year. This will be ex- added to all calculated costs for super- pressed in work-years [man-years]. For vision, space, and administrative sup- example: ‘‘5.1, 3.2, 1.0, 6.5, et al.’’ port. (j) ITEM 10 Authentication. The offi- TABLE 7–2—COMPUTATION OF WORK YEARS cial that approves the agency’s report FOR PART TIME STAFF submission to DA will sign and date; enter typed name and duty title; and Number of Employee months Work-years Note provide both the agency’s name and worked phone number for questions about the Public, 200 .1 Amount of time de- report. The consolidated Annual FOIA John Q.. voted to part time Report will be made available to the FOIA processing public in electronic format by DoD. before becoming full time FOIA processor in pre- APPENDIX A TO PART 518—REFERENCES vious example White, 400 .2 Processed FOIAs (a) References. Sally. part time while (1) AR 1–20 Legislative Liaison; working as para- (2) AR 20–1 Inspector General Activities legal in General and Procedures; Counsel’s Office (3) AR 25–1 The Army Information Manage- Peters, 1,000 .5 Part time employee ment; Ron. dedicated to FOIA processing (4) AR 25–11 Record Communications and the Privacy Communications System; Totals ..... 1,600/2,000 (5) AR 25–400–2 The Army Records Informa- (hours tion Management System (ARIMS); worked in a (6) AR 27–20 Claims; year) equals (7) AR 36–2 Audit Reports and Follow-up; 0.8 work- (8) AR 40–66 Medical Record Administra- years tion and Health Care Documentation;

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(9) AR 40–68 Quality Assurance Administra- General Access to Records, September 11, tion; 1997; (10) AR 40–400 Patient Administration; (21) DoD Directive 7650.2 Government Ac- (11) AR 195–2 Criminal Investigation Ac- countability Office Reviews and Reports, tivities; July 13, 2000; (12) AR 25–71 The Army Privacy Program; (22) DoD Directive 8910.1 Management and (13) AR 360–1 The Army Public Affairs Pro- Control of Information Requirements, June gram; 11, 1993; (14) AR 380–5 Department of the Army In- (23) DoD Federal Acquisition Regulation formation Security Program; Supplement (DFARS), Part 227 Patents, (15) AR 381–10 U.S. Army Intelligence Ac- Data, and Copyrights. See also 48 CFR part tivities; 227; (16) AR 381–12 Subversion and Espionage (24) Department of Defense Financial Man- Directed Against The U.S. Army (SAEDA); agement Regulation (Reimbursable Oper- (17) AR 381–20 The Army Counterintel- ations, Policy and Procedures) Volume 11A, ligence Program; April 2003 authorized by DoD Instruction (18) AR 530–1 Operations Security (OPSEC); 7000.14, DoD Financial Management Policy (19) AR 600–85 Army Substance Abuse Pro- and Procedures, November 15, 1992; gram; and (25) DoD Instruction 5400.10 OSD Imple- (20) AR 608–18 The Army Family Advocacy mentation of DoD Freedom of Information Program. Act Program, January 24, 1991; (b) Related publications. A related publica- (26) DoD 5200.1–R Information Security tion is merely a source of additional infor- Program, January 1997, authorized by DoD mation. The user does not have to read it to Directive 5200.1, December 13, 1996, DoD In- understand this part. formation Security Program; (1) AR 10–5 Headquarters, Department of (27) DoD 5400.7–R DoD Freedom of Informa- the Army; tion Act Program, September 4, 1998; (2) AR 27–10 Military Justice; (28) DoD 5400.11–R Department of Defense (3) AR 27–40 Litigation; Privacy Program, August 1983, authorized by (4) AR 27–60 Intellectual Property; DoD Directive 5400.11, December 13, 1999, DoD (5) AR 60–20 Army and Air Force Exchange Privacy Program; Service Operating Policies AFR 147–14; (29) Executive Order 12600 Predisclosure (6) AR 70–31 Standards for Technical Re- Notification Procedures for Confidential porting; Commercial Information, June 23, 1987, 52 FR (7) AR 190–45 Law Enforcement Reporting; 23781; (8) AR 380–10 Foreign Disclosure and Con- (30) Public Law 86–36 National Security In- tacts with Foreign Representatives; formation Exemption, Codified at 50 U.S.C. (9) AR 381–45 Investigative Records Reposi- 402, as amended; tory; (31) Public Law 104–191 Health Insurance (10) AR 385–40 Accident Reporting and Portability and Accountability Act of 1996, Records; Codified at 42 U.S.C. 1171–1179, as amended; (11) DA Pam 25–30 Consolidated Army Pub- (32) Section 822 of the National Defense Au- lications and Index Forms; thorization Act for FY 90 and 91 (Pub. L. 101– (12) DA Pam 25–51 The Army Privacy Pro- 189, November 29, 1989: 103 Stat. 1382, 1503); gram—System of Records Notices and Ex- (33) 5 U.S.C. 551–559, Administrative Proce- emption Rules; dures Act; (13) DoD Directive 5100.3 Support of the (34) 5 U.S.C. 552, as amended: public infor- Headquarters of Combatant and Subordinate mation; agency rules, opinions, orders, Joint Commands, November 15, 1999; records, and proceedings. (FOIA); (14) DoD Directive 5230.24 Distribution (35) 5 U.S.C. 552a, as amended: records Statements on Technical Documents, March about individuals, (PA of 1974); 18, 1987; (36) 10 U.S.C. 128, Physical Protection of (15) DoD Directive 5230.25 Withholding of Special Nuclear Material: Limitation on Dis- Unclassified Technical Data From Public semination of Unclassified Information; Disclosure, November 6, 1984; (37) 10 U.S.C. 130, Authority to Withhold (16) DoD Directive 5230.9 Clearance of DoD from Public Disclosure Certain Technical Information for Public Release, April 9, 1996; Data; (17) DoD Directive 5400.4 Provision of Infor- (38) 10 U.S.C. 130(b), Personnel in Overseas, mation to Congress, January 30, 1978; Sensitive, or Routinely Deployable Units: (18) DoD Directive 5400.7 DoD Freedom of nondisclosure of personally identifying infor- Information Act (FOIA) Program, September mation; 29, 1997; (39) 10 U.S.C. 1102(f), Confidentiality of (19) DoD Directive 5400.11 DOD Privacy Medical Quality Assurance Records: Quali- Program, December 13, 1999; fied Immunity for Participants; (20) DoD Directive 7650.1 Government Ac- (40) 10 U.S.C. 2305(g) Prohibition on Release countability Office (GAO) and Comptroller of Contractor Proposals;

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(41) 10 U.S.C. 2320–2321, Rights in Technical stricted Army publications not sold through Data; the Superintendent of Documents. (42) 10 U.S.C. 2328, Release of Technical (c) Military personnel records. Send requests Data under Freedom of Information Act: Re- for military personnel records of information covery of Costs; as follows: (43) 17 U.S.C. 106, Exclusive Rights in Copy- (1) Army Reserve personnel not on active righted Works; duty and retired personnel—Commander, (44) 18 U.S.C. 798, Disclosure of Classified U.S. Army Human Resources Command, St. Information; Louis, 1 Reserve Way, St. Louis, MO 63132– (45) 18 U.S.C. 3500, The Demands for Pro- 5200. duction of Statements and Reports of Wit- (2) Army officer personnel discharged or nesses (The Jencks Act); deceased after July 1, 1917 and Army enlisted (46) 31 U.S.C. 3717, Interest and Penalty on personnel discharged or deceased after No- Claims; vember 1, 1912—Director, National Personnel (47) 32 CFR part 518, The Army FOIA Pro- Records Center, 9700 Page Ave., St. Louis, gram; MO 63132–5100. (3) Army personnel separated before the (48) 35 U.S.C. 181–188, Secrecy of Certain In- dates specified in paragraph (2), above—Old ventions and Filing of Application in For- Military and Civilian Records Unit (Archives eign Country; 1), National Archives and Records Adminis- (49) 41 U.S.C. 423, Restrictions on Dis- tration, Washington, DC 20408–0001. closing and Obtaining Contractor Bid or Pro- (4) Army National Guard officer per- posal Information or Source Selection Infor- sonnel—Chief, National Guard Bureau. Army mation; National Guard enlisted personnel—Adjutant (50) 42 U.S.C. 2162, Classification and De- General of the proper State. classification of Restricted Data; (5) Active duty commissioned and warrant (51) 44 U.S.C. 3301–3324, Disposal of Records; officer personnel—Commander, U.S. Army (52) 45 CFR part 164, Security and Privacy Human Resources Command, ATTN: AHRC– of Individually Identifiable Health Informa- FOI, Alexandria, VA 22332–0404. Active duty tion; and enlisted personnel—Commander, U.S. Army (53) 50 U.S.C. 403–3, War and National De- Enlisted Records and Evaluation Center, fense, Protection of Intelligence Sources and ATTN: PCRE–RP, 8899 East 56th Street, Indi- Methods. anapolis, IN 46249–5301. (d) Medical records. (1) Medical records of APPENDIX B TO PART 518—ADDRESSING non-active duty military personnel. Use the FOIA REQUESTS same addresses as for military personnel records. (a) General. Army records may be requested (2) Medical records of military personnel from those Army officials who are listed in on active duty. Address the medical treat- 32 CFR part 518 (see appendix A). Contact the ment facility where the records are kept. If DA FOIA/PA Office, to coordinate the refer- necessary request locator service. ral of requests if there is uncertainty as to (3) Medical records of civilian employees which Army activity may have the records. and all dependents. Address the medical Send requests to particular installations or treatment facility where the records are organizations as follows: kept. If the records have been retired, send (1) Current publications and records of DA requests to the Director, National Personnel field commands, installations, and organiza- Records Center, Civilian Records Facility, tions. See also: http://books.army.mil/. 111 Winnebago St., St. Louis, MO 63118–4199. (2) Send the request to the commander of (e) Legal records. (1) Records of general the command, installation, or organization, courts-martial and special courts-martial in to the attention of the FOIA Official. which bad conduct discharge was approved. (3) Consult AR 25–400–2 (ARIMS) for more For cases not yet forwarded for appellate re- detailed listings of all record categories kept view, apply to the staff judge advocate of the in DA offices. command having jurisdiction over the case. (4) Contact the installation or organization For cases forwarded for appellate review and public affairs officer for help if you cannot for old cases, apply to the U.S. Army Legal determine the official within a specific orga- Services Agency, ATTN: JALS–CCO, 901 nization to whom your request should be ad- North Stuart Street, Arlington, VA 22203. dressed. (2) Records of special courts-martial not (b) Department of the Army publications. involving a bad conduct discharge. These Send requests for current administrative, records are kept for 10 years after comple- training, technical, and supply publications tion of the case. If the case was completed to the National Technical Information Serv- within the past three years, apply to the ice, U.S. Department of Commerce, 5285 Port staff judge advocate of the headquarters Royal Road, Springfield, VA 22161. NTIS han- where it was reviewed. If the case was com- dles general public requests for unclassified, pleted from 3 to 10 years ago, apply to the uncopyrighted, and nondistribution-re- National Personnel Records Center (Military

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Records), 9700 Page Ave., St. Louis, MO Massachusetts Avenue, ATTN: CECC–K, 63132–5100. If the case was completed more Washington, DC 20314–1000. than 10 years ago, the only evidence of con- (3) All other procurement: HQDA (DAJA– viction is the special courts-martial order in KL), 2200 Army Pentagon, Washington, DC the person’s permanent records. 20310–2200. (3) Records of summary courts-martial. Lo- (i) Criminal investigation files. Send requests cally maintained records are retired 3 years involving criminal investigation files to the after action of the supervisory authority. Commander, U.S. Army Criminal Investiga- Request records of cases less than 3 years old tion Command, ATTN: CICR–FP, 6010 6th St., from the staff judge advocate of the head- Bldg. #1465, Ft. Belvoir, VA 22060–5585. Only quarters where the case was reviewed. After the Commanding General, USACIDC, can re- 10 years, the only evidence of conviction is lease any USACIDC-originated criminal in- the summary courts-martial order in the vestigation file. person’s permanent records. (j) Personnel security investigation files and (4) Requests submitted under paragraphs general Army intelligence records. Send re- (e) (2) and (3), of this appendix. These requests for personnel security investigation quests will be processed in accordance with files, intelligence investigation and security subpart E of this part. The IDA is The Judge records, and records of other Army intel- Advocate General, HQDA (DAJA–CL), Wash- ligence matters to the Commander, U.S. ington, DC 20310–2200. Army Intelligence and Security Command, (5) Administrative settlement of claims. ATTN: IAMG–CIC–FOI/PO, 4552 Pike Road, Apply to the Chief, U.S. Army Claims Serv- Fort George G. Meade, MD 20755–5995. ice, ATTN: JACS–TC, Building 4411, (k) Inspector General records. Send requests Llewellyn Avenue, Fort George G. Meade, involving records within the Inspector Gen- MD 20755–5360. eral system to HQDA (SAIG–ZXL), 1700 Army (6) Records involving debarred or sus- Pentagon, Washington, DC 20310–1700. AR 20– pended contractors. Apply to U.S. Army 1 governs such records. Legal Services Agency (JALS–PF), 901 North (l) Army records in Government records de- Stewart Street, Arlington, VA 22203. positories. Non-current Army records are in (7) Records of all other legal matters the National Archives of the United States, (other than records kept by a command, in- Washington, DC 20408–0001; in Federal stallation, or organization staff judge advo- Records Centers of NARA; and in other cate). Apply to HQDA (DAJA–AL), Wash- records depositories. Requesters must write ington, DC 20310–2200. directly to the heads of these depositories for (f) Civil works program records. Civil works copies of such records. A list of pertinent records include those relating to construc- records depositories is published in AR 25– tion, operation, and maintenance for the im- 400–2, table 10–1. provement of rivers, harbors, and waterways for navigation, flood control, and related PART 525—ENTRY AUTHORIZATION purposes, including shore protection work by REGULATION FOR KWAJALEIN the Army. Apply to the proper division or district office of the Corps of Engineers. If MISSILE RANGE necessary to determine the proper office, contact the Commander, U.S. Army Corps of Sec. Engineers, 20 Massachusetts Avenue, ATTN: 525.1 General. CECC–K, Washington, DC 20314–1000. 525.2 Background and authority. (g) Civilian personnel records. Send requests 525.3 Criteria. for personnel records of current civilian em- 525.4 Entry authorization (policy). ployees to the employing installation. Send 525.5 Entry authorization (procedure). requests for personnel records of former ci- AUTHORITY: 44 U.S.C. 1681, 50 U.S.C. 797, 18 vilian employees to the Director, National U.S.C. 1001, and E.O. 11021. Personnel Records Center, Civilian Records Facility, 111 Winnebago St., St. Louis, MO SOURCE: 48 FR 34028, July 27, 1983, unless 63118–4199. otherwise noted. (h) Procurement records. Send requests for information about procurement activities to § 525.1 General. the contracting officer concerned or, if not (a) Purpose. This regulation pre- feasible, to the procuring activity. If the scribes policies and procedures gov- contracting officer or procuring activity is erning entry of persons, ships, and air- not known, send inquiries as follows: craft into the Kwajalein Missile Range (1) Army Materiel Command procurement: Commander, U.S. Army Materiel Command, (KMR), Kwajalein Atoll, Marshall Is- ATTN: AMCID–F, 5001 Eisenhower Ave., Al- lands. exandria, VA 22333–0001. (b) Scope. (1) This regulation is appli- (2) Corps of Engineers procurement: Com- cable to all persons, ships and aircraft mander, U.S. Army Corps of Engineers, 20 desiring entry into KMR.

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(2) The entry authorizations issued rights under authority of paragraph 4– under this authority are limited to 1.a. KMR and do not apply to entry to any (7) Aliens. Persons who are neither other areas of the Marshall Islands. citizens of, nor nationals of, nor aliens (3) In addition to the controls cov- to the United States of America. ered by this regulation movement (8) Permanent resident aliens. Persons within the Kwajalein Missile Range, who are not citizens of the United the territorial sea thereof and airspace States of America but who have en- above, is subject to local control by the tered the United States under an immi- Commander, Kwajalein Missile Range, grant quota. and as installation commander. (9) Military installation. A military (4) This regulation is not applicable (Army, Navy, Air Force, Marine Corps, to entry authorized by the President of and/or Coast Guard) activity ashore, the United States pursuant to the having a commanding officer, and lo- United Nations (U.N.) Charter and to cated in an area having fixed bound- Article 13 of the Trusteeship Agree- aries, within which all persons are sub- ment for the Former Japanese Man- ject to military control and to the im- dated Islands. mediate authority of a commanding of- (c) Explanation of terms—(1) Depart- ficer. ment of Defense. A department of the (10) Public ship or aircraft. A ship, executive branch of the U.S. Govern- boat, or aircraft owned by or belonging ment which includes the Departments to a Government and not engaged in of the Army, the Navy, and the Air commercial activity. Force. (11) Kwajalein Missile Range. Kwaja- (2) Entry Authorization. Authorization lein Missile Range is defined as all by designated authority for a person, a those defense sites in the Kwajalein ship, or an aircraft to enter Kwajalein Atoll, Marshall Islands, including air- Missile Range, the surrounding terri- space and adjacent territorial waters, torial sea, and the airspace above. to which the United States Govern- (3) National Range Commander. The ment has exclusive rights and entry Commander, Ballistic Missile Defense control by agreement with the Trust Systems Command, is the National Territory of the Pacific Islands and the Range Commander. Republic of the Marshall Islands. (12) Territorial waters. In accordance Address: National Range Commander, Kwajalein Missile Range, Ballistic Missile with title 19, chapter 3, section 101 of Defense Systems Command, ATTN: BDMSC- the Code of the Trust Territory of the R, P.O. Box 1500, Huntsville, Alabama 35807. Pacific Islands territorial waters mean, Electrical Address: CDRBMDSCOM ‘‘that part of the sea comprehended HUNTSVILLE AL//BMDSC-R//. within the envelope of all arcs of cir- (4) Commander. KMR. The Com- cles having a radius of three marine mander of the Kwajalein Missile Range miles drawn from all points of the bar- is located at Kwajalein Island, Repub- rier reef, fringing reef, or other reef lic of the Marshall Islands. system of the Trust Territory, measured from the low water line, or, in the Address: Commander, Kwajalein Missile absence of such a reef system, the dis- Range, P.O. Box 26, APO San Francisco 96555. tance to be measured from the low Electrical Address: CDRKMR MI //BMDSC- water line of any island, islet, reef, or RK// rocks within the jurisdiction of the (5) Excluded person. A person who has Trust Territory.’’ been notified by the National Range (13) Kwajalein Missile Range Airspace. Commander or the Commander, KMR, The air lying above the Kwajalein that authority for said person to enter Atoll, including that above the terri- Kwajalein Missile Range or to remain torial waters. in Kwajalein Missile Range has been (14) Trust Territory Republic of the denied or revoked. Marshall Islands Registry. Registration (6) Unauthorized person. A person who of a ship or aircraft in accordance with does not hold a currently valid entry the laws of the Trust Territory of the authorization for the Kwajalein Missile Pacific Islands or the Republic of the Range and does not possess entry Marshall Islands.

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(15) U.S. Registry. Registration of a (3) This regulation will be adminis- ship or aircraft in accordance with the tered to provide the prompt processing laws and regulations of the United of all applications and to insure uni- States. formity of interpretation and applica- (16) U.S. Armed Forces. Military per- tion insofar as changing conditions sonnel of the Department of Defense permit. and the United States Coast Guard. (4) In cases of doubt, the determina- (17) Principal. A resident of Kwajalein tion will be made in favor of the course Missile Range who is authorized to of action which will best serve the in- have his or her dependent(s) reside or terests of the United States and na- visit with him (her) on Kwajalein Mis- tional defense as distinguished from sile Range. the private interests of an individual or (18) Dependent. (i) Spouse of prin- group. cipal. (b) Authority. (1) The Trust Territory of the Pacific Islands is a strategic (ii) Unmarried child of principal less area administered by the United States than 21 years of age. under the provisions of the Trusteeship (iii) Sponsored individual meeting Agreement for the Former Japanese the dependency criteria of section 152, Mandated Islands, approved by the Internal Revenue Code (26 U.S.C. 152), United Nations April 2, 1947. Congress, and approved by the Commander, by 48 U.S.C. Sec. 1681, gave responsi- Kwajalein Missile Range. bility for this area to the President. By Executive Order 11021, the President § 525.2 Background and authority. delegated this authority to the Sec- (a) Background. (1) Certain areas, due retary of Interior. By agreement be- to their strategic nature or for pur- tween the Secretary of Interior and poses of defense, have been subjected to Secretary of Defense, the Navy became restrictions regarding the free entry of responsible for all entry control July 1, persons, ships, and aircraft. Free entry 1963. With approval of the Secretary of into the areas listed and defined in this Defense and Director of the Office of regulation, and military installations Territories, the authority to control contiguous to or within the boundaries entry into KMR was transferred to the of defense site areas, is subject to con- Army in July of 1964. trol as provided for in the Executive (2) The authority of the Department Order 11021 of May 7, 1962 and Depart- of the Army to control entry of per- ments of Interior and Defense Agree- sons, ships, and aircraft into Kwajalein ment effective July 1, 1963, or other Missile Range is exercised through the regulations. Such restrictions are im- Commander, Ballistic Missile Defense posed for defense purposes because of Systems Command, who is the Na- the unique strategic nature of the area tional Range Commander. and for the protection of the United (3) Penalties are provided by law for: States Government military bases, sta- (i) Violation of regulations imposed tions, facilities, and other installa- for the protection or security of mili- tions, and the personnel, property, and tary or naval aircraft, airports, air fa- equipment assigned to or located there- cilities, vessels, harbors, ports, piers, in. Persons, ships, and aircraft are ex- waterfront facilities, bases, forts, cluded from KMR unless and until they posts, laboratories, stations, vehicles, are granted permission to enter under equipment, explosives, or other prop- applicable regulations. erty or places subject to the jurisdic- (2) The control of entry into or move- tion of, administration of, or in the ment within KMR by persons, ships, or custody of the Department of Defense aircraft will be exercised so as to pro- (sec. 21 of the Internal Security Act of tect fully the physical security of, and 1950 (50 U.S.C. 797) and Department of insure the full effectiveness of, bases, Defense Directive 5200.8 of 29 July 1980. stations, facilities, other installations, (ii) Knowingly and willfully making and individuals within KMR. However, a false or misleading statement or rep- unnecessary interference with the free resentation in any matter within the movement of persons, ships, and air- jurisdiction of any department or agen- craft is to be avoided. cy of the United States (18 U.S.C. 1001).

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§ 525.3 Criteria. Range. While they are within the juris- (a) General. (1) Entry authorizations diction of the Commander, Kwajalein may be issued only after the National Missile Range, they will be subject to Range Commander, the Commander, such restrictions and regulations as he KMR, or a duly authorized subordinate may impose. has determined that the presence of (d) Unauthorized persons. Persons not the person, ship, or aircraft will not, authorized to enter Kwajalein will not under existing or reasonably forseeable normally be allowed to debark from future conditions, endanger, place an authorized ships or aircraft at Kwaja- undue burden upon, or otherwise jeop- lein Island or other islands in the ardize the efficiency, capability or ef- Kwajalein Atoll to which the U.S. Gov- fectiveness of any military installation ernment has lease rights, except that located within Kwajalein Missile continuing aircraft passengers may be Range or areas contiguous thereto. allowed at the discretion of the Com- Factors to be considered shall include, mander, Kwajalein Missile Range, to but not be limited to, the true purpose debark during aircraft ground time to of the entry, the possible burdens or remain within specified portions of the threats to the defense facilities which terminal building designated by the the presence of the ship, aircraft, or Commander, Kwajalein Missile Range. the individual or individuals involved In emergency situations, entry of un- impose or might reasonably be ex- authorized personnel may be granted pected to impose on those islands in by the Commander, Kwajalein Missile the Kwajalein Atoll under U.S. Army Range. jurisdiction. (e) Entrance to other areas of the Trust (2) Request for entry authorizations Territory. No person, unless a citizen, will be evaluated and adjudged as to national, or permanent resident alien whether the entry at the time and for of the Marshall Islands, will be per- the purpose stated will or will not be mitted to debark at Kwajalein Missile inimical to the purposes of U.S. na- Range for the purpose of transiting to tional defense. areas under the jurisdiction of the Re- (b) Aliens and permanent resident public of the Marshall Islands without aliens. (1) Entry of aliens for employ- possessing a permit issued by its Chief ment or residence (except as specified of Immigration. in paragraph 3–2.b.) in an area entirely within the borders of Kwajalein Missile Address: Chief of Immigration, Office of the Attorney General, Republic of the Mar- Range is not authorized except when shall Islands, Majuro, MI 96960. such entry would serve the interests of the U.S. Government, and then only for (f) Unauthorized marine vessels and air- specified periods and under prescribed craft. No unauthorized marine vessel or conditions. Entry application shall in- aircraft shall enter Kwajalein Missile clude the name and nationality of the Range unless a bona fide emergency ex- person desiring entry. ists and the Commander, Kwajalein (2) Alien and immigrant spouses and Missile Range, has granted such per- dependents of U.S. citizen sponsors or mission. The Commander, Kwajalein principals assigned to Kwajalein Mis- Missile Range, shall use all means at sile Range may be granted entry au- his disposal to prevent unauthorized thorization by the National Range vessels and aircraft from entering Commander so long as U.S. sponsor or Kwajalein Missile Range. Unauthorized principal remains on duty or resides marine vessels and aircraft will be within Kwajalein Missile Range. seized for prosecution along with the (c) Excluded persons. Excluded per- crew, passengers, and cargo. sons, as defined in 1–3.e., are normally (g) Military areas. Entries authorized prohibited from entering Kwajalein under this instruction do not restrict Missile Range. Excluded persons may the authority of the Commander, Kwaj- enter Kwajalein Missile Range only alein Missile Range, to impose and en- when a bona fide emergency exists and force proper regulations restricting the Commander, Kwajalein Missile movement into or within portions of Range, grants permission for them to Kwajalein Missile Range reserved for enter or transit the Kwajalein Missile military operations.

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(h) Waivers. No one except the Na- (3) All other personnel, except news tional Range Commander, or his duly media representatives, will submit re- authorized representative, has author- quest for entry authorization to the ity to waive the requirements of this National Range Commander, regulation. Any waiver shall be in writ- BMDSCOM, ATTN: BMDSC-R (elec- ing and signed. trical address: CDRBMDSCOM HUNTS- (i) Security clearances. Organizations, VILLE AL //BMDSC-RA//). including U.S. Government contrac- (4) All requests and notifications will tors, responsible for the assignment of include the following data (as applica- personnel to KMR on either a tem- ble): porary or permanent basis will comply (i) Full name(s). with security clearance requirements (ii) Citizenship. for the assignment. A copy of the secu- (iii) Organization. rity clearance notification will be for- (iv) Purpose of entry. warded to Cdr, BMDSCOM, ATTN: (v) Point of contact at Kwajalein BMDSC-AU. Missile Range. (vi) Inclusive dates of stay. § 525.4 Entry authorization (policy). (vii) Return address. (a) Personnel. (1) Persons in the fol- (viii) Proof of security clearance (if lowing categories may enter Kwajalein access to classified information is re- Missile Range without obtaining spe- quired). cific entry authorization provided the (5) News media representatives re- Commander, Kwajalein Missile Range, quire authority from the National is notified of impending entry 14 days Range Commander to visit Kwajalein prior to entry date: Missile Range (news media representa- (i) Personnel being assigned to Kwaj- tives wishing to transit Kwajalein Is- alein Missile Range as permanent- land to visit any island not within the party and traveling on official orders. Kwajalein Missile Range must obtain entry authorization from the Republic (ii) Personnel being temporarily as- of the Marshall Islands and present signed to Kwajalein Missile Range and same to the air carrier at the point of who are traveling on official orders. departure to Kwajalein Island). Re- (iii) Dependents of permanent-party quests should be addressed to the Na- personnel who are accompanying their tional Range Commander, BMDSCOM, sponsors and are traveling on official ATTN: BMDSC-S (electrical address: orders. CDRBMDSCOM HUNTSVILLE AL// (iv) Crew members on ships and air- BMDSC-S//) and contain the following craft authorized to enter Kwajalein information: Missile Range. (i) Name. (2) Persons in the following cat- (ii) Date and place of birth. egories will submit request for entry (iii) Citizenship. authorization to the Commander, (iv) Organization(s) represented. Kwajalein Missile Range, ATTN: (v) Objective(s) of visit. BMDSC-RKE-S: (vi) Desired and alternative arrival (i) Dependents of KMR-based perma- and departure dates. nent-party personnel for the purpose of (vii) Address(es) and telephone num- joining their sponsors (already sta- ber(s) for additional information and/or tioned at KMR) on either a permanent reply. or temporary basis. (b) Ship. (1) Ships or other marine (ii) Citizens, nationals and perma- vessels in the following categories, ex- nent resident aliens of the Republic of cept those which have been denied the Marshall Islands except those who entry or have had a prior entry author- deplaned for the purpose of transiting ization revoked, may enter the Kwaja- Kwajalein Defense Site. lein Missile Range territorial waters (iii) Citizens of the Trust Territory of upon request to and approval of the the Pacific Islands. Commander, Kwajalein Missile Range: (iv) U.S. citizen employees and offi- (i) U.S. private ships which are: cials of the Trust Territory of the Pa- (A) Under charter to the Military cific Islands. Sealift Command, or

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(B) Employed exclusively in support torial sea without the specific approval of and in connection with a Depart- of either the National Range Com- ment of Defense construction, mainte- mander or the Commander, KMR, pro- nance, or repair contract. vided that the Commander, KMR, is (ii) Trust Territory of the Pacific Is- notified as far in advance of the im- lands/RMI ships which have been ap- pending entry as is consistent with the proved by the resident representative security requirements pertaining to on Kwajalein. such movement. (iii) Any ship in distress. (c) Aircraft. (1) Aircraft in the fol- (iv) U.S. public ships which are pro- lowing categories, except those aircraft viding a service to the Kwajalein Atoll which have been denied entry or have in accordance with their agency re- had a prior entry authorization responsibilities. voked, may enter Kwajalein Atoll air- (2) All other ships or marine vessels space upon request to and approval of must obtain an entry authorization the Commander, KMR: from the National Range Commander (i) U.S. private aircraft which are before entering the Kwajalein Atoll under charter to the Military Airlift territorial sea. The entry authorization Command. application should reach the National (ii) Public aircraft of the Trust Terri- Range Commander at least 14 days tory of the Pacific Islands/RMI which prior to the desired entry date and have been approved by the resident rep- should include the following informa- resentative on Kwajalein. tion: (iii) Private aircraft registered with (i) Name of ship. and approved by the Commander, KMR, (ii) Place of registry and registry which are based on Kwajalein Island. number. (iv) Any aircraft in distress. (iii) Name, nationality, and address (v) Private aircraft operated by a of operator. common carrier which is providing (iv) Name, nationality, and address of scheduled air service to or through the owner. Kwajalein Atoll under a current license (v) Gross tonnage of ship. issued by the Department of the Army. (vi) Nationality and numbers of offi- (vi) U.S. public aircraft which are cers and crew (include crew list when providing a service to the Kwajalein practicable). Atoll in accordance with their agency (vii) Number of passengers (include responsibilities. list when practicable). (2) All aircraft, except those cat- (viii) Last port of call prior to entry egorized in paragraph 4–3.a., must ob- into area for which clearance is retain an entry authorization from the quested. National Range Commander before en- (ix) Purpose of visit. tering Kwajalein Atoll airspace. The (x) Proposed date of entry and esti- entry authorization application should mated duration of stay. reach the National Range Commander (xi) Whether ship is equipped with at least 14 days prior to the desired firearms or photographic equipment. entry date and should include the fol- (xii) Whether crew or passengers have lowing information: in their possession firearms or cam- eras. (i) Type and serial number of air- (3) Entry authorizations may be craft. granted for either single or multiple (ii) Nationality and name of reg- entries. istered owner. (4) Captains of ships and/or marine (iii) Name and rank of senior pilot. vessels planning to enter Kwajalein (iv) Nationality and number of crew Missile Range shall not knowingly per- (include crew list when practicable). mit excluded persons to board their (v) Number of passengers (include list vessels. when practicable). (5) U.S. public ships which are au- (vi) Purpose of flight. thorized to enter defense areas by the (vii) Plan of flight route, including controlling Defense Department agen- the point of origin of flight and its des- cy may enter the Kwajalein Atoll terri- ignation and estimated date and times

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of arrival and departure of airspace higher headquarters. A statement con- covered by this procedure. taining the following information shall (viii) Radio call signs of aircraft and accompany the application: radio frequencies available. (A) A summary of the investigation (ix) Whether aircraft is equipped with conducted by the reviewing organiza- firearms or photographic equipment. tion. (x) Whether crew or passengers have (B) The reason the application is in their possession firearms or cam- being forwarded. eras. (C) Appropriate comments and/or rec- (3) Entry authorizations may be ommendations. granted for either single or multiple (2) All applicants will be kept fully entries. informed of actions/decisions per- (4) Captains of aircraft planning to taining to his/her application. Nor- enter Kwajalein Missile Range airspace mally a response will be forwarded to shall not knowingly permit excluded the applicant within ten working days persons to board their aircraft. after receipt of an application. When (5) U.S. public aircraft which are au- the National Range Commander re- thorized to enter defense areas by the sponds to an application, he/she will controlling Defense Department agen- send a copy of that response to the cy may enter the Kwajalein Atoll air- Commander, KMR. When the Com- space with the specific approval of ei- mander, Kwajalein Missile Range, re- ther the National Range Commander or sponds to an application, and the Na- the Commander, KMR, provided that the Commander, KMR, is notified as tional Range Commander has an inter- far in advance of the impending entry est in the visit, the Commander, KMR, as is consistent with the security re- will concurrently send a copy of that quirement pertaining to such move- response to the National Range Com- ments. mander. (3) Entry authorizations shall state § 525.5 Entry authorization (proce- the purpose for which the entry is au- dure). thorized and such other information (a) Processing. (1) Upon receipt of an and conditions as are pertinent to the application, the appropriate officer (ei- particular authorization. ther the National Range Commander, (b) Revocations. (1) Entry authoriza- the Commander, Kwajalein Missile tions may be revoked by the National Range or the designated representa- Range Commander or the Commander, tive) shall take the following actions: Kwajalein Missile Range, for mis- (i) Determine that the entry of the conduct, or termination of status, or applicant is, or is not, in accordance upon being advised of the discovery of with the criteria set forth in chapter 3. information which would have been After having made a determination, grounds for denial of the initial re- the reviewing authority shall either: quest. Such a revocation will be con- (A) Issue an entry authorization as firmed in writing to the holder of an requested, or with modifications as cir- entry authorization. When an entry au- cumstances require; or thorization is revoked, a one-way per- (B) Deny the request and advise the mit will be normally issued as appro- applicant of his/her right to appeal in priate, to permit the ship, aircraft, or accordance with the provisions of para- person to depart the area. graph 5–2. (2) When Commander, Kwajalein Mis- (ii) If the reviewing authority feels sile Range revokes an entry authoriza- that additional information is required tion, he shall forward a copy of such before reaching a decision, the review- revocation with supporting documenta- ing authority will request that infor- tion to the National Range Com- mation from the applicant and then mander. proceed as in paragraph 5–1.a.(1). (c) Appeals. (1) Appeals from entry de- (iii) If, after having obtained all per- nial or revocation by Commander, tinent information, the reviewing au- Kwajalein Missile Range will be filed thority cannot reach a decision, he/she with the National Range Commander. will forward the application to the next An appeal shall contain a complete

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statement of the purpose of the pro- the expiration of the period for which posed entry and a statement or reasons the entry was originally authorized or why the entry should be authorized, or extended provided the justification for why revocation of entry authorization remaining in the area or for making a should not be enforced. reentry meets the criteria set forth in (2) Final appeal letters will be for- this procedure. It shall be the responsi- warded promptly by the National bility of every applicant to depart Range Commander to the BMD Pro- Kwajalein Missile Range upon expira- gram Manager with an indorsement tion of the time prescribed in the entry setting forth in detail the facts and cir- authorization, unless such authoriza- cumstances surrounding the action tion has been extended or renewed. taken. Failure to comply herewith will be (d) Renewals. Entry authorizations considered as evidence or violation of having been granted and utilized may this procedure and may result in denial be extended or renewed upon request at of future authorizations.

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PART 534—MILITARY COURT FEES (c) Hourly pay. A reporter is entitled to an hourly payment of not to exceed Sec. 50 cents for each hour, or fractional 534.1 General. part equal to or greater than one-half 534.2 Allowable expenses for reporters. hour, actually spent in court during 534.3 Allowable expenses for witnesses. the trial or hearing. A fractional part 534.4 Other fees. of an hour, less than one-half hour, will be disregarded, except that if the total AUTHORITY: Sec. 3012, 70A Stat. 157; 10 time in attendance in one day or at one U.S.C. 3012. court in one day is less than 1 hour, CROSS REFERENCE: General Accounting Of- such time will be considered as 1 hour. fice, see 4 CFR chapter I. Time will be computed separately for SOURCE: 26 FR 9989, Oct. 25, 1961, unless each day if only one court is attended otherwise noted. in such day. If more than one court is attended in 1 day, time in attendance § 534.1 General. at each court will be computed separately. The hourly pay is in addition to (a) Applicability. This part applies to the per diem prescribed in paragraph court reporters and interpreters ap- (b) of this section. pointed under the Uniform Code of (d) Piece-work pay—(1) Rates. In addi- Military Justice, Article 28 (10 U.S.C. tion to per diem and hourly pay pre- 828), and witnesses both in Government scribed in paragraphs (b) and (c) of this employ and those not in Government section, a reporter will be paid on a employ when subpoenaed to appear be- piece-work basis for transcribing notes fore a court. and copy work based on the following (b) Use of term ‘‘court’’. The term rates: ‘‘court’’ as used in this part will be (i) Transcribing notes and making construed to include court-martial, that portion of the original record court of inquiry, military commission, which is required to be typewritten—25 or retiring board. ‘‘Military commis- cents for each 100 words. sion’’ includes any United States tri- (ii) Each carbon copy of the record bunal, by whatever name described, when authorized by the convening au- convened in the exercise of military thority—10 cents for each 100 words. government, martial law, or the laws (iii) Copying papers material to the of war. inquiry—15 cents for each 100 words. (iv) Each carbon copy of the papers § 534.2 Allowable expenses for report- referred to in paragraph (d)(1)(iii) of ers. this section when ordered by the court (a) General. Reporters appointed for its use—2 cents for each 100 words. under the Uniform Code of Military (2) Counting number of words. The cer- Justice, Article 28, are entitled to pay- tifying officer may determine the total ment for their services in such capac- number of words by counting the words ity at the rates specified in paragraphs on a sufficient number of pages to ar- (b) through (i) of this section, or at rive at a fair average of words per page such lower rates as may be stated in and multiplying such average by the the appointing instrument. total number of pages. Abbreviations (b) Per diem pay. A reporter is enti- ‘‘Q’’ and ‘‘A’’ for ‘‘Questions’’ and ‘‘An- tled to a per diem payment of not to swer’’ and all dates such as ‘‘25th’’ and exceed $5 for each day or fraction ‘‘1957’’ will each be counted as one thereof in attendance at court. Only word. Punctuation marks will not be one such payment is authorized for any counted as words. 1 day even if the reporter attends two (e) Mileage. A reporter is entitled to 8 or more courts. For the purpose of this cents a mile for travel from his home payment, the day ends at midnight and or usual place of employment to the any fraction will be considered a whole court and for his return journey, com- day. puted on the basis of the Rand McNally

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Standard Highway Mileage Guide. § 534.3 Allowable expenses for wit- Mileage is not authorized for return nesses. trips each night unless the sessions of (a) Military members—(1) On active the court are held on nonconsecutive duty. Members in the military service, days. The fact that a reporter may on active duty, when required to ap- serve two or more courts in the same pear as witnesses before courts will re- day does not warrant a duplication of ceive the appropriate travel and trans- his mileage allowance. portation allowances prescribed in (f) Allowance in lieu of subsistence—(1) chapter 4, Joint Travel Regulations. General. When the official of the court (2) Retired members. Retired military having control in such matters keeps members, not on active duty, when the reporter at his own expense away called as witnesses (other than expert from his usual place of employment for witnesses), are entitled for their serv- 24 hours or more on public business re- ices as such to the mileage and other ferred to the court, a per diem allow- fees prescribed in paragraph (b)(3) of ance of not to exceed $4 in lieu of sub- this section, for civilian witnesses not sistence will be paid to the reporter for in Government employ. himself. A like allowance when ordered (b) Civilians—(1) General. (i) Persons by the court will be paid to the re- not subject to military law when called as witnesses are entitled to the fees porter for each necessary assistant. and mileage allowed to wintesses at- The fact that a reporter returns each tending courts of the United States. night to his home does not preclude the view that he is kept away from his (Article 47, Uniform Code of Military Justice usual place of employment for 24 hours. (10 U.S.C. 847; 1 Comp. Gen. 347)) Service as reporter before two or more courts in the same day does not war- (ii) When the court is sitting in a foreign country, the oversea commander rant duplication of the per diem allow- within whose command the court is ance in lieu of subsistence. convened will fix fees and allowances (2) Computation. The time for which to be paid to witnesses, not in excess of the per diem allowance for expenses is maximum rates permitted to witnesses to be paid will be computed in the man- attending the courts of the United ner prescribed in § 534.3(b)(3) for a civil- States or the courts of the foreign ian witness not in Government employ. country, whichever rates may be high- (g) Allowance for constructive attend- er. ance. A reporter duly employed but (2) In Government employ. Any officer who after arrival at court performs no or employee of the United States or service because of adjournment is enti- any agency thereof, summoned as a tled to mileage; to a day’s pay as pre- witness on behalf of the United States, scribed in paragraph (c) of this section; shall be paid his necessary expenses in- and also to the per diem allowance pre- cident to travel by common carrier, or, scribed in paragraph (f) of this section if travel is made by privately owned if kept away from his usual place of automobile, mileage at a rate not to employment for 24 hours. exceed 10 cents per mile, together with (h) Detail of enlisted members. Enlisted a per diem allowance not to exceed the members may be detailed to serve as rate of $12 a day. stenographic reporters for military (62 Stat. 950, 63 Stat. 103, 704, 69 Stat. 394; 28 courts, boards, and commissions, but U.S.C. 1823(a)) will receive no extra pay for such service. (3) Not in Government employ—(i) Ex- (i) Persons receiving pay from Govern- cluding Alaska and Canal Zone. A witness attending in any court of the ment. Compensation for clerical duties United States or before a United States performed for a court will not be paid commissioner or person taking his dep- to a person who is in the pay of the osition pursuant to any order of the Government, except retired military court of the United States, will receive members to the extent permitted under $4 for each day’s attendance and for the the dual compensation laws. time necessarily occupied in going to

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and returning from the same, and 8 ard Highway Mileage Guide regardless cents per mile for going from and re- of the mode of transportation used. turning to his place of residence. Wit- (d) Subsistence per diem allowance—(1) nesses who are not salaried employees When payable. The subsistence per diem of the Government and who are not in allowance is payable only when the custody and who attend at point so far place of trial is so far removed from removed from their respective resi- the place of residence as to prohibit re- dences as to prohibit return thereto turn of the witness thereto from day to from day to day will be entitled to an day and such fact is properly certified. additional allowance of $8 per day for (See 6 Comp. Gen. 835.) expenses of subsistence including the (2) Computation. In computing the time necessarily occupied in going to subsistence per diem allowance pre- and returning from the place of attend- scribed in paragraph (b)(3)(i) of this ance. In lieu of the mileage allowance section, the calendar day beginning at provided for herein, witnesses who are midnight is the unit, and the subsist- required to travel between the Terri- ence per diem allowance accrues from tories, possessions, or to and from the the time it is necessary for the witness continental United States, will be enti- to leave his home in order to arrive at tled to the actual expenses of travel at the place of trial at the appointed time the lowest first-class rate available at until the time he could arrive at his the time of reservation for passage, by home by first available transportation means of transportation employed. after his discharge from attendance, When a witness is detained in prison any fractional part of a day under such for want of security for his appearance, transportation to be regarded as a day he will be entitled, in addition to his for per diem purposes. (See 5 Comp. subsistence, to a compensation of $1 a Gen. 1028, as modified by 6 Comp. Gen. day. 480 and 6 id. 835.) (ii) In Alaska and Canal Zone. (a) In (e) Attendance fees—(1) Attendance at Alaska such witnesses are entitled to more than one case on same day. A per- the witness fees and mileage prescribed son attending as a witness in more for witnesses before the United States than one case on the same day under a district court in the judicial division in general subpoena to appear and testify which the trial or hearing is held. Fees is entitled to only one per diem for vary in the different judicial divisions. each day’s attendance. If separate sub- (b) In the Canal Zone such witnesses poenas are issued in each case, the de- are entitled to the witness fees and fendants being different, the witness is mileage as are prescribed for witnesses entitled to separate per diem for actual before the United States court in the attendance in each case. The duplica- Canal Zone. tion of fees on account of attendance as (c) Responsible officers in Alaska and witness in more than one case on the in the Panama Canal Zone will keep in- same day does not apply to the 8-cent formed as to the fees payable in United mileage allowance and does not apply States courts in those places. to the per diem on $8 in lieu of subsist- (c) Mileage—(1) General. A civilian ence. witness not in Government employ, (2) Attendance before officer taking dep- when furnished transportation in kind osition. A witness who is required to ap- by the Government, is entitled to 8 pear before an officer (civil or military) cents per mile less the cost of transpor- empowered to take depositions and tation furnished. A civilian witness re- there to give testimony under oath to siding within the jurisdiction of the be used before a court is entitled for court, who is subpoenaed and attends such service and for the necessary trav- the trial in obedience to such sub- el incident thereto, including return poena, is entitled to mileage between travel, to the allowances prescribed in his residence and the place of trial, re- paragraphs (a) and (b) of this section, gardless of whether both are in the the same as though his appearance same city. were before a court. (See 8 Comp. Gen. (2) Computation. Mileage at the rate 18.) of 8 cents per mile will be computed on (3) Attendance before military courts or the basis of the Rand McNally Stand- boards of limited jurisdiction. A subpoena

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or other compulsory process addressed subject to the limitations prescribed in to a civilian by a military court or the Travel Expense Act of 1949 and the board which has not express statutory Standardized Government Travel Regu- authority to issue such process, such as lations. (See 6 Comp. Gen 712.) a board of officers convened to inves- (g) Witness not subpoenaed—(1) Com- tigate and report upon the facts con- pelled to testify. A person who, although nected with the death of an enlisted not subpoenaed, is present at trial or member while on temporary duty, is hearing before a court or other body void. Civilian witnesses who appear be- authorized to compel the attendance of fore such a board in response to such witnesses by compulsory process, and void process must be regarded as hav- who is compelled or required to testify ing done so voluntarily and are not en- at such hearing, is entitled to fees and titled to witness fees, in the absence of mileage allowances payable to wit- a specific appropriation therefor. (See 8 nesses. Comp. Gen. 64.) (2) Voluntarily testifies. A person who (4) Computation. The provisions of was neither subpoenaed nor requested paragraph (d)(2) of this section are to appear as a witness, but who volun- equally applicable for computation of tarily requested and was granted per- the attendance fee. mission to testify to certain matters (f) Expert—(1) Fees paid. An expert considered pertinent to an inquiry witness employed in accordance with being conducted, is not entitled to Manual for Courts-Martial, 1951, para- mileage and witness fees. (See 9 Comp. graph 116, may be paid compensation at Gen. 255.) the rate prescribed in advance by the official empowered to authorize his em- § 534.4 Other fees. ployment. (See 11 Comp. Gen. 504.) In (a) Service of subpoena. Fees or com- the absence of such advance authoriza- pensation for the service of a subpoena tion no fees, other than ordinary wit- by a civilian are not prescribed by the ness fees, may be paid for the employ- laws of the United States. Fees and ment of an individual as an expert wit- mileage allowed by the local law for ness. (See paragraph 116, Manual for similar services may be paid. If no spe- Courts-Martial (Executive Order cific fee or mileage is fixed by local 10214).) law, reasonable allowances may be (2) Limitations. (i) An expert while paid. (See Dig. Op. JAG, 1912–40, sec. employed on behalf of the Government 379.) is an officer or employee of the United (b) Taking of depositions—(1) Fees of States within the laws affecting trav- civil officers. A civil officer before whom eling and subsistence expenses of offi- a deposition is taken may be paid the cers and employees of the Government fees allowed by law of the place where generally. His traveling allowances are the deposition is taken (or a reasonable therefore subject to the limitations fee if no specific fee is fixed by local prescribed in the Travel Expense Act of laws), but no mileage or other allow- 1949 (63 Stat. 166; 5 U.S.C. 835–842) and ance for travel of the civil officer to the Standardized Government Travel the witness is provided for or author- Regulations. (See 6 Comp. Gen. 712.) ized by law. (See 2 Comp. Gen. 65.) (ii) There is no authority for pay- (2) Travel of witnesses. If the witness ment by the Government of fees to an and the civil officer before whom the expert, who was employed by an officer deposition is to be taken do not reside or employee of the Government to aid at the same place, the witness should in the performance of his duties, other be required to perform the necessary than an expert witness who actually travel, and he is entitled to mileage or appears as such (paragraph (b)(2) of other travel allowance therefor as pre- this section). scribed in § 534.3(e)(2). (iii) A retired officer, not on active (3) Oaths in matters of military adminis- duty, employed as an expert witness is tration. Where the service of one of the not entitled to any compensation in officers designated in the Uniform Code addition to his retired pay for such of Military Justice, Article 136, is not service. The traveling allowances of available, fees may be paid to civil offi- such a retired officer, so employed, are cers for administering oaths in matters

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relating to military administration, PART 536—CLAIMS AGAINST THE subject to the conditions indicated in UNITED STATES paragraph (b)(1) of this section. (c) Interpreters. An interpreter ap- Subpart A—The Army Claims System pointed under the Uniform Code of Military Justice, Article 28 (10 U.S.C. Sec. 536.1 Purpose of the Army Claims System. 828), is entitled for his services as such 536.2 Claims authorities. to the allowances prescribed for wit- 536.3 Command and organizational relation- nesses (§ 534.3). ships. (d) Furnishing copies of official records 536.4 Designation of claims attorneys. or documents. The fees provided by the 536.5 The Judge Advocate General. 536.6 The Army claims mission. local laws may be paid to the proper of- 536.7 Responsibilities of the Commander ficials for furnishing such certified cop- USARCS. ies of public records or documents and 536.8 Responsibilities and operations of expenses in connection with the pro- command claims services. curement of photostatic copies, photo- 536.9 Responsibilities and operations of area claims offices. graphs, and negatives as are required 536.10 Responsibilities and operations of by the court. claims processing offices. (e) Attendance upon civil courts—(1) 536.11 Chief of Engineers. Cases involving performance of official 536.12 Commanding General, U.S. Army duties. A military member on active Medical Command. duty or a civilian in Government em- 536.13 Chief, National Guard Bureau. 536.14 Commanders of major Army com- ploy appearing on behalf of the United mands. States in cases arising out of the per- 536.15 Claims policies. formance of their official duties is enti- 536.16 Release of information policies. tled to transportation and per diem as 536.17 Single-service claims responsibility prescribed in § 534.3(a)(1) and (b)(1). (DODD 5515.8 and DODD 5515.9). 536.18 Cross-servicing of claims. Payment may be made by Department 536.19 Disaster claims planning. of the Army finance and accounting of- 536.20 Claims assistance visits. ficers and will be charged to Depart- 536.21 Annual claims award. ment of the Army appropriations available for travel expenses of military Subpart B—Investigation and Processing of personnel and civilian employees. Claims (2) Cases involving other than perform- 536.22 Claims investigative responsibility— ance of official duties. A military mem- General. ber on active duty or a civilian in Gov- 536.23 Identifying claims incidents both for ernment employ appearing on behalf of and against the government. 536.24 Delegation of investigative responsi- the United States in cases involving bility. other than the performance of their of- 536.25 Procedures for accepting claims. ficial duties is entitled to transpor- 536.26 Identification of a proper claim. tation or transportation allowances 536.27 Identification of a proper claimant. and per diem as may be prescribed by 536.28 Claims acknowledgment. 536.29 Revision of filed claims. The Attorney General. The subpoena or 536.30 Action upon receipt of claim. letter requesting attendance will speci- 536.31 Opening claim files. fy the rates payable and will cite the 536.32 Transfer of claims among armed serv- appropriation chargeable. Payment ices branches. may be made by a Department of the 536.33 Use of small claims procedures. Army finance and accounting officer 536.34 Determination of correct statute. 536.35 Unique issues related to environ- and reimbursement obtained from the mental claims. Department of Justice. 536.36 Related remedies. (3) Cases in which civilians not in Gov- 536.37 Importance of the claims investiga- ernment employ are called as witnesses. tion. Payments to civilians out of Govern- 536.38 Elements of the investigation. ment employ will not be made by De- 536.39 Use of experts, consultants and appraisers. partment of the Army finance and ac- 536.40 Conducting the investigation. counting officers. Such payments will 536.41 Determination of liability—gen- be made by the Department of Justice. erally.

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536.42 Constitutional torts. Subpart D—Claims Cognizable Under the 536.43 Incident to service. Federal Tort Claims Act 536.44 FECA and LSHWCA claims exclusions. 536.83 Statutory authority for the Federal 536.45 Statutory exceptions. Tort Claims Act. 536.46 Other exclusions. 536.84 Scope for claims under the Federal 536.47 Statute of limitations. Tort Claims Act. 536.48 Federal employee requirement. 536.85 Claims payable under the Federal 536.49 Scope of employment requirement. Tort Claims Act. 536.86 Claims not payable under the Federal 536.50 Determination of damages—applica- Tort Claims Act. ble law. 536.87 Applicable law for claims under the 536.51 Collateral source rule. Federal Tort Claims Act. 536.52 Subrogation. 536.88 Settlement authority for claims 536.53 Evaluation of claims—general rules under the Federal Tort Claims Act. and guidelines. 536.89 Reconsideration of Federal Tort 536.54 Joint tortfeasors. Claims Act claims. 536.55 Structured settlements. 536.56 Negotiations—purpose and extent. Subpart E—Claims Cognizable Under the 536.57 Who should negotiate. Non-Scope Claims Act 536.58 Settlement negotiations with unrepresented claimants. 536.90 Statutory authority for the Non- 536.59 Settlement or approval authority. Scope Claims Act. 536.60 Splitting property damage and per- 536.91 Scope for claims under the Non-Scope sonal injury claims. Claims Act. 536.61 Advance payments. 536.92 Claims payable under the Non-Scope 536.62 Action memorandums. Claims Act. 536.63 Settlement agreements. 536.93 Claims not payable under the Non- 536.64 Final offers. Scope Claims Act. 536.65 Denial notice. 536.94 Settlement authority for claims 536.66 The ‘‘Parker’’ denial. under the Non-Scope Claims Act. 536.95 Reconsideration of Non-Scope Claims 536.67 Mailing procedures. Act claims. 536.68 Appeal or reconsideration. 536.69 Retention of file. Subpart F—Claims Cognizable Under the 536.70 Preparation and forwarding of pay- National Guard Claims Act ment vouchers. 536.71 Fund sources. 536.96 Statutory authority for the National 536.72 Finality of settlement. Guard Claims Act. 536.97 Scope for claims under the National Subpart C—Claims Cognizable Under the Guard Claims Act. Military Claims Act 536.98 Claims payable under the National Guard Claims Act. 536.73 Statutory authority for the Military 536.99 Claims not payable under the Na- Claims Act. tional Guard Claims Act. 536.74 Scope for claims under the Military 536.100 Applicable law for claims under the Claims Act. National Guard Claims Act. 536.75 Claims payable under the Military 536.101 Settlement authority for claims Claims Act. under the National Guard Claims Act. 536.76 Claims not payable under the Mili- 536.102 Actions on appeal under the Na- tary Claims Act. tional Guard Claims Act. 536.77 Applicable law for claims under the Military Claims Act. Subpart G—Claims Cognizable Under 536.78 Settlement authority for claims International Agreements under the Military Claims Act. 536.79 Action on appeal under the Military 536.103 Statutory authority for claims cog- Claims Act. nizable under international claims agree- 536.80 Payment of costs, settlements, and ments. judgments related to certain medical 536.104 Current agreements in force. malpractice claims. 536.105 Responsibilities generally/inter- 536.81 Payment of costs, settlements, and national agreements claims. judgments related to certain legal mal- 536.106 Definitions for international agree- practice claims. ments claims. 536.82 Reopening an MCA claim after final 536.107 Scope for international agreements action by a settlement authority. claims arising in the United States.

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536.108 Claims payable under international Subpart J—Claims Cognizable Under the agreements (for those arising in the Foreign Claims Act United States). 536.109 Claims not payable under inter- 536.135 Statutory authority for the Foreign national agreements (for those arising in Claims Act. the United States). 536.136 Scope for claims arising under the 536.110 Notification of incidents arising Foreign Claims Act. under international agreements (for 536.137 Claims payable under the Foreign claims arising in the United States). Claims Act. 536.111 Investigation of claims arising under 536.138 Claims not payable under the For- international agreements (for those eign Claims Act. claims arising in the United States). 536.139 Applicable law for claims under the 536.112 Settlement Authority for claims Foreign Claims Act. arising under international agreements 536.140 Appointment and functions of For- (for those claims arising in the United eign Claims Commissions. States). 536.141 Composition of Foreign Claims Com- 536.113 Assistance to foreign forces for missions. claims arising under international agree- 536.142 Qualification of members of Foreign ments (as to claims arising in the United Claims Commissions. States). 536.143 Settlement authority of Foreign 536.114 Scope for claims arising overseas Claims Commissions. under international agreements. 536.144 Reopening a claim after final action 536.115 Claims procedures for claims arising by a Foreign Claims Commission. overseas under international agreements. 536.145 Solatia payment. 536.116 Responsibilities as to claims arising overseas under international agreements. Subpart K—Nonappropriated Fund Claims Subpart H—Maritime Claims 536.146 Claims against nonappropriated fund employees—generally. 536.117 Statutory authority for maritime 536.147 Claims by NAFI employees for losses claims. incident to employment. 536.118 Related statutes for maritime 536.148 Claims generated by the acts or claims. omissions of NAFI employees. 536.119 Scope for maritime claims. 536.149 Identification of persons whose ac- 536.120 Claims payable as maritime claims. tions may generate liability. 536.121 Claims not payable as maritime 536.150 Claims payable from appropriated claims. funds. 536.122 Limitation of settlement of mari- 536.151 Settlement authority for claims gen- time claims. erated by acts or omissions of NAFI em- 536.123 Limitation of liability for maritime ployees. claims. 536.152 Payment of claims generated by acts 536.124 Settlement authority for maritime or omissions of NAFI employees. claims. 536.153 Claims involving tortfeasors other than nonappropriated fund employees: Subpart I—Claims Cognizable Under Arti- NAFI contractors. cle 139, Uniform Code of Military Jus- 536.154 Claims involving tortfeasors other tice than nonappropriated fund employees: NAFI risk management program (RIMP) 536.125 Statutory authority for the Uniform claims. Code of Military Justice (UCMJ) claims. 536.155 Claims payable involving tortfeasors 536.126 Purpose of UCMJ claims. other than nonappropriated fund employ- 536.127 Proper claimants; unknown ac- ees. cused—under the UCMJ. 536.156 Procedures for claims involving 536.128 Effect of disciplinary action, vol- tortfeasors other than nonappropriated untary restitution, or contributory neg- fund employees. ligence for claims under the UCMJ. 536.157 Settlement/approval authority for 536.129 Claims cognizable as UCMJ claims. claims involving tortfeasors other than 536.130 Claims not cognizable as UCMJ nonappropriated fund employees. claims. 536.131 Limitations on assessments arising AUTHORITY: 10 U.S.C. 2733; 10 U.S.C. 1089; 10 from UCMJ claims. U.S.C. 1054; 28 U.S.C. 1291, 2401–2402, 2411–2412, 536.132 Procedure for processing UCMJ 2671–2680; 10 U.S.C. 2737; 32 U.S.C. 715; 10 claims. U.S.C. 2734a, 2734b; 10 U.S.C. 2734; 10 U.S.C. 536.133 Reconsideration of UCMJ claims. 4801, 4802, 4806; 46 U.S.C. app. 740; 39 U.S.C. 536.134 Additional claims judge advocate 411; 10 U.S.C. 939; 10 U.S.C. 2736; 10 U.S.C. and claims attorney responsibilities (for 2735; 10 U.S.C. 2731. UCMJ claims). 180

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SOURCE: 71 FR 69360, Nov. 30, 2006, unless States acting within the scope of their otherwise noted. employment. (A) The legislative history of the Subpart A—The Army Claims FTCA. System (B) Regulations of the Attorney Gen- eral implementing the Federal Tort § 536.1 Purpose of the Army Claims Claims Act, 28 CFR part 14. System. (C) An appendix to 28 CFR part 14 This part sets forth policies and pro- sets forth certain delegations of settle- cedures that govern the investigating, ment authority to the Secretary of processing, and settling of claims Veterans Affairs, the Postmaster Gen- against, and in favor of, the United eral, the Secretary of Defense, the Sec- States under the authority conferred retary of Transportation, and the Sec- by statutes, regulations, international retary of Health and Human Services. and interagency agreements, and De- (v) The Non-Scope Claims Act partment of Defense Directives (NSCA), 10 U.S.C. 2737 (see subpart E of (DODDs). It is intended to ensure that this part). claims are investigated properly and (vi) The National Guard Claims Act adjudicated according to applicable (NGCA), 32 U.S.C. 715 (see subpart F of law, and valid recoveries and affirma- this part). tive claims are pursued against car- (vii) Claims under International riers, third-party insurers, and Agreements or the Foreign Claims Act. tortfeasors. (A) International Agreements Claims Act (IACA), 10 U.S.C. 2734a and 2734b. § 536.2 Claims authorities. (B) Foreign Claims Act (FCA), 10 U.S.C. 2734 (see subpart J of this part). (a) General. Claims cognizable under (viii) The Army Maritime Claims the following list of statutes and au- Settlement Act (AMCSA), 10 U.S.C. thorities are processed and settled 4801, 4802 and 4806. Affirmative claims under DA Pam 27–162 and this part. All under the AMCSA are processed under of these materials may be viewed on 10 U.S.C. 4803 and 4804 (see § 537.16 of the USARCS Web site, https:// this chapter). www.jagcnet.army.mil/85256F33005C2B92/ (ix) Admiralty Extension Act (AEA), (JAGCNETDocID)/ 46 U.S.C. app. 740 (see subpart H of this HOME?OPENDOCUMENT. Select the part). link ‘‘Claims Resources.’’ (x) Claims against nonappropriated (1) Tort claims. (i) The Military fund (NAF) activities and the risk Claims Act (MCA), 10 United States management program (RIMP) (see sub- Code (U.S.C.) 2733 (see subpart C of this part K of this part), processed under part). The ‘‘incident-to-service’’ provi- Army Regulation (AR) 215–1 and AR sion, applicable to both military and 608–10. civilian personnel of the Department of (xi) Claims by the U.S. Postal Service Defense, is contained in the MCA. for losses or shortages in postal ac- (ii) The Gonzales Act, 10 U.S.C. 1089. counts caused by unbonded Army per- This act permits individual suits sonnel (39 U.S.C. 411 and Department of against health care providers for cer- Defense (DOD) Manual 4525.6–M). tain torts (see § 536.80). (2) Personnel claims (subpart I of this (iii) Certain suits arising out of legal part and AR 27–20, chapter 11). malpractice, 10 U.S.C. 1054, discussed at (i) The Personnel Claims Act (PCA), § 536.81 and at DA Pam 27–162, para- 31 U.S.C. 3721 (see AR 27–20, chapter 11). graph 2–62f. (ii) Redress of injuries to personal (iv) The Federal Tort Claims Act property, Uniform Code of Military (FTCA), 28 U.S.C. 1291, 1402, 2401–2402, Justice (UCMJ), Article 139, 10 U.S.C. 2411–2412, and 2671–2680 (see subpart D 939 (see subpart I of this part). of this part). The Westfall Act, 28 (3) Affirmative claims (32 CFR part 537). U.S.C. 2679, an integral part of the (i) The Federal Claims Collection Act FTCA, provides absolute immunity (FCCA), 31 U.S.C. 3711–3720E. from individual suit for common law (ii) The Federal Medical Care Recov- torts for employees of the United ery Act (FMCRA), 42 U.S.C. 2651–2653.

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(iii) Collection from third-party pay- (4) Longshore and Harbor Workers ers of reasonable costs of healthcare Compensation Act (LHWCA), 33 U.S.C. services, 10 U.S.C. 1095. 901–950. (b) Fund source authority for claims (5) Claims for consequential property under Title 10 statutes. 10 U.S.C. 2736, ad- damage by civilian employees may vance payments for certain property only be considered in the Court of Fed- claims (see § 536.71). eral Claims pursuant to 28 U.S.C. 1491. (c) Fund source authority for tort (f) Additional materials. There are claims paid by Financial Management some additional authoritative mate- Service (FMS). 31 U.S.C. 1304, provides rials for the processing of claims, most- authority for judgments, awards and ly of an administrative nature. For a compromise settlements. complete listing of all of the supple- (d) Additional authorities under Title mentary materials relevant to claims 10. (1) 10 U.S.C. 2735, establishes that processing under this publication and settlements (or ‘‘actions’’) under the DA Pam 27–162 see appendix B of DA Title 10 claims processing statutes are Pam 27–162. final and conclusive. (g) Conflict of authorities. Where a (2) 10 U.S.C. 2731, provides a defini- conflict exists between a general provi- tion of the word ‘‘settle.’’ sion of this publication and a specific (e) Related remedies statutes. The provision found in one of this publica- Army frequently receives claims or in- tion’s subparts implementing a specific quiries that are not cognizable under statute, the specific provision, as set the statutory and other authorities ad- forth in the statute, will control. ministered by the U.S. Army under this publication and DA Pam 27–162. § 536.3 Command and organizational Every effort should be made to refer relationships. the claim or inquiry to the proper au- (a) The Secretary of the Army. The thority following the guidance in Secretary of the Army (SA) heads the § 536.34 or § 536.36. (See also the cor- Army Claims System and acts on cer- responding paragraphs 2–15 and 2–17, retain claims appeals directly or through spectively, in DA Pam 27–162). Some a designee. authorities for related remedies are (b) The Judge Advocate General. The used more frequently than others. SA has delegated authority to The Where an authority for a related rem- Judge Advocate General (TJAG) to as- edy is frequently used, it is listed sign areas of responsibility and des- below and is posted on the USARCS ignate functional responsibility for Web site (for the address see § 536.2(a)). claims purposes. TJAG has delegated (1) Tucker Act, 28 U.S.C. 1346, pro- authority to the Commander USARCS vides exclusive jurisdiction in the to carry out the responsibilities as- Court of Federal Claims over causes of signed in § 536.7 and as otherwise law- actions alleging property loss caused fully delegable. by a Fifth Amendment ‘‘taking.’’ (c) U.S. Army Claims Service. USARCS, (2) Maritime authority statutes, Pub- a command and component of the Of- lic Vessels Act (PVA), 46 U.S.C. app. fice of TJAG, is the agency through 781–790, Suits in Admiralty Act (SIAA), which the SA and TJAG discharge 46 U.S.C. app. 741–752, and the Rivers their responsibilities for the adminis- and Harbors Act, 33 U.S.C. 408 and 412. trative settlement of claims worldwide (3) Federal Employees Compensation (see AR 10–72). USARCS’ mailing ad- Act (FECA), two excerpts: 5 U.S.C. 8116 dress is: U.S. Army Claims Service, and 8140, providing guidance on per- 4411 Llewellyn Ave., Fort George G. sonal injury and death claims by civil- Meade, MD 20755–5360, Commercial: ian employees arising within the scope (301) 677–7009. of their employment (see DA Pam 27– (d) Command claims services. (1) Com- 162, paragraph 2–15b) and information mand claims services exercise general on certain claims by Reserve Officers supervisory authority over claims mat- Training Corps (ROTC) cadets, respec- ters arising within their assigned areas tively, (see DA Pam 27–162, paragraph of operation. Command claims services 2–17d(2)). will:

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(i) Effectively control and supervise other COE commands or agencies as the investigation of potentially com- designated by the Commander pensable events (PCEs) occurring with- USARCS, with concurrence of the Chief in the command’s geographic area of Counsel, Office of the Chief of Engi- responsibility, in other areas for which neers, for all claims generated within the command is assigned claims re- such districts, commands or agencies. sponsibility, and during the course of The district counsel or the attorney in the command’s operations. charge of the command’s or agency’s (ii) Provide services for the proc- legal office is the head of the ACO. essing and settlement of claims for and (f) Claims processing offices. Claims against the United States. processing offices (CPOs) are normally (2) The Commander USARCS, may small legal offices or ACO subordinate delegate authority to establish a com- elements, designated by the Com- mand claims service to the commander mander USARCS, a command claims of a major overseas command or other service or an ACO. These offices are es- commands that include areas outside tablished for the investigation of all the United States, its territories and actual and potential claims arising possessions. within their jurisdiction, on either an (i) When a large deployment occurs, area, command or agency basis. There the Commander USARCS, may des- are four types of claims processing of- ignate a command claims service for a fices (see § 536.10): limited time or purpose, such as for the (1) Claims processing offices without duration of an operation and for the approval authority. time necessary to accomplish the mis- (2) Claims processing offices with ap- sion. The appropriate major Army proval authority. command (MACOM) will assist the (3) Medical claims processing offices. Commander USARCS, in obtaining re- (4) Special claims processing offices. sources and personnel for the mission. (g) Limitations on delegation of author- (ii) In coordination with the Com- ity under any subpart. (1) The Com- mander USARCS, the MACOM will des- mander USARCS, commanders or ignate the area of responsibility for chiefs of command claims services, or each new command claims service. the heads of ACOs or CPOs with ap- (3) A command claims service may be proval authority may delegate, in writ- a separate organization with a des- ing, all or any portion of their mone- ignated commander or chief. If it is tary approval authority to subordinate part of the command’s Office of the JAs or claims attorneys in their serv- Staff Judge Advocate (SJA), the SJA ices or offices. will also be the chief of the command (2) The authority to act upon appeals claims service, however, the SJA may or requests for reconsideration, to deny designate a field grade officer as chief claims (including disapprovals based on of the service. substantial fraud), to grant waivers of (e) Area claims offices. The following maximum amounts allowable, or to may be designated as area claims of- make final offers will not be delegated fices (ACOs): except that the Commander USARCS (1) An office under the supervision of may delegate this authority to the senior judge advocate (JA) of each USARCS Division Chiefs. command or organization so designated (3) CPOs will provide copies of all del- by the Commander USARCS. The sen- egations affecting them to the ACO ior JA is the head of the ACO. and, if so directed, to command claims (2) An office under supervision of the services. senior JA of each command in the area of responsibility of a command claims § 536.4 Designation of claims attor- service so designated by the chief of neys. that service after coordination with (a) Who may designate. The Com- the Commander USARCS. The senior mander USARCS, the senior JA of a JA is the head of the ACO. command having a command claims (3) The office of counsel of each U.S. service, the chief of a command claims Army Corps of Engineers (COE) district service, the head of an ACO, or the within the United States and such Chief Counsel of a COE District, may

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designate a qualified attorney other (b) Formulate and implement claims than a JA as a claims attorney. The policies and uniform standards for head of an ACO may designate a claims claims office operations. attorney to act as a CPO with approval (c) Investigate, process and settle authority. claims beyond field office monetary au- (b) Eligibility. To qualify as a claims thority and consider appeals and re- attorney, an individual must be a civil- quests for reconsideration on claims ian employee of the Department of the denied by the field offices. Army (DA) or DOD, a member of the (d) Supervise the investigation, proc- bar of a state, the District of Columbia, essing, and settlement of claims or a jurisdiction where U.S. federal law against, and in favor of, the United applies, serving in the grade of GS–11 States under the statutes and regula- or above, and performing primary du- tions listed in § 536.2 and pursuant to ties as a legal adviser. other appropriate statutes, regulations, and authorizations. § 536.5 The Judge Advocate General. (e) Designate ACOs, CPOs, and claims TJAG has worldwide Army Staff re- attorneys within DA and DOD compo- sponsibility for administrative settle- nents other than the Departments of ment of claims by and against the U.S. the Navy and Air Force, subject to con- government, generated by employees of currence of the commander concerned. the U.S. Army and DOD components (f) Designate continental United other than the Departments of the States (CONUS) geographic areas of Navy and Air Force. Where the Army claims responsibility. has single-service responsibility, TJAG (g) Recommend action to be taken by has responsibility for the Army. See the SA, TJAG or the U.S. Attorney DODD 5515.9. Certain claims respon- General, as appropriate, on claims in sibilities of TJAG are exercised by The excess of $25,000 or the threshold Assistant Judge Advocate General amount then current under the FTCA, (TAJAG) as set forth in this part and on claims in excess of $100,000 or the directed by TJAG. threshold amount then current under the FCA, the MCA, the NGCA, AMCSA, § 536.6 The Army claims mission. FCCA and FMRCA and on other claims that have been appealed. Direct com- (a) Promptly investigate potential munication with Department of Jus- claims incidents with a view to deter- tice (DOJ) and the SA’s designee is au- mining the degree of the Army’s expo- thorized. sure to liability, the damage potential, (h) Operate the ‘‘receiving State of- and when the third party is at fault, fice’’ for claims arising in the United whether the Army should take action States, its territories, commonwealths to collect for medical expenses, lost and possessions cognizable under Arti- wages and property damage. cle VIII of the North Atlantic Treaty (b) Efficiently and expeditiously dis- Organization (NATO) Status of Forces pose of claims against the U.S. by fair- Agreement (SOFA), Partnership for ly settling meritorious claims at the Peace (PFP) SOFA, Article XVI of the lowest level within the claims system Singapore SOFA, and other SOFAs commensurate with monetary jurisdic- which have reciprocal claims provi- tion delegated, or by denying non-meri- sions as delegated by TJAG, as imple- torious claims. mented by 10 U.S.C. 2734a and 2734b (c) Develop a system that has a high (subpart G of this part). level of proficiency, so that litigation (i) Settle claims of the U.S. Postal and appeals can be avoided or kept to a Service for reimbursement under 39 minimum. U.S.C. 411 (see DOD Manual 4525.6–M). (j) Settle claims against carriers, § 536.7 Responsibilities of the Com- warehouse firms, insurers, and other mander USARCS. third parties for loss of, or damage to, The Commander USARCS shall: personal property of DA or DOD sol- (a) Supervise and inspect claims ac- diers or civilians incurred while the tivities worldwide. goods are in storage or in transit at

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government expense (AR 27–20, chapter technical guidance and direction on 11). such claims. (k) Formulate and recommend legis- (w) Coordinate support with the U.S. lation for Congressional enactment of Army Medical Command (MEDCOM) on new statutes and the amendment of ex- matters relating to medical mal- isting statutes considered essential for practice claims. the orderly and expeditious adminis- (x) Issue an accounting classification trative settlement of noncontractual to all properly designated claims set- claims. tlement and approval authorities. (l) Perform post-settlement review of (y) Perform the investigation, proc- claims. essing, and settlement of claims aris- (m) Prepare, justify, and defend esti- ing in areas outside command claims mates of budgetary requirements and service areas of operation. administer the Army claims budget. (z) Maintain continuous worldwide (n) Maintain permanent records of deployment and operational capability claims for which TJAG is responsible. to furnish claims advice to any legal (o) Assist in developing disaster and office or command throughout the maneuver claims plans designed to im- world. When authorized by the chain of plement the responsibilities set forth command or competent authority, in § 536.9(a)(12). issue such claims advice or services, in- (p) Develop and maintain plans for a cluding establishing a claims system disaster or civil disturbance in those within a foreign country, interpreting geographic areas that are not under claims aspects of international agree- the jurisdiction of an area claims au- ments, and processing claims arising thority and in which the Army has sin- from Army involvement in civil dis- gle-service responsibility or in which turbances, chemical accidents under the Army is likely to be the predomi- the Chemical Energy Stockpile Pro- nant Armed Force. gram, other man-made or natural dis- (q) Take initial action, as appro- asters, and other claims designated by priate, on claims arising in emergency competent authority. situations. (r) Provide assistance as available or (aa) Upon receiving both the appro- take appropriate action to ensure that priate authority’s directive or order command claims services and ACOs are and full fiscal authorization, disburse carrying out their responsibilities as the funds necessary to administer civil- set forth in §§ 536.8 and 536.9, including ian evacuation, relocation, and similar claims assistance visits. initial response efforts in response to a (s) Serve as proponent for the data- chemical disaster arising at an Army base management systems for torts, facility. personnel and affirmative claims and (bb) Respond to all inquiries from the provide standard automated claims President, members of Congress, mili- data management programs for world- tary officials, and the general public on wide use. claims within USARCS’ responsibility. (t) Ensure proper training of claims (cc) Serve as the proponent for this personnel. publication and DA Pam 27–162, both of (u) Coordinate claims activities with which set forth guidance on personnel, the Air Force, Navy, Marine Corps, and tort, disaster and affirmative claims, other DOD agencies to ensure a con- as well as claims management and ad- sistent and efficient joint service ministration. claims program. (dd) Provide supervision for the (v) Investigate, process and settle, Army’s affirmative claims and carrier and supervise the field office investiga- recovery programs, as well as other tion and processing of, medical mal- methods for recovering legal debts. practice claims arising in Army med- (ee) Provide support for the overseas ical centers within the United States; environmental claims program as des- provide medical claims judge advocates ignated by the DA. (MCJAs), medical claims attorneys, (ff) Execute other claims missions as and medical claims investigators as- designated by DOD, DA, TJAG and signed to such medical centers with other competent authority.

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(gg) Appoint Foreign Claims Com- (8) Administer the command claims missions outside Command Claims expenditure allowance, providing nec- Services’ geographic areas of responsi- essary data, estimates, and reports to bility. USARCS on a regular basis. (hh) Budget for and fund claims in- (9) Perform the responsibilities of an vestigations and activities; such as per ACO (see § 536.9), as applicable, ensure diem and transportation of claims per- that SOFA claims are investigated sonnel, claimants and witnesses; inde- properly and timely filed with the re- pendent medical examinations; ap- ceiving State and adequately funded. praisals; independent expert opinions; (10) Serve as the United States long distance telephone calls; record- ‘‘sending State office,’’ if so des- ing and photographic equipment; use of ignated, when operating in an area cov- express mail or couriers; and other nec- ered by a SOFA. essary expenses. (11) Supervise and provide technical assistance to subordinate ACOs within § 536.8 Responsibilities and operations of command claims services. the command claims service’s geographic area of responsibility. (a) Chiefs of command claims services. (12) Appoint FCCs. Chiefs of command claims services shall: (b) Operations of command claims serv- (1) Exercise claims settlement au- ices. The SJA of the command shall su- thority as specified in this part, includ- pervise the command claims service. ing appellate authority where so dele- The command SJA may designate a gated. field grade JA as the chief of the serv- (2) Supervise the investigation, proc- ice. An adequate number of qualified essing, and settlement of claims claims personnel shall be assigned to against, and in favor of the United ensure that claims are promptly inves- States under the statutes and regula- tigated and acted upon. With the con- tions listed in § 536.2, and pursuant to currence of the Commander USARCS, a other appropriate statutes, regula- command claims service may designate tions, and authorizations. ACOs within its area of operations to (3) Designate and grant claims settle- carry out claims responsibilities within ment authority to ACOs. A grant of specified geographic areas subject to such authority will not be effective agreement by the commander con- until coordinated with the Commander cerned. USARCS, and assigned an office code. § 536.9 Responsibilities and operations However, the chief of a command of area claims offices. claims service may redesignate a CPO that already has an assigned office (a) Heads of ACOs. Heads of ACOs, in- code as an ACO without coordination cluding COE offices (see § 536.3(e)(3)) with the Commander USARCS. The shall: Commander USARCS will be informed (1) Ensure that claims and potential of such a designation. claims incidents in their area of re- (4) Designate and grant claims ap- sponsibility are promptly investigated proval authority to CPOs. Only CPOs in accordance with this part. staffed with a claims judge advocate (2) Ensure that each organization or (CJA) or claims attorney may be grant- activity (for example, U.S. Army Re- ed approval authority. A grant of such serve (USAR) or Army National Guard authority will not be effective until co- of the United States (ARNGUS) unit, ordinated with the Commander ROTC detachment, recruiting company USARCS, and assigned an office code. or station, or DOD agency) within the (5) Train claims personnel and mon- area appoints a claims officer to inves- itor their operations and ongoing tigate claims incidents not requiring claims administration. Conduct a investigation by a JA (see § 536.23) and training course annually. ensure that this officer is adequately (6) Implement pertinent claims poli- trained. cies. (3) Supervise the investigation, proc- (7) Prepare and publish command essing, and settlement of claims claims directives. against, and in favor of, the United

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States under the statutes and regulation or an agency disaster response tions listed in § 536.2 and pursuant to plan. other appropriate statutes, regula- (13) Implement the Army’s Article tions, and authorizations. 139 claims program. (See subpart I of (4) Act as a claims settlement au- this part). thority on claims that fall within the (14) Notify USARCS of possible de- appropriate monetary jurisdictions set ployments and ensure adequate FCCs forth in this part and forward claims are appointed by USARCS and are exceeding such jurisdictions to the trained. Commander USARCS, or to the chief of (b) Operations of area claims offices. (1) a command claims service, as appro- The ACO is the principal office for the priate, for action. investigation and adjudication or set- (5) Designate CPOs and request that tlement of claims, and shall be staffed the Commander USARCS, or the chief with qualified legal personnel under of a command claims service, as appro- the supervision of the SJA, command priate, grant claims approval authority JA, or COE district or command legal to a CPO for claims that fall within the counsel. jurisdiction of that office. (2) In addition to the utilization of (6) Supervise the operations of CPOs unit claims officers required by within their area. § 536.10(a), if indicated, the full-time re- (7) Implement claims policies and sponsibility for investigating and proc- guidance furnished by the Commander essing claims arising within or related USARCS. to the activities of a unit or organiza- (8) Ensure that there are adequate tion located within a section of the numbers of qualified and adequately designated area may be delegated to trained CJAs or claims attorneys, another command, unit, or activity by RCJAs or attorneys, recovery claims establishing a CPO at the command, clerks, claims examiners, claims adju- unit, or activity (see § 536.10(b)(4)). Nor- dicators and claims clerks in all claims mally, all CPOs will operate under the offices within their areas to act supervision of the ACO in whose area promptly on claims. the CPO is located. Where a proposed (9) Budget for and fund claims inves- CPO is not under the command of the tigations and activities, such as: per diem and transportation of claims per- ACO parent organization, this designa- sonnel, claimants and witnesses; inde- tion may be achieved by a support pendent medical examinations; ap- agreement or memorandum of under- praisals and independent expert opin- standing between the affected com- ions; long distance telephone calls; re- mands. cording and photographic equipment; (3) Normally, claims that cannot be use of express mail or couriers; and settled by a COE ACO will be forwarded other necessary expenses. directly to the Commander USARCS, (10) Within the United States and its with notice of referral to the Chief territories, commonwealths and posses- Counsel, COE. However, as part of his sions, procure and disseminate, within or her responsibility for litigating suits their areas of jurisdiction, appropriate that involve civil works and military legal publications on state or terri- construction activities, the Chief torial law and precedent relating to Counsel, COE, may require that a COE tort claims. ACO forward claims through COE chan- (11) Notify the Commander USARCS, nels, provided that such requirement of all claims and potentially compen- does not preclude the Commander sable events (PCEs) as required by USARCS from taking final action with- § 536.22(c); notify the chief of a com- in the time limitations set forth in mand claims service of all claims and subparts D and H of this part. PCEs. (12) Develop and maintain written § 536.10 Responsibilities and oper- plans for a disaster or civil disturb- ations of claims processing offices. ance. These plans may be internal SJA (a) Heads of CPOs. Heads of CPOs office plans or an annex to an installa- will:

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(1) Investigate all potential and ac- the investigation has been completed, tual claims arising within their as- the claim file will be forwarded to the signed jurisdiction, on either an area, appropriate ACO for action. Alter- command, or agency basis. Only a CPO natively, an ACO may direct the trans- that has approval authority may adju- fer of a claim investigation from a CPO dicate and pay presented claims within without approval authority to another its monetary jurisdiction. CPO with approval authority, located (2) Ensure that units and organiza- within the ACO’s jurisdiction. tions within their jurisdiction have ap- (3) Medical claims processing offices. pointed claims officers for the inves- The MCJAs or medical claims attor- tigation of claims not requiring a JA’s neys at Army medical centers, other investigation. (See § 536.22). than Walter Reed Army Medical Cen- (3) Budget for and fund claims inves- ter, may be designated by the SJA or tigations and activities; including, per head of the ACO for the installation on diem and transportation of claims per- which the center is located as CPOs sonnel, claimants and witnesses; inde- with approval authority for medical pendent medical examinations; ap- malpractice claims only. Claims for praisals; independent expert opinions; amounts exceeding a medical CPO’s ap- long distance telephone calls; record- proval authority will be investigated ing and photographic equipment; use of and forwarded to the Commander express mail or couriers; and other nec- USARCS. essary expenses. (4) Special claims processing offices—(i) (4) Within CONUS, procure and main- Designation and authority. The Com- tain legal publications on local law re- mander USARCS, the chief of a com- lating to tort claims pertaining to mand claims service, or the head of an their jurisdiction. ACO may designate special CPOs with- (5) Notify the Commander USARCS in his or her command for specific, of all claims and claims incidents, as short-term purposes (for example, ma- required by § 536.22 and AR 27–20, para- neuvers, civil disturbances and emer- graph 2–12. gencies). These special CPOs may be (6) Implement the Army’s Article 139 delegated the approval authority nec- claims program (see subpart I of this essary to effect the purpose of their part). creation, but in no case will this dele- (b) Operations of claims processing of- gation exceed the maximum monetary fices—(1) Claims processing office with approval authority set forth in other approval authority. A CPO that has been subparts of this part for regular CPOs. granted approval authority must pro- All claims will be processed under the vide for the investigation of all poten- claims expenditure allowance and tial and actual claims arising within claims command and office code of the its assigned jurisdiction, on an area, authority that established the office or command, or agency basis, and for the under a code assigned by USARCS. The adjudication and payment of all claims existence of any special CPO must be presented within its monetary jurisdic- reported to the Commander USARCS, tion. If the estimated value of a claim, and the chief of a command claims after investigation, exceeds the CPO’s service, as appropriate. payment authority, or if disapproval is (ii) Maneuver damage and claims office the appropriate action, the claim file jurisdiction. A special CPO is the proper will be forwarded to the ACO unless organization to process and approve otherwise specified in this part, or for- maneuver damage claims, except when warded to USARCS or the command a foreign government is responsible for claims service, if directed by such serv- adjudication pursuant to an inter- ice. national agreement (see subpart G of (2) Claims processing offices without ap- this part). Personnel from the maneu- proval authority. A CPO that has not vering command should be used to in- been granted claims approval authority vestigate claims and, at the ACO’s dis- will provide for the investigation of all cretion, may be assigned to the special potential and actual claims arising CPO. The ACO will process claims filed within its assigned jurisdiction on an after the maneuver terminates. The area, command, or agency basis. Once special CPO will investigate claims

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arising while units are traveling to or except for temporary duty (TDY) and from the maneuver within the jurisdic- specialized lab services expenses. tion of other ACOs, and forward such claims for action to the ACO in whose § 536.12 Commanding General, U.S. area the claims arose. Claims for dam- Army Medical Command. age to real or personal property arising (a) After consulting with the Com- on private land that the Army has used mander USARCS on the selection of under a permit may be paid from funds medical claims attorneys, the Com- specifically budgeted by the maneuver mander of the U.S. Army MEDCOM, for such purposes in accordance with the European Medical Command, or AR 405–15. other regional medical command, (iii) Disaster claims and civil disturb- through his or her SJA/Center Judge ance. A special CPO provided for a dis- Advocate, shall ensure that an ade- aster or civil disturbance should in- quate number of qualified MCJAs or clude a claims approving authority medical claims attorneys and medical with adequate investigatory, adminis- claims investigators are assigned to in- trative, and logistical support, includ- vestigate and process medical mal- ing damage assessment and finance and practice claims arising at Army med- accounting support. It will not be dis- ical centers under the Commander’s patched prior to notification of the control. In accordance with an agree- Commander USARCS, whose concur- ment between TJAG and The Surgeon rence must be obtained before the first General, such personnel shall be used claim is paid. primarily to investigate and process (5) Supervisory requirements. The CPOs medical malpractice claims and affirm- discussed in paragraphs (b)(2) through ative claims and will be provided with (b)(4) of this section must be supervised the necessary funding and research ma- by an assigned CJA or claims attorney terials to carry out this function. in order to exercise delegated approval (b) Upon request of a claims judge ad- authority. vocate or claims officer, shall provide a qualified health care provider at a § 536.11 Chief of Engineers. medical treatment facility (MTF) to The Chief of Engineers, through the examine a claimant for his injuries Chief Counsel, shall: even if the claimant is not otherwise (a) Provide general supervision of the entitled to care at an MTF (See AR 40– claims activities of COE ACOs. 400, Patient Administration, paragraph (b) Ensure that each COE ACO has a 3–47). claims attorney designated in accordance with § 536.4. § 536.13 Chief, National Guard Bureau. (c) Ensure that claims personnel are The Chief, National Guard Bureau adequately trained, and monitor their (NGB), shall: ongoing claims administration. (a) Ensure the designation of a point (d) Implement pertinent claims poli- of contact for claims matters in each cies. State Adjutant General’s office. (e) Provide for sufficient funding in (b) Provide the name, address, and accordance with existing Army regula- telephone number of these points of tions and command directives for tem- contact to the Commander USARCS. porary duty (TDY), long distance tele- (c) Designate claims officers to inves- phone calls, recording equipment, cam- tigate claims generated by ARNG per- eras, and other expenses for inves- sonnel and forward investigations to tigating and processing claims. the Active Army ACO that has juris- (f) Procure and maintain adequate diction over the area in which the legal publications on local law relating claims incident occurred. to claims arising within the United States, its territories, commonwealths § 536.14 Commanders of major Army and possessions. commands. (g) Assist USARCS in evaluation of Commanders of MACOMs, through claims by furnishing qualified expert their SJAs, shall: and technical advice from COE re- (a) Assist USARCS in monitoring sources, on a non-reimbursable basis ACOs and CPOs under their respective

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commands for compliance with the re- then considered as a tort. If deniable, sponsibilities assigned in §§ 536.9 and the claim will be denied both as a per- 536.10. sonnel claim and as a tort. (b) Assist claims personnel in obtain- (3) Compromise. DA policy seeks to ing qualified expert and technical ad- compromise claims in a manner that vice from command units and organiza- represents a fair and equitable result tions on a nonreimbursable basis (al- to both the claimant and the United though the requesting office may be re- States. This policy does not extend to quired to provide TDY funding). frivolous claims or claims lacking fac- (c) Assist TJAG, through the Com- tual or legal merit. A claim should not mander USARCS, in implementing the be settled solely to avoid further proc- functions set forth in § 536.7. essing time and expense. All claims, re- (d) Coordinate with the ACO within gardless of amount, should be evalu- whose jurisdiction a maneuver is ated. Congress imposed no minimum scheduled, to ensure the prompt inves- limit on payable claims nor did it in- tigation and settlement of any claims tend that small non-meritous claims be arising from it. paid. Practically any claim, regardless of amount, may be subject to com- § 536.15 Claims policies. promise through direct negotiation. A (a) General. The following policies CJA or claims attorney should develop will be adhered to in processing and ad- expertise in assessing liability and judicating claims falling within this damages, including small property regulation. The Commander USARCS damage claims. For example, a prop- is authorized to publish new policies or erty damage claim may be com- rescind existing policies from time to promised by deducting the cost of col- time as the need arises. lection, i.e., attorney fees and costs, (1) Notification. The Commander even where liability is certain. USARCS must be notified as soon as (4) Expeditious processing at the lowest possible of both potential and actual level. Claims investigation and adju- claims which are serious incidents that dication should be accomplished at the cannot be settled within the monetary lowest possible level, such as the CPO jurisdiction of a Command Claims or ACO that has monetary authority Service or an ACO, including those over the estimated total value of all which occur in the area of responsi- claims arising from the incident. The bility of a CPO. On such claims, the expeditious investigation and settle- USARCS Area Action Officer (AAO) ment of claims is essential to success- must coordinate with the field office as fully fulfilling the Army’s responsibil- to all aspects of the investigation, ities under the claims statutes imple- evaluation and determination of liabil- mented by this part. ity. An offer of settlement or the asser- (5) Notice to claimants of technical er- tion of an affirmative claim must be rors in claim. When technical errors are the result of a discussion between the found in a claim’s filing or contents, AAO and the field office. Payment of a claimants should be advised of such er- subrogated claim may commit the rors and the need to correct the claim. United States to liability as to larger If the errors concern a jurisdictional claims. On the other hand, where all matter, a record should be maintained claims out of an incident can be paid and the claimant should be imme- within field authority they should be diately warned that the error must be paid promptly with maximum use of corrected before the statute of limita- small claims procedures. tions (SOL) expires. (2) Consideration under all subparts. (b) Cooperative investigative environ- Prior to denial, a claim will be consid- ment. Any person who indicates a de- ered under all subparts of this part, re- sire to file a claim against the United gardless of the form on which the claim States cognizable under one of the sub- is presented. A claim presented as a parts of this part will be instructed personnel claim will be considered as a concerning the procedure to follow. tort prior to denial. A claim presented The claimant will be furnished claim as a tort will first be considered as a forms and, when necessary, assisted in personnel claim, and if not payable, completing claim forms, and may be

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assisted in assembling evidence. Claims guidance on matters of policy or on personnel may not assist any claimant matters relating to the implementa- in determining what amount to claim. tion of this part. During claims investigation, every ef- (h) Private relief bills. The issue of a fort should be made to create a cooper- private relief bill is one between a ative environment that engenders the claimant and his or her Congressional free exchange of information and evi- representative. There is no established dence. The goal of obtaining sufficient procedure under which the DA sponsors information to make an objective and private relief legislation. Claims per- fair analysis should be paramount. Per- sonnel shall remain neutral in all pri- sonal contact with claimants or their vate relief matters and shall not make representatives is essential both during any statement that purports to reflect investigation and before adjudication. the DA’s position on a private relief When settlement is not feasible, issues bill. in dispute should be clearly identified to facilitate resolution of any reconsid- § 536.16 Release of information poli- eration, appeal or litigation. cies. (c) Claims directives and plans—(1) Di- (a) Conflict of interest. Except as part rectives. Two copies of command claims of their official duties, government directives will be furnished to the Com- personnel are forbidden from advising mander USARCS. ACO directives will or representing claimants or from re- be distributed to all DA and DOD com- ceiving any payment or gratuity for mands, installations and activities services rendered. They may not accept within the ACO’s area of responsibility, any share or interest in a claim or as- with an information copy to the Com- sist in its presentation, under penalty mander USARCS. of federal criminal law (18 U.S.C. 203 (2) Disaster and civil preparedness plan. and 205). One copy of all ACOs’ disaster or civil disturbance plans or annexes will be (b) Release of information. (1) Relevant furnished to the Commander USARCS. statutes pertinent to the release of in- (d) Interpretations. The Commander formation include the Privacy Act of USARCS will publish written interpre- 1974, 5 U.S.C. 552a and 552b, the Free- tations of this part. Interpretations dom of Information Act (FOIA), 5 will have the same force and effect as U.S.C. 552 and the Health Insurance this part. Portability and Accountability Act (e) Authority to grant exceptions to and (HIPAA), 42 U.S.C. 1320d through 1320d- deviations from this part. If, in par- 8. ticular instances, it is considered to be (2) It is the policy of USARCS that in the best interests of the govern- unclassified attorney work product ment, the Commander USARCS may may be released with or without a re- authorize deviations from this part’s quest from the claimant or attorney, specific requirements, except as to whenever such release may help settle matters based on statutes, treaties and the claim or avoid unnecessary litiga- international agreements, executive tion. orders, controlling directives of the At- (3) A statutory exemption or privi- torney General or Comptroller General, lege may not be waived. Similarly, doc- or other publications that have the uments subject to such statutorily re- force and effect of law. quired nondisclosure, exemption, or (f) Guidance. The Commander privilege may not be released. Regard- USARCS, may publish bulletins, manu- ing other exemptions and privileges, als, handbooks and notes, and a DA authorities may waive such exemptions Pamphlet that provides guidance to or privileges and direct release of the claims authorities on administrative protected documents, upon balancing and procedural rules implementing this all pertinent factors, including finding part. These will be binding on all Army that release of protected records will claims personnel. not harm the government’s interest, (g) Communication. All claims per- will promote settlement of a claim and sonnel are authorized to communicate will avoid unnecessary litigation, or directly with USARCS personnel for for other good cause.

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(4) All requests for records and infor- such as exemptions under the delibera- mation made pursuant to the FOIA, 5 tive process or attorney work product U.S.C. 552, the Privacy Act of 1974, 5 privileges (exemption (5) (5 U.S.C. U.S.C. 552a, or HIPAA, 42 U.S.C. 1320d, 552(b)) may be released when there is will be processed in accordance with no foreseeable harm to government in- the procedures set forth in AR 25–55 terests in the judgment of the releasing and AR 340–21, respectively as well as authority. 45 CFR Parts 160 and 164, DODD 6025.18– (7) When it is determined that ex- R, this part, and DA Pam 27–162. empt information should not be re- (i) Any request for DOD records that leased, or a question as to its either explicitly or implicitly cites the releaseability exists, forward the re- FOIA shall be processed under the pro- quest and two copies of the responsive visions of AR 25–55. Requests for DOD documents to the Commander records submitted by a claimant or USARCS. The Commander USARCS, claimant’s attorney will be processed acting on behalf of TJAG (the initial under both the FOIA and under the Pri- denial authority), may deny release of vacy Act when the request is made by records processed under the FOIA only. the subject of the records requested The Commander USARCS, will forward and those records are maintained in a to TJAG all such requests processed system of records. Such requests will under both the FOIA and PA. TJAG is be processed under the FOIA time lim- the denial authority for Privacy Act its and the Privacy Act fee provisions. requests (AR 340–21, paragraph 1–7i). Withheld information must be exempt (c) Claims assistance. In the vicinity of from disclosure under both Acts. a field exercise, maneuver or disaster, (ii) Requests that cite both Acts or claims personnel may disseminate in- neither Act are processed under both formation on the right to present Acts, using the FOIA time limits and claims, procedures to be followed, and the Privacy Act fee provisions. For fur- the names and location of claims offi- ther guidance, see AR 25–55, paragraphs cers and the COE repair teams. When 1–301 and 1–503. the government of a foreign country in (5) The following records may not be which U.S. Armed Forces are stationed disclosed: has assumed responsibility for the set- (i) Medical quality assurance records tlement of certain claims against the exempt from disclosure pursuant to 10 United States, officials of that country U.S.C. 1102(a). will be furnished as much pertinent in- (ii) Records exempt from disclosure formation and evidence as security pursuant to appropriate balancing considerations permit. tests under FOIA exemption (6) (clearly unwarranted invasion of personal pri- § 536.17 Single-service claims responsi- vacy), exemption (7)(c) (reasonably bility (DODD 5515.8 and DODD constitutes unwarranted invasion of 5515.9). privacy), and law enforcement records (a) Assignment for DOD claims. The (5 U.S.C. § 552(b)) unless requested by army is responsible for processing DOD the subject of the record. claims pursuant to DODD 5515.9 (posted (iii) Records protected by the Privacy on the USARCS Web site; for the ad- Act. dress see § 536.2(a)). (iv) Records exempt from disclosure (b) Statutes and agreements. DOD has pursuant to FOIA exemption (1) (Na- assigned single-service responsibility tional security) (5 U.S.C. 552(b)), unless for the settlement of certain claims in such records have been properly declas- certain countries, pursuant to DODD sified. 5515.8 (posted on the USARCS Web site; (v) Records exempt from disclosure for the address see § 536.2(a)) under the pursuant to the attorney-client privi- following statutes and agreements: lege under FOIA exemption (5) (5 U.S.C. (1) FCA (10 U.S.C. 2734); 552(b)), unless the client consents to (2) MCA (10 U.S.C. 2733); the disclosure. (3) Status of Forces Agreements (10 (6) Records within a category for U.S.C. 2734a and 2734b); which withholding of the record is dis- (4) NATO SOFA (4 U.S.T. 1792, Trea- cretionary (AR 25–55, paragraph 3–101), ties and International Acts Series

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(T.I.A.S.) 2846) and other similar agree- appointed as authorized herein, but ments; they will be paid from Coast Guard ap- (5) FCCA (31 U.S.C. 3711–3720E) and propriations, 10 U.S.C. 2734. FMCRCA (42 U.S.C. 2651–2653); (c) SOFA claims within the United (6) Claims not cognizable under any States. Claims cognizable under the other provision of law, 10 U.S.C. 2737; NATO PFP or Singaporean SOFAs aris- and ing out of the activities of aircraft (7) Advance payments, 10 U.S.C. 2736. within the United States may be inves- (c) Specified foreign countries. Respon- tigated and adjudicated by the U.S. Air sibility for the settlement of claims Force under a delegation from the cognizable under the laws listed above Commander USARCS. Claims exceed- has been assigned to military depart- ing the delegated amount will be adju- ments pursuant to DODD 5515.8, as sup- dicated by the USARCS. plemented by executive agreement and (d) Claims generated by the American other competent directives. Battle Monuments Commission. Claims (d) When claims responsibility has not arising out of the activities of or in been assigned. When necessary to imple- cemeteries outside the United States ment contingency plans, the unified or managed by the American Battle specified commander with authority Monuments Commission (36 U.S.C. over the geographic area in question 2110) will be investigated and adju- may, on an interim basis before receiv- dicated by the U.S. Army. ing confirmation and approval from the General Counsel, DOD, assign single- NOTE TO § 536.18: See also § 536.32 for infor- service responsibility for processing mation on transferring claims among armed services branches. claims in countries where such assignment has not already been made. § 536.19 Disaster claims planning. NOTE TO § 536.17: See also § 536.32 for infor- All ACOs will prepare a disaster mation on transferring claims among armed claims plan and furnish a copy to services branches. USARCS. See DA Pam 27–162, para- § 536.18 Cross-servicing of claims. graph 1–21 for specific requirements related to disaster claims planning. (a) Where claims responsibility has not been assigned. Claims cognizable under § 536.20 Claims assistance visits. the FCA or the MCA that are generated Members of USARCS and command by another military department within claims services will make claims as- a foreign country for which single-serv- sistance visits to field offices on a peri- ice claims responsibility has not been odic basis. See DA Pam 27–162, para- assigned, may be settled by the Army graph 1–22 for specific requirements re- upon request of the military depart- lated to claims assistance visits. ment concerned. Conversely, Army claims may in appropriate cases be re- § 536.21 Annual claims award. ferred to another military department for settlement, DODD 5515.8, E1.2 (post- The Commander USARCS will make ed on the USARCS Web site; for the ad- an annual claims award to outstanding dress see § 536.2(a)). Tables listing field offices. See DA Pam 27–162, para claims offices worldwide are posted to 1–23 for more information on annual the USARCS Web site at that address. claims awards. U.S. Air Force claims offices may be identified by visiting the Web site at Subpart B—Investigation and http://afmove.hq.af.mil/ Processing of Claims pagelafclaims.asp. (b) Claims generated by the Coast § 536.22 Claims investigative responsi- Guard. Claims resulting from the ac- bility—General. tivities of, or generated by, soldiers or (a) Scope. This subpart addresses the civilian employees of the Coast Guard investigation, processing, evaluation, while it is operating as a service of the and settlement of tort and tort-related U.S. Department of Homeland Security claims for and against the United may upon request be settled under this States. The provisions of this subpart part by a foreign claims commission do not apply to personnel claims (AR

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27–20, chapter 11), or to claims under of North Atlantic Treaty Association subpart G of this part, §§ 536.114 (NATO), Australian or Singaporean through 536.116. forces stationed or on temporary duty (b) Cooperation. Claims investigation within the United States. requires team effort between the U.S. (ii) Property belonging to the govern- Army Claims Service (USARCS), comment is damaged or lost by a tortious mand claims services, and area claims act or omission not covered by the re- offices (ACOs) including U.S. Army port of survey system or by a carrier’s Corps of Engineers (COE) District Of- bill of lading. fices, claims processing offices (CPOs), (2) There is personal injury or death. and unit claims officers. Essential to (i) A civilian other than an employee this effort is the immediate investiga- of the U.S. government is injured or tion of claims incidents. Prompt inves- killed by an act or omission of a gov- tigation depends on the timely report- ernment employee or by a member of a ing of claims incidents as well as con- NATO, Australian or Singaporean force tinuous communication between all stationed or on temporary duty within commands or echelons bearing claims the United States. (This category in- responsibility. cludes patients injured during treat- (c) Notification to USARCS. A CPO or ment by a health care provider). an ACO receiving notice of a poten- (ii) Service members, active or re- tially compensable event (PCE) that tired, family members of either, or U.S. requires investigation will imme- employees, are injured or killed by a diately refer it to the appropriate third party and receive medical care at claims office. The Commander government expense. USARCS will be notified of all major (3) A claim is filed. incidents involving serious injury or (4) A competent authority or another death or those in which property dam- armed service or federal agency re- age exceeds $50,000. A command claims quires investigation. service may delegate to an ACO the re- (b) Determining who is a government sponsibility for advising USARCS of se- employee is a matter of federal, not rious incidents and complying with local, law. Categories of government mirror file requirements. A copy of the employees usually accepted as written delegation and any changes tortfeasors under federal law are: made thereafter will be forwarded to (1) Military personnel (soldiers of the the Commander USARCS. Army, or members of other services (d) Geographic concept of responsibility. where the Army exercises single-serv- A command claims service or an ACO ice jurisdiction on foreign soil; and sol- in whose geographic area a claims inci- diers or employees within the United dent occurs is primarily responsible for States who are members of NATO or of initiating investigation and processing other foreign military forces with of any claim filed in the absence of a whom the United States has a recip- formal transfer of responsibility (see rocal claims agreement and whose §§ 536.30 through 536.36). DOD and Army sending States have certified that they organizations whose personnel are in- were acting within the scope of their volved in the incident will cooperate duty) who are serving on full-time ac- with and assist the ACO, regardless of tive duty in a pay status, including sol- where the former may be located. diers: NOTE TO § 536.22: See the parallel discussion (i) Assigned to units performing ac- at DA Pam 27–162, paragraph 2–1. tive or inactive duty. (ii) Serving on active duty as Reserve § 536.23 Identifying claims incidents Officer Training Corps (ROTC) instruc- both for and against the govern- tors. ment. (iii) Serving as Army National Guard (a) Investigation is required when: (ARNG) instructors or advisors. (1) There is property loss or damage. (iv) On duty or training with other (i) Property other than that belong- federal agencies, for example: the Na- ing to the government is damaged, tional Aeronautics and Space Adminis- lost, or destroyed by an act or omission tration, the Department of State, the of a government employee or a member Navy, the Air Force, or DOD (federal

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agencies other than the armed service tality of the United States and thus a to which the Soldier is attached may federal agency. To determine whether a also provide a remedy). NAFI is a ‘‘federal agency,’’ consider (v) Assigned as students or ordered both whether it is an integral part of into training at a non-federal civilian the Army charged with an essential DA educational institution, hospital, fac- operational function and also what de- tory, or other facility (excluding sol- gree of control and supervision DA per- diers on excess leave or those for whom sonnel exercise over it. Members or the training institution or organiza- users, unlike employees of NAFIs, are tion has assumed liability by written not considered government employees; agreement). the same is true of family child care (vi) Serving on full-time duty at non- providers. However, claims arising out appropriated fund (NAF) activities. of the use of some NAFI property or (vii) Of the United States Army Re- from the acts or omissions of family serve (USAR) and ARNG on active duty child care providers may be payable under Title 10, U.S.C. from such funds under subpart K of this (2) Military personnel who are United part as a matter of policy, even when States Army Reserve soldiers including the user is not acting within the scope ROTC cadets who are Army Reserve of employment and the claim is not soldiers while at annual training, dur- otherwise cognizable under any of the ing periods of active duty and inactive other authorities described in this duty training. part. (3) Military personnel who are sol- (5) Prisoners of war and interned diers of the ARNG while engaged in enemy aliens. training or duty under 32 U.S.C. 316, (6) Civilian employees of the District 502, 503, 504, 505, or engaged in properly of Columbia ARNG, including those authorized community action projects paid under ‘‘service contracts’’ from under the Federal Tort Claims Act District of Columbia funds. (FTCA), the Non-Scope Claims Act (7) Civilians serving as ROTC instruc- (NSCA), or the National Guard Claims tors paid from federal funds. Act (NGCA), unless performing duties (8) ARNG technicians employed in furtherance of a mission for a state, under 32 U.S.C. 709(a) for claims accru- commonwealth, territory or posses- ing on or after January 1, 1969 (Public sion. Law 90–486, August 13, 1968 (82 Stat. (4) Civilian officials and employees of 755)), unless performing duties solely in both the DOD and DA (there is no prac- pursuit of a mission for a state, com- tical significance to the distinction be- monwealth, territory or possession. tween the terms ‘‘official’’ and ‘‘em- (9) Persons acting in an official ca- ployee’’), including but not limited to pacity for the DOD or DA either tem- the following: porarily or permanently with or with- (i) Civil service and other full-time out compensation, including but not employees of both the DOD and DA limited to the following: who are paid from appropriated funds. (i) Dollar-a-year personnel. (ii) Persons providing direct health (ii) Members of advisory committees, care services pursuant to personal serv- commissions, or boards. ice contracts under 10 U.S.C. 1089 or (iii) Volunteers serving in an official 1091 or where another person exercised capacity in furtherance of the business control over the health care provider’s of the United States, limited to those day-to-day practice. When the conduct categories set forth in DA Pam 27–162, of a health care provider performing paragraph 2–45. services under a personal service contract is implicated in a claim, the CJA, NOTE TO § 536.23: See the parallel discussion Medical Claims Judge Advocate at DA Pam 27–162, paragraph 2–2. (MCJA), or claims attorney should consult with USARCS to determine if that § 536.24 Delegation of investigative re- health care provider can be considered sponsibility. an employee for purposes of coverage. (a) Area Claims Office. An ACO is au- (iii) Employees of a NAF instrumen- thorized to carry out its investigative tality (NAFI) if it is an instrumen- responsibility as follows:

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(1) At the request of the area claims specific cases throughout the claims authority, commanders and heads of process, including the method of inves- Army and DOD units, activities, or tigation. Where indicated, USARCS components will appoint a commis- may investigate a claims incident that sioned, warrant, or noncommissioned normally falls within a command officer or a qualified civilian employee claims services’, an ACO’s, or a CPO’s to investigate a claims incident in the jurisdiction. USARCS typically acts manner set forth in DA Pam 27–162 and through an area action officer (AAO) this part. An ACO will direct such in- who is assigned as the primary point of vestigation to the extent deemed nec- contact with command claims services, essary. ACOs or CPOs within a given geo- (2) CPOs are responsible for inves- graphic area. In areas outside the tigating claims incidents arising out of United States and its commonwealths, the activities and operations of their territories and possessions, where there command or agency. An ACO may as- is no command claims service or ACO, sign area jurisdiction to a CPO after USARCS is responsible for investiga- coordination with the appropriate com- tion and for appointment of FCCs. mander to investigate claims incidents NOTE TO § 536.24: See the parallel discussion arising in the ACO’s designated geo- at DA Pam 27–162, paragraph 2–3. graphic area. (See § 536.3(f).) (3) Claims incidents involving pa- § 536.25 Procedures for accepting tients arising from treatment by a claims. health care provider in an Army med- All ACOs and CPOs will institute pro- ical treatment facility (MTF), includ- cedures to ensure that potential claiming providers defined in 536.23(b)(4)(ii), ants or attorneys speak to a CJA, will be investigated by a claims judge claims attorney, investigator, or exam- advocate (CJA), medical claims judge iner. On initial contact, claims per- advocate (MCJA), or claims attorney sonnel will render assistance, discuss rather than by a unit claims officer. all aspects of the potential claim, and (4) An ACO will publish and dis- determine what statutes or procedures tribute a claims directive to all DOD apply. Assistance will be furnished to and Army installations and activities the extent set forth in DA Pam 27–162, including active, Army Reserve, and paragraph 2–4. To advise claimants on ARNG units as well as units located on the correct remedy, claims personnel the post at which the ACO is located. will familiarize themselves with the The directive will outline each instal- remedies listed in DA Pam 27–162, para- lations’ and activities’ claims respon- graphs 2–15 and 2–17. sibilities. It will institute a serious claims incident reporting system. § 536.26 Identification of a proper (b) Command claims service responsi- claim. bility. A command claims service is re- (a) A claim is a writing that contains sponsible for the investigation and a sum certain for each claimant and processing of claims incidents arising that is signed by each claimant, or by in its geographic area of responsibility an authorized representative, who or for any incidents within the author- must furnish written authority to sign ity of any foreign claims commission on a claimant’s behalf. The writing (FCC) it appoints. This responsibility must contain enough information to will be carried out by an ACO or a CPO permit investigation. The writing must to the extent possible. A command be received not later than two years claims service will publish a claims di- from the date the claim accrues. A rective outlining the geographic areas claim under the Foreign Claims Act of claims investigative responsibilities (FCA) may be presented orally to ei- of each of its installations and activi- ther the United States or the govern- ties, requiring each ACO or CPO to re- ment of the foreign country in which port all serious claims incidents di- the incident occurred, within two rectly to the Commander USARCS. years, provided that it is reduced to (c) USARCS responsibility. USARCS writing not later than three years from exercises technical supervision over all the date of accrual. A claim may be claims offices, providing guidance on transmitted by facsimile or telegram.

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However, a copy of an original claim agent or legal representative in the must be submitted as soon as possible. owner’s name. As used in this part, the (b) Where a claim is only for property term ‘‘owner’’ includes the following: damage and it is filed under cir- (1) For real property. The mortgagor, cumstances where there might be inju- mortgagee, executor, administrator, or ries, the CJA should inquire if the personal representative, if he or she claimant desires to split the claim as may maintain a cause of action in the discussed in § 536.60. local courts involving a tort to the spe- (c) Normally, a claim will be pre- cific property, is a proper claimant. sented on a Standard Form (SF) 95 When notice of divided interests in real (Claim for Damage, Injury, or Death). property is received, the claim should When the claim is not presented on an if feasible be treated as a single claim SF 95, the claimant will be requested and a release from all interests must be to complete an SF 95 to ease investiga- obtained. This includes both the owner tion and processing. and tenant where both claim. (d) If a claim names two claimants (2) For personal property. A claim may and states only one sum certain, the be presented by a bailee, lessee, mort- claimants will be requested to furnish gagee, conditional vendor, or others a sum certain for each. A separate sum holding title for purposes of security certain must be obtained prior to pay- only, unless specifically prohibited by ment under the Federal Tort Claims the applicable subpart. When notice of Act (FTCA), Military Claims Act divided interests in personal property (MCA), National Guard Claims Act is received, the claim should if feasible (NGCA) or the FCA. The Financial be treated as a single claim; a release Management Service will only pay an from all interests must be obtained. amount above the threshold amount of Property loss is defined as loss of ac- $2,500 for the FTCA, or $100,000 for the tual tangible property, not consequen- other statutes. tial damage resulting from such loss. (e) A properly filed claim meeting (b) Claims for personal injury or wrong- the definition of ‘‘claim’’ in paragraph ful death—(1) For personal injury. A (a) of this section tolls the two-year claim may be presented by the injured statute of limitations (SOL) even person or by a duly authorized agent or though the documents required to sub- legal representative or, where the stantiate the claim are not present, claimant is a minor, by a parent or a such as those listed on the back of an person in loco parentis. However, de- SF 95 or in the Attorney General’s reg- termine whether the claimant is a ulations implementing the FTCA, 28 proper claimant under applicable state CFR 14.1—14.11. However, refusal to law or, if considered under the MCA, provide such documents may lead to under § 536.77. If not, the claimant dismissal of a subsequent suit under should be so informed in the acknowl- the FTCA or denial of a claim under edgment letter and requested to with- other subparts of this part. draw the claim. If not withdrawn, deny (f) Receipt of a claim by another fed- the claim without delay. An example is eral agency does not toll the SOL. Re- a claim filed on behalf of a minor for ceipt of a U.S. Army claim by DOD, loss of consortium for injury to a par- Navy, or Air Force does toll the SOL. ent where not permitted by state law. (g) The guidelines set forth in federal Personal injury claims deriving from FTCA case law will apply to other sub- the principal injury may be presented parts of this part in determining by other parties. A claim may not be whether a proper claim was filed. presented by a ‘‘volunteer,’’ meaning NOTE TO § 536.26: See the parallel discussion one who has no legal or contractual ob- at DA Pam 27–162, paragraph 2–5. ligation, yet voluntarily pays damages on behalf of an injured party and then § 536.27 Identification of a proper seeks reimbursement for their eco- claimant. nomic damages by filing a claim. See The following are proper claimants: paragraph (f) (3) of this section. (a) Claims for property loss or damage. (2) For wrongful death. A claim may A claim may be presented by the owner be presented by the executor or admin- of the property or by a duly authorized istrator of the deceased’s estate, or by

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any person determined to be legally or nification by the party who was held beneficially entitled under applicable liable as a joint tortfeasor where au- local law. The amount allowed will be thorized by state law. Such a claim is apportioned, to the extent practicable, not perfected until payment has been among the beneficiaries in accordance made by the claimant/joint tortfeasor. with the law applicable to the incident. A claim filed for contribution prior to Under the MCA (subpart C of this part), payment being made should be consid- only one wrongful death claim is au- ered as an opportunity to share a set- thorized (see § 536.77(c)(1)(i)). Under tlement where the United States is lia- subparts D and H of this part, a claim ble. by the insured for property damage (f) Transfer or assignment. (1) Under may be considered as a claim by the in- the Antiassignment Act (31 U.S.C. 3727) surer as the real party in interest pro- and Defense Finance and Accounting vided the insured has been reimbursed Service—Indianpolis (DFAS–IN) regu- by the insurer and the insurance infor- lation 37–1, a transfer or assignment is mation is listed on the SF 95. The in- null and void except where it occurs by surer should be required to file a sepa- operation of law or after a voucher for rate SF 95 for payment purposes even the payment has been issued. The fol- though the SOL has expired. Where the lowing are null and void: insurance information is not listed on (i) Every purported transfer or as- the SF 95 and the insured is paid by the signment of a claim against the United United States, the payment of the in- States, or any interest, in whole or in surer is the responsibility of the in- part, on a claim, whether absolute or sured even though the insurer subse- conditional; and quently files a timely claim. To avoid (ii) Every power of attorney or other this situation, always inquire as to the purported authority to receive pay- status of any insurance prior to payment for all or part of any such claim. ment of a property damage claim. (c) By an agent or legal representative. (2) The Antiassignment Act was en- A claimant’s agent or legal representa- acted to eliminate multiple payment of tive who presents a claim will do so in claims, to cause the United States to the claimant’s name and sign the form deal only with original parties and to in such a way that indicates the prevent persons of influence from pur- agent’s or legal representative’s title chasing claims against the United or capacity. When a claim is presented States. by an agent or legal representative: (3) In general, this statute prohibits (1) It must contain written evidence voluntary assignments of claims, with of the agent’s or legal representative’s the exception of transfers or assign- authority to sign, such as a power of ments made by operation of law. The attorney, or operation of law exception has been (2) It must refer to or cite the statute held to apply to claims passing to as- granting authority. signees because of bankruptcy pro- (d) Subrogation. A claim may be pre- ceedings, assignments for the benefit of sented by the subrogee in his or her creditors, corporate liquidations, con- own name if authorized by the law of solidations, or reorganizations, and the place where the incident giving rise where title passes by operation of law to the claim occurred, under subpart D to heirs or legatees. Subrogated claims or H of this part only. A lienholder is that arise under a statute are not not a proper claimant and should be barred by the Antiassignment Act. For distinguished from a subrogee to avoid example, subrogated workers’ com- violation of the Antiassignment Act. pensation claims are cognizable when See paragraph (f) of this section. How- presented by the insurer under subpart ever, liens arising under Medicare will D or H of this part, but not other sub- be processed directly with the Center parts. for Medicare and Medicaid Systems. (4) Subrogated claims that arise pur- See DA Pam 27–162, paragraphs 2–57g suant to contractual provisions may be and h and 2–58. paid to the subrogee, if the legal basis (e) Contribution or indemnity. A claim for the subrogated claim is recognized may be filed for contribution or indem- by state statute or case law, only under

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subpart D or H of this part. For exam- will be obtained authorizing the use of ple, an insurer that issues an insurance medical information, including medical policy becomes subrogated to the records, in order to use sources other rights of a claimant who receives pay- than claims personnel to evaluate the ment of a property damage claim. Gen- claim as required by the Health Care erally, such subrogated claims are au- Portability and Accountability Act thorized by state law and are therefore (HIPAA), 42 U.S.C. 1320d–1320d–8. See not barred by the Antiassignment Act. the parallel discussion at DA Pam 27– (5) Before claims are paid, it is nec- 162, paragraph 2–7. essary to determine whether there may be a valid subrogated claim under a § 536.29 Revision of filed claims. federal or state statute or a subroga- (a) General. A revision or change of a tion contract held valid by state law. previously filed claim may constitute (g) Interdepartmental waiver rule. Nei- an amendment or a new claim. Upon ther the U.S. government nor any of its receipt, the CJA must determine instrumentalities are proper claimants whether a new claim has been filed. If due to the interdepartmental waiver so, the claim must be logged with a rule. This rule bars claims by any orga- new number and acknowledged in ac- nization or activity of the Army, cordance with § 536.27. whether or not the organization or ac- (b) New claim. A new claim is filed tivity is funded with appropriated or whenever the writing alleges a new nonappropriated funds. Certain federal theory of liability, a new tortfeasor, a agencies are authorized by statute to new party claimant, a different date or file claims, for example, Medicare and location for the claims incident, or the Railroad Retirement Commission. other basic element that constitutes an See DA Pam 27–162, paragraph 2–17f. allegation of a different tort not origi- (h) States are excluded. If a state, U.S. nally alleged. If the allegation is made commonwealth, territory, or the Dis- verbally or by e-mail, the claimant will trict of Columbia maintains a unit to be informed in writing that a new SF which ARNG personnel causing the in- 95 must be filed. A new claim must be jury or damage are assigned, such gov- filed not later than two years from the ernmental entity is not a proper claim- accrual date under the FTCA. Filing a ant for loss or damage to its property. new claim creates an additional six A unit of local government other than month period during which suit may a state, commonwealth, or territory is not be filed. a proper claimant. (c) Amendment. An increase or de- crease in the amount claimed con- NOTE TO § 536.27: See the parallel discussion at DA Pam 27–162, paragraph 2–6. stitutes an amendment, not a new claim. Similarly, the addition of re- § 536.28 Claims acknowledgment. quired information not on the original Claims personnel will acknowledge claim constitutes an amendment. Ex- all claims immediately upon receipt, in amples are date of birth, marital sta- writing, by telephone, or in person. A tus, military status, names of wit- defective claim will be acknowledged nesses, claimant’s address, description, in writing, pointing out its defects. or location of property or insurance in- Where the defects render the submis- formation. An amendment may be filed sion jurisdictionally deficient based on before or after the two year SOL has the requirements discussed in DA Pam run unless final action has been taken. 27–162, paragraphs 2–5 and 2–6, the A new number will not be assigned to claimant or attorney will be informed an amended claim; however, a change in writing of the need to present a in the amount will be annotated in the proper claim no later than two years database. from the date of accrual. Suit must be NOTE TO § 536.29: See the parallel discussion filed in maritime claims not later than at DA Pam 27–162, paragraph 2–8. two years from the date of accrual. See § 536.122. In any claim for personal in- § 536.30 Action upon receipt of claim. jury or wrongful death, an authoriza- (a) A properly filed claim stops the tion signed by the patient, natural or running of the SOL when it is received legal guardian or estate representative by any organization or activity of the

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DOD or the U.S. Armed Services. Plac- (1) To USARCS, if the amount ing a claim in the mail does not con- claimed exceeds $25,000, or $50,000 per stitute filing. The first Army claims of- incident. However, if the claim arises fice that receives the claim will date, under the FTCA or AMCSA, only fur- time stamp, and initial the claim as of nish copies if the amount claimed ex- the date the claim was initially re- ceeds $50,000, or $100,000 per incident. ceived ‘‘on post,’’ not by the claims of- (2) For medical malpractice claims, fice. If initially received close to the to the appropriate MTF Commander/s SOL’s expiration date by an organiza- through MEDCOM Headquarters, and tion or activity that does not have a to the Armed Forces Institute of Pa- claims office, claims personnel will dis- thology at the addresses listed below. cover and record in the file the date of MEDCOM, ATTN: MCHO–CL–Q, 2050 original receipt. Worth Road, Suite 26, Fort Sam Hous- (b) The ACO or CPO that first re- ton, TX 78234–5026. ceives the claim will enter the claim Department of Legal Medicine, into the Tort and Special Claims Appli- Armed Forces Institute of Pathology, cation (TSCA) database and let the sys- 1335 E. West Highway, #6–100, Silver tem assign a number to the claim. The Spring, MD 20910–6254, Commercial: claim, whether on an SF 95 or in any 301–295–8115, e-mail: [email protected]. other format, shall be scanned into a (3) If the claim is against AAFES for- computer and uploaded onto the TSCA ward a copy to: HQ Army and Air Force database so that it will become a per- Exchange Service (AAFES), ATTN: Of- manent part of the electronic record. A fice of the General Counsel (GC–Z), joint claim will be given a number for P.O. Box 650062, Dallas, TX 75265–0062, each claimant, for example, husband e-mail: [email protected]. and wife, injured parent and children. (4) If the claim involves a NAFI, in- If only one sum is filed for all claim- cluding a recreational user or family ants, the same sum will be assigned for child care provider forward a copy to: each claimant. However, request the Army Central Insurance Fund, ATTN: claimant to name a sum for each CFSC–FM–I, 4700 King Street, Alexan- claimant. The claim will bear this dria, VA 22302–4406, e-mail: number throughout the claims process. [email protected]. Upon transfer, a new number will not (f) ACOs or CPOs will furnish a copy be assigned by the receiving office. If a of any medical or dental malpractice claim to the MTF or dental treatment claim does not meet the definition of a facility commander and advise the proper claim under §§ 536.26 and 536.27, commander of all subsequent actions. it will be date stamped and logged as a The commander will be assisted in his Potentially Compensable Event (PCE). or her responsibility to complete DD (c) The claim will be transferred if Form 2526 (Case Abstract for Mal- the claim incident arose in another practice Claims). ACO’s geographic area; the receiving ACO will use the claims number origi- NOTE TO § 536.30: See the parallel discussion nally assigned. at DA Pam 27–162, paragraph 2–9. (d) Non-Appropriated Fund Instru- mentality (NAFI) claims that relate to § 536.31 Opening claim files. claims determined cognizable under A claim file will be opened when: subpart K of this part will be marked (a) Information that requires inves- with the symbol ‘‘NAFI’’ immediately tigation under § 536.23 is received. following the claimant’s name, to pre- (b) Records or other documents are clude erroneous payment from appro- requested by a potential claimant or priated funds (APF). This symbol will legal representative. also be included in the subject line of (c) A claim is filed. all correspondence. NOTE TO § 536.31: See the parallel discussion (e) Upon receipt, copies of the claims at DA Pam 27–162, paragraph 2–10. will be furnished as follows (when a current e-mail address is available and § 536.32 Transfer of claims among it is agreeable with the receiving armed services branches. party, providing copies by e-mail is ac- (a) Claims filed with the wrong fed- ceptable): eral agency, or claims that should be

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adjudicated by receiving State offices tion the claimant to determine wheth- under NATO or other SOFA, will be im- er the claim sounds in tort. mediately transferred to the proper (b) Exclusiveness of certain remedies. agency together with notice of same to Certain remedies exclude all others. the claimant or legal representative. For example, the Court of Federal Where multiple federal agencies are in- Claims has exclusive jurisdiction over volved, other agencies will be con- U.S. Constitution Fifth Amendment tacted and a lead agency established to takings, express or implied-in-fact, as take all actions on the claim. Where well as governmental contract losses, the DA is the lead agency, any final ac- or intangible property losses. Claims of tion will include other agencies. Simi- this nature for $10,000 or less may be larly, where another agency is the lead filed in a U.S. District Court. There is agency, that agency will be requested no administrative remedy. While the to include DA in any final action. Such FTCA is the preemptive tort remedy in inclusion will prevent multiple dates the United States, its commonwealths, for filing suit or appeal. territories and possessions, neverthe- (b) If another agency has taken de- less, other remedies must be exhausted nial action on a claim that involves the prior to favorable consideration under DA, without informing the DA, and in the FTCA. The FTCA does not preclude which the DA desires to make a pay- use of the MCA or the NGCA for claims ment, the denial action may be recon- arising out of noncombat activities or sidered by the DA not later than six brought by soldiers for incident-to- months from the date of mailing and service property losses sustained with- payment made thereafter. in the United States. See DA Pam 27– NOTE TO § 536.32: See also §§ 536.17 and 536.18; 162, paragraphs 2–15a and b for a more AR 27–20, paragraph 13–2; and the parallel detailed discussion of determining the and related discussion of this topic at DA correct statute for property claims Pam 27–162, paragraphs 1–19, 1–20, 2–13 and 13– versus personal injury and death 2. claims. In addition, it is important to § 536.33 Use of small claims proce- consider the nature of the claim, e.g., dures. whether the claim may be medical Small claims procedures are author- malpractice in nature, related to postal ized for use whenever a claim may be matter, or an automobile accident. Dis- settled for $5,000 or less. These proce- cussions of these and many other dif- dures are designed to save processing ferent types of claims are also provided time and eliminate the need for most herein as well as in the corresponding of the documentation otherwise re- paragraph 2–15 of DA Pam 27–162. It is quired. These procedures are described also very important to consider when a in DA Pam 27–162, paragraphs 2–14 and claim may fall outside the jurisdiction 2–26. of the Army claims system. Some of these instances are alluded to imme- § 536.34 Determination of correct stat- diately above, but for a detailed discus- ute. sion of related remedies see § 536.36 of (a) Consideration under more than one this part and paragraph 2–17 of DA Pam statute. When Congress enacted the var- 27–162. ious claims statutes, it intended to (c) Status of Forces Agreement claims. allow federal agencies to settle meri- (1) Claims arising out of the perform- torious claims. A claim must be consid- ance of official duties in a foreign ered under other statutes in this part country where the United States is the unless one particular statute precludes sending State must be filed and proc- the use of other statutes, whether the essed under a SOFA, provided that the claim is filed on DD Form 1842 (Claim claimant is a proper party claimant for Loss of or Damage to Personal under the SOFA. DA Pam 27–162, para- Property Incident to Service) or SF 95. graph 2–15c sets forth the rules applica- Prior to denial of an AR 27–20, chapter ble in particular countries. A SOFA 11 claim, consider whether it may fall provides an exclusive remedy subject within the scope of subparts C, D, or F to waiver as set forth in § 536.76(h) of of this part, and where indicated, ques- this part.

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(2) Single-service jurisdiction is es- egories set forth in subpart F of this tablished for all foreign countries in part. which a SOFA is in effect and for cer- (2) An ACO will establish with a state tain other countries. A list of these claims office routine procedures for the countries is posted on the USARCS disposition of claims, designed to en- Web site; for the address see § 536.2(a). sure that the United States and state Claims will be processed by the service authorities do not issue conflicting in- exercising single-service responsibility. structions for processing claims. The In the United States, USARCS is the procedures will require personnel to ad- receiving State office and all SOFA vise the claimant of any remedy claims should be forwarded imme- against the state or its insurer. diately to USARCS for action. Appro- (i) Where the claim arises out of the priate investigation under subpart B of act or omission of a member of the this part procedures is required of an ARNG or a person employed under 32 ACO or a CPO under USARCS’ direc- U.S.C. 709, it must be determined tion. whether the employee is acting on be- (d) Foreign Claims Act claims. (1) half of the state or the United States. Claims by foreign inhabitants, arising For example, an ARNG pilot employed in a foreign country, which are not under section 709 may be flying on a cognizable under a SOFA, fall exclu- state mission, federal mission, or both, sively under the FCA. The determina- on the same trip. This determination tion as to whether a claimant is a for- will control the disposition of the eign inhabitant is governed by the claim. If agreement with the concerned rules set out in subpart C and subpart state cannot be reached and the claim J of this part. In case of doubt, this de- is otherwise payable, efforts may be termination must be based on informa- made to enter into a sharing agree- tion obtained from the claimant and ment with the state concerned. The fol- others, particularly where the claim- lowing procedures are required in the ant is a former U.S. service member or event there is a remedy against the a U.S. citizen residing in a foreign state and the state refuses to pay or country. the state maintains insurance coverage (2) Tort claims will be processed by and the claimant has filed an adminis- the armed service that exercises single- trative claim against the United service responsibility. When requested, States. First, forward the file and the the Commander USARCS may furnish tort claim memorandum, including in- a Judge Advocate or civilian attorney formation on the status of any judicial to serve as a Foreign Claims Commis- or administrative action the claimant sion (FCC) for another service. With has taken against the state or its in- the concurrence of the Commander surer to the Commander USARCS. USARCS, Army JAs may be appointed Upon receipt, the Commander USARCS as members of another department’s will determine whether to require the foreign claims commissions. See sub- claimant to exhaust his or her remedy part J of this part. The FCA permits against the state or its insurer or compensation for damages caused by whether the claim against the United ‘‘out-of-scope’’ tortious conduct of Sol- States can be settled without requiring dier and civilian employees. Many of such exhaustion. If the Commander these claims are also compensable USARCS decides to follow the latter under Article 139, Uniform Code of course of action, he or she will also de- Military Justice. See DA Pam 27–162, termine whether to obtain an assign- chap. 9. To avoid the double payment ment of the claim against the state or of claims, ACOs and CPOs must its insurer and whether to initiate re- promptly notify the Command Claims covery action to obtain contribution or Service of each approved Article 139 indemnification. The state or its in- claim involving a claimant who could surer will be given appropriate notifi- also file under an applicable SOFA. cation in accordance with state law. (e) National Guard Claims Act claims. (ii) If an administrative claim rem- (1) Claims attributed to the acts or edy exists under state law or the state omissions of ARNG personnel in the maintains liability insurance, the course of employment fall into the cat- Commander USARCS or an ACO acting

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upon the Commander USARCS’ ap- (g) Claims by contractors for damage to proval may enter into a sharing agree- or loss of their property during the per- ment covering payment of future formance of their contracts. Claims by claims. The purpose of such an agree- contractors for property damage or ment is to determine in advance loss should be referred to the con- whether the state or the DA is respon- tracting officer for determination as to sible for processing a claim (did the whether the claim is payable under the claim arise from a federal or state mis- contract. Such a claim is not payable sion?), to expedite payment in meri- under the FTCA where the damage re- torious claims, and to preclude double sults from an in-scope act or omission. recovery by a claimant. Contract appeal procedures must be ex- (f) Third-party claims involving an hausted prior to consideration as a independent contractor—(1) Generally. (i) bailment under the MCA or FCA. Upon receipt, all claims will be exam- (h) Maritime claims. Maritime torts ined to determine whether a contractor are excluded from consideration under of the United States is the tortfeasor. the FTCA. The various maritime stat- If so, the claimant or legal representa- utes are exclusive remedies within the tive will be notified of the name and United States and its territorial address of the contractor and further waters. Maritime statutes include the advised that the United States is not Army Maritime Claims Settlement Act responsible for the acts or omissions of (AMCSA), 10 U.S.C. 4801, 4802 and 4806, an independent contractor. This will be the Suits in Admiralty Act (SIAA), 46 done prior to any determination as to U.S.C. app. 781–790, the Public Vessels the contractor’s degree of culpability Act (PVA), 46 U.S.C. app. 781–790, and as compared to that of the United the Admiralty Extension Act (AEA), 46 States. U.S.C. app. 740. Within the U.S. and its territorial waters, maritime suits may (ii) If, upon investigation, the dam- be filed under the SIAA or the PVA age is considered to be primarily due to without first filing an administrative the contractor’s fault or negligence, claim, except where administrative fil- the claim will be referred to the con- ing is required by the AEA. Adminis- tractor or the contractor’s insurance trative claims may also be filed under carrier for settlement and the claimant the AMSCA. In any administrative will be so advised. claim brought under the AMCSA, all (iii) Health care providers hired action must be completed not later under personal services contracts than two years from its accrual date or under the provisions of 10 U.S.C. 1089 the SOL will expire. Outside the United are not considered to be independent States, a maritime tort may be contractors but employees of the brought under the MCA or FCA as well United States for tort claims purposes. as the AMCSA. The body of water on (2) Claims for injury or death of con- which it occurs must be navigable and tractor employees. Upon receipt of a a maritime nexus must exist. Once a claim for injury or death of a con- maritime claim is identified, give the tractor employee, a copy of the por- claimant written notice of the two- tions of the contract applicable to year filing requirement. In case of claims and workers’ compensation will doubt, the ACO or CPO should discuss be obtained, either through the con- the matter with the appropriate AAO. tracting office or from the contractor. Even when the claimant does not be- Claims personnel must find out the sta- lieve that a maritime claim is in- tus of any claim for workers’ com- volved, provide the claimant with pre- pensation benefits as well as whether cautionary notice. See DA Pam 27–162, the United States paid the premiums. paragraphs 2–7e and 8–6. The goal is to involve the contractor in (i) Postal claims. See also DA Pam 27– any settlement, where indicated, in the 162, paragraphs 2–15i, 2–30 and 2–56g dis- manner set forth in DA Pam 27–162, cussing postal claims. paragraphs 2–15f and 2–61. In claims (1) Claims by the U.S. Postal Service arising in foreign countries consider for funds and stock are adjudicated by whether the claim is covered by the USARCS with assistance from the Mili- Defense Bases Act, 42 U.S.C. 1651–1654. tary Postal Service Agency and the

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ACO or CPO having jurisdiction over claim will be investigated and any au- the particular Army post office, when thorization for use ascertained includ- directed by USARCS to assist in the in- ing payment for mileage. A copy of the vestigation of the claim. Soldier’s POV insurance policy will be (2) Claims for loss of registered and obtained prior to forwarding. If the DA insured mail are processed under sub- is an additional insurer under applica- part C of this part by the ACO or CPO ble state law, the claim will be for- having jurisdiction over the particular warded to the Soldier’s liability carrier Army post office. for payment. When the tort claim (3) Claims for loss of, or damage to, arises in a foreign country, follow the parcels delivered by United Parcel provisions of subpart J of this part. Service (UPS) are the responsibility of (l) Claims arising from gratuitous use of UPS. DOD or Army vehicles, equipment or fa- (j) Blast damage claims. After com- cilities. (1) Before the commencement of pleting an investigation and prior to any event that involves the use of DOD final action, all blast damage claims or Army land, vehicles, equipment or resulting from Army firing and demoli- Army personnel for community activi- tion activities must be forwarded to ties, the Command involved should be the Commander USARCS for technical advised to first determine and weigh review. The sole exception to this rule the risk to potential third-party claim- is when a similar claim is filed citing ants against the benefits to the DOD or the same time, place and type of dam- the Army. Where such risk is excessive, age as one which has already received try to obtain an agreement from the technical review. See also DA Pam 27– sponsoring civilian organization hold- 162, paragraph 2–28. ing the Army harmless. When feasible, (k) Motor vehicle damage claims arising third-party liability insurance may be from the use of non-governmental vehi- required from the sponsor and the cles. See also § 536.60 (splitting property United States added to the policy as a damage and personal injury claims) third-party insured. and DA Pam 27–162, paragraphs 2–15k (determining the correct statute), 2–61 (2) When Army equipment and per- (joint tort feasors), and 2–62e (indem- sonnel are used for debris removal re- nity or contribution). lief pursuant to the Federal Disaster (1) Government tortfeasors. A Soldier Relief Act, 42 U.S.C. 5173, the state is or U.S. government civilian employee required to assume responsibility for who negligently damages his or her third-party claims. The senior judge personal property while acting within advocate for a task force engaged in the scope of employment is not a prop- such relief should obtain an agreement er claimant for damage to that prop- requiring the state to hold the Army erty. harmless and establish a procedure for (2) Claims by lessors for damage to rent- payment by the state. Claims will be al vehicles. Third-party claims arising received, entered into the TSCA data- from the use of rental vehicles will be base, investigated and forwarded to processed in the same manner as NAFI state authorities for action. commercially insured activities after (m) Real estate claims. Claims for rent, exhaustion of any other remedy under damage, or other payments involving the Government Travel Card Program the acquisition, use, possession or dis- or the Surface Deployment and Dis- position of real property or interests tribution Command Car Rental Agree- therein, are generally payable under ment. AR 405–15. These claims are handled by (3) Third-party damages arising from the Real Estate Claims Office in the the use of privately owned vehicles. appropriate COE District or a special Third-party tort claims arising within office created for a deployment. Direc- the United States from a Soldier’s use torate of Real Estate, Office of the of a privately owned vehicle (POV) Chief of Engineers, has supervisory au- while allegedly within the scope of em- thority. Claims for damage to real ployment must be forwarded to the property and incidental personal prop- Commander USARCS for review and erty, but not for rent (for example, consultation before final action. The claims arising during a maneuver or

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deployment) may be payable under sub- Such claims arising overseas must be parts C or J of this part. However, pri- reported to the Command Claims Serv- ority should be given to the use of AR ice with geographical jurisdiction over 405–15 as it is more flexible and expedi- the claim and USARCS. Claims for per- tious. In contingency operations and sonal injury from contamination fre- deployments, there is a large potential quently arise at an area that is the for overlap between contractual prop- subject of claims for cleanup of the erty damage claims and noncombat ac- contamination site. The cleanup tivity/maneuver claims. Investigate claims involve other Army agencies, carefully to ensure the claim is in the use of separate funds, and prolonged in- proper channel (claims or real estate), vestigation. Administrative settlement that it is fairly settled, and that the is not usually feasible because settle- claimant does not receive a double payment of property damage claims must ment. For additional guidance, see sub- cover all damages, including personal part J of this part and United States injury. Payment by Defense Environ- Army Claims Service Europe mental Rehabilitation Funds should be (USACSEUR) Real Estate/Office of the considered initially and any such pay- Judge Advocate Standard Operating ment should be deducted from any set- Procedures for Processing Claims In- tlement under AR 27–20. volving Real Estate During Contin- gency Operations (August 20, 2002). § 536.36 Related remedies. (n) Claims generated by civil works An ACO or a CPO routinely receives projects. Civil works projects claims claims or inquiries about claims that arising from tortious activities are de- clearly are not cognizable under this fined by whether the negligent or part. It is the DA’s policy that every wrongful act or omission arising from a effort be made to discover another project or activity is funded by a civil remedy and inform the inquirer as to works appropriation. Civil works its nature. Claims personnel will famil- claims are those noncontractual claims iarize themselves with the remedies set which arise from a negligent or wrong- forth in DA Pam 27–162, paragraph 2–17, ful act or omission during the perform- to carry out this policy. If no appro- ance of a project or activity funded by priate remedy can be discovered, for- civil works appropriations as distin- ward the file to the Commander guished from a project or activity fund- USARCS, with recommendations. ed by Army operation and maintenance funds. Civil works claims are paid out § 536.37 Importance of the claims in- of civil works appropriations to the ex- vestigation. tent set forth in § 536.71(f). A civil Prompt and thorough investigation works claim can also arise out of a will be conducted on all potential and noncombat activity, for example, an actual claims for and against the gov- inverse condemnation claim in which ernment. Evidence developed during an flooding exceeds the high water mark. investigation provides the basis for Maritime claims under subpart H of every subsequent step in the adminis- this part are civil works claims when trative settlement of a claim or in the they arise out of the operation of a pursuit of a lawsuit. Claims personnel dam, locks or navigational aid. must gather and record adverse as well NOTE TO § 536.34: See parallel discussion at as favorable information. The CJA, DA Pam 27–162, paragraph 2–1. claims attorney or unit claims officer must preserve their legal and factual § 536.35 Unique issues related to envi- findings. ronmental claims. Claims for property damage, personal § 536.38 Elements of the investigation. injury, or death arising in the United (a) The investigation is conducted to States based on contamination by ascertain the facts of an incident. toxic substances found in the air or the Which facts are relevant often depends ground must be reported by USARCS on the law and regulations applicable to the Environmental Law Division of to the conduct of the parties involved the Army Litigation Center and the but generally the investigation should Environmental Torts Branch of DOJ. develop definitive answers to such

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questions as ‘‘When?’’ ‘‘Where?’’ specialists are available and a prompt ‘‘Who?’’ ‘‘What?’’ and ‘‘How?’’. Typi- written report may be obtained. cally, the time, place, persons, and cir- (d) Either an IME or an expert opin- cumstances involved in an incident ion is procured by means of a personal may be established by a simple report, services contract under the Federal Ac- but its cause and the resulting damage quisition Regulation (FAR), part 37, 48 may require extensive effort to obtain CFR 37.000 et seq., through the local all the pertinent facts. contracting office. The contract must (b) The object of the investigation is be in effect prior to commencement of to gather, with the least possible delay, the records review. Payment is author- the best available evidence without ac- ized only upon receipt of a written re- cumulating excessive evidence con- port responsive to the questions asked cerning any particular fact. The claim- by the CJA or claims attorney. ant is often an excellent source of such (e) Whenever a source other than information and should be contacted claims personnel is used to assist in early in the investigation, particularly the evaluation of a claim in which when there is a question as to whether medical information protected by the claim was timely filed. HIPAA is involved, the source must sign an agreement designed to protect § 536.39 Use of experts, consultants the patient’s privacy rights. and appraisers. § 536.40 Conducting the investigation. (a) ACOs or CPOs will budget operation and maintenance (O&M) funds for (a) The methods and techniques for the costs of hiring property appraisers, investigating specific categories of accident reconstructionists, expert claims are set forth in DA Pam 27–162, paragraphs 2–25 through 2–34. The in- consultants to furnish opinions, and vestigation of medical malpractice medical specialists to conduct inde- claims should be conducted by a CJA pendent medical examinations (IMEs). or claims attorney, using a medical Other expenses to be provided for from claims investigator. O&M funds include the purchase of doc- (b) A properly filed claim must con- uments, such as medical records, and tain enough information to permit in- the hiring of mediators. See § 536.53(b). vestigation. For example, if the claim Where the cost exceeds $750 or local does not specify the date, location or funds are exhausted, a request for fund- details of every incident complained of, ing should be directed to the Com- the claimant or legal representative mander USARCS, with appropriate jus- should be required to furnish the infor- tification. The USARCS AAO must be mation. notified as soon as possible when an ac- (c) Request the claimant or legal rep- cident reconstruction is indicated. resentative to specify a theory of li- (b) Where the claim arises from ability. However, the investigation treatment at an Army MTF, the should not be limited to the theories MEDDAC commander should be re- specified, particularly where the claim- quested to fund the cost of an inde- ant is unrepresented. All logical theo- pendent consultant’s opinion or an ries should be investigated. IME. (c) The use of outside consultants § 536.41 Determination of liability— and appraisers should be limited to generally. claims in which liability or damages (a) Under the FTCA, the United cannot be determined otherwise and in States is liable in the same manner and which the use of such sources is eco- to the same extent as a private indi- nomically feasible, for instance, where vidual under like circumstances in ac- property damage is high in amount and cordance with the law of the place not determinable by a government ap- where the act or omission giving rise praiser or where the extent of personal to the tort occurred (28 U.S.C. 2673 and injury is serious and a government IME 2674). This means that liability must is neither available nor acceptable to a rest on the existence of a tort cog- claimant. Prior to such an examination nizable under state law, hereinafter re- at an MTF, ensure that the necessary ferred to as a state tort. A finding of

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state tort liability requires the liti- § 536.43 Incident to service. gating attorney to prove the elements (a) A member of the armed forces’ of duty, breach of duty, causation, and claim for personal injury or wrongful damages as interpreted by federal case death arising incident to service is not law. payable under any subpart except to (b) The foregoing principles and re- the extent permitted by the receiving quirements will be followed in regard State under §§ 536.114 through 536.116 to tort claims against the United (Claims arising overseas); however, a States under other subparts, with cer- claim by a member of the United tain exceptions noted within the indi- States Armed Forces for property loss vidual subparts or particular tort stat- or damage may be payable under AR utes. 27–20, chapter 11 or, if not, under sub- (c) Interpretation will be made in ac- parts C, E, F, or G of this part. Deriva- cordance with FTCA case law and also tive claims and claims for indemnity maritime case law where applicable. are also excluded. Additionally, a noncombat activity can (b) Claims for personal injury or furnish the basis for a claim under sub- wrongful death by members of a for- parts C, F, and J of this part. Noncom- eign military force participating in a bat activities include claims arising joint military exercise or operation arising incident to service are not pay- out of civil works, such as inverse con- able under any subpart. Claims for demnation. property loss or damage, but not sub- (d) Federal, not state or local, law rogated claims, may be payable under applies to a determination as to who is subpart C of this part. Derivative a federal employee or a member of the claims and claims for indemnity or armed forces. Under all subparts, the contribution are not payable under any designation ‘‘federal employee’’ ex- subpart. cludes a contractor of the United States. See 28 U.S.C. 2671. See however, NOTE TO § 536.43: For further discussion see DA Pam 27–162, paragraph 2–37. § 536.23(b)(4)(ii) concerning personal services contractors. For employment § 536.44 FECA and LSHWCA claims ex- identification purposes apply FTCA clusions. case law in making a determination. A federal or NAFI employee’s per- (e) Federal, not state or local, law ap- sonal injury or wrongful death claim plies to an interpretation of the SOL payable under the Federal Employees under all subparts. Minority or incom- Compensation Act (FECA) or the petence does not toll the SOL. Case law Longshore and Harbor Workers Com- developed under the FTCA will be used pensation Act (LSHWCA) is not pay- in other subparts in interpreting SOL able under any subpart. Derivative questions. claims are also excluded but a claim (f) Under the FTCA state or local law for indemnity may be payable under is used to determine scope of employ- certain circumstances. A federal or ment and under other subparts for NAFI employee’s claim for an incident- guidance. to-service property loss or damage may be payable under AR 27–20, chapter 11 § 536.42 Constitutional torts. or, if not, under subparts C, D, F, G, H or J of this part. For further discussion A claim for violation of the U.S. Con- see DA Pam 27–162, paragraph 2–38. stitution does not constitute a state tort and is not cognizable under any § 536.45 Statutory exceptions. subpart. A constitutional claim will be This topic is more fully discussed in scrutinized in order to determine DA Pam 27–162, paragraph 2–39. The ex- whether it is totally or partially pay- clusions listed below are found at 28 able as a state tort. For example, a U.S.C. 2680 and apply to subparts C, D, Fifth Amendment taking may be pay- F, and H and §§ 536.107 through 536.113 able in an altered form as a real estate (Claims arising in the United States) of claim. For further discussion see DA subpart G, except as noted therein, and Pam 27–162, paragraph 2–36. not to subparts E, J or §§ 536.107

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through 536.113 (Claims arising over- or from the regulation of the monetary seas) of subpart G of this part. A claim system. is not payable if it: (j) Arises out of the combatant ac- (a) Is based upon an act or omission tivities of U.S. military or naval of an employee of the U.S. government, forces, or the Coast Guard during time exercising due care, in the execution of of war. a statute or regulation, whether or not (k) Arises in a foreign country. This such statute or regulation is valid. exclusion does not apply to subparts C, This exclusion does not apply to a non- E, F, H, J or §§ 536.114 through 536.116 combat activity claim. (Claims arising overseas) of subpart G (b) Is based upon the exercise or per- of this part. formance or the failure to exercise or (l) Arises from the activities of the perform a discretionary function or Tennessee Valley Authority, 28 U.S.C. duty on the part of a federal agency or 2680(l). an employee of the government, wheth- (m) Arises from the activities of the er or not the discretion is abused. This Panama Canal Commission, 28 U.S.C. exclusion does not apply to a noncom- 2680(m). bat activity claim. (n) Arises from the activities of a fed- (c) Arises out of the loss, mis- eral land bank, a federal intermediate carriage, or negligent transmission of credit bank, or a bank for cooperatives, letters or postal matters. This exclu- 28 U.S.C. 2680(n). sion is not applicable to registered or certified mail claims under subpart C NOTE TO § 536.45: This topic is more fully of this part. See § 536.34(i). discussed in DA Pam 27–162, paragraph 2–39. (d) Arises in respect of the assess- § 536.46 Other exclusions. ment or collection of any tax or customs duty, or the detention of any (a) Statutory employer. A claim is not goods or merchandise by any customs payable under any subpart if it is for or other law enforcement officer. See personal injury or death of any con- 28 U.S.C. 2680(c). tract employee for whom benefits are (e) Is cognizable under the SIAA (46 provided under any workers’ compensa- U.S.C. app. 741–752), the PVA (46 U.S.C. tion law, if the provisions of the work- app. 781–790), or the AEA (46 U.S.C. app. ers’ compensation insurance are retro- 740). This exclusion does not apply to spective and charge an allowable ex- subparts C, F, H or J of this part. pense to a cost-type contract, or if pre- (f) Arises out of an act or omission of cluded by state law. See Federal Tort any federal employee in administering Claims Handbook (FTCH), section II, the provisions of the Trading with the D7 (posted on the Web at https:// Enemy Act, 50 U.S.C. app. 1–44. www.jagcnet.army.mil/laawsxxi/cds.nsf. (g) Is for damage caused by the impo- Select the link ‘‘Claims’’ under ‘‘JAG sition or establishment of a quarantine Publications.’’) The statutory em- by the United States. ployer exclusion also applies to claims (h) Arises out of assault, battery, that may be covered by the Defense false imprisonment, false arrest, mali- Bases Act, 42 U.S.C. 1651–1654. cious prosecution, abuse of process, (b) Flood exclusion. Within the United libel, slander, misrepresentation, de- States a claim is not payable if it ceit, or interference with contract arises from damage caused by flood or rights, except for acts or omissions of flood waters associated with the con- investigation of law enforcement offi- struction or operation of a COE flood cers of the U.S. government with re- control project, 33 U.S.C. 702(c). See DA gard to assault, battery, false impris- Pam 27–162, paragraph 2–40. onment, false arrest, abuse of process (c) ARNG property. A claim is not or malicious prosecution. This exclu- payable under any subpart if it is for sion also does not apply to a health damage to, or loss of, property of a care provider as defined in 10 U.S.C. state, commonwealth, territory, or the 1089 and § 536.80 of this part, under the District of Columbia caused by ARNG conditions listed therein. personnel, engaged in training or duty (i) Arises from the fiscal operations under 32 U.S.C. 316, 502, 503, 504, or 505, of the U.S. Department of the Treasury who are assigned to a unit maintained

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by that state, commonwealth, terri- § 536.48 Federal employee require- tory, or the District of Columbia. See ment. DA Pam 27–162, paragraph 2–41. To be payable, a claim under any (d) Federal Disaster Relief Act. Within subpart except subpart K of this part, the United States a claim is not pay- §§ 536.153 through 536.157 (Claims in- able if it is for damage to, or loss of, volving tortfeasors other than non- property or for personal injury or appropriated fund employees), must be death arising out of debris removal by based on the acts or omissions of a a federal agency or employee in car- member of the armed forces, a member rying out the provisions of the Federal of a foreign military force within the Disaster Relief Act, 42 U.S.C. 5173. See United States with which the United DA Pam 27–162, paragraph 2–42. States has a reciprocal claims agree- (e) Non-justiciability doctrine. A claim ment, or a federal civilian employee. is not payable under any subpart if it This does not include a contractor of arises from activities that present a the United States. Apply federal case non-justiciable political question. See law for interpretation. See parallel dis- DA Pam 27–162, paragraph 2–43. cussion at DA Pam 27–162, paragraph 2– (f) National Vaccine Act. (42 U.S.C. 46. 300aa–1 through 300aa–7). A claim is not payable under any subpart if it arises § 536.49 Scope of employment require- from the administration of a vaccine ment. unless the conditions listed in the Na- To be payable, a claim must be based tional Vaccine Injury Compensation on acts or omissions of a member of Program (42 U.S.C. 300aa–9 through the armed forces, a member of a for- 300aa–19) have been met. See DA Pam eign military force within the United 27–162, paragraph 2–17c(6)(a). States with which the United States (g) Defense Mapping Agency. A claim has a reciprocal claims agreement, or a is not payable under any subpart if it federal employee acting within the arises from inaccurate charting by the scope of employment, except for sub- Defense Mapping Agency, 10 U.S.C. 456. parts E, J, or subpart K of this part, See FTCH section II, B4s (Web address §§ 536.153 through 536.157 (Claims in- at paragraph (a) of this section). volving tortfeasors other than non- (h) Quiet Title Act. Within the U.S., a appropriated fund employees). A claim claim is not payable if it falls under arising from noncombat activities the Quiet Title Act 28 U.S.C. 2409a. must be based on the armed service’s (i) Defense Bases Act. A claim arising official activities. Excluded are claims outside the United States is not pay- based on vicarious liability or the hold- able if it is covered by the Defense er theory in which the owner of the ve- Bases Act, 42 U.S.C. 1651–1654. hicle is responsible for any injury or NOTE TO § 536.46: See parallel discussion at damage regardless of who the operator DA Pam 27–162, paragraphs 2–40 through 2–43. was. See parallel discussion at DA Pam 27–162, paragraph 2–46. § 536.47 Statute of limitations. To be payable, a claim against the § 536.50 Determination of damages— United States under any subpart, ex- applicable law. cept §§ 536.114 through 536.116 (Claims (a) The Federal Tort Claims Act. The arising overseas), must be filed no later whole law of the place where the inci- than two years from the date of ac- dent giving rise to the claim occurred, crual as determined by federal law. The including choice of law rules, is appli- accrual date is the date on which the cable. Therefore, the law of the place of claimant is aware of the injury and its injury or death does not necessarily cause. The claimant is not required to apply. Where there is a conflict be- know of the negligent or wrongful na- tween local law and an express provi- ture of the act or omission giving rise sion of the FTCA, the latter governs. to the claim. The date of filing is the (b) The Military Claims Act or National date of receipt by the appropriate fed- Guard Claims Act. See subparts C and F eral agency, not the date of mailing. of this part. The law set forth in § 536.80 See also § 536.26(a) and parallel discus- applies only to claims accruing on or sion at DA Pam 27–162, paragraph 2–44. after September 1, 1995. The law of the

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place of the incident giving rise to the § 536.52 Subrogation. claim will apply to claims arising in Subrogation is the substitution of the United States, its commonwealths, one person in place of another with re- territories and possessions prior to gard to a claim, demand or right. It September 1, 1995. The general prin- should not be confused with a lien, ciples of U.S. tort law will apply to which is an obligation of the claimant. property damage or loss claims arising Applicable state law should be re- outside the United States prior to Sep- searched to determine the distinction tember 1, 1995. Established principles of between subrogation and a lien. Sub- general maritime law will apply to in- rogation claims are payable under sub- jury or death claims arising outside parts D and H, but not under subparts the United States prior to September 1, C, E, F or J of this part. For further 1995. See Moragne v. States Marine discussion see DA Pam 27–162, para- Lines, Inc., 398 U.S. 375 (1970) and fed- graph 2–58. eral case law. Where general maritime § 536.53 Evaluation of claims—general law provides no guidance, the general rules and guidelines. principles of U.S. tort law will apply. (a) Before claims personnel evaluate (c) The Foreign Claims Act. See sub- a claim: part J of this part. The law of the place (1) A claimant or claimant’s legal of occurrence applies to the resolution representative will be furnished the op- of claims. However, the law of damages portunity to substantiate the claim by set forth in § 536.139 will serve as a providing essential documentary evi- guide. dence according to the claim’s nature (d) The Army Maritime Claims Settle- including, but not instead of, the fol- ment Act. Maritime law applies. lowing: Medical records and reports, (e) Damages not payable. Under all witness statements, itemized bills and subparts, property loss or damage repaid receipts, estimates, federal tax refers to actual tangible property. Ac- turns, W–2 forms or similar proof of cordingly, consequential damages, in- loss of earnings, photographs, and re- cluding, but not limited to bail, inter- ports of appraisals or investigation. If est (prejudgment or otherwise), or necessary, request permission, through the legal representative, to interview court costs are not payable. Costs of the claimant, the claimant’s family, preparing, filing, and pursuing a claim, proposed witnesses and treating health including expert witness fees, are not care providers (HCPs). In a professional payable. The payment of punitive dam- negligence claim, the claimant will ages, that is, damages in addition to submit an expert opinion when re- general and special damages that are quested. State law concerning the re- otherwise payable, is prohibited. See quirement for an affidavit of merit DA Pam 27–162, paragraphs 2–56 and 3– should be cited. 4b. (2) When the claimant or the legal (f) Source of attorney’s fees. Attorney’s representative fails to respond in a fees are taken from the settlement timely manner to informal demands amount and not added thereto. They for documentary evidence, interviews, may not exceed 20 percent of the settle- or an independent medical examination ment amount under any subpart. (IME), make a written request. Such written request provides notice to the NOTE TO § 536.50: For further discussion see claimant that failure to provide sub- DA Pam 27–162, paragraph 2–51. stantiating evidence will result in an § 536.51 Collateral source rule. evaluation of the claim based only on information currently in the file. Where permitted by applicable state When, despite the government’s re- or maritime law, damages recovered quest, there is insufficient information from collateral sources are payable in the file to permit evaluation, the under subparts D and H, but not under claim will be denied for failure to docu- subparts C, E, F, or J of this part. For ment it. Failure to submit to an IME further discussion see DA Pam 27–162, or sign an authorization to use medical paragraph 2–57. information protected by HIPAA, for

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review or evaluation by a source other CJA’s demand, the United States than claims personnel, are both should settle for its fair share, provided grounds for denial for failure to docu- the claimant is willing to hold the ment, provided such evaluation is es- United States harmless. Where a joint sential to the determination of liabil- tortfeasor’s liability greatly outweighs ity or damages. State a time limit, for that of the United States, the claim example, 30 or 60 days, to furnish the should be referred to the joint substantiation or expert opinion re- tortfeasor for action. quired in a medical malpractice claim. (3) If, in exchange for complying with § 536.55 Structured settlements. the government’s request for the fore- (a) The use of future periodic pay- going information, the claimant or the ments, including reversionary medical legal representative requests similar trusts, is encouraged to ensure that the information from the file, the claimant injured party is adequately com- may be provided such information and pensated and able to meet future needs. documentation as is releasable under (1) It is necessary to ensure adequate the Federal Rules of Civil Procedure care and compensation for a minor or (FRCP). Additionally, work product other incompetent claimant or unem- may be released if such release will ployed survivor over a period of years. help settle the claim. See § 536.18. (2) A medical trust is necessary to (b) An evaluation should be viewed ensure the long-term availability of from the claimant’s perspective. In funds for anticipated future medical other words, before denying a claim, care, the cost of which is difficult to first determine whether there is any predict. reasonable basis for compromise. Cer- (3) The injured party’s life expect- tain jurisdictional issues and statutory ancy cannot be reasonably determined bases may not be open for compromise. or is likely to be shortened. The incident to service and FECA ex- (b) Under subpart D of this part, clusions are rarely subject to com- structured settlements cannot be re- promise, whereas the SOL is more sub- quired but are encouraged in situations ject to compromise. Factual and legal listed above or where state law permits disputes are compromisable, frequently them. In the case of a minor, every ef- providing a basis for limiting damages, fort should be made to insure that the not necessarily grounds for denial. minor, and not the parents, receives Where a precise issue of dispute is iden- the benefit of the settlement. Annuity tified and is otherwise unresolvable, payments at the age of majority should mediation by a disinterested qualified be considered. If rejected, a blocked person, such as a federal judge, or for- bank account may be used. eign equivalent for claims arising (c) It is the policy of the Department under the FCA, should be obtained of Justice never to discuss the tax-free upon agreement with the claimant or nature of a structured settlement. the claimant’s legal representative. Contributory negligence has given way NOTE TO § 536.55: For further discussion, see DA Pam 27–162, paragraph 2–63. to comparative negligence in most United States jurisdictions. In most § 536.56 Negotiations—purpose and ex- foreign countries, comparative neg- tent. ligence is the rule of law. It is DA policy to settle meritorious NOTE TO § 536.53: For further discussion see claims promptly and fairly through di- DA Pam 27–162, paragraph 2–59. rect negotiation at the lowest possible level. The Army’s negotiator should § 536.54 Joint tortfeasors. not admit liability as such is not nec- When joint tortfeasors are liable, it essary. However, the settlement should is DA policy to pay only the fair share reflect diminished value where con- of a claim attributable to the fault of tributory negligence or other value-di- the United States rather than pay the minishing factors exist. The negotiator claim in full and then bring suit should be thoroughly familiar with all against the joint tortfeasor for con- aspects of the case, including the tribution. If payment from a joint claimant’s background, the key wit- tortfeasor is not forthcoming after the nesses, the anticipated testimony and

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the appearance of the scene. There is § 536.59 Settlement or approval au- no substitute for the claims nego- thority. tiator’s personal study of, and partici- ‘‘Settlement authority’’ is a statu- pation in, the case before settlement tory term (10 U.S.C. 2735) meaning that negotiations begin. If settlement is not officer authorized to approve, deny or possible due to the divergence in the compromise a claim, or make final ac- offers, refine the issues as much as pos- tion. ‘‘Approval authority’’ means the sible in order to expedite any subse- officer empowered to settle, pay or quent suit. Mediation should be used if compromise a claim in full or in part, the divergence is due to an issue of law provided the claimant agrees. ‘‘Final affecting either liability or damages. action authority’’ means the officer For further discussion see DA Pam 27– empowered to deny or make a final 162, paragraph 2–64. offer on a claim. Determining the proper officer empowered to approve or § 536.57 Who should negotiate. make final action on a claim depends on the claims statute involved and any An AAO or, when delegated addi- limitations that apply under that stat- tional authority, an ACO or a CPO, has ute. DA Pam 27–162, paragraph 2–69, authority to settle claims in an outlines how various authority is dele- amount exceeding the monetary au- gated among offices. thority delegated by regulation. It is DA policy to delegate USARCS author- § 536.60 Splitting property damage and ity, on a case-by-case basis, to an ACO personal injury claims. or a CPO possessing the appropriate Normally, a claim will include all ability and experience. Only an attor- damages that accrue by reason of the ney should negotiate with a claimant’s incident. Where a claimant has a claim attorney. Negotiations with unrepre- for property damage and personal in- sented claimants may be conducted by jury arising from the same incident, a non-attorney, under the supervision the property damage claim may be of an attorney. For further discussion paid, under certain circumstances, see DA Pam 27–162, paragraph 2–65. prior to the filing of the personal injury claim. The personal injury claim § 536.58 Settlement negotiations with may be filed later provided it is filed unrepresented claimants. within the applicable statute of limita- All aspects of the applicable law and tions. When both property damage and procedure, except the amount to be personal injury arise from the same in- claimed, should be explained to both cident, the property damage claim may be paid to either the claimant or, under potential and actual claimants. The ne- subparts D or H of this part, the in- gotiator will ensure that the claimant surer and the same claimant may re- is aware of whether the negotiator is ceive a subsequent payment for per- an attorney or a non-attorney, and sonal injury. Only under subparts D or that the negotiator represents the H of this part may the insurer receive United States. As to claims within subsequent payment for subrogated USARCS’ monetary authority, the medical bills and lost earnings when chronology and details of negotiations the personal injury claim is settled. should be memorialized with a written The primary purpose of settling an in- record furnished to the claimant. The jured claimant’s property damage claimant should understand that it is claim before settling the personal in- not necessary to hire an attorney, but jury claim is to pay the claimant for when an attorney is needed, the nego- vehicle damage expeditiously and avoid tiator should recommend hiring one. In costs associated with delay such as loss a claim where liability is not an issue, of use, loss of business, or storage the claimant should be informed that if charges. The Commander USARCS’ ap- an attorney is retained, the claimant proval must be obtained whenever the should attempt to negotiate an hourly estimated value of any one claim ex- fee for determination of damages only. ceeds $25,000, or the value of all claims, For further discussion see DA Pam 27– actual or potential, arising from the 162, paragraph 2–68. incident exceeds $50,000; however, if the

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claim arises under the FTCA or cluding an incapacitated claimant’s AMCSA, only if the amount claimed spouse or next-of-kin. exceeds $50,000, or $100,000 per incident. (4) The total damage sustained must exceed the amount of the advance pay- § 536.61 Advance payments. ment. (a) This section implements 10 U.S.C. (5) A properly executed advance pay- 2736 (Act of September 8, 1961 (75 Stat. ment acceptance agreement has been 488)) as amended by Public Law 90–521 obtained. This acceptance agreement (82 Stat. 874); Public Law 98–564 (90 must state that it does not constitute Stat. 2919); and Public Law 100–465 (102 an admission of liability by the United Stat. 2005)). No new liability is created States and that the amount paid shall by 10 U.S.C. 2736, which merely permits be deducted from any subsequent partial advance payments, only under award. subparts C, F or J of this part, on (e) There is no statutory authority claims not yet filed. See AR 27–20, for making advance payments for paragraph 11–18 for information on claims payable under subparts D or H emergency partial payments in per- of this part. sonnel claims, which are not governed by 10 U.S.C. 2736. NOTE TO § 536.61: For further discussion see (b) The Judge Advocate General DA Pam 27–162, paragraph 2–71. (TJAG) and the Assistant Judge Advo- cate General (TAJAG) may make ad- § 536.62 Action memorandums. vance payments in amounts not ex- (a) When required. (1) All claims will ceeding $100,000; the Commander be acted on prior to being closed except USARCS, in amounts not exceeding for those that are transferred. For $25,000, and the authorities designated claims on which suit is filed before in §§ 536.786(4) and (5) and 536.101, in final action, see § 536.66. A settlement amounts not exceeding $10,000, subject authority may deny or pay in full or in to advance coordination with USARCS, part any claim in a stated amount if the estimated total value of the within his or her delegated authority. claim exceeds their monetary author- An approval authority may pay in full ity. Requests for advance payments in or in part, but may not deny, a claim excess of $10,000 will be forwarded to in a stated amount within his or her USARCS for processing. delegated authority. If any one claim (c) Under subpart J of this part, arising out of the same incident ex- three-member foreign claims commis- ceeds a settlement or approval sions may make advance payments authority’s monetary jurisdiction, all under the FCA in amounts not exceed- claims from that incident will be for- ing $10,000, subject to advance coordi- warded to the authority having juris- nation with USARCS if the estimated diction. total value of the claim exceeds their monetary authority. (2) In any claim which must be sup- (d) An advance payment, not exceed- ported by an expert opinion as to duty, ing $100,000, is authorized in the lim- negligence, causation or damages, an ited category of claims or potential expert opinion must be submitted upon claims considered meritorious under request. All opinions must meet the subparts C, F or J of this part, that re- standards set forth in Federal Rule of sult in immediate hardship. An ad- Evidence 702. vance payment is authorized only (3) An action memorandum is re- under the following circumstances: quired for all final actions regardless of (1) The claim, or potential claim, whether payment is made electroni- must be determined to be cognizable cally. The memorandum will contain a and meritorious under the provisions of sufficient rendition of the facts, law or subparts C, F or J of this part. damages to justify the action being (2) An immediate need for food, taken. (A model action is posted on the clothing, shelter, medical or burial ex- USARCS Web site; for the address see penses, or other necessities exists. § 536.2(a).) (3) The payee, so far as can be deter- (b) Memorandum of Opinion. Upon mined, would be a proper claimant, in- completion of the investigation, the

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ACO or CPO will prepare a memo- further discussion, see DA Pam 27–162, randum of opinion in the format pre- paragraph 2–73c. scribed at DA Pam 27–162, when a claim (b) Unconditional settlement. The set- is forwarded to USARCS for action. tlement agreement must be uncondi- This requirement can be waived by the tional. The settlement agreement rep- USARCS AAO. resents a meeting of the minds. Any (c) Claim brought by a claims authority changes to the agreement must be or superior. A claim filed by an approval agreed upon by all parties. The return or settlement authority or his or her of a proffered settlement agreement superior officer in the chain of command or a family member of either will with changes written thereon or on an be investigated and forwarded for final accompanying document represents, in action, without recommendation, to effect, a counteroffer and must be re- the next higher settlement authority solved. Even if the claimant signs the (in an overseas area, this includes a agreement and objects to its terms, ei- command claims service) or to ther in writing or verbally, the settle- USARCS. ment is defective and the objection must be resolved. Otherwise a final NOTE TO § 536.62: For further discussion see DA Pam 27–162, paragraph 2–72. offer should be made. (c) Court approval—(1) When required. § 536.63 Settlement agreements. Court approval is required in a wrong- (a) When required. (1) A claimant’s ac- ful death claim, or where the claimant ceptance of an award constitutes full is a minor or incompetent. The claim- and final settlement and release of any ant is responsible to obtain court ap- and all claims against the United proval in a jurisdiction that is locus of States and its employees, except as to the act or omission giving rise to the payments made under §§ 536.60 and claim or in which the claimant resides. 536.61. A settlement agreement is re- The court must be a state or local quired prior to payment on all tort court, including a probate court. If the claims, whether the claim is paid in claimant can show that court approval full or in part. is not required under the law of the ju- (2) DA Form 1666 (Claims Settlement risdiction where the incident occurred Agreement) may be used for payment or where the claimant resides, the cita- of COE claims of $2,500 or less or all tion of the statute will be provided and Army Central Insurance Fund and accompany the payment documents. Army and Air Force Exchange Service claims. (2) Attorney representation. If the (3) DA Form 7500 (Tort Claim Pay- claimant is a minor or incompetent, ment Report) will be used for all pay- the claimant must be represented by a ments from the Defense Finance and lawyer. If not already represented, the Accounting Service (DFAS), for exam- claimant should be informed that the ple, FTCA claims of $2,500 or less, FCA requirement is mandatory unless state and MCA claims of $100,000 or less and or local law expressly authorizes the all maritime claims regardless of parents or a person in loco parentis to amount. settle the claim. (4) Financial Management Service (3) Costs. The cost of obtaining court (FMS) Forms 194, 196 and 197 will be approval will be factored into the used for all payments from the Judg- amount of the settlement; however, the ment Fund, for example, FTCA claims amount of the costs and other costs exceeding $2,500, MCA and FCA claims will not be written into the settlement, exceeding $100,000. only the 20% limitation on attorney (5) An alternative settlement agree- fees will be included. ment will be used when the claimant is (4) Claims involving an estate or per- represented by an attorney, or when sonal representative of an estate. On any of the above settlement agreement claims presented on behalf of a dece- forms are legally insufficient (such as when multiple interests are present, a dent’s estate, the law of the state hav- hold harmless agreement is reached, or ing jurisdiction should be reviewed to there is a structured settlement). For determine who may bring a claim on

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behalf of the estate, if court appoint- the guardian must be obtained. In ment of an estate representative is re- cases in which competence of the quired, and if court approval of the set- claimant appears doubtful, a written tlement is required. statement by the plaintiff’s attorney (d) Signature requirements. (1) Except and a member of the immediate family as noted in paragraphs (d)(2) through should be obtained. (d)(6) of this section, all settlement (5) Settlement agreements involving agreements will be signed individually subrogated claims must be executed by by each claimant. A limited power of a person authorized by the corporation attorney signed by the claimant spe- or company to act in its behalf and ac- cifically stating the amount being accompanied by a document signed by a cepted and authorizing an attorney at person authorized by the corporation law or in fact to sign is acceptable or company to delegate execution au- when the claimant is unavailable to thority. sign. The signatures of the adminis- (6) If it is believed that the foregoing trator or executor of the estate, ap- requirements are materially impeding pointed by a court of competent juris- settlement of the claim, bring the mat- diction or authorized by local law, are ter to the attention of the Commander required. The signatures of all adult USARCS for appropriate resolution. beneficiaries, acknowledging the set- (e) Attorneys’ fees and costs. (1) Attor- tlement, should be obtained unless per- neys’ fees for all subparts in this part mission is given by Commander 536 fall under the American Rule and USARCS. Court approval must be ob- are payable only out of the up front tained where required by state law. If cash in any settlement. Attorneys’ fees not required by state law, the citation will be stated separately in the settle- of the state statute will accompany the ment agreement as a sum not to exceed payment document. Additionally, all 20% of the award. adult heirs will sign as acknowledging the settlement. In lieu thereof, where (2) Costs are a matter to be deter- the adult heirs are not available, the mined solely between the attorney and estate representative will acknowledge the claimant and will not be set forth that all heirs have been informed of the or otherwise enumerated in the settle- settlement. ment agreement. (2) Generally, only a court-appointed (f) Claims involving workers’ compensa- guardian of a minor’s estate, or a per- tion carriers. The settlement of a claim son performing a similar function involving a claimant who has elected under court supervision, may execute a to receive workers’ compensation bene- binding settlement agreement on a mi- fits under local law may require the nor’s claim. In the United States, the consent of the workers’ compensation law of the state where the minor re- insurance carrier, and in certain juris- sides or is domiciled will determine the dictions, the state agency that has au- age of majority and the nature and thority over workers’ compensation type of court approval that is needed, if awards. Accordingly, claims approval any. The age of majority is determined and settlement authorities should be by the age at the time of settlement, aware of local requirements. not the date of filing. (g) Claims involving multiple interests. (3) For claims arising in foreign Where two or more parties have an in- countries where the amount agreed terest in the claim, obtain signatures upon does not exceed $2,500, the re- on the settlement agreement from all quirement to obtain a guardian may be parties. Examples are where both the eliminated. For settlements over $2,500, subrogee and subrogor file a single whether or not the claim arose in the claim for property damage, where both United States, refer to applicable local landlord and tenant file a claim for law, including the law of the foreign damage to real property, or when a country where the minor resides. POV is leased, both the lessor or lessee. (4) In claims where the claimant is an (h) Claims involving structured settle- incompetent, and for whom a guardian ments. All settlement agreements in- has been appointed by a court of com- volving structured settlements will be petent jurisdiction, the signature of prepared by the Tort Claims Division,

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USARCS, and approved by the Chief or mailing of the final notice of action. If Deputy Chief, Tort Claims Division. the last day of the appeal period falls on a Saturday, Sunday, or legal holi- § 536.64 Final offers. day, as specified in Rule 6a of the Fed- (a) When claims personnel believe eral Rules of Civil Procedure, the fol- that a claim should be compromised, lowing day will be considered the final and after every reasonable effort has day of the appeal period. been made to settle at less than the (d) Where a claim for the same injury amount claimed, a settlement author- falls under both subparts C and D of ity will make a written final offer this part (the MCA and the FTCA), and within his or her monetary jurisdiction the denial or final offer applies equally or forward the claim to the authority to each such claim, the letter of notifi- having sufficient monetary jurisdic- cation must advise the claimant that tion, recommending a final offer under any suit brought on any portion of the the applicable statute. The final offer claim filed under the FTCA must be notice will contain sufficient detail to brought not later than six months from outline each element of damages as the date of mailing of the notice of well as discuss contributory neg- final offer and any appeal under sub- ligence, the SOL or other reasons justi- part C of this part must be made as fying a compromise offer. The offer let- stated in paragraph (c) of this section. ter should include language indicating Further, the claimant must be advised that if the offer is not accepted within that if suit is brought, action on any a named time period, for example, 30 or appeal under subpart C of this part will 60 days the offer is withdrawn and the be held in abeyance pending final de- claim is denied. termination of such suit. (b) A final offer under subpart D of (e) Upon request, the settlement au- this part will notify the claimant of thority may extend the six-month re- the right to sue, not later than six consideration or 60-day appeal period months from the notice’s date of mail- provided good cause is shown. The ing, and of the right to request recon- claimant will be notified as to whether sideration. The procedures for proc- the request is granted under the FTCA essing a request for reconsideration are and that the request precludes the fil- set forth in § 536.89. ing of suit under the FTCA for 6 (c) Under subparts C or F of this part, months. Only one reconsideration is the notice will contain an appeal para- authorized. Accordingly, that claimant graph. A similar procedure will be fol- should be informed of the need to make lowed in subparts E and H of this part. all submissions timely. Subpart J of this part sets forth its NOTE TO § 536.64: For further discussion see own procedures for FCA final offers. DA Pam 27–162, paragraph 2–74. The procedures for processing an appeal are set forth in § 536.79 of this part. § 536.65 Denial notice. The letter must inform claimants of (a) Where there is no reasonable basis the following: for compromise, a settlement author- (1) They must accept the offer within ity will deny a claim within his or her 60 days or appeal. The appeal should monetary jurisdiction or forward the state a counteroffer. claim recommending denial to the set- (2) The identity of the official who tlement authority that has jurisdic- will act on the appeal, and the require- tion. The denial notice will contain in- ment that the appeal will be addressed structions on the right to sue or re- to the settlement authority who last quest reconsideration. The notice will acted on the claim. state the basis for denial. No admission (3) No form is prescribed for the ap- of liability will be made. A notice to an peal, but the notice of appeal must unrepresented claimant should detail fully set forth the grounds for appeal the basis for denial in lay language suf- or state that it is based on the record ficient to permit an informed decision as it exists at the time of denial or as to whether to request appeal or re- final offer. consideration. In the interest of deter- (4) The appeal must be postmarked ring reconsideration, appeal or suit, a not later than 60 days after the date of denial notice may be releasable under

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the Federal Rules of Civil Procedure or sent to a foreign country other than by by the work product documents doc- the military postal system) to mail trine. such notices. Upon receipt, an appeal (b) Regardless of the claim’s nature or request for reconsideration will be or the statute under which it may be date-time stamped, logged in, and ac- considered, letters denying claims on knowledged as set forth in § 536.68. jurisdictional grounds that are valid, certain, and not easily overcome (and NOTE TO § 536.67: See also AR 27–20, paragraph 13–5, and DA Pam 27–162, paragraph 2– for this reason no detailed investiga- 77. tion as to the merits of the claim was conducted), must state that denial on § 536.68 Appeal or reconsideration. such grounds is not to be construed as an opinion on the merits of the claim (a) An appeal or a request for recon- or an admission of liability. In medical sideration will be acknowledged in malpractice claims, the denial should writing. A request for reconsideration state that the file is being referred to under subpart D of this part invokes U.S. Army Medical Command for re- the six-month period during which suit view. If sufficient factual information cannot be filed, 28 CFR 14.9(b). The ac- exists to make a tentative ruling on knowledgment letter will underscore the merits of the claim, liability may this restriction. be expressly denied. (b) Where the contents of the appeal or request for reconsideration indicate, NOTE TO § 536.65: See § 536.53, on denying a additional investigation will be con- claim for failure to substantiate. In addition, ducted and the original action changed the procedures and rules in DA Pam 27–162, if warranted. Except for subpart J of paragraph 2–69, settlement and approval authority, apply equally to the denial of this part, which sets forth separate claims. See also DA Pam 27–162, paragraph 2– rules for FCCs, if the relief requested is 75. not warranted the settlement authority will forward the claim to a higher § 536.66 The ‘‘Parker’’ denial. settlement authority with a claims (a) When suit is filed before final ac- memorandum of opinion (see § 536.62) tion is taken on a subpart D of this stating the reasons why the request is part claim, a denial letter will be invalid. issued only upon request of DOJ or the NOTE TO § 536.68: See also DA Pam 27–162, trial attorney. If suit is filed pre- paragraph 2–78. maturely or in error, the claimant may be requested to withdraw the suit with- § 536.69 Retention of file. out prejudice. Such a request must be After final action has been taken, the coordinated with the trial attorney. settlement authority will retain the (b) Claimants who have filed com- file until at least one month after ei- panion claims should be notified that, ther the period of filing suit or the ap- due to suit being filed, no action can be peal has expired and until all data has taken pending the outcome of suit and been entered into the database. A paid they may file suit if they wish. claim file will be retained until final NOTE TO § 536.66: For further discussion see action has been taken on all other DA Pam 27–162, paragraph 2–76. claims arising out of the same incident. If any single claim arising out of § 536.67 Mailing procedures. the same incident must be forwarded to Thirty or sixty day letters seeking higher authority for final action, all information from claimants, final of- claims files for that incident will be fers and denial notices are time-sen- forwarded at the same time. For fur- sitive as they require a claimant to ther discussion see DA Pam 27–162, take additional action within certain paragraph 2–79. time limits. Accordingly, follow procedures to ensure that the date of mail- § 536.70 Preparation and forwarding of ing and receipt of a request for recon- payment vouchers. sideration are documented. Use cer- (a) An unrepresented claimant will be tified mail with return receipt re- listed as the sole payee. Joint claim- quested (or registered mail, if being ants will not be listed since settlement

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agreements must specify the amount tember 2000. Threshold amounts for payable to each claimant individually payment from the judgment fund vary and each must be issued a separate according to the subpart and statutes check. under which a claim is processed. To (b) When a claimant is represented by determine the threshold amount for an attorney, only one payment voucher any given payment procedure one must will be issued with the claimant and arrive at a sum of all awards for all the attorney as joint payees. The pay- claims arising out of that incident, in- ment will be sent to the office of the cluding derivative claims. A joint claimant’s attorney. The attorney of amount is not acceptable. A claim for record, either an individual or firm des- injury to a spouse or a child is a sepa- ignated by the claimant, will be the co- rate claim from one for loss of consor- payee. If claimant has been represented tium or services by a spouse or parent. by other attorneys in the same claim, The monetary limits of $2,500 set forth such attorneys will not be listed as in subpart D and $100,000 set forth in payees, even if they have a lien. Satis- subparts C, F or J of this part, apply to faction of any such fee will be a matter each separate claim. between the claimant and such attor- (b) A claim for $2,500 or less arising ney. If payment is made by electronic under subpart D or E, or under §§ 536.107 transfer, the funds will be paid into the through 536.113 of subpart G, is paid account of the claimant. However, if from the open claims allotment (see requested, the payment may be made into the attorney’s escrow account pro- AR 27–20 paragraph 13–6 b(1)) or, if aris- vided the claimant has provided writing from a project funded by a civil ten authorization. works appropriation, from COE civil (c) In a structured settlement the works funds. The Department of the structured settlement broker will be Treasury pays any settlement exceed- the sole payee, who is authorized to ing $2,500 in its entirety, from the issue checks for the amounts set forth Judgment Fund. However, if a subpart in the settlement agreement. The up- G of this part, §§ 536.107 through 536.113 front cash payment may be deposited claim is treated as a noncombat activ- into an escrow account established for ity claim, payment is made as set forth the benefit of the claimant. in paragraph (c) of this section. (d) If a claimant is a minor or has (c) The first $100,000 for each claim- been declared incompetent by a court ant on a claim settled under subparts or other authority authorized to do so, C, F or J of this part is paid from the payment will be made to the court-ap- open claims allotment. Any amount pointed guardian of the minor or in- over $100,000 is paid out of the Judg- competent, at a financial institution ment Fund. approved by the court approving the (d) If not over $500,000, a claim aris- settlement. ing under subpart H of this part is paid (e) If the claimant is representing a from the open claims allotment or civil deceased’s estate on a wrongful death works project funds as appropriate. A claim, or a survival action on behalf of claim exceeding $500,000 is paid en- the deceased, the payment will be tirely by a deficiency appropriation. made to the court-appointed represent- (e) AAFES or NAFI claims are paid ative of the estate. No payment will be from nonappropriated funds, except made directly to the estate. when such claims are subject to appor- NOTE TO § 536.70: See also § 536.63 and DA tionment between appropriated and Pam 27–162, paragraphs 2–73 and 2–81. nonappropriated funds. See DA Pam 27– 162, paragraph 2–80h. § 536.71 Fund sources. (f) COE claims arising out of projects (a) 31 U.S.C. 1304 sets forth the type not funded out of civil works project and limits of claims payable out of the funds are payable from the open claims Judgment Fund. Only final payments allotment not to exceed $2,500 for sub- that are not payable out of agency part D claims and $100,000 for claims funds are allowable, per the Treasury arising from subparts C, F or J of this Financial Manual, Volume I, Part 6, part and from the Judgment Fund, Chapter 3110, at Section 3115, Sep- over such amounts.

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NOTE TO § 536.71: For further discussion see claim arose incident to noncombat ac- DA Pam 27–162, paragraph 2–80. tivities. For example, a claim by a service member for property loss or § 536.72 Finality of settlement. damage incident to service may be set- A claimant’s acceptance of an award, tled if the loss arises from a tort and is except for an advance payment or a not payable under AR 27–20, Chapter 11. split payment for property damage (c) A tort claim arising outside the only, constitutes a release of the United States may be settled under United States and its employees from this subpart only if the claimant has all liability. Where applicable, a re- been determined to be an inhabitant lease should include the ARNG or the (normally a resident) of the United sending State. For further discussion States at the time of the incident giv- see DA Pam 27–162, paragraph 2–82. ing rise to the claim. See § 536.136(b). Subpart C—Claims Cognizable § 536.75 Claims payable under the Under the Military Claims Act Military Claims Act. (a) General. Unless otherwise pre- § 536.73 Statutory authority for the scribed, a claim for personal injury, Military Claims Act. death, or damage to, or loss or destruc- The statutory authority for this sub- tion of, property is payable under this part is contained in the Act of August subpart when: 10, 1956 (70A Stat. 153, 10 U.S.C. 2733), (1) Caused by an act or omission of commonly referred to as the Military military personnel or civilian employ- Claims Act (MCA), as amended by 90– ees of the DA or DOD, acting within 521, September 1968 (82 Stat. 874); Pub- the scope of their employment, that is lic Law 90–522, September 1968 (82 Stat. determined to be negligent or wrong- 875); Public Law 90–525, September 1968 ful; or (82 Stat. 877); Public Law 93–336, July 8, (2) Incident to the noncombat activi- 1974 (88 Stat. 291); Public Law 98–564, ties of the armed services. October 1984, (98 Stat. 2918); and Public (b) Property. Property that may be Law 103–337, October 1994 (108 Stat. the subject of claims for loss or damage 2664). under this subpart includes: (1) Real property used and occupied § 536.74 Scope for claims under the under lease (express, implied, or other- Military Claims Act. wise). See § 536.34(m) and paragraph 2– (a) The guidance set forth in this sub- 15m of DA Pam 27–162. part applies worldwide and prescribes (2) Personal property bailed to the the substantive bases and special pro- government under an agreement (ex- cedural requirements for the settle- press or implied), unless the owner has ment of claims against the United expressly assumed the risk of damage States for death or personal injury, or or loss. damage to, or loss or destruction of, (3) Registered or insured mail in the property: DA’s possession, even though the loss (1) Caused by military personnel or was caused by a criminal act. civilian employees (enumerated in (4) Property of a member of the § 536.23(b)) acting within the scope of armed forces that is damaged or lost their employment, except for non-fed- incident to service, if such a claim is eralized Army National Guard soldiers not payable as a personnel claim under as explained in subpart F of this part; AR 27–20, chapter 11. or (c) Maritime claims. Claims that arise (2) Incident to the noncombat activi- on the high seas or within the terri- ties of the armed services (see AR 27– torial waters of a foreign country are 20, Glossary). payable unless settled under subpart H (b) A tort claim arising in the United of this part. States, its commonwealths, territories, and possessions may be settled under § 536.76 Claims not payable under the this subpart if the Federal Tort Claims Military Claims Act. Act (FTCA) does not apply to the type (a) Those resulting wholly from the of claim under consideration or if the claimant’s or agent’s negligent or

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wrongful act. (See § 536.77(a)(1)(i) on (i) Claims listed in §§ 536.42, 536.43, contributory negligence.) 536.44, 536.45, and 536.46 of this part, ex- (b) Claims arising from private or do- cept for the exclusion listed in mestic obligations rather than from § 536.45(k). Additionally, the exclusions government transactions. in § 536.45(a), (b), (e) and (k) do not (c) Claims based solely on compas- apply to a claim arising incident to sionate grounds. noncombat activities. (d) A claim for any item, the acquisi- (j) Claims based on strict or absolute tion, possession, or transportation of liability and similar theories. which was in violation of DA direc- (k) Claims payable under subparts D tives, such as illegal war trophies. or J of this part, or under AR 27–20, (e) Claims for rent, damage, or other chapter 11. payments involving the acquisition, (l) Claims involving DA vehicles cov- use, possession or disposition of real ered by insurance in accordance with property or interests therein by and for requirements of a foreign country un- the Department of the Army (DA) or less coverage is exceeded or the insurer Department of Defense (DOD). See is bankrupt. When an award is other- § 536.34(m) and paragraph 2–15m of DA wise payable and an insurance settle- Pam 27–162. ment is not reasonably available, a (f) Claims not in the best interests of field claims office should request per- the United States, contrary to public mission from the Commander USARCS policy, or otherwise contrary to the to pay the award, provided that an as- basic intent of the governing statute signment of benefits is obtained. (10 U.S.C. 2733); for example, claims for property damage or loss or personal in- § 536.77 Applicable law for claims jury or death of inhabitants of un- under the Military Claims Act. friendly foreign countries or individ- (a) General principles—(1) Tort claims uals considered to be unfriendly to the excluding claims arising out of noncombat United States. When a claim is consid- activities. (i) In determining liability, ered not payable for the reasons stated such claims will be evaluated under in this section, it will be forwarded for general principles of law applicable to appropriate action to the Commander a private individual in the majority of USARCS, with the recommendations of American jurisdictions, except where the responsible claims office. the doctrine of contributory negligence (g) Claims presented by a national, or applies. The MCA requires that con- a corporation controlled by a national, tributory negligence be interpreted and of a country at war or engaged in applied according to the law of the armed conflict with the United States, place of the occurrence, including for- or any country allied with such enemy eign (local) law for claims arising in country unless the appropriate settle- foreign countries (see 10 U.S.C. ment authority determines that the 2733(b)(4)). claimant is, and at the time of the inci- (ii) Claims are cognizable when based dent was, friendly to the United States. on those acts or omissions recognized A prisoner of war or an interned enemy as tortious by a majority of jurisdic- alien is not excluded from bringing an tions that require proof of duty, neg- otherwise payable claim for damage, ligence, and proximate cause resulting loss, or destruction of personal prop- in compensable injury or loss subject erty in the custody of the government. to the exclusions set forth at § 536.76. (h) A claim for damages or injury, Strict or absolute liability and similar which a receiving State should adju- theories are not grounds for liability dicate and pay under an international under this subpart. agreement, unless a consistent and (2) Tort claims arising out of noncombat widespread alternative process of adju- activities. Claims arising out of non- dicating and paying such claims has combat activities under §§ 536.75(a)(2) been established within the receiving and (b) are not tort claims and require State. See DA Pam 27–162, paragraph 3– only proof of causation. However, the 4a, for further discussion of the condi- doctrine of contributory negligence tions of waiver. will apply, to the extent set forth in 10

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U.S.C. 2733(b)(4) and paragraph (a)(1)(i) victim and all persons, including those of this section. derivative to the claim, who claim in- (3) Principles applicable to all subpart C jury by or through that victim will not claims. (i) Interpretation of meanings exceed $500,000. However, separate and construction of questions of law claims for emotional distress consid- under the MCA will be determined in ered under paragraph (b)(1) of this sec- accordance with federal law. The for- tion are not subject to the $500,000 cap mulation of binding interpretations is for the wrongful death claim as they delegated to the Commander USARCS, are not included in the wrongful death provided that the statutory provisions claim; rather, each is a separate claim of the MCA are followed. with its own $500,000 cap under para- (ii) Scope of employment will be de- graph (b)(3)(ii) of this section. Contin- termined in accordance with federal uous or repeated exposure to substan- law. Follow guidance from reported tially the same or similar harmful ac- FTCA cases. The formulation of a bind- tivity or conditions is treated as one ing interpretation is delegated to the incident for the purposes of deter- Commander USARCS, provided the mining the extent of liability. If the statutory provisions of the MCA are claim accrued prior to September 1, followed. 1995, these limitations do not apply. (iii) The collateral source doctrine is Any such limitation in the law of the not applicable. place of occurrence will apply. (iv) The United States will only be (b) Personal injury claims—(1) Eligible liable for the portion of loss or damage claimants. Only the following may attributable to the fault of the United claim: States or its employees. Joint and sev- (i) Persons who suffer physical inju- eral liability is inapplicable. ries or intentional emotional distress, (v) No allowance will be made for but not subrogees (when claiming prop- court costs, bail, interest, inconven- erty loss or damage, medical expenses ience or expenses incurred in connec- or lost earnings); see paragraph tion with the preparation and presen- (a)(3)(iii) of this section. tation of the claim. (ii) Spouses for loss of consortium, (vi) Punitive or exemplary damages but not parent-child or child-parent are not payable. loss of consortium; (vii) Claims for negligent infliction of (iii) Members of the immediate fam- emotional distress may only be enter- ily who were in the zone of danger of tained when the claimant suffered the injured person as defined in para- physical injury arising from the same graph (a)(3)(vii) of this section. incident as the claim for emotional dis- (2) Economic damages. Elements of tress, or the claimant is the immediate economic damage are limited to the family member of an injured party/de- following: cedent, was in the zone of danger and (i) Past expenses, including medical, manifests physical injury for the emo- hospital and related expenses actually tional distress. Claims for intentional incurred. Nursing and similar services infliction of emotional distress will be furnished gratuitously by a family evaluated under general principles of member are compensable. Itemized American law as set forth in paragraph bills or other suitable proof must be (a)(1)(i) of this section and will be con- furnished. Expenses paid by, or recov- sidered as an element of damages under erable from, insurance or other sources paragraph (b)(3)(ii) of this section. are not recoverable. Claims for either negligent or inten- (ii) Future medical, hospital, and re- tional infliction of emotional distress lated expenses. When requested, a med- are excluded when they arise out of as- ical examination is required. sault, battery, false arrest, false im- (iii) Past lost earnings as substan- prisonment, malicious prosecution, tiated by documentation from both the abuse of process, libel, or slander, as employer and a physician. defined in § 536.45(h). (iv) Loss of earning capacity and (viii) In a claim for personal injury ability to perform services, as substan- or wrongful death, the total award for tiated by acceptable medical proof. non-economic damages to any direct When requested, past federal income

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tax forms must be submitted for the (1) Claimant. (i) Only one claim may previous five years and the injured per- be presented for a wrongful death. It son must undergo an independent med- shall be presented by the decedent’s ical examination (IME). Estimates of personal representative on behalf of all future losses must be discounted to parties in interest. The personal rep- present value at a discount rate of one resentative must be appointed by a to three percent after deducting for in- court of competent jurisdiction prior come taxes. When a medical trust pro- to any settlement and must agree to viding for all future care is established, make distribution to the parties in in- personal consumption may be deducted terest under court jurisdiction, if re- from future losses. quired. (v) Compensation paid to a person for (ii) Parties in interest are the sur- essential household services that the viving spouse, children, or dependent injured person can no longer provide parents to the exclusion of all other for himself or herself. These costs are parties. If there is no surviving spouse, recoverable only to the extent that children, or dependent parents, the they neither have been paid by, nor are next of kin will be considered a party recoverable from, insurance. or parties in interest. A dependent par- (3) Non-economic damages. Elements of ent is one who meets the criteria set non-economic damages are limited to forth by the Internal Revenue Service the following: to establish eligibility for a DOD iden- (i) Past and future conscious pain and tification card. suffering. This element is defined as (2) Economic loss. Elements of eco- physical discomfort and distress as nomic damages are limited to the fol- well as mental and emotional trauma. lowing: Loss of enjoyment of life, whether or (i) Loss of monetary support of a not it is discernible by the injured family member from the date of injury party, is compensable. The inability to causing death until expiration of dece- perform daily activities that one per- dent’s worklife expectancy. When re- formed prior to injury, such as rec- quested, the previous five years federal reational activities, is included in this income tax forms must be submitted. element. Supportive medical records Estimates must be discounted to and statements by health care per- present value at one to three percent sonnel and acquaintances are required. after deducting for taxes and personal When requested, the claimant must consumption. Loss of retirement bene- submit to an interview. fits is compensable and similarly dis- (ii) Emotional distress. Emotional discounted after deductions. tress under the conditions set forth in (ii) Loss of ascertainable contribu- paragraph (a)(3)(vii) of this section. tions, such as money or gifts to other (iii) Physical disfigurement. This ele- than family member claimants as sub- ment is defined as impairment result- stantiated by documentation or state- ing from an injury to a person that ments from those concerned. causes diminishment of beauty or sym- (iii) Loss of services from date of in- metry of appearance rendering the perjury to end of life expectancy of the de- son unsightly, misshapen, imperfect, or cedent or the person reasonably ex- deformed. A medical statement and pected to receive such services, which- photographs, documenting claimant’s ever is shorter. condition, may be required. (iv) Expenses as set forth in para- (iv) Loss of consortium. This element graph (b)(2)(i) of this section. In addi- is defined as conjugal fellowship of hus- tion, burial expenses are allowable. Ex- band and wife and the right of each to penses paid by, or recoverable from, in- the company, society, cooperation, and surance or other sources are not recov- affection of the other in every conjugal erable. relation. (3) Non-economic loss. Elements of (c) Wrongful death claims. The law of damages are limited to the following: the place of the incident giving rise to (i) Pre-death conscious pain and suf- the claim will apply to claims arising fering. in the United States, its common- (ii) Loss of companionship, comfort, wealths, territories or possessions. society, protection, and consortium

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suffered by a spouse for the death of a of the Secretary of the Army may ap- spouse, a child for the death of a par- prove settlements in excess of $100,000. ent, or a parent for the death of a (b) Delegations of Authority. (1) Deni- child. als and final offers made under the del- (iii) Loss of training, guidance, edu- egations set forth herein are subject to cation, and nurture suffered by a child appeal to the authorities specified in under the age of 18 for the death of a paragraph (d) of this section. parent, until the child becomes 18 (2) The Judge Advocate General years old. (TJAG) and the Assistant Judge Advo- (iv) Claims for the survivors’ emo- cate General (TAJAG) are delegated tional distress, mental anguish, grief, authority to pay up to $100,000 in set- bereavement, and anxiety are not pay- tlement of a claim and to disapprove a able, in particular claims for inten- claim regardless of the amount tional or negligent infliction of emo- claimed. tional distress to survivors arising out (3) The Commander USARCS is dele- of the circumstances of a wrongful gated authority to pay up to $25,000 in death are personal injury claims fall- settlement of a claim and to dis- ing under § 536.77(b)(3). approve or make a final offer in a (d) Property damage claims. The fol- claim regardless of the amount lowing provisions apply to all claims claimed. arising in the United States, its com- (4) The Judge Advocate (JA) or Staff monwealths, territories and posses- Judge Advocate (SJA), subject to limi- sions. tations that USARCS may impose, and (1) Such claims are limited to dam- chiefs of a command claims service are age to, or loss of, tangible property and delegated authority to pay up to $25,000 costs directly related thereto. Con- in settlement, regardless of the amount sequential damages are not included. claimed, and to disapprove or make a (See § 536.50(e) and DA Pam 27–162, final offer in a claim presented in an paragraph 2–56a.) amount not exceeding $25,000. (2) Proper claimants are described in (5) A head of an area claims office § 536.27. Claims for subrogation are ex- (ACO) is delegated authority to pay up cluded. (See § 536.27(e)). However, there to $25,000 in settlement of a claim, re- is no requirement that the claimant gardless of the amount claimed, and to use personal casualty insurance to disapprove or make a final offer in a mitigate the loss. claim presented in an amount not exceeding $25,000. A head of a claims (3) Allowable elements of damages processing office (CPO) with approval and measure of proof (additions to authority is delegated authority to ap- these elements are permissible with prove, in full or in part, claims pre- concurrence of the Commander sented for $5,000 or less, and to pay USARCS). These elements are dis- claims regardless of the amount cussed in detail in DA Pam 27–162, claimed, provided an award of $5,000 or paragraph 2–54. less is accepted in full satisfaction of (i) Damages to real property. the claim. (ii) Damage to or loss of personal (6) Authority to further delegate pay- property, or personal property that is ment authority is set forth in not economically repairable. § 536.3(g)(1) of this part. For further dis- (iii) Loss of use. cussions also related to approval, set- (iv) Towing and storage charges. tlement and payment authority see (v) Loss of business or profits. also paragraph 2–69 of DA Pam 27–162. (vi) Overhead. (c) Settlement of multiple claims arising from a single incident. (1) Where a single § 536.78 Settlement authority for act or incident gives rise to multiple claims under the Military Claims claims cognizable under this subpart, Act. and where one or more of these claims (a) Authority of the Secretary of the apparently cannot be settled within Army. The Secretary of the Army, the the monetary jurisdiction of the au- Army General Counsel, as the Sec- thority initially acting on them, no retary’s designee, or another designee final offer will be made. All claims will

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be forwarded, along with a rec- § 536.79 Action on appeal under the ommended disposition, to the author- Military Claims Act. ity who has monetary jurisdiction over (a) The appeal will be examined by the largest claim for a determination the settlement authority who last of liability. However, where each indi- acted on the claim, or his or her suc- vidual claim, including derivative cessor, to determine if the appeal com- claims, can be settled within the mone- plies with the requirements of this reg- tary authority initially acting on ulation. The settlement authority will them, and none are subject to denial, also examine the claim file and decide all such claims may be settled even whether additional investigation is re- though the total amount exceeds the quired; ensure that all allegations or monetary jurisdiction of the approving evidence presented by the claimant, or settlement authority. agent, or attorney are documented; and (2) If such authority determines that federal liability is established, he or ensure that all pertinent evidence is in- she may return claims of lesser value cluded. If claimants state that they ap- to the field claims office for settlement peal, but do not submit supporting ma- within that office’s jurisdiction. The terials within the 60-day appeal period field claims office must take care to or an approved extension thereof, these avoid compromising the higher appeals will be determined on the authority’s discretion by conceding li- record as it existed at the time of de- ability in claims of lesser amount. nial or final offer. Unless action under (d) Appeals. Denials or final offers on paragraph (b) of this section is taken, claims described as follows may be ap- the claim and complete investigative pealed to the official designated: file, including any additional inves- (1) For claims presented in an tigation, and a tort claims memo- amount over $100,000, final decisions on randum will be forwarded to the appro- appeals will be made by the Secretary priate appellate authority for nec- of the Army or designee. essary action on the appeal. (2) For claims presented for $100,000 (b) If the evidence in the file, includ- or less, and any denied claim, regarding information submitted by the less of the amount claimed, in which claimant with the appeal and that the denial was based solely upon an in- found by any necessary additional incident-to-service bar, exclusionary lan- vestigation, indicates that the appeal guage in a federal statute governing should be granted in whole or in part, compensation of federal employees for the settlement authority who last job-related injuries (see § 536.44), or un- acted on the claim, or his or her suc- timely filing, TJAG or TAJAG will cessor, will attempt to settle the render final decisions on appeals, ex- claim. If a settlement cannot be cept that claims presented for $25,000 reached, the appeal will be forwarded or less, and not acted upon by the Com- in accordance with paragraph (a) of mander USARCS, are governed by this section. paragraph (d)(3) of this section. (c) As to an appeal that requires ac- (3) For claims presented for $25,000 or tion by TJAG, TAJAG, or the Sec- less, final decisions on appeals will be retary of the Army or designee, the made by the Commander USARCS, his Commander USARCS may take the ac- or her designee, or the chief of a com- tion in paragraph (b) of this section or mand claims service when such claims forward the claim together with a rec- are acted on by an ACO under such ommendation for action. All matters service’s jurisdiction. submitted by the claimant will be for- (4) Sections 536.64, 536.65, and 536.66 of warded and considered. this part set forth the rules relating to (d) Since an appeal under this sub- the notification of appeal rights and part is not an adversarial proceeding, processing. no form of hearing is authorized. A re- (e) Delegated authority. Authority del- quest by the claimant for access to egated by this section will not be exer- documentary evidence in the claim file cised unless the settlement or approval to be used in considering the appeal authority has been assigned an office will be granted unless law or regula- code. tion does not permit access.

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(e) If the appellate authority upholds ney, paralegal, or other member of a a final offer or authorizes an award on legal staff will be paid if: appeal from a denial of a claim, the no- (1) The alleged negligent or wrongful tice of the appellate authority’s action actions or omissions occurred during will inform the claimant that he or she the provision or performance of legal must accept the award within 180 days services while the attorney or legal of the date of mailing of the notice of employee was acting within the scope the appellate authority’s action or the of duties or employment; award will be withdrawn, the claim (2) Such personnel furnish prompt no- will be deemed denied, and the file will tification and delivery of all process be closed without future recourse. served or received and other documents, information, and assistance as § 536.80 Payment of costs, settlements, requested; and judgments related to certain (3) Such personnel cooperate in the medical malpractice claims. defense of the action on the merits. (a) General. Costs, settlements, or (b) Requests for contribution or indem- judgments cognizable under 10 U.S.C. nification. All requests for contribution 1089(f) for personal injury or death or indemnification under this section caused by any physician, dentist, should be forwarded to the Commander nurse, pharmacist, paramedic, or other USARCS, for action, following the pro- supporting personnel (including med- cedures set forth in this subpart. ical and dental technicians, nurse as- sistants, therapists, and Red Cross vol- § 536.82 Reopening an MCA claim after unteers of the Army Medical Depart- final action by a settlement author- ment (AMEDD), AMEDD personnel de- ity. tailed for service with other than a fed- (a) Original approval or settlement au- eral department, agency, or instrumen- thority (including TAJAG, TJAG, Sec- tality and direct contract personnel retary of the Army, or the Secretary’s des- identified in the contract as federal ignees). (1) An original settlement au- employees), will be paid provided that: thority may reconsider the denial of, (1) The alleged negligent or wrongful or final offer on, a claim brought under actions or omissions occurred during the MCA upon request of the claimant the performance of medical, dental, or or the claimant’s authorized agent. In related health care functions (includ- the absence of such a request, the set- ing clinical studies and investigations) tlement authority may on his or her while the medical or health care em- initiative reconsider a claim. ployee was acting within the scope of (2) An original approval or settle- employment. ment authority may reopen and cor- (2) Such personnel furnish prompt no- rect action on an MCA claim pre- tification and delivery of all process viously settled in whole or in part served or received and other docu- (even if a settlement agreement has ments, information, and assistance as been executed) when it appears that requested. the original action was incorrect in law (3) Such personnel cooperate in the or fact based on the evidence of record defense of the action on its merits. at the time of the action or subse- (b) Requests for contribution or indem- quently received. For errors in fact, nification. All requests for contribution the new evidence must not have been or indemnification under this section discoverable at the time of final action should be forwarded to the Commander by either the Army or the claimant USARCS for action, following the pro- through the exercise of reasonable dili- cedures set forth in this subpart. gence. Corrective action may also be taken when an error contrary to the § 536.81 Payment of costs, settlements, parties’ mutual understanding is dis- and judgments related to certain covered in the original action. If the legal malpractice claims. settlement or approval authority de- (a) General. Costs, settlements, and termines that their original action was judgments cognizable under 10 U.S.C. incorrect, they will modify the action 1054(f) for damages for personal injury and, if appropriate, make a supple- or loss of property caused by any attor- mental payment. The basis for a

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change in action will be stated in a (FTCA) (60 Stat. 842, 28 U.S.C. 2671– memorandum included in the file. For 2680), as amended by Public Law 89–506, example, a claim was settled for July 1966 (80 Stat. 306); Public Law 93– $15,000, but the settlement agreement 253, March 1974 (88 Stat. 50); Public Law was typed to read ‘‘$1,500’’ and the 97–124, December 1981 (93 Stat. 1666); error is not discovered until the file is Public Law 100–694, November 1988 (102 being prepared for payment. If appro- Stat. 4563–67); and Public Law 101–552, priate, a corrected payment will be November 1996 (104 Stat. 734); and as made. A settlement authority who has implemented by the Attorney Gen- reason to believe that a settlement was eral’s Regulations (28 CFR 14.1–14.11 obtained by fraud on the part of the and its appendix), all of which are post- claimant or claimant’s legal represented on the USARCS Web site; for the ad- ative, will reopen action on that claim dress see § 536.2(a). and, if the belief is substantiated, correct the action. The basis for cor- § 536.84 Scope for claims under the recting an action will be stated in a Federal Tort Claims Act. memorandum and included in the file. (a) General. This subpart applies in (b) A successor approval or settlement the United States, its commonwealths, authority (including TAJAG, TJAG, Sec- territories and possessions (all herein- retary of the Army, or the Secretary’s des- after collectively referred to as United ignees)—(1) Reconsideration. A successor States or U.S.). It prescribes the sub- approval or settlement authority may stantive bases and special procedural reconsider the denial of, or final offer requirements under the FTCA and the on, an MCA claim upon request of the implementing Attorney General’s regu- claimant or the claimant’s authorized lations for the administrative settle- agent only on the basis of fraud, sub- ment of claims against the United stantial new evidence, errors in cal- States based on death, personal injury, culation, or mistake (misinterpreta- or damage to, or loss of, property tion) of law. caused by negligent or wrongful acts or (2) Settlement correction. A successor omissions by the United States or its approval or settlement authority may employees acting within the scope of reopen and correct a predecessor’s ac- their employment. If a conflict exists tion on a claim that was previously between this part and the Attorney settled in whole or in part for the same General’s regulations, the latter gov- reasons that an original authority may erns. do so. (b) Effect of the Military Claims Act. A (c) Time requirement for filing request tort claim arising in the United States, for reconsideration. Requests post- its commonwealths, territories, and marked more than five years from the possessions may be settled under sub- date of mailing of final notice will be part C of this part if the Federal Tort denied based on the doctrine of laches. Claims Act (FTCA) does not apply to (d) Finality of action. Action by the the type of claim under consideration appropriate authority (either affirming or if the claim arose incident to non- the prior action or granting full or combat activities. If a claim is filed granting full or partial relief) is final under both the FTCA and the Military under the provisions of 10 U.S.C. 2735. Claims Act (MCA), or when both stat- Action upon a request for reconsider- utes apply equally, final action thereon ation constitutes final administrative will follow the procedures set forth in disposition of a claim. No further re- DA Pam 27–162, paragraphs 2–74 quests for reconsideration will be al- through 2–76, discussing final offers and lowed except on the basis of fraud. denial letters. Subpart D—Claims Cognizable § 536.85 Claims payable under the Fed- Under the Federal Tort Claims Act eral Tort Claims Act. (a) Unless otherwise prescribed, § 536.83 Statutory authority for the claims for death, personal injury, or Federal Tort Claims Act. damage to, or loss of, property (real or The statutory authority for this sub- personal) are payable under this subpart is the Federal Tort Claims Act part when the injury or damage is

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caused by negligent or wrongful acts or (b) ACO heads. A head of an area omissions of military personnel or ci- claims office (ACO) is delegated au- vilian employees of the Department of thority to pay up to $50,000 in settle- the Army or Department of Defense ment of a claim, regardless of the while acting within the scope of their amount claimed, and to disapprove or employment under circumstances in make a final offer in a claim presented which the United States, if a private in an amount not exceeding $50,000, person, would be liable to the claimant provided the value of all claims and po- in accordance with the law of the place tential claims arising out of a single where the act or omission occurred. incident does not exceed $200,000. The FTCA is a limited waiver of sov- (c) CPO heads. A head of a claims ereign immunity without which the processing office (CPO) with approval United States may not be sued in tort. authority is delegated authority to ap- Similarly, neither the Fifth Amend- prove, in full or in part, claims pre- ment nor any other provision of the sented for $5,000 or less, and to pay U.S. Constitution creates or permits a claims regardless of amount, provided federal cause of action allowing recov- an award of $5000 or less is accepted in ery in tort. Immunity must be ex- full satisfaction of the claim. pressly waived, as the FTCA waives it. (d) Further guidance. Authority to (b) To be payable, a claim must arise further delegate payment authority is from the acts or omissions of an ‘‘em- set forth in § 536.3(g)(1) of this part. For ployee of the government’’ under 28 further discussions related to approval, U.S.C. 2671. Categories of such employ- settlement and payment authority, see ees are listed in § 536.23(b) of this part. paragraphs 2–69 and 2–71 of DA Pam 27– 162. § 536.86 Claims not payable under the (e) Settlement of multiple claims from a Federal Tort Claims Act. single incident. (1) Where a single act or incident gives rise to multiple claims A claim is not payable if it is identi- cognizable under this subpart, and fied as an exclusion in DA Pam 27–162, where one claim cannot be settled paragraphs 2–36 through 2–43. within the monetary jurisdiction for § 536.87 Applicable law for claims one claim of the authority acting on under the Federal Tort Claims Act. the claim or all claims cannot be settled within the monetary jurisdiction The applicable law for claims falling for a single incident, no final offer will under the Federal Tort Claims Act is be made. All claims will be forwarded, set forth in §§ 536.41 through 536.52. along with a recommended disposition, to the Commander USARCS. § 536.88 Settlement authority for (2) If the Commander USARCS deter- claims under the Federal Tort Claims Act. mines that all claims can be settled for a total of $200,000 or less, he may re- (a) General. Subject to the Attorney turn claims to the field office for set- General’s approval of payments in ex- tlement. If the Commander USARCS, cess of $200,000 for a single claim, or if determines that all claims cannot be the total value of all claims and poten- settled for a total of $200,000, he must tial claims arising out of a single inci- request Department of Justice author- dent exceeds $200,000 (for which ity prior to settlement of any one USARCS must write an action memo- claim. The field claims office must not randum for submission to the Depart- concede liability by paying any one ment of Justice), the following officials claim of lesser value. are delegated authority to settle (including payment in full or in part, or § 536.89 Reconsideration of Federal denial) and make final offers on claims Tort Claims Act claims. under this subpart: (a) Reconsideration of paid claims. (1) The Judge Advocate General Under the provision of 28 U.S.C. 2672, (TJAG); neither an original or successor au- (2) The Assistant Judge Advocate thority may reconsider a claim which General (TAJAG); and has been paid except as expressly set (3) The Commander USARCS. forth below. Payment of an amount for

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property damage will bar payment for quest of the claimant, the claimant’s personal injury or death except for a authorized agent, or the claimant’s split claim provided the provisions of legal representative only on the basis § 536.60 are followed. Supplemental pay- of fraud, substantial new evidence, er- ments for either property or injury are rors in calculation, or mistake (mis- barred by 10 U.S.C. 2672. Accordingly, interpretation) of law. claimants will be informed that only (2) Settlement correction. A successor one claim or payment is permitted. approval or settlement authority may (b) Notice of right to reconsideration. reopen and correct a predecessor’s ac- Notice of disapproval or final offer tion on a claim that was previously issued by an authority listed in settled in whole or in part for the same § 536.88(b) will advise the claimant of a reasons that an original authority may right to reconsideration to be sub- do so. mitted in writing not later than six (e) Requirement to forward a request for months from the date of mailing the reconsideration. When full relief is not notice. Such a request will suspend the granted, forward all requests for recon- requirement to bring suit for a min- sideration of an ACO’s denial or final imum of six month or until action is offer to the Commander USARCS for taken on the request. The claimant action. Include all investigative mate- will be so informed. See the Attorney rial and legal analyses generated by General’s Regulations at 28 CFR the request. 14.9(b), posted on the USARCS Web (f) Action prior to forwarding. A re- site; for the address see § 536.2(a). quest for reconsideration should dis- (c) Original approval or settlement au- close fully the legal and/or factual thority—(1) Reconsideration. An original bases that the claimant has asserted as settlement authority may reconsider grounds for relief and provide appro- the denial of, or final offer on, a claim priate supporting documents or evi- brought under the FTCA upon request dence. Following completion of any in- of the claimant or the legal representa- vestigation or other action deemed tive. necessary for an informed disposition (2) Settlement correction. An original of the request, the approval or settle- approval or settlement authority may ment authority will reconsider the reopen and correct action on a claim claim and attempt to settle it, grant- previously settled in whole or in part ing relief as warranted. When further (even if a settlement agreement has settlement efforts appear unwarranted, been executed) when an error contrary the entire file with a memorandum of to the parties’ mutual understanding is opinion will be forwarded to the Com- discovered in the original action. For mander USARCS. The claimant will be example: a claim was settled for informed of such transfer. $15,000, but the settlement agreement (g) Finality of action. Action by the was typed to read ‘‘$1,500’’ and the appropriate authority (either affirming error is not discovered until the file is the prior action or granting full or par- being prepared for payment. If appro- tial relief) upon a request for reconsid- priate, a corrected payment will be eration constitutes final administra- made. An approval or settlement au- tive disposition of a claim. No further thority who has reason to believe that requests for reconsideration will be al- a settlement was obtained by fraud on lowed except on the basis of fraud. At- the part of the claimant or claimant’s tempted further requests for reconsid- legal representative will reopen action eration on other grounds will not toll on that claim, and if the belief is sub- the six-month period set forth in 28 stantiated, correct the action. The U.S.C. 2401(b). basis for correcting an action will be stated in a memorandum and included Subpart E—Claims Cognizable in the file. Under the Non-Scope Claims Act (d) A successor approval or settlement authority—(1) Reconsideration. A suc- § 536.90 Statutory authority for the cessor approval or settlement author- Non-Scope Claims Act. ity may reconsider the denial of, or The statutory authority for this sub- final offer on, an FTCA claim upon re- part is set forth in the Act of October

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1962, 10 U.S.C. 2737, 76 Stat. 767, com- available to the DA for the administra- monly called the ‘‘Non-Scope Claims tive settlement of claims. Act (NSCA).’’ (b) Personal injury or death. A claim for personal injury or death is allow- § 536.91 Scope for claims under the able only for the cost of reasonable Non-Scope Claims Act. medical, hospital, or burial expenses (a) This subpart applies worldwide actually incurred and not otherwise and prescribes the substantive bases furnished or paid by the United States. and special procedural requirements (c) Property loss or damage. A claim for the administrative settlement and for damage to or loss of property is al- payment of not more than $1,000 for lowable only for the cost of reasonable any claim against the United States for personal injury, death or damage repairs or value at time of loss, which- to, or loss of, property caused by mili- ever is less. tary personnel or civilian employees, § 536.93 Claims not payable under the incident to the use of a U.S. vehicle at Non-Scope Claims Act. any location, or incident to the use of other U.S. property on a government Under this subpart, a claim is not installation, which claim is not cog- payable that: nizable under any other provision of (a) Results in whole or in part from law. the negligent or wrongful act of the (b) For the purposes of this subpart, a claimant or his or her agent or em- ‘‘government installation’’ is a facility ployee. The doctrine of comparative having fixed boundaries owned or con- negligence does not apply. trolled by the government, and a ‘‘ve- (b) Is for medical, hospital, or burial hicle’’ includes every description of expenses furnished or paid by the carriage or other artificial contrivance United States. used, or capable of being used, as (c) Is for any element of damage per- means of transportation on land (1 taining to personal injuries or death U.S.C. 4). other than as provided in § 536.93(b). All (c) Any claim in which there appears other items of damage, for example, to be a dispute about whether the employee was acting within the scope of compensation for loss of earnings and employment will be considered under services, diminution of earning capac- subparts C, D, or F of this part. Only ity, anticipated medical expenses, when all parties, including an insurer, physical disfigurement and pain and agree that there is no ‘‘in scope’’ issue suffering are not payable. will the claim be considered under this (d) Is for loss of use of property or for subpart. the cost of substitute property, for example, a rental. § 536.92 Claims payable under the (e) Is legally recoverable by the Non-Scope Claims Act. claimant under an indemnifying law or (a) General. A claim for personal in- indemnity contract. If the claim is in jury, death, or damage to, or loss of, part legally recoverable, the part re- property, real or personal, is payable coverable by the claimant is not pay- under this subpart when: able. (1) Caused by negligent or wrongful (f) Is a subrogated claim. acts or omissions of Department of De- (g) In some circumstances some fense or Department of the Army (DA) claims may be partially payable. See military personnel or civilian employ- DA Pam 27–162, paragraph 5–4 for more ees, as listed in § 536.23(b): (i) Incident to the use of a vehicle be- information on claims that may be par- longing to the United States at any tially payable. place or; § 536.94 Settlement authority for (ii) Incident to the use of any other claims under the Non-Scope Claims property belonging to the United Act. States on a government installation. (2) The claim is not payable under (a) Settlement authority. The following any other claims statute or regulation are delegated authority to pay up to

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$1,000 in settlement of each claim aris- 291), July 1974; and Public Law 98–564, ing out of one incident and to dis- (98 Stat. 2918), October 1984. approve a claim presented in any amount under this subpart: § 536.97 Scope for claims under the Na- (1) The Judge Advocate General tional Guard Claims Act. (TJAG); This subpart applies worldwide and (2) The Assistant Judge Advocate prescribes the substantive bases and General (TAJAG); special procedural regulations for the (3) The Commander USARCS; settlement of claims against the (4) The Judge Advocate (JA) or Staff United States for death, personal in- Judge Advocate (SJA) or chief of a jury, damage to, or loss or destruction command claims service; and of property. (5) The head of an area claims office (a) Soldiers of the Army National (ACO). Guard (ARNG) can perform military (b) Approval authority. The head of a duty in an active duty status under the claims processing office (CPO) with ap- authority of Title 10 of the United proval authority is delegated authority States Code, in a full-time National to approve and pay, in full or in part, Guard duty or inactive-duty training claims presented for $1,000 or less and status under the authority of Title 32 to compromise and pay, regardless of of the United States Code, or in a state amount claimed, an agreed award of active duty status under the authority $1,000 or less. of a state code. (c) Further guidance. Authority to (1) When ARNG soldiers perform ac- further delegate payment authority is tive duty, they are under federal com- set forth in § 536.3(g)(1) of this part. For mand and control and are paid from further discussions also related to ap- federal funds. For claims purposes, proval, settlement and payment au- those soldiers are treated as active thority, see also paragraphs 2–69 and 2– duty soldiers. The NGCA, 32 U.S.C. 715, 71 of DA Pam 27–162. does not apply. (2) When ARNG soldiers perform full- § 536.95 Reconsideration of Non-Scope Claims Act claims. time National Guard duty or inactive- duty training, they are under state The provisions of § 536.89 addressing command and control and are paid reconsideration apply and are incor- from federal funds. The NGCA does porated herein by reference. If the apply, but as explained in paragraph (c) claim is not cognizable under the Fed- of this section it is seldom used. eral Tort Claims Act, appellate proce- (3) When ARNG soldiers perform dures under the Military Claims Act or state active duty, they are under state NGCA apply. command and control and are paid from state funds. Federal claims stat- Subpart F—Claims Cognizable utes do not apply, but state claims Under the National Guard statutes may apply. Claims Act (b) The ARNG also employs civilians, referred to as technicians and em- § 536.96 Statutory authority for the ployed under 32 U.S.C. 709. Technicians National Guard Claims Act. are usually, but not always, ARNG sol- The statutory authority for this sub- diers who perform the usual 15 days of part is contained in the Act of Sep- annual training (a category of full- tember 1960 (32 U.S.C. 715, 74 Stat. 878), time duty) and 48 drills (inactive-duty commonly referred to as the ‘‘National training) per year. Guard Claims Act’’ (NGCA), as amend- (c) NGCA coverage applies only to ed by Public Law 87–212, (75 Stat. 488), ARNG soldiers performing full-time September 1961; Public Law 90–486, (82 National Guard duty or inactive-duty Stat. 756), August 1968; Public Law 90– training and to technicians. However, 521, (82 Stat. 874), September 1968; Pub- since the NGCA’s enactment in 1960, lic Law 90–525, (82 Stat. 877), September Congress has also extended Federal 1968; Public Law 91–312, (84 Stat. 412), Tort Claims Act (FTCA) coverage to July 1970; Public Law 93–336, (88 Stat. these personnel.

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(1) In 1968, technicians, who were § 536.102 Actions on appeal under the state employees formerly, were made National Guard Claims Act. federal employees. Along with federal The provisions of § 536.79 apply to employee status came FTCA coverage. claims arising under this subpart. Technicians no longer have any state status, albeit they are hired, fired, and Subpart G—Claims Cognizable administered by a state official, the Under International Agreements Adjutant General, acting as the agent of the federal government. § 536.103 Statutory authority for (2) In 1981, Congress extended FTCA claims cognizable under inter- coverage to ARNG soldiers performing national claims agreements. full-time National Guard duty or inac- The authority for claims presented or tive-duty training (such as any train- processed under this subpart is set ing or other duty under 32 U.S.C. 316, forth in the following federal laws and 502–505). Unlike making technicians bi- or multinational agreements: federal employees, this extension of (a) 10 U.S.C. 2734a and 10 U.S.C. 2734b coverage did not affect their under- (the International Agreements Claims lying status as state military per- Act) as amended, for claims arising sonnel. overseas under international agree- (d) Claims arising from the negligent ments. acts or omissions of ARNG soldiers per- (b) Various international agree- forming full-time National Guard duty ments, such as the North Atlantic or inactive-duty training, or of techni- Treaty Organization (NATO) Status of cians, will be processed under the Forces Agreement (SOFA) and the FTCA. Therefore, the NGCA is gen- Partnership for Peace (PFP) SOFA. erally relevant only to claims arising § 536.104 Current agreements in force. from noncombat activities or outside the United States. Additionally, claims Current listings of known agreements in force are also posted on the by members of the National Guard may USARCS Web site; for the address see be paid for property loss or damage in- § 536.2(a). cident to service if the claim is based on activities falling under this subpart § 536.105 Responsibilities generally/ and is not payable under AR 27–20, international agreements claims. chapter 11. (a) The Commander USARCS is responsible for: § 536.98 Claims payable under the Na- (1) Providing policy guidance to com- tional Guard Claims Act. mand claims services or other respon- The provisions of § 536.75 apply to sible judge advocate (JA) offices on claims arising under this subpart. SOFA or other treaty reimbursement programs implementing 10 U.S.C. 2734a § 536.99 Claims not payable under the and 2734b. National Guard Claims Act. (2) Monitoring the reimbursement The provisions of § 536.76 apply to system to ensure that programs for the claims arising under this subpart. proper verification and certification of reimbursement are in place. § 536.100 Applicable law for claims (3) Monitoring funds reimbursed to or under the National Guard Claims by foreign governments. Act. (b) Responsibilities in the continental The provisions of § 536.77 apply to United States (CONUS). The responsi- claims arising under this subpart. bility for implementing these agreements within the United States has § 536.101 Settlement authority for been delegated to the Secretary of the claims under the National Guard Army (SA). The SA, in turn, has dele- Claims Act. gated that responsibility to the Com- The provisions of § 536.78 apply to mander USARCS, who is in charge of the receiving State office for the claims arising under this subpart. United States, as prescribed in DODD

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5515.8. The Commander USARCS is re- performance of official duty or any sponsible for maintaining direct liaison other act, omission, or occurrence for with sending State representatives and which the sending State is legally re- establishing procedures designed to sponsible shall be filed, considered and carry out the provisions of this sub- settled in accordance with the laws and part. regulations of the receiving State with respect to claims arising from the ac- § 536.106 Definitions for international tivities of its own armed service; see, agreements claims. for example, NATO SOFA, Article VIII, (a) Force and civilian component of paragraph 5. force. Members of the sending State’s (3) Ex gratia claims. Claims arising armed forces on temporary or perma- out of tortious acts or omissions not nent official duty within the receiving done in the performance of official du- State, civilian employees of the send- ties shall be considered by the sending ing State’s armed forces, and those in- State for an ‘‘ex gratia’’ payment that dividuals acting in an official capacity is made directly to the injured party; for the sending State’s armed forces. see, for example, NATO SOFA, Article However, under provisions of the appli- VIII, paragraph 6. cable SOFAs the sending State and the receiving State may agree to exclude § 536.107 Scope for international from the definition of ‘‘force’’ certain agreements claims arising in the individuals, units or formations that United States. would otherwise be covered by the This section sets forth procedures SOFA. Where such an exclusion has been created, this subpart will not and responsibilities for the investiga- apply to claims arising from actions or tion, processing, and settlement of omission by those individuals, units or claims arising out of any acts or omis- formations. ‘‘Force and civilian compo- sions of members of a foreign military nent of force’’ also includes claims force or civilian component present in arising out of acts or omissions made the United States or a territory, com- by military or civilian personnel, re- monwealth, or possession thereof under gardless of nationality, who are as- the provisions of cost sharing recip- signed or attached to, or employed by, rocal international agreements which an international headquarters estab- contain claims settlement provisions lished under the provisions of the Pro- applicable to claims arising in the tocol on the Status of International United States. Article VIII of the Military Headquarters Set Up Pursu- NATO SOFA has reciprocal provisions ant to the North Atlantic Treaty, applying to all NATO member coun- dated August 28, 1952, such as Supreme tries; the Partnership for Peace (PFP) Allied Command, Atlantic. Agreement has similiar provisions, as (b) Types of claims under agreements— do the Singapore and Australian (1) Intergovernmental claims. Claims of SOFAs. one contracting party against any other contracting party for damage to § 536.108 Claims payable under inter- property owned by its armed services, national agreements (for those arising in the United States). or for injury or death suffered by a member of the armed services engaged (a) Within the United States, Art. in the performance of official duties, VIII, NATO SOFA applies to claims are waived. Claims above a minimal arising within the North Atlantic Trea- amount for damage to property owned ty Area, which includes CONUS and its by a governmental entity other than territories and possessions north of the the armed services may be asserted. Tropic of Cancer (23.5 degrees north NATO SOFA, Article VIII, paragraph 1– latitude). This excludes Puerto Rico, 4; Singapore SOFA, Article XVI, para- the Virgin Islands, and parts of Hawaii. graph 2–3. Third-party scope claims are payable (2) Third-party scope claims. Claims under subpart D or, if the claim arises arising out of any acts or omissions of incident to noncombat activities, members of a force or the civilian com- under subpart C of this part. Maritime ponent of a sending State done in the claims are payable under subpart H of

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this part. The provisions of these sub- ficer receiving such notification will in parts on what claims are payable apply turn notify the Commander USARCS. equally here. The members of the for- If the member is neither assigned nor eign force or civilian component must attached to any installation or activity be acting in pursuance of the applica- within the United States, the Com- ble treaty’s objectives. mander USARCS, will be notified. (b) Within the United States, third- party ex gratia claims are payable only § 536.111 Investigation of claims aris- by the sending State and are not paying under international agreements able under subpart E of this part. (for those claims arising in the United States). § 536.109 Claims not payable under Responsibility for investigating an international agreements (for those incident rests upon the area claims of- arising in the United States). fice (ACO) or claims processing office The following claims are not payable: (CPO) responsible for the geographic (a) Claims arising from a member of area in which the incident occurred. a foreign force or civilian component’s The Commander USARCS, an ACO, and acts or omissions that do not accord a CPO are authorized to designate the with the objectives of a treaty author- legal office of the installation at which izing their presence in the United the member of the foreign force or ci- States. vilian component is attached, includ- (b) Claims arising from the acts or ing the legal office of another armed omissions of a member of a foreign force, to carry out the responsibility to force or civilian component who has investigate. The investigation will been excluded from SOFA coverage by comply with the responsible Service’s agreement between the sending State implementing claims regulation. When and the United States. the member is neither assigned nor at- (c) Third-party scope claims arising tached within the United States, the within the United States that are not Commander USARCS will furnish as- payable under subparts C, D, or H of sistance. this part are listed as barred under those subparts. As sending State forces § 536.112 Settlement authority for are considered assimilated into the claims arising under international U.S. Armed Services for purposes of the agreements (for those claims arising in the United States). SOFAs, their members are also barred from receiving compensation from the Settlement authority is delegated to United States when they are injured the Commander USARCS, except for incident to their service, Daberkow v. settlement amounts exceeding the United States, 581 F.2d 785 (9th Cir. 1978). Commander’s authority as set forth in subparts C, D, or H of this part, or in § 536.110 Notification of incidents aris- those cases where settlement is re- ing under international agreements served to a higher authority. Pursuant (for claims arising in the United to the applicable SOFA, the Com- States). mander USARCS will report the pro- To enable USARCS to properly disposed settlement to the sending State charge its claims responsibilities under office for concurrence or objection. the applicable SOFAs, it must be noti- See, for example, NATO SOFA, Article fied of all incidents, including off-duty VIII. incidents, in which members of a foreign military force or civilian compo- § 536.113 Assistance to foreign forces nent are involved. Any member or em- for claims arising under inter- ployee of the U.S. armed services who national agreements (as to claims learns of an incident involving a mem- arising in the United States). ber of a foreign military force or civil- As claims arising from activities of ian component resulting in personal in- members of NATO, Partnership for jury, death, or property damage will Peace, Singaporean, or Australian immediately notify the judge advocate forces in the United States are proc- (JA) or legal officer at the installation essed in the same manner as those aris- or activity to which such person is as- ing from activities of U.S. government signed or attached. The JA or legal of- personnel. All JAs and legal offices will

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provide assistance similar to that pro- State to consider claims against the vided to U.S. armed services personnel. United States will ensure that all claims personnel know the receiving § 536.114 Scope for claims arising over- State’s policy on which persons or seas under international agree- classes of persons are proper claimants ments. under such provisions. When a claim is (a) This section sets forth guidance filed both with the receiving State and on claims arising from any act or omis- under either the Military Claims Act sion of soldiers or members of the civil- (MCA) or Foreign Claims Act (FCA), ian component of the U.S. armed serv- the provisions of § 536.76(h) of this part ices done in the performance of official and DA Pam 27–162, paragraph 3–4a duty or arising from any other act or apply. omission or occurrence for which the (c) When SOFA provisions provide for U.S. armed services are responsible receiving state claims consideration, under an international agreement. the time limit for filing such claims Claims incidents arising in countries may be much shorter than the two for which the SOFA requires the re- years otherwise allowed under the FCA ceiving State to adjudicate and pay the or MCA. For example, receiving state claims in accordance with its laws and claims offices in Germany require that regulations are subject to partial reim- a claim be filed under the SOFA within bursement by the United States. three months of the date that the (b) Claims by foreign inhabitants claimant is aware of the U.S. involve- based on acts or omissions outside the ment. If the filing period is about to scope of official duties are cognizable expire for claims arising in Germany, under subpart J of this part. Claims have the claimant fill out a claim arising from nonscope acts or omis- form, make two copies, and date-stamp sions by third parties who are not for- each copy as received by the a sending eign inhabitants are cognizable under State claims office. Return the date- subpart E but not under subparts C or stamped original of the claim to the F of this part. claimant with instructions to promptly file with the receiving State claims of- § 536.115 Claims procedures for claims fice. Keep one date-stamped copy as a arising overseas under inter- potential claim. Forward one date- national agreements. stamped copy of the claim to the U.S. (a) SOFA provisions that call for the Army Claims Service Europe receiving State to adjudicate claims (USACSEUR). This may toll the appli- have been held to be the exclusive rem- cable German statute of limitations. edy for claims against the United Additionally, many receiving state States, Aaskov v. Aldridge, 695 F. Supp. claims offices do not require claimants 595 (D.D.C. 1988); Dancy v. Department of to demand a sum certain. All claims the Army, 897 F. Supp. 612 (D.D.C. 1995). personnel must familiarize themselves (b) SOFA provisions that call for the with the applicable receiving state law receiving State to adjudicate claims and procedures governing SOFA against the United States usually refer claims. to claims by third parties brought (d) All foreign inhabitants who file against members of the force or civil- claims against the United States that ian component. This includes claims by fall within the receiving State’s re- tourists or business travelers as well as sponsibility, such as claims based on inhabitants of foreign countries. De- acts or omissions within the scope of pending on how the receiving State in- U.S. Armed Forces members’ or civil- terprets the particular SOFA’s class of ian employees’ duties, must file the proper claimants, the receiving State claim with the appropriate receiving may also consider claims by U.S. sol- State office. Those U.S. inhabitants diers, civilian employees, and their whose claims would be otherwise cog- family members. Chiefs of command nizable under the Military Claims Act claims services or other Army JA of- (subpart C of this part) and whom the fices responsible for claims that arise receiving State deems proper claim- in countries bound by SOFA or other ants under the SOFA must also file treaty provisions requiring a receiving with the receiving State.

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(e) A claim filed with, and considered that could affect the reimbursement by, a receiving State under a SOFA or system’s operation or funding. other international agreement claims (b) Command claims services or other provision may be considered under responsible Army JA offices will ensure other subparts of this part only if the that all claims personnel within their receiving State denied the claim on the areas of responsibility: basis that it was not cognizable under (1) Receive annual training on the re- the treaty or agreement provisions. ceiving State’s claims procedures, in- See DA Pam 27–162, paragraph 3–4a(2), cluding applicable time limitations, for conditions of waiver of the fore- procedures and the responsible receiv- going requirement. See also §§ 536.76(h) ing State claims offices’ locations. and 536.138(j) of this part. When a (2) Screen all new claims and inquir- claimant has filed a claim with a re- ies about claims to identify those ceiving State and received payment, or claimants who must file with the re- the claim has been denied on the mer- ceiving State. its, such action will be the claimant’s (3) Ensure that all such claimants are final and exclusive remedy and will bar informed of this requirement and the any further claims against the United applicable time limitation. States. (4) Ensure that all applicable SOFA claims based on incidents occurring in § 536.116 Responsibilities as to claims arising overseas under inter- circumstances that bring them within national agreements. the United States’ primary sending State jurisdiction are fully inves- (a) Command claims services or other tigated. responsible JA offices within whose jurisdiction SOFA or other treaty provisions provide for a claim reimburse- Subpart H—Maritime Claims ment system, and where DA has been assigned single-service responsibility § 536.117 Statutory authority for maritime claims. for the foreign country seeking reimbursement (see § 536.17) are responsible The Army Maritime Claims Settle- for: ment Act (AMCSA) (10 U.S.C. 4801–04, (1) Establishing programs for 4806, as amended) authorizes the Sec- verifying, certifying, and reimbursing retary of the Army or his designee to claims payments. Such service or JA administratively settle or compromise office will provide a copy of its proce- admiralty and maritime claims in dures implementing the program to the favor of, and against, the United Commander USARCS. States. (2) Providing the Commander USARCS with budget estimates for re- § 536.118 Related statutes for maritime imbursements in addition to the reclaims. ports required by AR 27–20, paragraph (a) The AMCSA permits the settle- 13–7. ment of claims that would ordinarily (3) Providing the Commander fall under the Suits in Admiralty Act USARCS each month in which pay- (SIAA), 46 U.S.C. app. 741–752; the Pub- ments are made, with statistical infor- lic Vessels Act (PVA), 46 U.S.C. app. mation on the number of individual 781–790; or the Admiralty Extension claims reimbursed, the total amount Act (AEA), 46 U.S.C. app. 740. Outside paid by the foreign government, and the United States the AMCSA may be the total amount reimbursed by the used to settle admiralty claims in lieu United States. of the Military Claims Act or Foreign (4) Providing the Commander Claims Act. Within the United States, USARCS with a quarterly report show- filing under the AMCSA is not manda- ing total reimbursements paid during tory for causes of action as it is for the the quarter for maneuver damage and SIAA or PVA. tort claims classified according to (b) Similar maritime claims settle- major categories of damage determined ment authority is exercised by the De- by the Commander USARCS, and an partment of the Navy under 10 U.S.C. update on major issues or activities 7363 and 7621–23 and by the Department

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of the Air Force under 10 U.S.C. 9801– § 536.121 Claims not payable as mari- 9804 and 9806. time claims. Under this subpart, claims are not § 536.119 Scope for maritime claims. payable if they: The AMCSA applies worldwide and (a) Are listed in §§ 536.42, 536.43, 536.44, includes claims that arise on high seas 536.45 (except at (e) and (k)), and 536.46; or within the territorial waters of a (b) Are not maritime in nature; foreign country. At 10 U.S.C. 4802 it (c) Are not in the best interests of provides for the settlement or com- the United States, are contrary to pub- promise of claims for: lic policy, or are otherwise contrary to (a) Damage caused by a vessel of, or the basic intent of the governing stat- in the service of, the Department of the ute, for example, claims for property Army (DA) or by other property under loss or damage or personal injury or the jurisdiction of the DA. death by inhabitants of unfriendly foreign countries or by individuals consid- (b) Compensation for towage and sal- ered to be unfriendly to the United vage service, including contract sal- States. When a claim is considered not vage, rendered to a vessel of, or in the payable for the reasons stated in this service of, the DA or other property section, it will be forwarded for appro- under the jurisdiction of the DA. priate action to the Commander (c) Damage that is maritime in na- USARCS, along with the recommenda- ture and caused by tortious conduct of tions of the responsible claims office. U.S. military personnel or federal civil- (d) Are presented by a national, or a ian employees, an agent thereof, or corporation controlled by a national, of property under the Army’s jurisdic- a country at war or engaged in armed tion. conflict with the United States, or any country allied with such enemy coun- § 536.120 Claims payable as maritime try, unless the appropriate settlement claims. authority determines that the claim- A claim is cognizable under this sub- ant is and, at the time of incident, was part if it arises in or on a maritime lo- friendly to the United States. A pris- cation, involves some traditional mari- oner of war or an interned enemy alien time nexus or activity, and is caused is not excluded or barred from bringing by the wrongful act or omission of a a claim for damage, loss, or destruction member of the U.S. Army, Department of personal property while held in the of Defense (DOD) or DA civilian em- custody of the government if the claim ployee, or an agent thereof, while act- is otherwise payable. ing within the scope of employment. (e) Are for damages or injuries that a This class of claims includes, but is not receiving State should pay for under an limited to: international agreement. See (a) Damage to a ship, boat, barge, or § 536.34(c). other watercraft; § 536.122 Limitation of settlement of (b) An injury that involves a ship, maritime claims. boat, barge, or other watercraft; (a) Within the United States the pe- (c) Damage to a wharf, pier, jetty, riod of completing an administrative fishing net, farm facilities or other settlement under the AMCSA is subject structures in, on, or adjacent to any to the same time limitation as that for body of water; beginning suit under the SIAA or PVA; (d) Damage or injury on land or on that is, a two-year period from the date water arising under the AEA and alleg- the cause of the action accrued. The edly due to operation of an Army- claimant must have agreed to accept owned or leased ship, boat, barge, or the settlement and it must be approved other watercraft; for payment by the Secretary of the (e) An injury that occurs on board an Army or other approval authority prior Army ship, boat, barge or other to the end of such period. The presen- watercraft; and tation of a claim, or its consideration (f) Crash into water of an Army air- by the DA, neither waives nor extends craft. the two-year limitation period and the

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claimant should be so informed, in (b) The Judge Advocate General writing, when the claim is acknowl- (TJAG), The Assistant Judge Advocate edged. See § 536.28. General (TAJAG), the Commander (b) For causes of action under the USARCS, the Chief Counsel COE, or Di- AEA, filing an administrative claim is vision or District Counsel Offices are mandatory. However, suit is required delegated authority to settle, such as under the two-year time limit applica- to deny or approve payment in full or ble to the SIAA and PVA, even though in part, any claim under this subpart the AEA provides that no suit shall be regardless of the amount claimed, pro- filed under six months after filing a vided that any award does not exceed claim. $100,000. (c) For causes of action arising out- (c) A Staff Judge Advocate (SJA) or side the United States, there is no time chief of a command claims service and limitation for completing an adminis- heads of area claims offices (ACOs) are trative settlement. delegated authority to pay up to $50,000, regardless of the amount § 536.123 Limitation of liability for maritime claims. claimed, and to disapprove or make a final offer on a claim presented in an For admiralty claims arising within amount not exceeding $50,000. the United States under the provisions (d) Authority to further delegate of the Limitation of Shipowners’ Li- payment authority is set forth in ability Act, 46 U.S.C. app. 181–188, in § 536.3(g)(1) of this part. For further dis- cases alleging injury or loss due to neg- cussion also related to settlement and ligent operation of its vessel, the approval authority see paragraph 2–69 United States may limit its liability to the value of its vessel after the inci- of DA Pam 27–162. dent from which the claim arose. The (e) Where the claimed amount or po- act requires filing of an action in fed- tential claim damage exceeds $100,000 eral District Court within six months for COE claims or $50,000 for all others, of receiving written notice of a claim. Commander USARCS will be notified Therefore, USARCS, or the Chief Coun- immediately, and be furnished a copy sel, U.S. Army Corps of Engineers of the claim and a mirror file there- (COE), or his designee, must be notified after. See § 536.30 and AR 27–20, para- within 10 working days of the receipt of graph 2–12. any maritime claim arising in the United States or on the high seas out Subpart I—Claims Cognizable of the operation of an Army vessel, in- Under Article 139, Uniform cluding pleasure craft owned by the Code of Military Justice United States. USARCS or Chief Coun- sel, COE will coordinate with the De- § 536.125 Statutory authority for Uni- partment of Justice (DOJ) as to wheth- form Code of Military Justice er to file a limitation of liability ac- (UCMJ) Claims. tion. The authority for this subpart is Ar- § 536.124 Settlement authority for mar- ticle 139, Uniform Code of Military Jus- itime claims. tice (UCMJ) (10 U.S.C. 939, which provides redress for property willfully (a) The Secretary of the Army, the damaged or destroyed, or wrongfully Army General Counsel as designee of taken, by members of the Armed the Secretary, or other designee of the Forces of the United States. Secretary may approve any settlement or compromise of a claim in any § 536.126 Purpose of UCMJ claims. amount. A claim settled or compromised in a net amount exceeding This subpart sets forth the standards $500,000 will be investigated and proc- to apply and the procedures to follow essed and, if approved by the Secretary in processing claims for the wrongful of the Army or his or her designee, will taking or willful damage or destruction be certified to Congress for final ap- of property by military members of the proval. Department of the Army.

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§ 536.127 Proper claimants; unknown prerequisite to action under this sub- accused—under the UCMJ. part. (a) A proper claimant under this sub- (b) Claims for property willfully dam- part includes any individual (whether aged. Willful damage is damage in- civilian or military), a business, char- flicted intentionally, knowingly, and ity, or state or local government that purposefully without justifiable ex- owns, has an ownership interest in, or cuse, as distinguished from damage lawfully possesses property. caused inadvertently, thoughtlessly or (b) When cognizable claims are pre- negligently. Damage, loss, or destruc- sented against a unit because the indi- tion of property caused by riotous, vio- vidual offenders cannot be identified, lent, or disorderly acts or acts of depre- this subpart sets forth the procedures dation, or through conduct showing for approval authorities to direct pay reckless or wanton disregard of the assessments, equivalent to the amount property rights of others, may be con- of damages sustained, against the unit sidered willful damage. members who were present at the scene (c) Claims for property wrongfully and to allocate individual liability in taken. A wrongful taking is any unau- such proportion as is just under the thorized taking or withholding of prop- circumstances. erty, with the intent to deprive, temporarily or permanently, the owner or § 536.128 Effect of disciplinary action, voluntary restitution, or contribu- person lawfully in possession of the tory negligence for claims under property. Damage, loss, or destruction the UCMJ. of property through larceny, forgery, embezzlement, fraud, misappropria- (a) Disciplinary action. Administrative action under Article 139, UCMJ, and tion, or similar offense may be consid- this subpart is entirely separate and ered wrongful taking. However, mere distinct from disciplinary action taken breach of a fiduciary or contractual under other sections of the UCMJ or duty that does not involve larceny, for- other administrative actions. Because gery, embezzlement, fraud, or mis- action under both Article 139, UCMJ, appropriation does not constitute and this subpart requires independent wrongful taking. findings on issues other than guilt or (d) Definition of property. Article 139 innocence, a soldier’s conviction or ac- provides compensation for loss of or quittal of claim-related charges is not damage to both personal property, dispositive of liability under Article whether tangible or intangible, and 139, UCMJ. real property. Contrast this to the Per- (b) Voluntary restitution. The approval sonnel Claims Act and chapter 11 of AR authority may terminate Article 139 27–20, which provides compensation proceedings without findings if the sol- only for tangible personal property. dier voluntarily makes full restitution Monetary losses may fall into the cat- to the claimant. egory of either tangible property (for (c) Contributory negligence. A claim example, cash), or intangible property otherwise cognizable and meritorious (for example, an obligation incurred by is payable whether or not the claimant a claimant to a third party as a result was negligent. of fraudulent conduct by a soldier), although recovery for losses of intangible § 536.129 Claims cognizable as UCMJ claims. property may be limited by other provisions of this part, such as the exclu- Claims cognizable under Article 139, sion of theft of services (see § 536.130(f)) UCMJ, are limited to the following: or consequential damages (see (a) Requirement that conduct construc- § 536.130(g)). In order to subject tively violate UCMJ. (e) Claims cognizable under more than a person to liability under Article 139, one statute. Claims cognizable under the soldier’s conduct must be such as other claims statutes may be processed would constitute a violation of one or more punitive Articles of the UCMJ. under this subpart. However, a referral of charges is not a

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§ 536.130 Claims not cognizable as USARCS, with a recommendation to UCMJ claims. increase the assessment. Claims not cognizable under Article (ii) If the head of the area claims of- 139, UCMJ, and this subpart, include fice (ACO) (usually the GCMCA’s Staff the following: Judge Advocate (SJA)) decides that the GCMCA’s final action under the provi- (a) Claims resulting from negligent sions of Rule for Courts-Martial 1107 in acts. a court-martial arising out of the same (b) Claims for personal injury or incident would be compromised, that death. officer may forward the Article 139 (c) Claims resulting from acts or claim to USARCS for action. omissions of military personnel acting (3) Only TJAG, TAJAG, the Com- within the scope of their employment, mander USARCS, or designee has au- including claims resulting from com- thority to approve assessments in ex- bat activities or noncombat activities, cess of $10,000 per claimant per inci- as those terms are defined in the Glos- dent. sary of AR 27–20. (b) Limitations on type of damages. (d) Claims resulting from the conduct Property loss or damage assessments of Reserve component personnel who are limited to direct damages. This are not subject to the UCMJ at the subpart does not provide redress for in- time of the offense. direct, remote, or consequential dam- (e) Subrogated claims. ages. (f) Claims for theft of services, even if such theft constitutes a violation of § 536.132 Procedure for processing Article 134 of the UCMJ. UCMJ claims. (g) Claims for indirect, remote, or (a) Time limitations on submission of a consequential damages. claim. A claim must be submitted with- (h) Claims by entities in conflict with in 90 days of the incident that gave rise the United States or whose interests to it, unless the SPCMCA acting on the are hostile to the United States. claim determines there is good cause for delay. Lack of knowledge of the ex- § 536.131 Limitations on assessments istence of Article 139, or lack of knowl- arising from UCMJ claims. edge of the identity of the offender, are (a) Limitations on amount. (1) A spe- examples of good cause for delay. cial court-martial convening authority (b) Form and presentment of a claim. (SPCMCA) has authority to approve a The claimant or authorized agent may pay assessment in an amount not to present a claim orally or in writing. If exceed $5,000 per claimant per incident presented orally, the claim must be re- and to deny a claim in any amount. If duced to writing, signed, and seek a the Judge Advocate responsible for ad- definite sum in U.S. dollars within 10 vising the SPCMCA decides that the days after oral presentment. SPCMCA’s final action under the provi- (c) Action upon receipt of a claim. Any sions of Rule for Courts-Martial 1107 in officer receiving a claim will forward it a court-martial arising out of the same within two working days to the incident would be compromised, the SPCMCA exercising jurisdiction over SPCMCA may forward the Article 139 the soldier or soldiers against whom claim to the general court-martial con- the claim is made. If the claim is made vening authority (GCMCA) for action. against soldiers under the jurisdiction (2) A GCMCA, or designee, has au- of two or more convening SPCMCAs thority to approve a pay assessment in who are under the same GCMCA, for- an amount not to exceed $10,000 per ward the claim to that GCMCA. That claimant per incident and to deny a GCMCA will designate one SPCMCA to claim in any amount. investigate and act on the claim as to (i) If the GCMCA or designee deter- all soldiers involved. If the claim is mines that a claim exceeding $10,000 made against soldiers under the juris- per claimant per incident is meri- diction of more than one SPCMCA at torious, that officer will assess the sol- different locations and not under the dier’s pay in the amount of $10,000 and same GCMCA, forward the claim to the forward the claim to the Commander SPCMCA whose headquarters is located

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nearest the situs of the alleged inci- under that authority. If the Article 139 dent. That SPCMCA will investigate claim is later successful, the claims of- and act on the claim as to all soldiers fice will inform the claimant of the ob- involved. If a claim is brought against ligation to repay to the government a member of one of the other military any overpayment received under these services, forward the claim to the com- statutes. mander of the nearest major command (f) Action by the investigating officer. of that service equivalent to a major The investigating officer will notify Army command (MACOM). the soldier against whom the claim is (d) Action by the special court-martial made. convening authority. (1) If the claim ap- (1) If the soldier wishes to make vol- pears to be cognizable, the SPCMCA untary restitution, the investigating will appoint an investigating officer officer may, with the SPCMCA’s con- within four working days of receipt of currence, delay proceedings until the a claim. The investigating officer will end of the next pay period to permit follow the procedures of this subpart restitution. If the soldier makes pay- supplemented by DA Pam 27–162, chap- ment to the claimant’s full satisfac- ter 9, and AR 15–6, chapter 4, which ap- tion, the SPCMCA will dismiss the plies to informal investigations. The claim. SPCMCA may appoint the claims offi- (2) In the absence of full restitution, cer of a command (if the claims officer the investigating officer will determine is a commissioned officer) as the inves- whether the claim is cognizable and tigating officer. In cases where the spe- meritorious under the provisions of Ar- cial court-martial convening authority ticle 139, UCMJ, and this subpart, and is an inactive duty soldier of the the amount to be assessed against each United States Army Reserve, the ap- offender. This amount will be reduced pointment of an investigating officer by any restitution the claimant ac- will be made within 30 calendar days. cepts from an offender in partial satis- (2) If the claim is not brought against faction. Within 10 working days, or a person who is a member of the Armed Forces of the United States at the time such time as the SPCMCA may deter- the claim is received, or if the claim mine, the IO will submit written find- does not appear otherwise cognizable ings and recommendations to the under Article 139, UCMJ, the SPCMCA SPCMCA. may refer it for legal review (see para- (3) If the soldier is absent without graph (g) of this section) within four leave and cannot be notified, a claims working days of receipt. If after legal office may process the Article 139 review the SPCMCA determines that claim in the soldier’s absence. If an as- the claim is not cognizable, final ac- sessment is approved, forward a copy of tion may be taken disapproving the the claim and the memorandum au- claim (see paragraph (h) of this sec- thorizing pay assessment by trans- tion) without appointing an inves- mittal letter to the servicing Defense tigating officer. In claims where the Accounting Office (DAO) for offset special court-martial convening au- against the soldier’s pay. If the soldier thority is an inactive duty soldier of is dropped from the rolls, the servicing the United State Army Reserve, the re- DAO will forward the assessment docu- quest for a legal review will be made ments to: Commander, Defense Finance within 30 calendar days. and Accounting Service (DFAS), (e) Expediting payment through Per- ATTN: Military Pay Operations, 8899 E. sonnel Claims Act and Foreign Claims Act 56th Street, Indianapolis, IN 46249. procedures. When assessment action on (g) Legal review. The SPCMCA will a particular claim will be unduly de- refer the claim for legal review to its layed, the claims office supporting the servicing legal office upon either com- SPCMA may consider the claim under pletion of the investigating officer’s re- the Personnel Claims Act, 31 U.S.C. port or the SPCMCA’s determination 3721, and chapter 11 of AR 27–20, or that the claim is not cognizable (see under the Foreign Claims Act, 10 paragraph (d)(2) of this section). U.S.C. 2734, and subpart J of this part, (1) Within five working days or such as long as it is otherwise cognizable time as the SPCMCA determines, that

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office will furnish a written opinion as officer’s findings and recommendation to: will be enclosed with the notice. The (i) Whether the claim is cognizable approval authority will then suspend under the provisions of Article 139, action on the claim for 10 working days UCMJ, and this subpart. pending receipt of a request for recon- (ii) Whether the findings and rec- sideration, unless the approval author- ommendations are supported by a pre- ity determines that this delay will re- ponderance of the evidence. sult in substantial injustice. If after (iii) Whether the investigation sub- this period the approval authority de- stantially complies with the procedural termines that an assessment is still requirements of Article 139, UCMJ; this warranted, the approval authority will subpart; DA Pam 27–162, chapter 9; and direct the appropriate DAO to withhold AR 15–6, chapter 4. such amount from the soldier’s pay ac- (iv) Whether the claim is clearly not count (see § 536.131(a)). For any soldier cognizable (see paragraph (d)(2) of this not subject to the approval authority’s section) and final denial action can be jurisdiction, the approval authority taken without appointing an inves- will forward the claim to the com- tigating officer. mander who exercises SPCMCA juris- (2) If the investigating officer’s rec- diction over the soldier for assessment. ommended assessment does not exceed The receiving SPCMCA is bound by the $5,000, the claims judge advocate (CJA) determination of the approval author- or claims attorney will, upon legal re- ity. view, forward the claim to the (i) Assessment. Subject to any limita- SPCMCA for final action. tions set forth in appropriate regula- (3) If the investigating officer’s rections, the servicing DAO will withhold ommended assessment is more than the amount directed by the approval $5,000, the CJA or claims attorney will, authority and pay it to the claimant. upon legal review, forward the claim The assessment is not subject to appeal file to the head of the ACO, who will and is binding on any finance officer. If also conduct a legal review within five the servicing DAO cannot withhold the working days. required amount because it does not (i) If the recommended assessment have custody of the soldier’s pay does not exceed $10,000, the head of the record, the record is missing, or the ACO will forward the claim file to the soldier is in a no pay due status, that GCMCA for final action. office will promptly notify the ap- (ii) If the recommended assessment proval authority of this fact in writing. exceeds $10,000, the head of the ACO (j) Remission of indebtedness. 10 U.S.C. will forward the claim file to the 4837, which authorizes the remission GCMCA for approval of an assessment and cancellation of indebtedness of an up to $10,000 and for a recommendation enlisted person to the United States or of an additional assessment. The head its instrumentalities, is not applicable of the ACO will then forward the and may not be used to remit and can- claims file and the GCMCA’s rec- cel indebtedness determined as a result ommendation to the Commander of action under Article 139, UCMJ. USARCS for approval. (h) Final action. After consulting with § 536.133 Reconsideration of UCMJ the legal advisor, the approval author- claims. ity will disapprove or approve the (a) General. Although Article 139, claim in an amount equal to, or less UCMJ, does not provide for a right of than, the amount of the assessment appeal, either the claimant or a soldier limitation. The approval authority is whose pay is assessed may request the not bound by the findings or rec- approval authority (SPCMCA or ommendations of the IO; AR 15–6, para- GCMCA, depending on the amount as- graph 2–3a. The approval authority will sessed) or successor in command to re- notify the claimant, and any soldier consider the action. Either party must subject to that officer’s jurisdiction, of submit such a request for reconsider- the determination and the right of any ation in writing and clearly state the party to request reconsideration (see factual or legal basis for the relief re- § 536.133). A copy of the investigating quested. The approval authority may

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direct that the matter be reinves- Subpart J—Claims Cognizable tigated. Under the Foreign Claims Act (b) Reconsideration by the original approval authority. The original approval § 536.135 Statutory authority for the authority may reconsider the action at Foreign Claims Act. any time while serving as the approval (a) The statutory authority for this authority for the claim in question, subpart is the Act of August 10, 1956, 10 even after the transfer of the soldier U.S.C. 2734 (70 Stat. 154), commonly re- whose pay was assessed. The original ferred to as the Foreign Claims Act approval authority may modify the ac- (FCA), as amended by Public Law 86– tion if it was incorrect, subject to para- 223, September 1959 (73 Stat. 453); Pub- graph (d) of this section. However, the lic Law 86–411, April 1960 (74 Stat. 16); approval authority should modify the Public Law 90–521, September 1968 (82 action only because of fraud, substan- Stat. 874); Public Law 91–312, July 1970 (84 Stat. 412); Public Law 93–336, July tial new evidence, errors in calcula- 1974 (88 Stat. 292); Public Law 96–513, tion, or mistake of law. Title V, § 511 (95), December 1980 (94 (c) Reconsideration by a successor in Stat. 2928). It is posted on the USARCS command. Subject to paragraph (d) of Web site; for the address see § 536.2(a). this section, a successor in command (b) Claims arising from the acts or may modify an action only because of omissions of the U.S. Armed Forces in fraud, substantial new evidence, errors the Marshall Islands or the Federated in calculation, or mistake of law ap- States of Micronesia are settled in ac- parent on the face of the record. cordance with Art. XV, Non-contrac- (d) Legal review and action. Prior to tual Claims, of the U.S.-Marshall Is- modifying the original action, the ap- lands and Micronesian Status of Forces proval authority will have the serv- Agreement (the ‘‘SOFA’’) (posted on icing claims office render a legal opin- the USARCS Web site; for the address ion and fully explain the basis for see § 536.2(a)). This is pursuant to the modification as part of the file. If the ‘‘agreed upon minutes’’ that are ap- legal review agrees that a return of the pended to the SOFA, pursuant to Sec- assessed pay is appropriate, the ap- tion 323 of the Compact of Free Asso- ciation between the U.S. and the Mar- proval authority should request in shall Islands and the Federated States writing that the claimant return the of Micronesia, enacted by Public Law money, setting forth in the letter the 99–239, January 14, 1986. (The Compact basis for the request. There is no au- may be viewed at http://www.fm/jcn/com- thority for repayment from appro- pact/relindex.html). The ‘‘agreed upon priated funds. minutes’’ state that ‘‘all claims within (e) Disposition of files. After com- the scope of paragraph 1 of Article XV pleting action on reconsideration, the [Claims], [of the Compact] * * * shall approval authority will forward the re- be processed and settled exclusively consideration action to the servicing pursuant to the Foreign Claims Act, 10 claims office, which will then file the U.S.C. 2734, and any regulations pro- action per § 536.132(h). mulgated in implementation thereof.’’ Therefore, Title I, Article 178 of the § 536.134 Additional claims judge advo- Compact, regarding claims processing, cate and claims attorney respon- is not applicable to claims arising from sibilities (for UCMJ claims). the acts or omissions of the U.S. armed In addition to the duties set forth in forces, but only to other federal agen- this subpart, the CJA or claims attor- cies. Those agencies are required to fol- ney is responsible for forwarding copies low the provisions of the Federal Tort of completed Article 139 actions to Claims Act, 28 U.S.C. 2672. USARCS, maintaining a log, moni- § 536.136 Scope for claims arising toring the time requirements of pend- under the Foreign Claims Act. ing Article 139 actions, and publicizing (a) Application. This subpart, which is the Article 139 program to com- applicable outside the United States, manders, soldiers, and the community. its commonwealths, territories and

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possessions, including areas under the employment, provided the employer or jurisdiction of the United States, im- owner of the vehicle or other equip- plements the FCA and prescribes the ment would be liable under local law in substantive basis and special proce- the circumstances involved. dural requirements for settlement of (b) Claims generated by officers or ci- claims of inhabitants of a foreign coun- vilian employees of the American Bat- try, or of a foreign country or a polit- tle Monuments Commission (36 U.S.C. ical subdivision thereof, against the 2110), acting within the scope of em- United States for personal injury, ployment, will be paid from American death, or property damage caused by Battle Monuments Commission appro- service members or civilian employees, priations. or claims that arise incident to non- (c) Claims for the loss of, or damage combat activities of the armed forces. to, property that may be settled under (b) Effect of Military Claims Act (MCA). this subpart include the following: Claims arising in foreign countries will (1) Real property used and occupied be settled under the MCA if the injured under lease, express, implied, or other- party is an inhabitant of the U.S., for wise. See § 536.34(m) of this part and example, a member of the U.S. armed paragraph 2–15m of DA Pam 27–162. forces, a U.S. civilian employee, or a (2) Personal property bailed to the family member of either category. In a government under an agreement, ex- wrongful death case, if the decedent is press or implied, unless the owner has an inhabitant of a foreign country, expressly assumed the risk of damage even though his survivors are U.S. in- or loss. habitants, the FCA will apply. See § 536.74(c). For claims arising outside § 536.138 Claims not payable under the the U.S. involving foreign-born Foreign Claims Act. spouces, see DA Pam 27–20, paragraph A claim is not payable if it: 2–20a. (a) Results wholly from the negligent (c) Effect of Army Maritime Claims Set- or wrongful act of the claimant or tlement Act (AMCSA) (10 U.S.C. 4801, 4802 agent; and 4808). A maritime claim may be (b) Is purely contractual in nature; settled under the FCA. (c) Arises from private or domestic obligations as distinguished from gov- § 536.137 Claims payable under the ernment transactions; Foreign Claims Act. (d) Is based solely on compassionate (a) A claim for death, personal in- grounds; jury, or loss of or damage to property (e) Is a bastardy claim for child sup- may be allowed under this subpart if port expenses; the alleged damage results from non- (f) Is for any item whose acquisition, combat activity or a negligent or possession, or transportation is in vio- wrongful act or omission of soldiers or lation of Department of the Army (DA) civilian employees of the U.S. armed or Department of Defense (DOD) direc- forces, as enumerated in § 536.23(b), re- tives, such as illegal war trophies. gardless of whether the act or omission (g) Is for rent, damage, or other pay- was made within the scope of their em- ments involving the acquisition, use, ployment. This includes non-U.S. cit- possession, or disposition of real prop- izen employees recruited elsewhere but erty or interests therein by and for the employed in a country of which they DA. See § 536.34(m) of this part and are not a citizen. However, a claim gen- paragraph 2–15m of DA Pam 27–162. erated by non-U.S. citizen employees in (h) Is not in the best interest of the the country in which they were re- United States, is contrary to public cruited and are employed will be pay- policy, or otherwise contrary to the able only if the act or omission was basic intent of the governing statute made in the scope of employment. But (10 U.S.C. § 2734); for example, claims claims arising from the operation of for property loss or damage, or per- U.S. armed forces vehicles or other sonal injury or death caused by inhab- equipment by such employees may be itants of unfriendly foreign countries paid, even though the employees are or by individuals considered to be un- not acting within the scope of their friendly to the United States.

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(i) Is presented by a national, or a where the claimant is an inhabitant of corporation controlled by a national, of another foreign country and only tem- a country at war or engaged in armed porarily within the country in which conflict with the United States, or any the incident occurred, the quantum of country allied with such enemy coun- certain elements of damages, such as try unless the appropriate settlement lost wages and future medical care, authority determines that the claim- may be calculated based on the law and ant is, and at the time of the incident economic conditions in the country of was friendly to the United States. A the claimant’s permanent residence. prisoner of war or an interned enemy Where the decedent is the subject of a alien is not excluded from filing a wrongful death case, the quantum will claim for damage, loss, or destruction be determined based on the country of of personal property within the federal the decedent’s permanent residence re- government’s custody if the claim is gardless of the fact that his survivors otherwise payable. live in the U.S. or a different foreign (j) Is for damages or injury, the claim country than the decedent. See § 536.77 for which a receiving State should ad- for further damages guidance. judicate and pay pursuant to an international agreement, subject to waiver (b) Other guidance. The guidance set by the Commander USARCS. See DA forth in §§ 536.77(b) through (d) as to al- Pam 27–162, paragraph 3–4a(2), for a dis- lowable elements of damages is gen- cussion of the conditions of waiver. erally applicable. Where moral dam- (k) Is listed in §§ 536.45 and 536.46, ex- ages, as defined in DA Pam 27–162, cept for the exclusions listed in paragraph 2–53c(4), are permitted, such §§ 536.45(e), (h) and (k). Additionally, damages are payable. In some coun- the exclusions set forth in §§ 536.45(a) tries it is customary to get a profes- and (b) do not apply to a claim arising sional appraisal to substantiate certain incident to noncombat activities. claims and pass this cost on to the (l) Is brought by a subrogee. tortfeasor. The Commander USARCS (m) Is covered by insurance on the in- or the chief of a command claims serv- volved U.S. Armed Forces’ vehicle or ice may, as an exception to policy, per- the tortfeasor’s privately owned vehi- mit the reimbursement of such costs in cle (POV), in accordance with require- appropriate cases. Where feasible, ments of a foreign country, unless the claimants should be discouraged from claim exceeds the coverage or the in- incurring such costs. surer is insolvent. See § 536.139(c). (c) Deductions for insurance. (1) Insur- (n) Is payable under subpart C of this ance coverage recovered or recoverable part or AR 27–20, chapter 11. will be deducted from any award. In (o) Is brought by or on behalf of a that regard, every effort will be made member of a foreign military force for to monitor the insurance aspect of the personal injury or death arising inci- case and encourage direct settlement dent to service, or pursuant to com- between the claimant and the insurer bined military operations. Combined of the tortfeasor. military operations include exercises and United Nations and North Atlantic (2) When efforts under paragraph Treaty Association (NATO) peace- (c)(1) of this section are of no avail, or keeping and humanitarian missions. when it otherwise is determined that Derivative claims arising from these an insurance settlement will not be incidents are also excluded. reasonably available for application to the award, no award will be made until § 536.139 Applicable law for claims the chief of the command claims serv- under the Foreign Claims Act. ice or the Commander USARCS, has (a) Venue of incident and domicile of first granted consent. In such cases, an claimant. In determining an appropriate assignment of the insured’s rights award, apply the law and custom of the against the insurer will be obtained country in which the incident occurred and, in appropriate cases, reimburse- to determine which elements of dam- ment action will be instituted against ages are payable and which individuals the insurer under applicable proce- are entitled to compensation. However, dures.

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(3) If an insurance settlement is not and maintain its records. Where an available due to the insurer’s insol- FCC does not operate as part of a com- vency or bankruptcy, a report on the mand claims service, it may operate as bankruptcy will be forwarded to the part of the office or a division, corps or Commander USARCS without delay, higher command staff judge advocate setting forth all pertinent information, (SJA), which will perform the fore- including the alleged reasons for the going functions. bankruptcy and the facts concerning (d) An appointing authority who ap- the licensing of the insurer. points or relieves an FCC whom he or (d) Deductions for amounts paid by she has appointed will forward one tortfeasor. Settlement authorities will copy of each order addressing an FCC’s deduct from the damages any direct appointment, relief, or change of re- payments by a member or civilian em- sponsibility to the Commander ployee of the U.S. armed forces for USARCS. Upon receipt of an initial ap- damages (other than solatia). pointing order, the Commander USARCS will assign an office code § 536.140 Appointment and functions number to the FCC. Without such a of Foreign Claims Commissions. number the FCC has no authority to (a) Claims cognizable under this sub- approve or pay claims. See AR 27–20, part will be referred to the command paragraph 13–1. responsible for claims arising within (e) Normally, the FCC is responsible its geographic area of responsibility, for the investigation of all claims re- including claims transferred by agree- ferred to it, using both the procedures ment between the services involved. set forth in subpart B of this part and The senior judge advocate of a com- any local procedures established by the mand having a command claims serv- appointing authority or command ice, or his delegee, will appoint a suffi- claims service responsible for the geo- cient number of Foreign Claims Com- graphical area in which the claim missions (FCCs) to dispose of the arose. Chiefs of a command claims claims. If there is no command claims service may request assistance on service, the responsible commander claims investigation within their geo- may ask the Commander USARCS for graphical areas from units or organiza- permission to establish one. Otherwise, tions other than the FCC. The Com- the Commander USARCS will appoint mander USARCS may make the same a sufficient number of FCCs from per- request for any claim referred to an sonnel furnished by the command in- FCC appointed under his or her author- volved. See § 576.3(d) for more informa- ity. tion about command claims services. (f) When an FCC intends to deny a (b) The Commander USARCS will ap- claim, or offer an award less than the point all other FCCs to act on all other amount claimed, it will notify in writ- claims, regardless of where such claims ing the claimant, the claimant’s au- arose, unless they arose in a country thorized agent, or legal representative for which single-service responsibility of the intended action on the claim and has been assigned to another service. the legal and factual bases for that ac- FCCs appointed by the Commander tion. If the FCC proposes a partial USARCS at units based in the conti- award, a settlement agreement should nental United States (CONUS) may act be enclosed with the notice. Claimants on any claim arising out of such unit’s will be advised that they may either operations. Any FCC operating in, or accept the FCC action by returning the adjudicating claims arising out of, a signed settlement agreement or, if dis- geographical area within a command satisfied with the FCC’s action, they claims service’s jurisdiction, will com- may submit a request for reconsider- ply with that service’s legal and proce- ation stating the factual or legal rea- dural rules. sons why they believe the FCC’s pro- (c) An FCC may operate as an inte- posed action is incorrect. This notice gral part of a command claims service, serves to give the claimant an oppor- which will determine the cases to be tunity to request reconsideration of assigned to it, furnish necessary ad- the FCC action and state the reasons ministrative services, and establish for the request before final action is

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taken on the claim. When the FCC in- When an agreement can be reached, the tends to award the amount claimed, or notice and response provisions above recommend an award equal to the are not necessary. If the FCC rec- amount claimed to a higher authority, ommends an award in excess of its this procedure is not necessary. How- monetary authority, the settlement ever, a settlement agreement is re- agreement should indicate that its rec- quired for all awards, full or partial. ommendation is contingent upon ap- See § 536.63(a). proval by higher authority. (1) This notice should be given at (g) The chief of an overseas command least 30 days before the FCC takes final claims service may delegate to a one- action, except on small claims proc- member FCC the responsibility for the essed pursuant to § 536.33. The notice receipt, processing, and investigation should be mailed via certified or registered mail to the claimant. The of any claim, regardless of amount, ex- claimant should be informed that any cept those required to be referred to a request for reconsideration should be receiving State office for adjudication addressed to the FCC that took final under the provisions of a treaty con- action, and that all materials the cerning the status of U.S. forces in the claimant wishes the FCC to consider country in which the claim arose. If, should be included with the request for after investigation, it appears that ac- reconsideration. tion by a three-member FCC is appro- (2) An FCC may alter its initial deci- priate, the one-member FCC should sion based on the claimant’s response send the claim to the appropriate or proceed with the intended action. If three-member FCC with a complete in- the claimant’s response raises a gen- vestigation report, including a discus- eral policy issue, the FCC may request sion of the applicable local law and a an advisory opinion from the Com- recommendation for disposition. mander USARCS or the chief of the command claims service while retain- § 536.141 Composition of Foreign ing the claim for final action at its Claims Commissions. level. (a) Normally, an FCC will be com- (3) Upon completing of its evaluation posed of either one or three members. of the claimant’s response, the FCC Alternate members of three-member will notify the claimant of its final de- FCCs may be appointed when cir- cision and advise the claimant that its cumstances require, and may be sub- action is final and conclusive as a matter of law (10 U.S.C. 2735), unless the stituted for regular members on spe- final decision is a recommendation for cific cases by order of the appointing payment above its authority. In that authority. The appointing orders will case, the FCC will forward any re- clearly designate the president of a sponse submitted by the claimant three-member FCC. Two members of a along with its claims memorandum of three-member FCC will constitute a opinion to the approval authority, and quorum, and the FCC’s decision will be will notify the claimant accordingly. determined by majority vote. (4) When an FCC determines that a (b) Upon approval by the Commander claim is valued at more than $50,000 or USARCS and the appropriate authority all claims arising out of a single inci- of another uniformed service, the mem- dent are valued at more than $100,000, bership may be composed of one or the file will be transferred to the Com- more members of another uniformed mander USARCS for further action; see service. If another service has single- § 536.143(d)(2). Upon request of the Com- service responsibility over the foreign mander USARCS, the FCC may nego- country in which the claim arose, that tiate a settlement, the amount of service is responsible for the claim. If which exceeds the FCC’s authority; requested, the Commander USARCS however, prior approval by a higher au- may furnish a JAG officer or claims at- thority is required. torney to be a member of another serv- (5) Every reasonable effort should be ice’s FCC. made to negotiate a mutually agreeable settlement on meritorious claims.

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§ 536.142 Qualification of members of amount provided a mutually agreed Foreign Claims Commissions. settlement may be reached in an Normally, a member of an FCC will amount not exceeding the FCC’s mone- be either a commissioned officer or a tary authority. A one-member FCC claims attorney. At least two members may deny any claim when the claimed of a three-member FCC must be JAs or amount does not exceed its monetary claims attorneys. In exigent cir- authority. Unless otherwise restricted cumstances, a qualified non-lawyer em- by the appointing authority, a one- ployee of the armed forces may be ap- member FCC who is a JA or claims at- pointed to an FCC, subject to prior ap- torney has $15,000 monetary authority, proval by the Commander USARCS. while any other one-member commis- Such approval may be granted only sion has $5,000 monetary authority. upon a showing of the employee’s sta- (d) A three-member FCC, unless oth- tus and qualifications and adequate erwise restricted by the appointing au- justification for such appointment (for thority, may take the following ac- example, lack of legally qualified per- tions on a claim that is properly before sonnel). The FCC will be limited to em- it: ployees who are citizens of the United (1) Disapprove a claim presented in any States. An officer, claims attorney, or amount. After following the procedures employee of another armed force will in § 536.140, including reconsideration, be appointed a member of an Army the disapproval is final and conclusive FCC only if approved by the Com- under 10 U.S.C. 2735. The FCC will in- mander USARCS. form the appointing authority of its action. After it takes final action and § 536.143 Settlement authority of For- disapproves a claim presented in any eign Claims Commissions. amount over $50,000, the FCC will for- (a) In order to determine whether the ward to the appointing authority the claim will be considered by a one-mem- written notice to the claimant required ber or three-member FCC, the claimed by § 536.140(f), any response from the amount will be converted to the U.S. claimant, and its notice of final action dollar equivalent (based on the annual on the claim. Foreign Currency Fluctuation Account (2) Approve and pay meritorious claims exchange rate, where applicable). How- presented in any amount. (i) Claims paid ever, the FCC’s jurisdiction to approve in full or in part for an amount not ex- is determined by the conversion rate ceeding $50,000 will be paid after any on the date of final action. Accord- reconsideration as set forth in § 536.140. ingly, if the value of the U.S. dollar has This action is final and conclusive decreased, the FCC will forward the under 10 U.S.C. 2735. recommendation to a higher authority, (ii) Claims valued at an amount ex- if necessary. ceeding $50,000, or multiple claims aris- (b) Payment will be made in the curing from the same incident valued at rency of the country in which the inci- more than $100,000, will be forwarded dent occurred or in which the claimant through the appointing authority with resided at the time of the incident, un- a memorandum of opinion to the Com- less the claimant requests payment in mander USARCS for action; see DA U.S. dollars or another currency and Pam 27–162, paragraph 2–60. The memo- such request is approved by the chief of randum of opinion will discuss the a command claims service or the Com- amount for which the claimant will mander USARCS. However, if the settle and include the recommendation claimant resides in another foreign of the FCC. country at the time of payment, pay- (e) The Judge Advocate General ment in an amount equivalent to that (TJAG), The Assistant Judge Advocate which would have been paid under the General (TAJAG) and the Commander preceding sentence may be made in the USARCS, or his or her designee serving currency of that third country without at USARCS, may approve and pay, in the approval of the Commander whole or in part, any claim as long as USARCS. the amount of the award does not ex- (c) A one-member FCC may consider ceed $100,000; may disapprove any and pay claims presented in any claim, regardless of either the amount

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claimed or the recommendation of the ceived. For errors in fact, the new evi- FCC forwarding the claim; or, if a dence must not have been discoverable claim is forwarded to USARCS for ap- at the time of final action by either the proval of payment in excess of $50,000, Army or the claimant through the ex- refer the claim back to the FCC or an- ercise of reasonable diligence. Correc- other FCC for further action. tive action may also be taken when an (f) Payments in excess of $100,000 will error contrary to the parties’ mutual be approved by the Secretary of the understanding is discovered in the Army, the Army General Counsel as original action. If it is determined that the Secretary’s designee, or other des- the original action was incorrect, the ignee of the Secretary. action will be modified, and if appro- (g) Following approval where re- priate, a supplemental payment made. quired and receipt of an agreement by The basis for a change in action will be the claimant accepting the specific stated in a memorandum included in sum awarded by the FCC, the claim the file. For example, a claim was set- will be processed for payment in the tled for $15,000, but the settlement appropriate currency. The first $100,000 agreement was typed to read ‘‘$1,500’’ of any award will be paid from Army and the error is not discovered until claims funds. The excess will be re- the file is being prepared for payment. ported to the Financial Management If appropriate, a corrected payment Service, Department of the Treasury, will be made. A settlement authority with the documents listed in DA Pam who has reason to believe that a settle- 27–162, paragraph 2–81. ment was obtained by fraud on the part (h) If the settlement authority up- of the claimant or the claimant’s legal holds a final offer or authorizes an representative, will reopen action on award on appeal from a denial of a that claim and, if the belief is substan- claim, the notice of the settlement tiated, correct the action. The basis for authority’s action will inform the correcting an action will be stated in a claimant that he or she must accept memorandum and included in the file. the award within 180 days of the date of (b) A successor approval or settlement mailing of the notice of the settlement authority (including TAJAG, TJAG, Sec- authority’s action or the award will be retary of the Army, or the Secretary’s des- withdrawn, the claim will be deemed ignees)—(1) Reconsideration. A successor denied, and the file will be closed with- approval or settlement authority may out future recourse. reconsider the denial of, or final offer on, an FCA claim upon request of the § 536.144 Reopening a claim after final claimant or the claimant’s authorized action by a Foreign Claims Commis- agent only on the basis of fraud, sub- sion. stantial new evidence, errors in cal- (a) Original approval or settlement au- culation, or mistake (misinterpreta- thority (including TAJAG, TJAG, Sec- tion) of law. retary of the Army, or the Secretary’s des- (2) Settlement correction. A successor ignees). (1) An original settlement au- approval or settlement authority may thority may reconsider the denial of, reopen and correct a predecessor’s ac- or final offer on a claim brought under tion on a claim that was previously the FCA upon request of the claimant settled in whole or in part for the same or the claimants authorized agent. In reasons that an original authority may the absence of such a request, the set- do so. tlement authority may reconsider a (c) Time requirement for filing request claim on its own initiative. for reconsideration. Requests post- (2) An original approval or settle- marked more than five years from the ment authority may reopen and cor- date of mailing of final notice will be rect action on an FCA claim previously denied based on the doctrine of laches. settled in whole or in part (even if a (d) Finality of action. Action by the settlement agreement has been exe- appropriate authority (either affirming cuted) when it appears that the origi- the prior action or granting full or par- nal action was incorrect in law or fact tial relief) is final under the provisions based on the evidence of record at the of 10 U.S.C. 2735. Action upon request time of the action or subsequently re- for reconsideration constitutes final

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administrative disposition of a claim. § 536.148 Claims generated by the acts No further requests for reconsideration or omissions of NAFI employees. will be allowed except on the basis of (a) Processing. Claims arising out of fraud. acts or omissions of employees of NAFI activities will be processed and settled § 536.145 Solatia payment. in the manner specified for similar Payment of solatia in accordance claims against the United States, ex- with local custom as an expression of cept that payment will be made from sympathy toward a victim or his or her NAFs in accordance with AR 215–1 (Mo- family is common in some overseas rale, Welfare, and Recreation Activi- commands. Solatia payments are ties and Nonappropriated Fund Instrumentalites) and § 536.152 of this known to be a custom in the Federated part. States of Micronesia, Japan, Korea, (b) Procedural requirements. Proce- and Thailand. In other countries, the dural requirements of this part’s perti- FCC should consult the command nent subparts, as stated below, will be claims service or Commander USARCS followed except as provided in §§ 536.151 for guidance. Such payments are not to and 536.152. However, when the Non- be made from the claims expenditure appropriated Fund Instrumentality allowance. These payments are made (NAFI) is protected by a commercial from local operation and maintenance insurer (for example, flying and para- funds. This applies even where a com- chute activities), the claim will be re- mand claims service is directed to ad- ferred to the insurer as outlined in minister the command’s solatia pro- § 536.148(d). See Department of Defense gram. See, for example, United States Directive (DODD) 5515.6, dated Novem- Forces Korea Regulation 526–11 regard- ber 3, 1956, posted on the USARCS Web ing solatia amounts and procedures. site (see § 536.2(a)). (1) Claims arising within the United States, its territories, commonwealths, Subpart K—Nonappropriated Fund or possessions. Such claims will be Claims processed in the manner prescribed by subparts C, D, E, F, H or J of this part, § 536.146 Claims against non- as appropriate. appropriated fund employees—gen- (2) Claims arising outside the United erally. States, its territories, commonwealths, This subpart sets forth the proce- or possessions. Such claims will be dures to follow in the settlement and processed in accordance with the provi- payment of claims generated by the sions of applicable Status of Forces acts or omissions of the employees of Agreements (SOFAs) or in the manner nonappropriated fund (NAF) activities. prescribed by subparts C, D, E, F, H or NAF activities include NAF or Army J of this part, as appropriate. and Air Force Exchange Service (c) Reporting and investigation. Such (AAFES) facilities, post exchanges, claims will be investigated in accord- bowling centers, officers and non- ance with AR 215–1 and subpart B of commissioned officers’ clubs, and other this part. facilities located on land or situated in (1) Reporting. Personal injury, death, a building used by an activity that em- or property damage resulting from ve- ploys personnel compensated from hicular collisions, falls, falling objects, assaults, or accidents of similar nature NAFs. will be reported immediately to the § 536.147 Claims by NAFI employees person in charge of the NAFI or activ- for losses incident to employment. ity at which it occurred. The report should be made by the employee who Claims by employees for the loss of initially received notice of the inci- or damage to personal property incident, even if the individual involved dent to employment will be processed denies sustaining personal injury or in the manner prescribed by AR 27–20, property damage. Upon receipt of the chapter 11 and will be paid from NAFs report of the incident, the person in in accordance with § 536.152. charge of the NAF activity concerned

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will transmit the report to the area countries, the insurer will process the claims office (ACO) or claims proc- claim. However, if the policy coverage essing office (CPO) for investigation. limit is exceeded or the insurer is in- (2) Investigation. Claims arising out of solvent, the claim may be processed acts or omissions of employees of NAF under subpart G, §§ 536.114 through activities will be investigated in the 536.116 (Claims arising overseas) or, if manner set forth in subpart B of this subpart G does not apply, under subpart. A determination as to whether parts C or J of this part. See § 536.139(c) the claim is cognizable under this sec- for additional guidance. tion will be made as soon as practicable. § 536.149 Identification of persons (d) Customer complaints. AAFES-gen- whose actions may generate liabil- erated complaints will be handled in ity. accordance with Exchange Service Claims resulting from the acts or Manual 57–2. NAFI-generated com- omissions of members of the classes of plaints will be handled in accordance persons listed below may be processed with AR 215–1, chapter 3. Complaints under this section. An ACO or a CPO generated by appropriated funds laun- authority will ask the Commander dry and dry-cleaning operations will be USARCS, for an advisory opinion prior handled in accordance with AR 210–130, to settling any claim where the person chapter 2. Complaints generated by re- whose conduct generated the claim funds of sales proceeds will be handled does not clearly fall within one of the in accordance with Exchange Operating following categories: Procedures (EOP) 57–2. (a) Civilian employees of NAFI ac- (e) Commercial insurance. Certain tivities whose salaries are paid from NAFI activities (such as flying and NAFs. parachute activities, and all AAFES (b) Active duty military personnel concessionaires) may have private while performing off-duty part-time commercial insurance. work for which they are compensated (1) A claims investigation under sub- from NAFIs, not to include members part B of this part will not be con- who are acting in their capacity as an ducted except when the claim’s esti- officer or other official of the NAFI. mated value may exceed the insurance (c) Volunteers serving in an official policy limits. In that event, the Com- capacity in furtherance of the business mander USARCS, will be notified im- of the United States, limited to those mediately and an investigation will be categories set forth in DA Pam 27–162, conducted with a view to determining paragraph 2–45d. whether the United States may be liable under subparts C, D, F, H or J of § 536.150 Claims payable from appro- this part. Otherwise, the ACO or CPO priated funds. will refer the claim to the insurer and Claims payable from appropriated furnish copies to the USARCS AAO, as funds will be processed under the ap- required in AR 27–20, paragraph 2–12. propriate subpart. Appropriated fund Assistance will be furnished to the in- payable claims include those resulting surer as needed. Copies of any other re- from: quired investigations may be furnished (a) Acts or omissions of military per- to the insurer. sonnel while performing assigned mili- (2) The claim will be reviewed at key tary duties in connection with NAFI intervals to ensure that progress is activities. being made, negotiations are properly (b) Acts or omissions of civilian em- conducted, and the file is closed. The ployees paid from appropriated funds in Commander USARCS will be advised of connection with NAFI activities. any problems. (c) Negligent maintenance of an ap- (3) If requested by either the insurer propriated funds facility used by a or NAFI officials, the appropriate NAFI activity but for which the De- claims authority will assist in or con- partment of Defense or Department of duct negotiations. the Army (DA) command concerned is (4) Where NAFI vehicles are required responsible and has been notified of the to be covered by insurance in foreign deficiency by the NAF. Where liability

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is determined to exist for both a NAFI payment documents to the office listed and an appropriated fund activity, li- in DA Pam 27–162, paragraph 2–80h, for ability will be apportioned between the payment. two activities. (b) Reimbursement to a foreign coun- (d) Temporary use of a NAFI facility try of the United States’ pro rata share by an appropriated fund activity. of a claim paid pursuant to an inter- (e) Operation of government owned or national agreement will be made from rented vehicles on authorized missions NAFs. for NAFI activities where the driver is a DA soldier or civilian employee and § 536.153 Claims involving tortfeasors is paid from APFs. other than nonappropriated fund employees: NAFI contractors. § 536.151 Settlement authority for AAFES concessionaires and NAFI claims generated by acts or omis- contractors, such as entertainment sions of NAFI employees. performers or groups, carnival opera- (a) Settlement. Claims cognizable tors, and fireworks displayers are con- under this section and processed under sidered independent contractors and subparts C, D, E, G, H or J of this part claims arising from their activities will be settled by claims authorities should be disposed of as set forth in DA authorized to settle claims under those Pam 27–162, paragraph 2–15f. If a dis- subparts subject to the same monetary pute arises as to the availability of li- and denial authority limitations, ex- ability or workers compensation insur- cept that The Judge Advocate General ance the claims should be referred to (TJAG), The Assistant Judge Advocate AAFES Dallas (see address in General (TAJAG), and the Commander § 536.30(e)(4)) or the Central Insurance USARCS may settle such claims with- Fund, U.S. Army Community and Fam- out regard to monetary limitations. ily Support Agency as applicable. However, the approval of the Attorney General or Assistant General Counsel § 536.154 Claims involving tortfeasors may be required for an apportioned other than nonappropriated fund amount to be paid from APFs when employees: NAFI risk management subpart D of this part procedures are program (RIMP) claims. used and the amount to be paid from The risk management program APFs exceeds $200,000. Similarly, ap- (RIMP) is administered by the U.S. proval of TAJAG, the Attorney Gen- Army Community and Family Support eral or the Assistant General Counsel Center under the provisions of AR 215– is required when using procedures 1 and AR 608–10 (Family Child Care under subparts C, F, H, or J of this part Provider Claims). Providers in order to and an apportioned amount to be paid encourage authorized personnel, that from APFs exceeds the limits set for is, military and civilian employees, to the Commander, USARCS. use the family child care program and (b) Finality of settlement. A determina- sports equipment, such claims are tion made by a claims settlement au- processed in a manner similar to NAFI thority on a claim processed under sub- claims in §§ 536.146 through 536.152 of part D of this part is subject to suit. A this subpart. Certain claims are pay- claim processed under subparts C or F able from nonappropriated funds even of this part may be appealed. Claims though the U.S. is not liable under the processed under subparts C, D, E, H, or FTCA or the MCA as the tortfeasor is J of this part, or AR 27–20, chapter 11 not an appropriated fund or non- may be reconsidered in accordance appropriated fund employee. with the sections addressing reconsideration in those subparts (or para- § 536.155 Claims payable involving graphs in the case of Chapter 11). tortfeasors other than nonappropriated fund employees. § 536.152 Payment of claims generated (a) Non-NAFI RIMP claims can arise by acts or omissions of NAFI em- from the activities of: ployees. (1) Members of NAFIs or authorized (a) The settlement or approval au- users of NAFI sports equipment or de- thority will forward the appropriate vices for recreational purposes, while

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using such property, except real prop- USARCS and the Army Central Insur- erty, in the manner and for the pur- ance Fund immediately. poses authorized by DA regulations and (b) Investigation. ACOs and CPOs are the charter, constitution, and bylaws responsible for the investigation of of the particular NAF activity. non-NAFI RIMP claims. Such inves- (2) Family child care providers, au- tigation will be closely coordinated thorized members of the provider’s with program managers responsible for household and approved substitute pro- the activity generating the claim. viders while care under the family Close coordination with USARCS is child care program is being provided in also required, and USARCS will main- the manner prescribed in AR 608–10, ex- tain mirror files containing the inves- cept as excluded below. Such claims tigative materials of all actual and po- are generally limited to injuries to, or tential claims. death of, children receiving care under (c) Payment. Non-NAFI RIMP claims the family child care program that are will be transmitted for payment to: caused by the negligence of authorized The Army Central Insurance Fund, providers. Claims arising from the ATTN: CFSC–FM–I, 4700 King Street, transportation of such children in Alexandria, VA 22302–4406. motor vehicles and claims involving (d) Commercial insurance. The provi- loss of or damage to property are not sions of § 536.148(d) also apply to claims cognizable. arising under this section, except that (b) An ACO or a CPO will ask the in claims involving family child care Commander USARCS for an advisory providers, a claims investigation will opinion prior to settling any non-NAFI be conducted regardless of whether RIMP claim where the person whose commercial insurance exists. conduct generated liability does not fall clearly within the categories listed § 536.157 Settlement/approval author- above. Such authorities may also ask, ity for claims involving tortfeasors through the Commander USARCS, for other than nonappropriated fund an advisory opinion from the U.S. employees. Army Community and Family Support (a) Settlement authority. TJAG, Center prior to settling any claim aris- TAJAG, and the Commander USARCS ing under paragraph (a)(2) of this sec- are authorized to approve in full or in tion, where it is not clear that the in- part, or deny a non-NAFI RIMP claim, jured or deceased child was receiving regardless of the amount claimed, ex- care within the scope of the family cept where an apportioned amount to child care program. be paid from APFs exceeds their mone- (c) Where liability has been deter- tary authority and the action of the mined to exist for both non-NAFI Attorney General or Assistant General RIMP and APF activities, liability will Counsel is required as set forth in be apportioned between the two activi- § 536.151(a). ties. (b) Approval authority. (1) The staff (d) The total payment for all claims judge advocate, Commander or chief of (including derivative claims), arising a command claims service, and a head as a result of injury to, or death of, any of an area claims office are authorized one person is limited to $500,000 for to approve in full or in part non-NAFI each incident. Continuous or repeated RIMP claims presented in the amount exposure to substantially the same or of $50,000 or less, provided the accept- similar harmful activity or conditions ance is in full settlement and all is treated as one incident for purposes claims and potential claims arising out of determining the limits of liability. of a single incident do not exceed $100,000. § 536.156 Procedures for claims involv- (2) The above authorities are not del- ing tortfeasors other than non- egated authority to deny or make a appropriated fund employees. final offer on a claim under this sec- (a) Reporting. Non-NAFI RIMP claims tion. Claims requiring such action will (regardless of the amount claimed) and be forwarded to the Commander incidents that could give rise to non- USARCS with an appropriate rec- NAFI RIMP claims will be reported to ommendation.

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(c) Finality of settlement. A denial or amended by Public Law 103–160, 104 final offer on a non-NAFI RIMP claim Stat. 1485 (November 1990). is final and conclusive and is not subject to reconsideration or appeal. NOTE TO § 537.1: All of these statutes may be viewed on the USARCS Web site, https:// www.jagcnet.army.mil/85256F33005C2B92/ PART 537—CLAIMS ON BEHALF OF (JAGCNETDocID)/HOME?OPENDOCUMENT. THE UNITED STATES Select the link ‘‘Claims Resources.’’ § 537.2 Scope of non-maritime affirma- Sec. tive claims statutes. 537.1 Statutory authority for non-maritime claims. (a) Recovery for government property 537.2 Scope of non-maritime affirmative loss or damage. The FCCA, originally claims statutes. passed in 1966, gives federal agencies 537.3 Claims collectible. the authority to collect a claim of the 537.4 Claims not collectible. United States government for money 537.5 Applicable law. or property arising out of the activities 537.6 Identification of recovery incidents. 537.7 Notice to USARCS. of the agency in question. However, the 537.8 Investigation. broad authority is limited for purposes 537.9 Assertion. of this regulation to claims for loss of 537.10 Recovery procedures. or damage to property, as the FMCRA 537.11 Litigation. takes precedence for medical care re- 537.12 Settlement authority. coveries. 537.13 Enforcement of assertions. (b) Recovery for medical expenses and 537.14 Depositing of collections. lost military pay. (1) The FMCRA, 537.15 Statutory authority for maritime passed in 1962, authorizes recovery claims and claims involving civil works of a maritime nature. from a third person of the expenses for 537.16 Scope for maritime claims. medical care the United States fur- 537.17 Scope for civil works claims of mari- nishes to a person who is injured or time nature. suffers a disease when such care is au- 537.18 Settlement authority for maritime thorized or required by law. Likewise claims. the United States is authorized to re- 537.19 Demands arising from maritime cover the cost of pay for members of claims. the uniformed services unable to per- 537.20 Certification to Congress. form duties. Recovery normally arises AUTHORITY: 31 U.S.C. 3711–3720E; 42 U.S.C. out of a third-party tort under local 2651–2653; 10 U.S.C. 1095; 10 U.S.C. 4803–4804; 33 law as to which the United States has U.S.C. 408. an independent cause of action. SOURCE: 71 FR 69403, Nov. 30, 2006, unless (2) Under 10 U.S.C. 1095 the United otherwise noted. States is also deemed a third-party beneficiary or subrogee under an alter- § 537.1 Statutory authority for non- native system of computations such as maritime claims. workers’ compensation; hospital lien (a) The Federal Claims Collection Act. laws; contract rights under the terms The Federal Claims Collection Act of insurance policies including medical (FCCA), is set forth at 31 U.S.C. 3711– payment coverage; uninsured, under- 3720E, as amended by the Debt Collec- insured and no-fault coverage; and no- tion Act of 1982, Public Law 97–365, 96 fault laws. Stat. 1749 (October 1982), Public Law (c) Recovery of health insurance. 10 101–552, 104 Stat. 2746 (November 1990). U.S.C. 1095 permits recovery of health (b) Federal Medical Care Recovery Act. insurance for medical care furnished at The Federal Medical Care Recovery military medical treatment facilities Act (FMCRA) is set forth at 42 U.S.C. (MTFs), including supplemental poli- 2651–53, as amended by the National cies. This third-party collection pro- Defense Authorization Act for Fiscal gram has been delegated to the Sur- Year 1997, Public Law 104–202, section geon General of the Army by the Judge 1075, 110 Stat. 2422. Advocate General (TJAG). (c) Title 10 United States Code Section (d) Worldwide applicability. The fore- 1095. 10 U.S.C. 1095, Public Law 101–510, going authorities are worldwide in ap- section 713, 107 Stat. 1547, 1689 (1993), as plication, except for intergovernmental

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claims waived by treaty, for example, ment and Distribution Command North Atlantic Treaty Association Sta- (SDDC), formerly the Military Traffic tus of Forces Agreement (NATO Management Command (MTMC), for SOFA), Article VIII, paragraph 1. lost or destroyed shipments. (d) Where damage to assigned quar- § 537.3 Claims collectible. ters, or equipment or furnishings (a) Claims for medical expenses. Claims therein, is collectible from a member for the value of medical care furnished of the uniformed services under 10 to active or retired members of the U.S.C. 2775. uniformed services, family members of (e) Where the medical care is fur- either category, employees of the De- nished by a Department of Veterans partment of the Army (DA) or Depart- Affairs facility to other than active ment of Defense (DOD), or other per- duty members of the uniformed serv- sons to whom care was furnished be- ices for service-connected disabilities. cause authorized or required by law and resulting in injury, death or dis- § 537.5 Applicable law. ease, including those: (a) Basis for recovery. (1) Most recov- (1) Arising out of a tort under local law, ery assertions are based on the neg- (2) Arising out of an on-the-job injury ligence or wrongful acts or omissions compensable under workers’ compensa- of the person or entity that caused the tion law except for Federal Employees loss. These actions or omissions must Compensation Act (FECA) recoveries, constitute a tort as determined by the (3) Based on the United States being law of place of occurrence, except in a third-party beneficiary of the insur- no-fault jurisdictions where the no- ance contract of the injured party to fault law permits recovery. Where the include medical payment coverage, lost tort is not complete within the juris- wages, as well as uninsured, under- diction where it originally occurred, insured, and no-fault coverage. the law of the original jurisdiction is (b) Claims for lost military pay. Claims nevertheless applicable. For example, for the value of lost pay of active mem- if a plane crashes in Virginia due to the bers of the uniformed services arising negligence of a Federal Aviation Ad- out of a tort under local law resulting ministration controller in Maryland, in injury, death or disease. Maryland law determines the extent (c) Claims for property loss. Claims and nature of the tort. However, as to arising out of a tort under local law for what law of damages is applicable, the value of lost or missing DA or DOD Maryland or Virginia depecage (choice property, including non-appropriated of law) theory may apply. For example, fund instrumentality (NAFI) property, if the flight originated in Indiana and or for the cost of repairs of such prop- the destination was Virginia, the con- erty, including damage to assigned flict law of both Maryland and Virginia quarters, are not collectable under 10 must be applied. See DA Pam 27–162, U.S.C. 2775. (See § 537.4). paragraph 2–35. (2) Recovery assertions based on the § 537.4 Claims not collectible. United States being a third-party bene- (a) Where the tortfeasor is a depart- ficiary or subrogee are not based on ment, agency or instrumentality of the tort, but on the right to recover under United States. (See § 536.27(g) of this local law, for example, the right of a chapter). third party to recover workers’ com- (b) Where the tortfeasor is a member pensation benefits is based on local of the uniformed services or an em- law. However, the right of a third- ployee of the DA or DOD, acting within party beneficiary to recover under an the scope of employment, who damages insurance contract may turn on wheth- or loses property. See AR 735–5, chapter er an exclusionary clause is valid under 13. the law of the jurisdiction where the (c) Where the damage or loss of prop- contract was made. erty falls under a contractor bill of lad- (b) Statute of limitations. (1) Federal ing and recovery is pursued by the con- law determines when a recovery asser- tracting agency, e.g., Surface Deploy- tion must be made. Assertions for the

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value of medical expenses, lost mili- of receipt of a notice must be entered tary pay or property loss or damage into the affirmative claims manage- based on a tort must be made not later ment program/database (ACMP) and than three years from the date of ac- the notice must be date-stamped and crual, 28 U.S.C. 2415(b). The date of ac- initialed. crual is usually the date of the occurrence giving rise to the recovery, for § 537.6 Identification of recovery inci- example, the date of injury or death for dents. medical expenses and lost military pay (a) Responsibilities. Each command or the date of damage or loss for a gov- claims service and ACO will develop ernment property assertion. There are means to identify recovery incidents exceptions. For example, the loss of arising in its geographic area of re- property in rightful possession of an- sponsibility. See §§ 536.10 and 536.11 of other accrues when that person claims this chapter and paragraph 2–2 of DA ownership or converts the property to Pam 27–162. This requires publication his own use. of a claims directive to all DOD and (2) Recovery assertions based on an Army installations, units and activi- implied-in-law contract against a no- ties in its area, emphasizing the impor- fault or personal-injury-protection in- tance of reporting serious incidents to sured must be brought no later than six recovery judge advocates (RJAs) or ci- years from the date of accrual, 28 vilian recovery attorneys. U.S.C. 2415(a), United States v. Limbs, (b) Screening procedures. (1) Establish 524 F.2d 799 (9th Cir. 1975). The date of a point of contact in each unit and ac- accrual is usually the date of occur- tivity in the area of responsibility and rence. (3) Actions asserted on a third-party screen their sources periodically, in- beneficiary basis against an insurer or cluding motor pools, family housing, workers compensation fund must com- departments of public works, safety of- ply with the state notice requirement, fices, provost marshals, and criminal which varies from one to six years, or investigation divisions. Review civilian the insurer’s notice requirement set news and police reports, military po- forth in the policy. United States v. lice blotters and reports, court pro- Hartford Acci. & Indem. Co., 460 F.2d 17 ceedings, line of duty and AR 15–6 in- (9th Cir. 1972), cert. den. 409 U.S. 979 vestigations and similar sources to (1972). identify potential medical care recov- (4) The statute of limitations is ery claims. tolled or does not start running until (2) The MTF commander will ensure the responsible federal official is noti- that the claims office is notified of in- fied of the existence of a recoverable stances in which the MTF provides, or loss, Jankowitz v. United States, 533 F.2d is billed by a civilian facility for, inpa- 538 (D.C. Cir. 1976), United States v. tient or outpatient care resulting from Golden Acres, Inc., 684 F. Supp. 96 (D. injuries (such as broken bones or burns Del. 1986). The responsible federal offi- arising from automobile accidents, gas cial can be the area claims office explosions, falls, civilian malpractice, (ACO), the claims processing office and similar incidents) that do not in- (CPO), a command claims service or volve collections from a health benefits USARCS, depending on who receives or Medicare supplemental insurer. the notice under this regulation. How- Claims personnel will coordinate with ever, because of the responsibility to MTF personnel to ensure that inpa- notify the MTF or TRICARE fiscal tient and outpatient records and emer- intermediary, and by regulation the gency room and clinic logs are properly notice must be expeditious, delayed no- screened to identify potential cases. tification could start the statute of The RJA or recovery attorney will limitations running. Additionally, screen the MTF comptroller records when an ACO or CPO discovers the ex- database and division records as well as istence of an assertion, the statute of ambulance logs to identify potential limitations will begin to run regardless medical care recovery cases. The RJA of when the MTF or the TRICARE or recovery attorney will also coordi- intermediary sends a notice. The date nate with Navy and Air Force claims

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offices and MTFs to ensure they iden- regardless of the uniformed services af- tify potential claims involving treat- filiation of the person or sponsor, but ment provided to Army personnel. not to those treated at another uni- (3) The MTF commander will also en- formed service’s MTF even if the per- sure that the MTF does not release bil- son is an active duty Army member. lings or medical records, or respond to (iii) Personal injury to an active duty requests for assistance with workers’ or retired Army member or a family compensation forms, without coordi- member of either category treated nating with the RJA or recovery attor- under TRICARE. ney. (iv) A lead agency will be established (4) The TRICARE fiscal intermediary whenever: is required to identify and mail certain (A) Property damaged or lost belong- information promptly to the claims of- ing to more than one service is in- fice designated as the state point of volved in the same incident. contact. The fiscal intermediary must mail the TRICARE Explanation of Ben- (B) Personal injury victims are treat- efits, showing the amount TRICARE ed at MTFs of more than one service. paid on the claim along with what di- (C) Personal injury victims with af- agnostic codes were used, and DD Form filiations to more than one service are 2527, Statement of Personal Injury. A treated under TRICARE. sample Statement of Personal Injury (D) Lead agencies may be established (DD Form 2527) is posted on the locally for claims valued at $50,000 or USARCS Web site; for the address see less. For claims greater than $50,000 the Note to § 537.1. USARCS will be notified and will deal (5) The RJA or recovery attorney will with the other service at headquarters also coordinate with Navy and Air level. (See § 536.32 of this chapter.) Force claims offices and MTFs to ensure they identify potential claims in- § 537.7 Notice to USARCS. volving treatment provided to Army Upon receipt of notice of a claim in- personnel, AR 40–400, paragraph 13–5. volving either actual or potential (c) When to open a recovery file. (1) amounts within USARCS’ monetary ju- Upon identification of a potential re- risdiction, that is, where final action covery incident or upon receipt of a will be taken by USARCS or the De- billing from a TRICARE Fiscal Inter- partment of Justice, immediate notice mediary or an MTF, a file will be will be given to USARCS. Forwarding a opened and entered into the ACMP by copy of the serious incident report, dis- the first ACO or CPO that learns of the cussed in § 536.22(c) of this chapter, to event even if liability has not been es- USARCS, will meet this requirement. tablished. Incidents under Navy, Air Thereafter, mirror file copies will be Force or Coast Guard jurisdiction will furnished to USARCS in accordance not be so entered but referred to the re- with AR 27–20, paragraph 2–12. This al- sponsible service. Complete listings of lows for continuous monitoring and claims/recovery offices worldwide are discussion between the ACO and the posted on the USARCS Web site; for USARCS area action officer (AAO). the address see the Note to § 537.1. At the site, select the link ‘‘Claims Re- § 537.8 Investigation. sources.’’ At the next screen, click on ‘‘Tables Listing Claims Offices World- (a) Claims over $50,000. Hands-on in- wide.’’). vestigation will be conducted by claims (2) Army responsibility for affirma- personnel as set forth in DA Pam 27– tive claims is as follows: 162, Chapter 2, Section IV, regardless of (i) Damage to or loss of real or per- the amount of insurance coverage im- sonal property of the DOD or the Army mediately available, with a view to dis- even if located at installations or ac- covery of other sources of recovery, for tivities under the jurisdiction of other example, vehicle defects or improper uniformed services. maintenance, road design and absence (ii) Personal injury to persons whose of warning signs, products liability, primary care for an accident-related medical malpractice in civilian treat- injury is furnished at an Army MTF, ment facilities. Where the employment

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of experts is indicated follow the proce- to the injured party’s lawyer for com- dures in § 536.39 of this chapter. No at- pletion and return. torney representation agreement will (3) When the injured party or his or be sent to the injured party’s rep- her lawyer refuses to furnish necessary resentative without USARCS approval. information, it can usually be obtained (b) Claims of $50,000 or less. The by other means, for example, from an amount of hands-on investigative ef- accident report or investigation. A no- fort is directly related to the amount tice will be furnished to all parties that of insurance coverage that the the government has been assigned the tortfeasor possesses and the amount of right to bring a claim for the value of coverage that the injured party has. medical care furnished, lost pay or Where the injured party is represented, value of property lost or destroyed, and request information from his lawyer or that the United States has the right to insurer, in addition to the documents bring an independent cause of action. obtained in initial screening. The ACO In absence of timely and appropriate should be able to form an independent response, discuss with the AAO to de- opinion as to liability based on the in- termine what action should be taken. vestigation of the government and not solely on that of the injured party’s at- § 537.9 Assertion. torney. (a) Asserting demands. If a prima facie (c) Claims of $5,000 or less. Small claims procedures are applicable to the claim exists under state law, a written extent feasible. See § 536.33 of this chap- demand will be made against all the ter. Investigation, assertion and settle- tortfeasors and insurers. This includes ment by e-mail, phone or fax is encour- demands against the injured party’s aged. The investigation and action own insurance coverage, no-fault cov- should be recorded. DA Form 1668, erage and workers’ compensation car- Small Claims Certificate, may be used rier. The earlier the demand the better. as a model, modifying it as needed. A A demand will not be delayed until the sample completed Small Claims Cer- exact amount of medical expenses or tificate is posted at USARCS Web site lost pay is determined. The demand for the address see the Note to § 537.1. letter will state that the amount will (d) Relations with injured party. (1) be furnished when known. A copy of When the injured party becomes known the demand will be furnished to the in- and an interview can be conducted lo- jured party or, if represented, his law- cally, all relevant facts will be ob- yer. Two sample demand (or assertion) tained unless the injured party is rep- letters are posted at the USARCS Web resented by a lawyer. In this latter site (for the address see the Note to event, basic information as set forth on § 537.1). Demand letters are for initial DD Form 2527, Statement of Personal contact with insurance companies. One Injury (a completed sample is posted at of the posted samples is for a medical the USARCS Web site; for the address assertion for a soldier (that includes see the Note to § 537.1) can be obtained wages). The other is for a medical as- without violating lawyer-client privi- sertion for a civilian (that does not in- lege. If the injured party is not imme- clude wages). Remember the following diately available, the information can points when asserting demands: be obtained by requesting assistance (1) The fact that the medical ex- from another ACO, a unit claims offi- penses have been assigned to the cer, a reservist or Army National United States and as a result the Guard (ANG) member, another federal United States has a cause of action in agency, or another means. federal or state court. All parties will (2) When the injured party is rep- be notified that if the insurer pays the resented, a Health Insurance Port- amount to another party, the United ability and Accountability Act States has the right to collect from the (HIPAA) medical release form (sample insurer. posted at the USARCS Web site; see (2) Demands for third-party torts are § 537 (b)(4)) permitting USARCS to send under the authority of the FMCRA; de- out the medical records of the injured mands where there is no tortfeasor are party for claims purposes, will be sent under the authority of 10 U.S.C. 1095;

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demands for property loss or damage Replacement value will not be used. are under the authority of the FCCA. Both real and personal property dam- (b) Documentation of damages. MTFs age will be on the value of labor and are required by AR 40–400, Patient Ad- cost of material including the use of ministration, chapter 13 to furnish heavy equipment. When the cost of re- complete billing documents to RJAs. pairs is greater than $50,000, 10% over- (1) TRICARE bills are obtained from head will be added. This can be sub- the fiscal intermediary servicing the stantiated using case law and by seek- ACO. The amounts are based on the ing documentation from the repair fa- amount TRICARE pays and not the cility. amount the patient is billed by the pro- (c) Double collections prohibited. When vider. TRICARE bills must be screened the cost of medical care is recoverable to insure that the care is incident or by the MTF from medical care insur- accident related as the demand is lim- ance, both primary and supplemental ited to that amount. under 10 U.S.C. 1095, an assertion under (2) MTF bills, both outpatient and in- FMCRA will be made, including a de- patient, are obtained from either the mand for lost pay not recoverable out MTF co-located with the ACO or if an- of health insurance. While the United other MTF is involved, from that MTF, States is entitled to recover costs of regardless of uniformed service affili- medical care from both the injured par- ation. Outpatient bills include not only ties’ medical insurance and from the the cost of the visit but also the cost of third-party tortfeasor, USARCS policy each procedure, such as x-rays or lab- is not to collect twice. RJAs will care- oratory tests. Inpatient billing is not fully coordinate with the MTF to in- based on services rendered but on a di- sure that double collection does not agnostic group. Charges for profes- occur. Demand for lost pay should be sional inpatient services will be enforced as it is not recoverable from itemized the same as outpatient care. medical care insurance. Charges for prescription services will be included. Screening to ensure that § 537.10 Recovery procedures. only incident or accident related care (a) Recovery personnel have three is claimed is essential. The cost of am- means of enforcing recovery following bulance services, ground or air, will be initial assertion. calculated with MTF assistance and de- (1) Referral to litigation pursuant to manded. Burial expenses are obtained § 537.11; from the local mortuary affairs office (2) The head of an ACO should re- on DD Form 2063, but will be demanded quest Chief, Litigation Division, only when the insurance coverage in- OTJAG to have the RJA appointed as a cludes such expenses. Special Assistant United States Attor- (3) Lost pay will be obtained from the ney when the following criteria are leave or earnings statement or the ac- met: tive duty pay chart for the year or (i) Filing suit is a frequent necessity, years in question and will include spe- e.g., insurance companies are refusing cial and incentive pay unless the in- payment on small claims either by jured service member did not receive raising issues well settled or by regu- either due to the length of time off as- larly reducing the amount of medical signed duty. The time off duty will be care as not fair and reasonable; based on the time service members are (ii) The local U.S. Attorney’s office is unable to perform duties for which in favor of such appointment due to his they have been trained (their military previous experience with the RJA and occupational specialty). It will not be the additional burden of affirmative limited to inpatient time. Time in a claims litigation on his staff; medical holding or convalescent leave (iii) The RJA has at least two years will be lost time. experience and is likely to continue in (4) The amount recoverable for per- the RJA assignment for at least one sonal property losses is limited to its year; and value at the time of loss. Depreciation (iv) Commander USARCS concurs in charts may be used to determine the the appointment and is willing to fur- reduction from the value at purchase. nish support.

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(3) The RJA may request that the at- are not adequately represented on a torney representing the injured party claim over $25,000. include the amount asserted by the (b) RJAs or recovery attorneys must United States as part of special dam- maintain close contact with local U.S. ages. The injured party’s attorney may Attorney’s Offices to ensure these of- not represent the United States nor fices are willing to initiate litigation may the United States pay attorney on cases. fees as this would be in violation of 5 (c) In order to directly initiate or in- U.S.C. 3106. Where indicated, this ar- tervene in litigation, an RJA or recov- rangement should be reduced to writ- ery attorney must prepare a litigation ing. Be mindful that the attorney’s report and formally refer the case duty to the injured party is in conflict through the Affirmative Claims with the interests of the United States Branch, USARCS, and the Litigation where the amount potentially recover- Division, OTJAG (as required by AR 27– able is small in comparison to the 40, chapter 5), to the U.S. Attorney. amount asserted by the United States. While the RJA or recovery attorney, in In this event the RJA should pursue re- conjunction with the Litigation Divi- covery independently. sion Torts Branch, should attempt to (b) Careful monitoring of all asser- have the U.S. Attorney’s Office initiate tions is required to insure timely fol- litigation at least six months before low-up resulting in collection or suit the expiration of the statute of limita- where indicated. Installation of a sus- tions (SOL), the RJA or recovery attor- pense system to avoid the expiration of ney may contact USARCS tele- the statute of limitations is essential. phonically if SOL problems necessitate Recommendations to file suit should be quick action on a case. The RJA or re- forwarded by the RJA well prior to the covery attorney should also contact expiration of the statute of limita- USARCS if a U.S. Attorney is reluc- tions. Within six months prior to the tant to pursue an important case. An running of the statute of limitations, injured party’s attorney may represent USARCS must be notified of the status the government’s interest in litigation without any special coordination. of the claim or potential claim. Fol- low-up demands should precede filing § 537.12 Settlement authority. suit to create a written record of efforts to avoid suit. Personal contact (a) Assertions for $50,000 or less—(1) Ap- with all parties is encouraged. When proval authority. An RJA or civilian re- represented, contact the representa- covery attorney, if delegated authority tive. by his or her ACO or CPO, may compromise a collection on a claim as- (c) Sources other than vehicle liabil- serted for $50,000 or less, unless recov- ity coverage should be exhausted in ery action is reserved by a command cases where the amount of the poten- claims service. tial recovery exceeds $50,000 and the (2) Final action authority. (i) An ACO, coverage is small. Coordination with or CPO if delegated authority by its USARCS is required. USARCS can ob- ACO, may terminate collection action tain expert witnesses for medical mal- on a claim asserted for $50,000 or less, practice cases, product liability cases, unless action is reserved by a command or other cases in which another claims service. tortfeasor may be involved. (ii) The foregoing authorities may waive a claim asserted for $50,000 or § 537.11 Litigation. less where undue hardship exists. (a) If a tortfeasor or insurer refuses (iii) Determination of amount. The to settle, or if an injured party’s attor- amount of $50,000 is determined total- ney improperly withholds funds, the ing the amounts for medical care, lost RJA or recovery attorney must con- military wages, lost earnings or gov- sider litigation to protect the interests ernment property damage arising from of the United States. Litigation is par- the same claims incident. ticularly appropriate if a particular in- (b) Assertions over $50,000. USARCS re- surer consistently refuses to settle tains final authority over assertions claims, or if the government’s interests over $50,000. By use of the mirror file

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system and through a dialogue between (v) Present and prospective assets, USARCS and the field during the income, and obligations of the injured course of the assertion, USARCS will party and those dependent on him or decide whether it or the RJA or civil- her. ian recovery attorney will conduct the (vi) The financial condition of the negotiations. To help it decide, the debtor. RJA or civilian recovery attorney will (vii) The degree and nature of con- forward a memorandum for either med- tributory negligence on the part of the ical or property recovery approval, in injured party in causing his injury or the format of the samples posted at the death. USARCS Web site (for the address see (viii) The percentage of attorney’s the Note to § 537.1). USARCS may fees that his attorney is willing to re- waive the requirement to submit a duce. memorandum. (ix) The willingness of the tortfeasor (c) Appeals—(1) Assertion for $50,000 or to enter into an installment agree- less. Where the assertion is made by an ment. RJA or civilian recovery attorney, the (e) Releases. The RJA or recovery at- appeal will be determined by the SJA, torney may execute a release for af- the medical center judge advocate, or firmative claims in the pre-litigation head of the ACO or CPO. Otherwise, the stage acknowledging that the govern- appeal will be determined by the Com- ment has received payment in full of mander USARCS. the amount asserted or the com- (2) Assertion over $50,000. Where the promised amount agreed upon, or the assertion is made by a Claims Judge final installment payment. The format Advocate or claims attorney, the ap- of the release should be similar to the peal will be determined by the Com- sample posted at the USARCS Web site mander USARCS. (for the address see the Note to § 537.1). (d) Compromise or waiver. Any asser- However, the RJA or recovery attorney tion may be compromised, waived or may not execute either an indemnity terminated in whole or in part, if for agreement or a release which preju- example: dices the government’s right to recover (1) The cost to collect does not jus- on other claims arising out of the same tify the cost of enforcement. incident without the approval of USARCS. In addition, the RJA or re- (2) There is evidence of fraud or mis- covery attorney may not execute a re- representation. lease that purports to release any (3) The U.S. cannot locate the claim that the injured party may have tortfeasor. other than for medical care furnished (4) Legal merit has not been substan- or to be furnished by the United tiated. States. The RJA or recovery attorney (5) The statute of limitations has run will not execute a release if the govern- and the debtor refuses to pay. ment’s claim is waived or terminated. (6) Collection of all or part of the amount of funds demanded would cre- § 537.13 Enforcement of assertions. ate inequity. The following criteria Meritorious assertions that do not apply: result in collections should be enforced (i) Detailed information on what as follows: funds are available for recovery. (a) Where the debtor is a business or (ii) Reasonable value of the injured corporation otherwise financially capa- party’s claim for permanent injury, ble the RJA or equivalent should for- pain and suffering, decreased earning ward a recommendation to bring suit power, and any other special damages. or intervene in an existing suit regard- (iii) Military, Department of Vet- less of the amount of the debt. As au- erans Affairs, Social Security dis- thorized by 28 U.S.C. 3011, the demand ability, and any other government ben- amount in the complaint shall include efits accruing to the injured party. an additional 10% of the original (iv) Probability and amount of future claimed amount, to cover the adminis- medical expenses of the government trative costs of processing and han- and the injured party. dling the enforcement of the debt.

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(b) Where the debtor is an individual (3) NAFI property. The Risk Manage- rather than a business, an asset deter- ment Program (RIMP) often reim- mination should be made both as to ex- burses local NAFIs for property loss or isting assets or prospective earnings. If damage to facilitate return of equip- the injured party’s attorney has made ment to daily use. When money is re- an assets search which is reliable, recovered from tortfeasors and their in- view the search before requesting a surance carriers contact the NAFI in- new one. Such a search can be paid for volved for instructions on the current out of existing collections. procedures as to where the recovered (1) If the debtor has assets refer to money is to be forwarded and depos- USARCS for transfer to a debt collec- ited. tion contractor or an agency debt col- (4) Army Stock Fund or Defense Busi- lection center as determined by ness Operations Fund property. Monies USARCS. recovered for damage to property be- (2) If the debtor has no assets, but longing to one of these funds will be re- prospective future earnings, RJA may turned to that fund unless the fund has seek a confession of judgment and charged the cost of repair or replace- maintain contact with the debtor for ment to an appropriated fund account. future collection where authorized by The Defense Business Operations Fund state law and filing of suit is not re- replaced the Army Industrial Fund. quired. If the amount is less then (5) Government housing in cases of $5,000, enter into an installment pay- abuse or neglect by soldiers or families. ment arrangement. Monies recovered for damage to government housing caused by a soldier’s § 537.14 Depositing of collections. abuse or negligence (or by a soldier’s (a) Depositing property damage recov- family member or guest of the soldier) ery—(1) Machines, supplies, watercraft, will be deposited into that installa- aircraft, vehicles other than General Serv- tion’s family housing operations and ices Administration-owned. Recovered maintenance (O&M) account. money must be deposited into the Gen- (6) Government housing in cases of neg- eral Treasury Account 21R3019. This ligence by nonresidents. Government account remains the same every fiscal housing caused by the negligence of a year. It was established in accordance nonresident must be asserted against with 31 U.S.C. 3302(b) and by Comp- the nonresident directly or through troller General decision B–205508, 64 his/her insurer. Settlement checks Comp. Gen. 431. must be deposited into the real prop- (2) Real property. Collection for dam- erty escrow account in accordance with age to real property must be deposited 10 U.S.C. 2782. into an escrow account on behalf of the (b) Depositing recovery of pay provided installation or activity at which the to a soldier while incapacitated. Monies loss occurred. This escrow account recovered for the costs of pay provided must be set up at the request of the to a soldier injured by the tortious acts command claims service, ACO or CPO of another shall be credited to the local with the local finance office or re- O&M account that supports the com- source management office with respon- mand, activity, or other unit to which sibility for department of engineering the soldier was assigned at the time of and housing or department of public the injury. works funds. The escrow account must (c) Depositing medical care recovery— be set up and managed by the depart- (1) To a medical treatment facility ac- ment of engineering and housing or the count. Continental U.S. (CONUS) and department of public works to (1) tem- outside the continental U.S. (OCONUS) porarily hold deposits, and (2) to ‘‘roll claims offices, and command claims over’’ deposits each fiscal year in order services, will deposit money recovered to avoid reversion of these deposits to from an automobile insurer for medical the General Treasury at the end of care provided, paid for by, in or each fiscal year. If the escrow account through an MTF to the O&M account is not set up and managed in this man- of the Army, Navy, or Air Force MTF ner it is operating in violation of 10 that provided the care. CONUS and U.S.C. 2782. OCONUS claims offices, and command

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claims services, will deposit money re- must ensure that their deposits have covered from any payor, under any pro- been credited to the proper accounts vision of law, for medical care provided and that these accounts have not been or paid for by, in or through an MTF improperly charged. All accounts must into the MTF’s O&M account. be reconciled at the end of the fiscal (2) Deposits when TRICARE paid di- year. rectly for treatment. The account in which to deposit affirmative claims re- § 537.15 Statutory authority for mari- coveries when TRICARE has paid di- time claims and claims involving rectly for the medical treatment is a civil works of a maritime nature. Defense Health Program (DHP) ac- (a) The Army Maritime Claims Settle- count for reallocation to the services. ment Act. The sections pertinent to This replaces the general treasury mis- maritime affirmative claims are set cellaneous receipts account published out at 10 U.S.C. 4803–4804. in AR 37–100 (obsolete). Deposit to (b) The Rivers and Harbors Act. The TRICARE using this new account for section of the Act pertinent to affirma- recoveries pending deposit, and recoveries for any claim settled on or after tive claims involving civil works of a October 1, 2002. Retroactive claims de- maritime nature is set out at 33 U.S.C. positing is not necessary. 408. (3) Apportionment of medical care re- § 537.16 Scope for maritime claims. covery between accounts. Claims offices will often have to apportion recovered The Army Maritime Claims Settle- money among different accounts. ment Act (10 U.S.C. 4803–4804) applies (i) Apportioning money between ac- worldwide and includes claims that counts. If care was provided by an MTF arise on high seas or within the terri- and paid for by or through the MTF torial waters of a foreign country. and/or directly by TRICARE and/or a (a) 10 U.S.C. 4803 provides for agency unit account for military lost wages if settlement or compromise of claims for any, and the amount recovered is less damage to: than the amount asserted, deposit a (1) DA-accountable properties of a prorated amount of money into each kind that are within the federal mari- TRICARE account. time jurisdiction. (ii) Apportioning money between two or (2) Property under the DA’s jurisdic- more medical treatment facility accounts. tion or DA property damaged by a ves- If care was provided by two or more sel or floating object. MTFs and the claims office recovers (b) 10 U.S.C. 4804 provides for the set- less than the amount asserted, the tlement or compromise of claims in claims office should give each MTF a any amount for salvage services (in- pro rata share of the money recovered. cluding contract salvage and towage) For example, if MTF one provided performed by the DA. Claims for sal- $2,000 worth of care and MTF two provided $1,000 worth of care, the claims vage services are based upon labor cost, office will deposit $800 of a $1,200 recov- per diem rates for the use of salvage ery to MTF one’s account and the re- vessels and other equipment, and remaining $400 to MTF two’s account. pair or replacement costs for materials Similarly, if the claims office recovers and equipment damaged or lost during an amount less than that asserted for the salvage operation. The sum medical care expenses and costs of pay claimed is usually intended to com- provided, the claims office should give pensate the United States for oper- a pro rata share of the money recov- ational costs only, reserving, however, ered to both the MTF and the appro- the government’s right to assert a priation account that supports the in- claim on a salvage bonus basis in ac- jured soldier’s unit. cordance with commercial practice. (d) Fiscal integrity. Field claims of- (c) The United States has three years fices must reconcile the property dam- from the date a maritime claim ac- age and medical care recovery accrues under this section to file suit counts with their servicing defense ac- against the responsible party or par- counting office. Field claims offices ties.

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§ 537.17 Scope for civil works claims of § 537.19 Demands arising from mari- maritime nature. time claims. Under the River and Harbors Act (33 (a) It is essential that Army claims U.S.C. 408), the United States has the personnel demand payment, or notify right to recover fines, penalties, for- the party involved of the Army’s inten- feitures and other special remedies in tion to make such demands, as soon as addition to compensation for damage possible following receipt of informa- to civil works structures such as a lock tion of damage to Army property or dam. However, claims arising under where the party’s legal liability to re- 10 U.S.C. 4804 are limited to recovery of spond exists or might exist. Except as actual damage to Corps of Engineers provided below pertaining to admiralty (COE) civil works structures. claims and claims for damage to civil works in favor of the United States § 537.18 Settlement authority for mari- pursuant to 33 U.S.C. 408, copies of the time claims. initial demand or written notice of in- (a) The Secretary of the Army, the tention to issue a demand letter, as Army General Counsel as designee of well as copies of subsequent cor- the Secretary, or other designee of the respondence, will be provided promptly Secretary may compromise an affirma- to the Commander USARCS, who will tive claim brought by the United monitor the progress of such claims. States in any amount. A claim settled (b) Subject to limitation of settle- or compromised in a net amount ex- ment authority, demands for admiralty ceeding $500,000 will be investigated claims and civil works damages in and processed and, if approved by the favor of the United States pursuant to Secretary of the Army or his or her 33 U.S.C. 408 may be asserted, regard- designee, certified to Congress for final less of amount, by the Chief Counsel approval. COE, or his designees in COE Division (b) TJAG, TAJAG, the Commander or District Counsel offices. USARCS, the Chief Counsel COE, or Di- (c) Where, in response to any de- vision or District Counsel Offices may mand, a respondent denies liability, settle or compromise and receive pay- fails to respond within a reasonable pe- ment on a claim by the United States riod, or offers a compromise settle- under this part if the amount to be re- ment, the file will be promptly for- ceived does not exceed $100,000. These warded to the Commander USARCS, authorities may also terminate collec- except in those cases in which a pro- tion of claims for the convenience of posed compromise settlement is the government in accordance with the deemed acceptable and the claim is standards specified by the DOJ. otherwise within the authority dele- (c) An SJA or a chief of a command gated in § 537.18 of this part. Files for claims service and heads of ACOs may admiralty claims and civil works receive payment for the full amount of claims in favor of the United States a claim not exceeding $100,000, or com- pursuant to 33 U.S.C. 408 will be promise any claim in which the promptly forwarded to the United amount to be recovered does not exceed States Department of Justice. $50,000 and the amount claimed does not exceed $100,000. § 537.20 Certification to Congress. (d) Any money collected under this Admiralty claims, including claims authority shall be deposited into the for damage to civil works in favor of U.S. General Treasury, except that the United States pursuant to 33 U.S.C. money collected on civil works claims 408, proposed for settlement or com- in favor of the United States pursuant promise in a net amount exceeding to 33 U.S.C. 408 ‘‘shall be placed to the $100,000 will be submitted through the credit of the appropriation for the im- Commander USARCS to the Secretary provement of the harbor or waterway of the Army for approval and if in ex- in which the damage occurred * * *’’ cess of $500,000 for certification to Con- (33 U.S.C. 412; 33 U.S.C. 571). gress for final approval.

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PART 538—MILITARY PAYMENT sored and controlled facilities located CERTIFICATES and operated in an MPC area. § 538.2 Use of military payment certifi- Sec. cates. 538.1 Definitions. 538.2 Use of military payment certificates. (a) Areas in which used. Military pay- 538.3 Restrictions on possession and use. ment certificates are to be used only in 538.4 Convertibility of military payment the Department of Defense by author- certificates. ized personnel in designated MPC 538.5 Conversion of invalidated military areas. A Military Payment Certificate payment certificates. Area is a particular foreign country(s), 538.6 Claims. or a specific area within a foreign AUTHORITY: Sec. 3, 58 Stat. 821, as amended; country, that has been officially au- 31 U.S.C. 492c. thorized for designation as an MPC SOURCE: 44 FR 76784, Dec. 28, 1979, unless area. otherwise noted. (b) Disbursement of military payment certificates. Military payment certifi- § 538.1 Definitions. cates will be disbursed to authorized (a) United States dollar instruments. personnel for all items of pay and al- For the purpose of this section, United lowances and for all other authorized States dollar instruments include the payments to individuals in and under following: the Department of Defense. (1) United States Treasury checks (c) Facilities in which used. Military (standard dollar checks) drawn on the payment certificates are the only au- Treasurer of the United States by authorized medium of exchange in the thorized finance and accounting offi- following facilities: cers. (1) Army, Navy, and Air Force sales (2) Travelers’ checks issued by the and services installations and activi- American Express Company; Bank of ties. America, National Trust and Savings (2) Theaters and other entertainment Association; Mellon National Bank and facilities operated by Department of Trust Company; Citibank of New York; Defense. Thomas Cook and Son (Bankers) Ltd.; (3) Officers’ and enlisted personnel and the First National Bank of Chi- messes and clubs, including American cago, when expressed in United States Red Cross installations. dollars. (4) Army, Navy, and Air Force postal (3) United States military disbursing officers’ payment orders. installations for purchase of postal money orders and stamps, and cashing (4) American Express Company money orders, when expressed in of postal money orders. United States dollars, and United (5) Contribution to all authorized States postal money orders. charitable appeals, church collections, (5) Telegraphic money orders, when and chaplain’s funds when remittance expressed in United States dollars. is to be forwarded to the United States (b) Military Payment Certificate (MPC). through Department of Defense chan- The military payment certificate is an nels. instrument, denominated in U.S. dol- (6) Payments to all travel agencies, lars and fractions thereof, that may be radio, cable, telegraph, and telephone used as the official medium of ex- companies, and all other similar facili- change in U.S. military establishments ties when remittance is to be forwarded located in overseas areas when such to the United States through Depart- areas are designated as ‘‘Military Pay- ment of Defense channels. ment Certificate Areas.’’ (7) All other official agencies, quasi- (c) Authorized Personnel. As used official and private agencies of or herein, the term ‘‘authorized per- working in behalf of United States sonnel’’ means all individuals author- Army Forces providing goods, services, ized to purchase goods, supplies and and facilities to members of the United services from U.S. Government spon- States Armed Forces.

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§ 538.3 Restrictions on possession and or exchange facilities are not readily use. available to the traveler. (a) Possession or use prohibited. Pos- (b) The provisions of this section will session or use of military payment cer- not be construed as authorizing finance tificates is prohibited unless acquired and accounting officers or their agents in accordance with §§ 538.1 through 538.4 in areas outside of military payment and such additional regulations as may certificate areas to convert military be issued by the major overseas com- payment certificates for authorized mander concerned. personnel returning from MPC areas. (b) Not to violate directives. Acquisi- Such exchange must be made prior to tion, possession, and use of military departure from the MPC area. payment certificates incident to nor- (c) Conversion of Military Payment Cer- mal legitimate transactions within the tificates suspected of being acquired ille- Department of Defense must not vio- gitimately. Military payment certifi- late Department of the Army or major cates will not be converted for any overseas command directives or the holder under circumstances where Uniform Code of Military Justice. there are reasonable grounds to believe (c) Acceptance, transfer, or exchange. that the holder was not an authorized Under no circumstances will military person at the time of acquisition or payment certificates be accepted from, that the certificates were acquired by transferred to, or exchanged for per- the holder, or by another with the sons other than authorized personnel. holder’s knowledge, from a person not Military payment certificates will not authorized to possess or use them. be accepted or exchanged after the date Amounts of certificates exceeding specified by the Secretary of the Army those which the holder would normally as the last day for their acceptance or acquire or hold under applicable cir- exchange. cumstances as prescribed by local regu- (d) Transmission through mail. Individ- lations will not be approved for conver- uals are prohibited from transmitting sion unless the holder shows by a pre- military payment certificates through ponderance of evidence that they were the mail to any areas other than those acquired legitimately. Where there are designated as an MPC area. Military reasonable grounds to believe that the payment certificates may be trans- military payment certificates were not mitted to authorized personnel or offi- acquired legitimately, they will be im- cial agencies by mail within or between pounded and retained pending an ad- designated MPC areas. ministrative determination as to the source of acquisition. If it is deter- § 538.4 Convertibility of military pay- mined that the individual concerned ment certificates. was not an authorized person at the (a) For authorized personnel. Author- time of acquisition, the certificates ized personnel having in their posses- will be confiscated and the dollar pro- sion military payment certificates that ceeds deposited in the Treasury to the were acquired legitimately may ex- General Fund (Miscellaneous) Receipt change those certificates for U.S. cur- Account 211099, ‘‘Fines, penalties and rency, coin, or dollar instruments, in- forfeitures not otherwise classified.’’ If cluding U.S. Treasury dollar checks it is determined that the individual under the following conditions: concerned was an authorized person at (1) Upon departure for the United the time of acquisition, or that the cer- States. tificates belong to an authorized per- (2) When traveling under competent son, the certificates or their dollar orders to areas where military pay- value will be returned to the owner un- ment certificates are not designated less there are reasonable grounds to be- for use. lieve the certificates were acquired by (3) When traveling under competent the holder or another with the holder’s orders to military payment certificate knowledge from an unauthorized per- areas where finance and accounting of- son. If it is determined that the certifi- ficers, Class ‘‘B’’ Agent Officers, in- cates were acquired from an unauthor- cluding military attache agent officers, ized person, the certificates will be

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confiscated and the dollar proceeds de- The Treasury check will be disposed of posited in the Treasury to the General in accordance with regulations gov- Fund (Miscellaneous) Receipt Account erning disposition of effects of deceased 211099, ‘‘Fines, penalties and forfeitures or missing personnel. Amounts in ex- not otherwise classified.’’ Collection cess of $500 will be forwarded by the vouchers affecting these deposits will summary court officer to the U.S. cite claimants’ names and sufficient Army Finance and Accounting Center information to permit ready identifica- for decision regarding exchange of such tion of the deposits in order to facili- certificates. tate the processing of any subsequent (c) Disposition when received with claims for amounts so deposited. claim. Under no circumstances will in- (d) Transactions with disbursing offi- validated series of military payment cers of other services. Dollar instruments certificates received with claims for may be exchanged for military pay- conversion be taken up in the accounts ment certificates or military payment of the finance and accounting officer. certificates for dollar instruments in Such certificates will be held in safe- transactions with Navy and Air Force keeping until decision is made. If the disbursing officers and their agents. claim is disapproved, the certificates Major overseas commanders may spe- will be returned to the claimant. In the cifically authorize such transactions event these certificates are again re- with other disbursing officers of the ceived by the finance and accounting United States Government and their officer as undeliverable and reasonable agents. efforts fail to locate the claimant, the certificates will be held for a period of § 538.5 Conversion of invalidated mili- 6 months after which time the proceeds tary payment certificates. of the certificates will be deposited in (a) When converted. Time limit on fil- the Treasury to the General Fund (Mis- ing claims for the conversion of invali- cellaneous) Receipt Account 211060, dated Series 461, 471, 472, 481, 521, 541, ‘‘Forfeitures of unclaimed money and 591, 611, 641, 651, 661, 681, and 692 expires property.’’ on 30 September 1980. (b) When found in effects of deceased § 538.6 Claims. personnel. Invalidated series of military Claims for conversion of military payment certificates in amounts not in payment certificates, as well as claims excess of $500, found in the effects of arising out of the refusal of the over- deceased personnel or personnel in a seas command to convert military pay- missing status, will be converted into a ment certificates, will be referred to Treasury check. Such military pay- the U.S. Army Finance and Accounting ment certificates will be converted Center, ATTN: FINCY-D, Indianapolis, only if date of death or entry into Indiana 46249. The U.S. Army Finance missing status was prior to the date and Accounting Center will adjudicate the series of military payment certifi- and make final determination on all cates was withdrawn from circulation. claims.

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PART 542—SCHOOLS AND two courses—the basic course (MS-I COLLEGES and MS-II) and the advanced course (MS-III and MS-IV). Sec. (e) Region commander. The com- 542.1 Purpose. manding general of a US Army ROTC 542.2 Applicability. Region who is responsible for the oper- 542.3 Definitions. ation, training, and administration of 542.4 Objectives. the ROTC program within his/her geo- 542.5 Policies. graphical area. Region commanders are 542.6 Responsibilities. 542.7 Program information. located at: (1) US Army First ROTC Region, AUTHORITY: 10 U.S.C. 2031 and 4651. Fort Bragg, NC 28307. SOURCE: 44 FR 51219, Aug. 31, 1979, unless (2) US Army Second ROTC Region, otherwise noted. Fort Knox, KY 40121. (3) US Army Third ROTC Region, § 542.1 Purpose. Fort Riley, KS 66442. This regulation prescribes policies (4) US Army Fourth ROTC Region, for administering the Junior Reserve Fort Lewis, WA 98433. Officers’ Training Corps (JROTC) and (5) The Commander-in-Chief, US the National Defense Cadet Corps Army Europe and Seventh Army, APO (NDCC). New York 09102.

§ 542.2 Applicability. § 542.4 Objectives. This regulation applies to the De- The Army JROTC/NDCC objectives partment of the Army (including the are to develop in each cadet— corps and their units), schools, and per- (a) Good citizenship and partiotism. sonnel associated with applying for (b) Self-reliance, leadership, and re- these programs. sponsiveness to constituted authority. § 542.3 Definitions. (c) The ability to communicate well both orally and in writing. The following terms apply to the (d) An appreciation of the importance JROTC and NDCC programs: of physical fitness. (a) Junior Reserve Officers’ Training (e) A respect for the role of the US Corps (JROTC). The organization of Army in support of national objectives. units established by the Department of the Army (under 10 U.S.C 2031) at pub- (f) A knowledge of basic military lic and private secondary schools to skills. conduct student leadership training. § 542.5 Policies. Also, a general term used: (1) To describe all JROTC training (a) The Junior Reserve Officers’ conducted at secondary schools. Training Corps and the National De- (2) To denote the members, instruc- fense Cadet Corps programs are de- tion, and other related matters. signed for physically fit citizens at- (b) National Defense Cadet Corps tending participating schools. They (NDCC). Students taking part in lead- provide meaningful leadership instruc- ership studies at any school under 10 tion of benefit to the student and of U.S.C. 4651 and as prescribed by the value to the Armed Forces. The pro- Secretary of the Army. Used in a broad grams provide unique educational op- sense to refer to the program and re- portunities for young citizens through lated matters. their participation in a Federally-spon- (c) Leadership Development (LD) Pro- sored course while pursuing a normal gram. The JROTC curriculum which civilian education. Students will ac- consists of a 4- or 3-year program of quire: instuction (LD–1, –2, –3, and –4). (1) An understanding of the funda- (d) Military Science (MS). The Senior mental concept of leadership, military ROTC curriculum which consists of art and science,

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(2) An introduction to related profes- § 542.6 Responsibilities. sional knowledge, and (a) The Commanding General, US Army (3) An appreciation of requirements Military Personnel Center, 200 Stovall for national security. The dual roles of Street, Alexandria, VA 22332, is respon- citizen/soldier and soldier/citizen are sible for administering the Army studied. JROTC/NDCC programs and announc- (b) Participants in either of the pro- ing policy changes. grams will acquire relevant knowledge (b) The Commanding General, US Army and develop personally. Schools con- Training and Doctrine Command, Ft. ducting these programs will offer their Monroe, VA 23651, is responsible for students the challenge of intellectual managing the JROTC/NDCC except for inquiry under the direction of instruc- those functions and responsibilities re- tors who are experienced leaders. tained by Headquarters, Department of (JROTC instructors are active duty or the Army. retired members of the US Army. (c) Region commanders are responsible NDCC schools may employ retired or for operating and administering the Reserve members.) These programs JROTC/NDCC training conducted within their areas. provide an atmosphere designed to develop the qualities of leadership. § 542.7 Program information. Through classroom and other activi- (a) The JROTC/NDCC is organized ties, the students will acquire the into units at public and private sec- knowledge, self-discipline, patriotism, ondary schools. The NDCC differs from sense of responsibility, and responsive- the JROTC in that NDCC instructors ness to constituted authority which must be provided by the school. Al- will better prepare them for the future. though these instructors are subject to These programs will enable cadets to Army approval, there is no cost-shar- better serve their country as leaders, ing arrangement as exists for JROTC. as citizens, and in military service Also schools or students must provide should they enter it. uniforms, if desired, in the NDCC pro- (c) The programs were set up as part gram. Schools desiring to conduct ei- of the National Defense Act of 1916. ther program must apply to the region The principle of maintaining national commander of the area in which the programs of training for the young school is located. To participate in the citizens attending school was validated program a school must maintain an en- during congressional hearings pre- rollment in the unit of at least one ceding passage of the ROTC Vitaliza- hundred physically fit students who tion Act of 1964. The JROTC and NDCC are at least 14 years of age and meet are not, of themselves, officer-pro- one of the following accreditation ducing programs but should create fa- standards: vorable attitudes and impressions to- (1) Be accredited by a nationally rec- ward the Services and toward careers ognized accrediting agency. in the Armed Forces. JROTC/NDCC ca- (2) Be accredited by a State, State educational agency, or State univer- dets may qualify for an advantageous sity. position in the Senior ROTC and for a (3) Have attained a preaccreditable higher pay grade upon enlistment in a status of reasonable assurance subject Regular or Reserve component of the to attainment and maintenance of a Armed Forces. status listed above within 5 years of (d) Participation in JROTC/NDCC initial academic enrollment of stu- does not obligate the student to per- dents. form military or any other Federal (b) Students who desire to enroll and service. Although all qualified students continue as a member of the JROTC/ of JROTC/NDCC host schools are en- NDCC program must: couraged to take part in these pro- (1) Be enrolled in and attending full- grams, they are not required by Fed- time a regular course of instruction at eral law to do so. State, community, or a JROTC/NDCC institution. school authorities decree whether stu- (2) Be a citizen of the United States. dents must be in the programs. (3) Be at least 14 years of age.

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(4) Meet the physical fitness standards prescribed by the school.

PARTS 543–544 [RESERVED]

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PART 552—REGULATIONS AFFECT- 552.65 Command supervision. 552.66 Actions required by agents. ING MILITARY RESERVATIONS 552.67 Life insurance policy content. 552.68 Minimum requirements for agents. Subpart A—Use of Department of the Army 552.69 Application by companies to solicit Real Estate Claims Founded Upon Contract on military installations in the United States, its territories, or the Common- Sec. wealth of Puerto Rico. 552.16 Real estate claims founded upon con- 552.70 Applications by companies to solicit tract. on installations in foreign countries. 552.71 Associations—general. Subpart B—Post Commander 552.72 Use of the allotment of pay system. 552.73 Minimum requirements for auto- 552.18 Administration. 552.19 Hunting and fishing permits. mobile insurance policies. 552.74 Grounds for suspension. Subpart C—Entry Regulations for Certain 552.75 Factors in suspending solicitation privileges. Army Training Areas in Hawaii 552.76 Preliminary investigation. 552.25 Entry regulations for certain Army 552.77 Suspension approval. training areas in Hawaii. 552.78 ‘‘Show cause’’ hearing. 552.79 Suspension action. Subpart D—Acquisition of Real Estate and 552.80 Suspension period. Interest Therein 552.81 Agents or companies with suspended solicitation privileges. 552.30 Purpose. 552.82 Exercise of ‘‘off limits’’ authority. 552.31 Definitions. 552.83 Standards of fairness. 552.32 Authority to acquire real estate and interests therein. Subpart F—Fort Lewis Land Use Policy 552.33 Estates and methods of acquisition. 552.34 Policies relative to new acquisition. 552.84 Purpose. 552.35 Rights-of-entry for survey and explo- 552.85 Applicability. ration. 552.86 References. 552.36 Rights-of-entry for construction. 552.87 General. 552.37 Acquisition by Chief of Engineers. 552.88 Responsibilities. 552.38 Acquisition of maneuver agreements 552.89 Activities. for Army commanders. 552.90 Permit office. 552.39 Acquisition of short-term leases by 552.91 Individual permit procedures. local commanding officers. 552.92 Group permit procedures. 552.93 Permit deadline and duration. Subpart E—Solicitation on Military 552.94 Area access procedures. Reservations 552.95 Compatible use. 552.96 Violations. 552.50 Purpose. 552.97 Communications. 552.51 Applicability. 552.52 Explanation of terms. Subpart G—Firearms and Weapons 552.53 Regulatory requirements. 552.54 Solicitation. 552.98 Purpose. 552.55 Restrictions. 552.99 Applicability. 552.56 Licensing requirements. 552.100 Definitions. 552.57 Authorization to solicit. 552.101 Prohibitions. 552.58 Other transactions. 552.102 Requirements for possession and use. 552.59 Granting solicitation privileges. 552.103 Requirements for carrying and use. 552.60 Supervision of on-post commercial 552.104 Disposition of confiscated/seized activities. weapons. 552.61 Products and services offered in solicitation. Subpart H—Regulation Controlling the Ac- 552.62 Advertising rules and educational cess to the Fort Lewis Main Canton- programs. ment Area and Prohibiting Certain 552.63 ‘‘Cooling off’’ period for door-to-door Conduct Upon Fort Lewis Military Res- sales. ervation 552.64 Sound insurance underwriting and programing. 552.105 Purpose. 552.106 Applicability. 270

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552.107 References. CABLE ON FORT JACKSON WHICH LIST PRO- 552.108 General. HIBITED PRACTICES 552.109 Routine security controls. 552.110 Requests for exception. Subpart M—Land Use Policy for Fort Lewis, 552.111 Severability. Yakima Training Center, and Camp Bonneville Subpart I—Physical Security of Arms, Am- 552.160 Purpose. munition, and Explosives—Fort Lewis, 552.161 References. Washington 552.162 Abbreviations. 552.163 Applicability. 552.112 Purpose. 552.164 General. 552.113 References. 552.165 Responsibilities. 552.114 Violations. 552.166 Recreational use. 552.115 Applicability. 552.167 Activities. 552.116 Privately owned weapons—security. 552.168 Fort Lewis Area Access Office. 552.117 Disposition of Commander’s Letter 552.169 Yakima Training Center Area Ac- of Authorization. cess Office. 552.118 Issuance from unit arms room. 552.170 Camp Bonneville Area Access Office. 552.119 Registration and storage. 552.171 Compatible use. 552.172 Violations. 552.120 Possession and control. 552.121 Possession or retention of prohibited APPENDIX A TO SUBPART M OF PART 552— weapons. DPCA RECREATIONAL AREAS IN TRAINING AREAS 552.122 Personnel not authorized to possess APPENDIX B TO SUBPART M OF PART 552— or retain personal weapons. NON-PERMIT ACCESS ROUTES 552.123 Storage of personal weapons other APPENDIX C TO SUBPART M OF PART 552—AU- than firearms or handguns. THORIZED ACTIVITIES FOR MANEUVER 552.124 Transportation of privately owned TRAINING AREA ACCESS weapons and ammunition. APPENDIX D TO SUBPART M OF PART 552—UN- 552.125 Disposition of confiscated weapons. AUTHORIZED ACTIVITIES IN MANEUVER TRAINING AREAS Subpart J—Control of Firearms, Ammuni- APPENDIX E TO SUBPART M OF PART 552—REF- tion and Other Dangerous Weapons ERENCES on Fort Gordon APPENDIX F TO SUBPART M OF PART 552—AB- BREVIATIONS 552.126 Definitions. 552.127 Prohibitions. Subpart N—Operation and Use of Fort 552.128 Requirements for possession and use. Monroe, Virginia, Fishing Facilities 552.129 Requirements for carrying and use. 552.180 Purpose. 552.130 Disposition of confiscated/seized 552.181 Applicability. weapons. 552.182 References. 552.183 Responsibilities. Subpart K—Restriction of Training Areas on 552.184 Policy. the Installation of Fort Benjamin Har- 552.185 Eligibility. rison, Indiana Subpart O [Reserved] 552.140 Purpose. 552.141 Applicability. Subpart P—Protests, Picketing, and Other 552.142 References. Similar Demonstrations on the Installa- 552.143 Definitions. tion of Aberdeen Proving Ground, 552.144 Procedures. Maryland 552.145 Violations. 552.211 Purpose. Subpart L—Prohibited Personnel Practices 552.212 Scope. on the Installation of Fort Jackson, 552.213 Policy. 552.214 Procedures. South Carolina 552.215 Responsibilities. 552.150 Purpose. 552.216 Violations. 552.151 Scope. APPENDIX A TO PART 552—DPCA REC- 552.152 Prohibited practices. REATIONAL AREAS IN TRAINING AREAS APPENDIX B TO PART 552—NON-PERMIT AC- 552.153 Dissemination. CESS ROUTES APPENDIX A TO SUBPART L OF PART 552—PAR- APPENDIX C TO PART 552—AUTHORIZED AC- TIAL LIST OF OTHER PUBLICATIONS APPLI- TIVITIES FOR FORT LEWIS MANEUVER AREA ACCESS 271

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APPENDIX D TO PART 552—UNATHORIZED AC- (2) Damages arising in foreign coun- TIVITIES IN FORT LEWIS MANEUVER AREAS tries which could not be settled under AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 3012, 15 chapter 10, AR 27–20, if otherwise appli- U.S.C. 1601; 18 U.S.C. 1382; 31 U.S.C. 71; 40 cable, because they— U.S.C. 258a; 41 U.S.C. 14; 50 U.S.C. 797. (i) Result from combat activities. (ii) Are waived or assumed by a for- Subpart A—Use of Department of eign government. the Army Real Estate Claims (iii) Are brought by a foreign na- Founded Upon Contract tional excluded in paragraph 10–8b(1), AR 27–20. § 552.16 Real estate claims founded (3) Claims which must be settled by upon contract. some other procedure according to (a) Purpose. This regulation provides statute, determination of GAO, or pro- guidance in investigating and proc- vision in the contract on which the essing contractual claims involving claim is founded. real estate which are to be settled and (e) Claims payable under contract. adjusted by the General Accounting Of- When claims are founded on express or fice (GAO) according to the authority legally implied provisions of an exist- in paragraph (c) of this section. It is ing written contract, and if liability applicable to the active Army, Army National Guard, and the US Army Re- and the amount thereof are certain and serve. agreed between the parties, they (b) Applicability. This regulation ap- should be paid according to the con- plies to the following classes of contract or supplemental agreement there- tractual claims. to. Rental claims based on still-con- (1) Rent and payments for janitor, tinuing Government use and occupancy custodial, utility, and other similar not under lease may be avoided by ne- contractual services. gotiation of a lease effective from the (2) Damages founded upon express or date Government occupancy begins. implied contract. (f) Claims cognizable under other regu- (3) Permanent or recurring damages lations. (1) The procedure believed to be to real property situated in the United in the best interest of the Government States or its territories, resulting in should be followed if a claim under this the Government taking of an interest regulation is also cognizable under— in real estate for which compensation (i) Chapter 3, AR 27–20 as a claim for must be made according to the Fifth damages incident to noncombat activi- Amendment to the Constitution. ties of the Army. (c) Statutory provision (except as other- (ii) Chapter 10, AR 27–20 as a foreign wise provided by law). All claims and de- claim. mands whatever by the Government of (2) If a real estate claim under this the United States or against it, and all regulation includes an incidental claim accounts whatever in which the Gov- for damages to personal property not ernment of the United States is con- founded on contract, the entire claim cerned, either as debtor or creditor, may be— shall be settled and adjusted in the (i) Processed under this regulation. GAO (31 U.S. Code 71). The GAO dis- charges its settlement and adjusting (ii) Processed separately under other responsibilities— regulations, believed to be in the best (1) Through the audit of transactions interest of the Government. after payment. (g) Claims to be submitted. Section 5 of (2) By adjudication before payment is title 4, GAO Manual for Guidance of made or denied. Federal Agencies (cited as 4 GAO 5.1) (d) Claims not payable. The classes of lists the following categories of claims claims that are not payable according of a contractual nature to be submitted to the authority in paragraph (c) of for settlement (letters of transmittal this section are— will indicate the applicable category): (1) Damages to real property sound- (1) Claims involving doubtful ques- ing in tort and not constituting a tak- tions of law or fact. This will include ing. any claims based upon a taking and

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contractual claims which could be set- (ii) Any supporting evidence the tled administratively except for the claimant desires to submit. doubt. (iii) A certified voucher, stating the (2) Claims required by statute, regu- citation of funds to be charged if the lation, or decision of the Comptroller responsible office submitting the claim General to be submitted. recommends payment in whole or in (3) Reclaims of items for which pay- part. ment under contract has been adminis- (4) The letter of transmittal will in- tratively denied, unless it is deter- clude— mined administratively that the action (i) A brief statement of the essential taken was clearly in error and properly facts giving rise to the claim. can be corrected by the agency which (ii) The category in paragraph (g) denied the claim. under which the claim is forwarded for (4) Claims barred by statute of limi- settlement by GAO under 31 U.S. Code tation. These claims may be forwarded 71. without investigation, except when (iii) A recommendation for allowance needed to establish time of accrual. or disallowance with justification. (h) Time for filing claims. Claims cog- (iv) Fiscal information required by nizable by GAO are barred if not re- paragraph 11–51, AR 37–103, including a ceived in that office within 6 years citation of funds to be charged if pay- after the date of accrual. A claim ment is made. which may be barred in the near future (v) A statement that the claim has should be transmitted directly, pref- not been and will not be paid except ac- erably within 4 years of the date of according to certification in the name of crual, to GAO for filing, with a request the Comptroller General. that it be returned for further proc- (31 U.S.C. 71) essing. (i) Procedures. (1) Claims for inves- [44 FR 37911, June 29, 1979] tigation and report will be forwarded to the office of the Division of District Subpart B—Post Commander Engineer having real estate responsibility over the area in which the in- § 552.18 Administration. volved real property is located. In the (a) Purpose. This section outlines the absence of such an office, the claims duties and prescribes the general au- will be forwarded to the command re- thority and general responsibilities of sponsible for the lease or other con- an installation commander. tract on which the claim is founded. (b) Applicability. The regulations in (2) The responsible office— this section are applicable to installa- (i) Will appoint a claims officer to tions in the United States, and where conduct the investigation and prepare appropriate, to oversea installations. the report as outlined in AR 27–20. Oversea commanders should consult (ii) When appropriate, may request a with the appropriate judge advocate to command more conveniently located to determine to what extent the provi- appoint the claims officer. sions of treaties or agreements, or the (iii) Will have a staff attorney or provisions of local law may make inap- staff judge advocate review the com- plicable, in whole, or in part, the provi- pleted report. sions of these regulations. (iv) Will approve or disapprove the (c) General. The installation com- report. mander is responsible for the efficient (v) Will forward the report (in three and economical operation, administra- copies) through channels to the Chief tion, service, and supply of all individ- of Engineers (HQDA DAEN-REM) uals, units, and activities assigned to WASH DC 20314). or under the jurisdiction of the instal- (3) The report will include— lation unless specifically exempted by (i) The original signed claim, pref- higher authority. Activities will be erably but not necessarily on Standard designated as ‘‘attached activities’’ Form 95 (Claim for Damage or Injury). only when specifically designated by It will be itemized when applicable, higher authority. The installation and for a sum certain. commander will furnish base operation

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support to all Army tenant activities unless such is precluded by the exigen- except when the Department of the cies of the situation. When the person Army has given approval for the tenant to be searched is a noncommissioned to perform base operation functions. officer, the search should be conducted Reimbursement for such support will in private by or under the supervision be in accordance with applicable regu- of a person of at least equal grade, un- lations. less such is precluded by the exigencies (d) Motor vehicle and traffic regula- of the situation. If the situation pre- tions. See AR 190–5, Motor Vehicle Traf- cludes search by or under the super- fic Supervision; AR 190–5–1, Registra- vision of an officer (or noncommis- tion of Privately Owned Motor Vehi- sioned officer, as appropriate), the per- cles; AR 190–29, Minor Offenses and son conducting the search will notify a Uniform Violation Notices—Referred responsible commissioned officer (or to US District Courts; AR 210–4, Car- noncommissioned officer, as appro- pooling and Parking Controls; AR 230– priate), as soon as possible. Persons 14, Registration and Licensing of Non- who are entering the installation appropriated Fund Owned Vehicles; AR should not be searched over their ob- 385–55, Prevention of Motor Vehicle Ac- jection, but they may be denied the cidents; and AR 600–55, Motor Vehicle right of entry if they refuse to consent Driver-Selection, Testing, and Licens- to the search. All persons entering fa- ing. A copy of the above documents cilities should be advised in advance may be obtained by writing to Head- (by a prominently displayed sign, AR quarters, Department of the Army 420–70, (Buildings and Structures)), (DAAG-PAP-W), Washington, DC 20314. that they are liable to search when en- (e) Firearms. The installation com- tering the installation, while within mander will publish regulations on the the confines of the installation, or registration of privately owned firearms. See AR 608–4, Control and Reg- when leaving (AR 190–22, Search, Sei- istration of War Trophies and War Tro- zure and Disposition of Property). A phy Firearms. A copy of the above doc- copy of the above documents may be ument may be obtained by writing to obtained by writing to headquarters, Headquarters, Department of the Army Department of the Army (DAAG-PAP- (DAAG-PAP-W), Washington, DC 20314. W), Washington, DC 20314. (f) Entry, exit, and personal search. (2) The installation commander may The installation commander will estab- authorize and control hunting and fish- lish rules that govern the entry into ing on a military installation under in- and exit from the installation and the stallation rules in accordance with ap- search of persons and their possessions plicable Federal, State, and local laws as listed in paragraphs (f) (1), (2), and and Army regulations, and in harmony (3) of this section. with cooperative plans with appro- (1) The installation commander may priate State and Federal conservation direct authorized guard personnel, agencies (AR 420–74, Natural Re- while in the performance of assigned sources—Land, Forest, and Wildlife duty, to search persons (including mili- Management). To detect violations of tary personnel, employees, and visi- these rules, special guards may be post- tors), and their possessions (including ed and authorized to search persons (or vehicles) when entering, during their possessions, including vehicles of indi- stay, or when leaving facilities for viduals), based on military necessity. which the Army has responsibility. The installation commander may eject These searches are authorized when violators of game laws or post regula- based on probable cause that an offense tions and prohibit their reentry under has been committed or on military ne- 18 U.S.C. 1382. Violations of State laws cessity. Instructions of commanders re- which apply to military reservations garding searches should be specific and according to the provisions of section complete. When the person to be 13, title 18, U.S.C. (Assimilative Crimes searched is a commissioned officer, or Acts), may be referred to the United a warrant officer, the search should be States Magistrate in accordance with conducted in private by or under the AR 190–29, Minor Offenses and Uniform supervision of a commissioned officer, Violation Notices—Referred to United

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States District Courts. Reports of vio- States troops are on duty in connec- lations of game laws will be reported to tion with a civil disorder. Federal or State authorities. An instal- (h) Outside employment of DA Per- lation commander may not require sonnel. See paragraph 2–6, AR 600–50 membership in a voluntary sundry fund Standards of Conduct for Department activity as a prerequisite to hunting of the Army Personnel. A copy of this and fishing on the installation. Ac- document may be obtained by writing counting for the collection and spend- to Headquarters, Department of the ing of fees for hunting and fishing per- Army (DAAG-PAP-W), Washington, DC mits is outlined in chapter 12, AR 37– 20314. 108, General Accounting and Reporting (i) Preference to blind persons in oper- for Finance and Accounting Offices. A ating vending stands. As used in para- copy of the above documents may be graphs (i) (1), (2), and (3) of this section, obtained by writing to Headquarters, the term ‘‘vending stand’’ includes Department of the Army (DAAG-PAP- shelters, counters, shelving, display W), Washington, DC 20314. and wall cases, refrigerating apparatus, (3) When the installation commander and other appropriate auxiliary equip- considers that the circumstances war- ment necessary for the vending of mer- rant its use, DA Form 1818 (Individual chandise. The term ‘‘vending machine’’ Property Pass), will be used to author- means any coin-operated machine that ize military and civilian personnel to automatically vends or delivers tan- carry Government or personal property gible personal property. onto an installation or to remove it (1) The installation commander will from an installation. give preference to blind persons when (4) Commanders will establish proce- granting permission to civilians to op- dures to ensure than when blind per- erate vending stands on installations sons are otherwise authorized to enter where stands may be operated properly military facilities, their accompanying and satisfactorily by blind persons li- seeing-eye or guide dogs will not be de- censed by a State agency. Legal au- nied entry. Such facilities include, but thority for such action is contained in are not limited to: Cafeterias, snack the Randolph-Sheppard Vending Stand bars, AAFES exchanges, retail food Act (20 U.S.C. 2–107 et seq.). Com- sales stores, medical treatment facili- manders will cooperate with the appro- ties, and recreational facilities. Seeing- priate State licensing agency in select- eye or guide dogs will remain in guid- ing the type, location, or relocation of ing harness or on leash and under con- vending stands to be operated by li- trol of their blind masters at all times censed blind persons, except that pref- while in the facility. For purposes of erence may be denied or revoked if the safety and to prevent possible agita- commander determines that— tion of military police working dogs, (i) Existing security measures rel- seeing-eye or guide dogs will not be al- ative to location of the vending stand lowed in or around working dog ken- or to the clearance of the blind oper- nels and facilities. ator cannot be followed. (g) Official Personnel Register. DA (ii) Vending stand standards relating Form 647 (Personnel Register), is a to appearance, safety, sanitation, and source document that will be used at efficient operation cannot be met. the lowest level of command having re- (iii) For any other reasons which sponsibility for strength accounting. would adversely affect the interests of The official register will be used for the United States or would unduly in- registering military personnel on ar- convenience the Department of the rival at or on departure from Army in- Army. Issuance of such a permit will stallations on permanent change of not be denied because of loss of revenue station, leave, or temporary duty. DA caused by granting a rent-free permit Form 647 may also be used for record- for operating a vending stand to a blind ing passes, visitors, etc. Registration of person. However, the permit will not be visists of less than 12 hours will be at granted if in the opinion of the respon- the discretion of the commander ex- sible commander such action would re- cept that registrations will be required duce revenue below the point necessary when visits are at a place where United for maintaining an adequate morale

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and recreation program. The com- Secretary of the Army will be rendered mander should consider the fact that within 90 days of the filing of the ap- funds derived from certain non- peal to the installation commander. appropriated fund activities such as Notification of the decision on the ap- post exchanges, motion picture thea- peal and the action taken will be re- ters, and post restaurants are used to ported to the State licensing agency, supplement appropriated funds in con- the Department of Health, Education, ducting the morale and recreation pro- and Welfare, and the Department of gram. Defense (Manpower, Reserve Affairs, (2) The preference established in and Logistics). paragraph (i)(1) of this section will be (j) [Reserved] protected from the unfair or unreason- (k) Request from private sector union able competition of vending machines. representatives to enter installations. (1) No vending machine will be located When labor representatives request within reasonable proximity of a vend- permission to enter military installa- ing stand that is operated by a licensed tions on which private contractor em- blind person if the vending machine ployees are engaged in contract work vends articles of the same type sold at to conduct union business during work- the stand, unless local needs require ing hours in connection with the con- the placement of such a machine. If tract between the government and the such is the case, the operation of, and contractor by whom union members income from the machine, will be as- are employed, the installation com- sumed by the blind vending stand oper- mander may admit these representa- ator. tives, provided— (3) So far as is practicable, goods sold (i) The presence and activities of the at vending stands that are operated by labor representatives will not interfere the blind will consist of newspapers, with the progress of the contract work periodicals, confections, tobacco prod- involved; and ucts, articles that are dispensed auto- (ii) The entry of the representatives matically or are in containers or wrap- to the installation will not violate per- pings in which they were placed before tinent safety or security regulations. they were received by the vending (2) Labor representatives are not au- stand, and other suitable articles that thorized to engage in organizing activi- may be approved by the installation ties, collective bargaining discussions, commander for each vending stand lo- or other matters not directly con- cation. nected with the Government contract (4) If the commanders and State li- on military installations. However, the censing agencies fail to reach an agree- installation commander may authorize ment on the granting of a permit for a labor representatives to enter the in- vending stand, the revocation or modi- stallation to distribute organizational fication of a permit, the suitability of literature and authorization cards to the stand location, the assignment of employees of private contractors, pro- vending machine proceeds, the meth- vided such distribution does not— ods of operation of the stand, or other (i) Occur in working areas or during terms of the permit (including articles working times; which may be sold), the State licensing (ii) Interfere with contract perform- agency may appeal the disagreement, ance; through channels, to the Secretary of (iii) Interfere with the efficient oper- the Army. Appeals will be filed by ation of the installation; or State licensing agencies with the in- (iv) Violate pertinent safety or secu- stallation commander who will con- rity considerations. duct a complete investigation and will (3) The determination as to who is an give the State licensing agency an op- appropriate labor representative should portunity to present information. The be made by the installation com- report of investigation with the appeal mander after consulting with his/her will be forwarded through channels to labor counselor or judge advocate. Headquarters, Department of the Army Nothing in this regulation, however, (DAPE-ZA), Washington, DC 20310, as will be construed to prohibit private soon as possible. A final decision by the contractors’ employees from

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distibuting organizational literature or that the authority’s representative ap- authorization cards on installation prise the employer of his/her obliga- property if such activity does not vio- tions regarding labor law. This applies late the conditions enumerated in to employers in all activities, includ- paragraph (k)(2) of this section. Busi- ing nonappropriated fund activities es- ness offices or desk space for labor or- tablished as Federal instrumentalities ganizations on the installation is not according to AR 230–1, Nonappropriated authorized to be provided for solicita- Fund System, concessionaires of such tion of membership among contractors’ activities, and other private employers. employees, collection of dues, or other A copy of the above document may be business of the labor organization not obtained by writing to Headquarters, directly connected with the contract Department of the Army (DAAG-PAP- work. The providing of office or desk W), Washington, DC 20314. space for a contractor is authorized for routine functions by the working stew- (2) Installation commander will co- ard whose union duties are incidental operate fully with state or other gov- to his/her assigned job and connected ernmental officials who bring to their directly with the contract work. attention complaints that children are (4) Only the installation commander employed on military installations or or a contracting officer can deny entry reservations under conditions that are to a labor representative who seeks detrimental to their health, safety, permission to enter the installation in education, and well-being. accordance with paragraph (k) of this (n) Hitchhiking. Hitchhiking is pro- section. If a labor representative is de- hibited by the Army. This does not pre- nied entry for any reason, such denial clude acceptance of offers of rides vol- will be reported to the Labor Advisor, untarily made by individuals or prop- Office of the Assistant Secretary of the erly accredited organizations nor does Army (IL&FM), Washington, DC 20310. it preclude the use of properly author- This report will include the reasons for ized and established share-the-ride or denial, including— similar stations which may be sanc- (5) The provisions of paragraphs (k), tioned by local military authorities. (1), (2), (3), and (4) of this section on or- For personal safety, personnel should ganizations representing private con- exercise caution at facilities, for exam- tractors’ employees should be distin- ple, by accepting rides only from per- guished from activities involving orga- sons they know or by traveling in nization and representation of Federal civilian employees. See CPR 711 for the groups. Similarly, drivers should use functions, duties and obligations of an discretion when offering rides to per- installation commander regarding Fed- sonnel at share-the-ride stations. Driv- eral civilian employee unions. ers are prohibited from picking up (l) Publication of telephone directories. hitchhikers. See chapter 5, AR 105–23. A copy of this (o) Employment of civilian food service document may be obtained by writing personnel. See AR 30–1, The Army Food to Headquarters, Department of the Service Program. A copy of this docu- Army (DAAG-PAP-W), Washington, DC ment may be obtained by writing to 20314. Headquarters, Department of the Army (m) Observance of labor laws on mili- (DAAG-PAP-W), Washington, DC 20314 tary installations. (1) Installation and activity commanders will ensure that [44 FR 7948, Feb. 8, 1979, as amended at 45 FR all his/her employers on the installa- 73037, Nov. 4, 1980] tion or activity are apprised of their § 552.19 Hunting and fishing permits. obligation to comply with Federal, State, and local laws, including those All permits to hunt, catch, trap, or relating to the employment of child kill any kind of game animal, game or labor. When an employer who is oper- nongame bird, or to fish on a military ating on the installation or activity is reservation or the waters thereof will responsible to an authority other than be issued by the commanding officer. the installation or activity commander, the commander will direct [13 FR 6058, Oct. 15, 1948]

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Subpart C—Entry Regulations for out the advance consent of the Com- Certain Army Training Areas mander, United States Army Support in Hawaii Command, Hawaii, or his authorized representative, is prohibited (para- § 552.25 Entry regulations for certain graph (c)(3) and (c)(4) of this section). Army training areas in Hawaii. (2) Any person or group of persons de- (a) Purpose. (1) This regulation estab- siring the advance consent of the Com- lishes procedures governing the entry mander, United States Army Support onto certain Army training areas in Command, Hawaii, shall, in writing, Hawaii as defined in paragraph (d) of submit a request to the following ad- this section. dress: Commander, USASCH, ATTN: (2) These procedures have been estab- Chief of Staff, Fort Shafter, Hawaii lished to prevent the interruption of 96858–5000. the use of these Army training areas (3) Each request for entry will be con- by any person or persons. The contin- sidered on an individual basis weighing ued and uninterrupted use of these the operational and training commit- training areas by the military is vital ments of the area involved, security, in order to maintain and to improve and safety with the purpose, size of the combat readiness of the U.S. party, duration of visit, destination, Armed Forces. In addition, conditions and the military resources which would exist within these training areas which be required by the granting of the re- could be dangerous to any unauthor- quest. ized persons who enter these areas. (f) Violations. (1) Any person entering (b) Applicability. The procedures out- or remaining upon any training area lined in this regulation apply to all in- described in paragraph (d) without the dividuals except for soldiers and Army advance consent of the Commander, civilians of the United States who in USASCH, or his authorized representa- performance of their official duties tive, shall be subject to the penalties enter the training areas defined in prescribed by paragraph (c)(3) of this paragraph (d) of this section. section, which provides in pertinent (c) References. Related publications part: ‘‘Whoever, within the jurisdiction are listed below: of the United States, goes upon any (1) Executive Order No. 11166 of 15 Au- military, naval * * * reservation, post, gust 1964. (3 CFR, 1964–1965 Comp., pp fort, arsenal, yard, station, or installa- 219–220). tion, for any purpose prohibited by law (2) Executive Order No. 11167 of 15 or lawful regulation * * * shall be fined August 1964. (3 CFR, 1964–1965 Comp., not more than $500.00 or imprisoned not pp 220–222). more than 6 months or both.’’ (3) Title 18, United States Code, section 1382. (2) Moreover, any person who will- (4) Internal Security Act of 1950, sec- fully violates this regulation is subject tion 21 (50 U.S.C. 797). to a fine not to exceed $5,000.00 or im- (d) Definition. For the purpose of this prisonment for not more than 1 year or regulation, ‘‘certain Army training both as provided in paragraph (c)(4) of areas in Hawaii’’ are defined as follows: this section. (1) Makua Valley, Waianae, Oahu, (3) In addition, violation of this regu- Hawaii: That area reserved for military lation by persons subject to the Uni- use by Executive Order No. 11166 (para- form Code of Military Justice (10 graph (c)(1) of this section). U.S.C. 801–940) is a violation of Article (2) Pohakuloa Training Area, Hawaii: 92 of the Uniform Code of Military Jus- That area reserved for military use by tice. Executive Order No. 11167 (paragraph [52 FR 44393, Nov. 19, 1987] (c)(2) of this section). (e) Procedures. (1) Except for soldiers and Army civilians of the United Subpart D—Acquisition of Real States in the performance of their du- Estate and Interest Therein ties, entry onto Army training areas described in paragraph (d) of this sec- SOURCE: 22 FR 9284, Nov. 21, 1957, unless tion for any purpose whatsoever with- otherwise noted.

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§ 552.30 Purpose. the Department of the Army, at which The regulations in §§ 552.30 to 552.39 functions of the Department of the set forth the authority, policy, respon- Army are carried on, and which has sibility, and procedure for the acquisi- been assigned as a subinstallation by tion of real estate and interests there- Department of the Army authority. in, for use for military purposes by the Subinstallations are attached to instal- Department of the Army. The regula- lations for command and administra- tions of §§ 552.30 to 552.39 do not apply tive purposes, although they are lo- to Civil Works Projects which are cated separately. under the supervision of the Chief of (d) Activity. An activity is a function Engineers. or a group of related functions which may be carried on at an installation, a § 552.31 Definitions. subinstallation, or a separate location As used in §§ 552.30 to 552.39, the fol- which has not been designated as a De- lowing definitions apply: partment of the Army installation or (a) Real estate. Real estate includes subinstallation. lands and interests therein, leaseholds, (e) Command installation. A command standing timber, buildings, improve- installation is any installation of the ments, and appurtenances thereto Department of the Army, including owned by the United States and under nonmanufacturing arsenals, primarily the control of the Department of the used or useful for activities of the Army. It also includes piers, docks, Army other than for the production of warehouses, rights-of-way, and ease- materiel, munitions, or supplies. ments, whether temporary or perma- (f) Industrial installation. Any unit of nent, and improvements permanently real property under control of the De- attached to and ordinarily considered partment of the Army (including struc- real estate. It does not include machin- tures on land owned by or leased to the ery, equipment, or tools which have United States, substantially equipped not been affixed to or which have been with production utilities and mainte- severed or removed from any such nance machinery, tools, equipment, lands or buildings or may be so severed and including housing and other sup- or removed without destroying the use- porting facilities built as an integral fulness of the structures. part of the installation) designed for (b) Installation. An installation is real the production of equipment, supplies, estate and the improvements thereon or materials for military use; or for the which is under the control of the De- processing, production, or manufac- partment of the Army, at which func- turing of components of such items. tions of the Department of the Army are carried on, and which has been es- (g) Lease. A lease is a conveyance of tablished by order of the Department an interest in real estate for a term of of the Army. Real estate and the im- years, revocable at will, or as other- provements thereon utilized by posts, wise provided in the instrument in con- camps, airfields, hospitals, depots, ar- sideration of a return of rent. senals, industrial facilities, cemeteries, (h) License. A license is a bare au- etc., generally will be designated as an thority to do a specified act or acts installation where located separately, upon the land of the licensor without but where located contiguously or on possessing or acquiring any estate the same reservation the combined therein. property will usually be designated as (i) Easement. An easement is a con- one installation and the separate func- veyance of an interest in real estate for tions will be designated as activities at the purpose or purposes specified in the that installation. As used in the regu- grant. lations in §§ 552.30 to 552.39, the term ‘‘installation’’ will include installa- § 552.32 Authority to acquire real es- tions, subinstallations, and separate lo- tate and interests therein. cations housing an activity. While the Federal Government has (c) Subinstallation. A subinstallation the inherent power to acquire land for is real estate and the improvements its constitutional purposes, this power thereon which is under the control of can be exercised only at the discretion

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of Congress (Van Brocklin v. Ten- was disposed of subject to a reverter nessee, 117 U.S. 151; 29 L. Ed. 845; 6 S. provision, such as a ‘‘National Defense Ct. 670). No land shall be purchased on Purpose Clause’’ will be by letter to account of the United States, except the owner by the official of the depart- under a law authorizing such purchase ment designated in the conveyance by (R. S. 3736; 41 U.S.C. 14). No real estate the Government. not in Federal ownership shall be ac- (i) Procurement of options on real es- quired by a military department, ex- tate which is ‘‘suitable and likely to be cept as such acquisition is or shall be required’’ in connection with a mili- expressly authorized by law (section tary public works project, prior to ex- 501(b), Act July 27, 1954; Pub. L. 534, 83d press authorization by law for the ac- Congress; 68 Stat. 560). quisition of said real estate will be by negotiation. § 552.33 Estates and methods of acquisition. (j) Extinguishment of third party interests in lands owned or controlled by (a) Title to non-Government-owned the United States, such as outstanding real estate will be by purchase, con- oil, gas, and other mineral rights; graz- demnation, donation (when the author- ing rights; timber rights; water rights; ization act specifies donation), and ex- and easements for rights-of-way for change (when the authorization act highways, railroads, power lines, com- specifies exchange). munication lines, water lines, and (b) Easements in non-Government- sewer lines will be the same as pre- owned real estate are the same as in scribed in paragraph (a) of this section. paragraph (a) of this section. Payment for extinguishment of grazing (c) Licenses in non-Government- rights or licenses on public domain or owned real estate are generally by do- other property owned by or under the nation, although a nonrevocable li- control of the United States is made cense might be acquired by purchase. pursuant to Act July 9, 1942; 56 Stat. (d) Leaseholds in non-Government- 654; as amended by Act May 28, 1948; 62 owned real estate will be by negotia- Stat. 277; and as further amended by tion or condemnation. Leaseholds may Act October 29, 1949; 63 Stat. 996 (43 give the Government exclusive use or U.S.C. 315q and r). may give the Government co-use with the owner for specific purposes. § 552.34 Policies relative to new acqui- (e) Jurisdiction over Government- sition. owned real estate will be by transfer, reassignment, withdrawal, and reserva- (a) Present holdings inadequate for es- tion. sential mission. No request to acquire (f) Permits to use Government-owned real estate by transfer from Navy or real estate will be by instrument issued Air Force or from another Government by another Government department or agency, or by purchase, lease or con- agency. Although in the nature of a li- demnation will be considered or ap- cense (may be revocable or nonrev- proved unless it is established that: ocable), the instrument is designated (1) The activity to be accommodated as a ‘‘permit’’, since it relates to Gov- is essential to an assigned mission. ernment-owned real estate, to distin- (2) Real property under the control of guish it from a ‘‘license’’ relating to the Army is inadequate to satisfy these non-Government-owned real estate. requirements. (g) Recapture of use of former Gov- (3) No real property under the control ernment-owned real estate which was of the Navy or Air Force or other Fed- disposed of subject to a ‘‘National Se- eral agencies is suitable and available curity Clause,’’ a ‘‘National Emergency for use by the Army on a permit or Clause,’’ or a similar provision will be joint use basis. by letter from the Chief of Engineers to (b) Order of priority for method of ac- the owner of the property, based upon a quisition. If the activity qualifies as es- directive from the Secretary of the sential to an assigned mission but the Army or his designee. need cannot be filled by the use of (h) Revestment of title to former other Army property or other Federal Government-owned real estate which property on a permit or joint use basis,

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the following alternatives will be con- mental considerations (such as noise or sidered in the order listed: traffic), or desirability of single unit (1) Donation or long-term nominal offices instead of split locations in rental lease. close proximity will not be considered (2) Transfer from Navy or Air Force. sufficient justification for acquiring Acquisition of lands excess to the released space or facilities when Govern- quirements of other military department-owned property is available. For ments. exceptions, see paragraph (f) of this (3) Recapture of use. section. (4) Public Domain. Withdrawal from (f) Special location considerations. Ac- the public domain for military use. quisition of title or a leasehold interest (Pub. L. 85–337, Feb. 28, 1958 (72 Stat. 28) in real property may be justified where requires that an Act of Congress be ob- it is demonstrated that the function to tained to withdraw, reserve, or restrict be accommodated is an essential activ- for defense purposes more than 5,000 ity and the geographic location thereof acres of the public domain.) in other than Government-owned space (5) Acquisition by exchange. Exercise is vital to the accomplishment of the of existing authorities for the exchange assigned mission. Examples that may of Government-owned real property for fall in this group are recruiting sta- non-Government-owned real property tions (exclusive of kindred examining that is by type or location adaptable to and induction units), airbases, air de- the military need. fense sites, and sites for construction (6) Transfer from other Federal agen- of facilities for Reserve Components of cies. Acquisition of lands excess to the the Armed Forces. requirement of Federal agencies other (g) Army Reserve training sites. In gen- than military departments. eral, title to lands will not be acquired (7) Acquisition by purchase, lease or for exclusive use as training sites. condemnation. Training sites will be acquired by one (c) Current requirements given pref- of the following means in the order erence. In considering the use of Army listed: real property by another military department, current requirements will, (1) Use of lands under the control of in the absence of unusual cir- the Department of the Army regardless cumstances, be given preference over of the agency maintaining jurisdiction, future needs and mobilization require- to include class II and industrial in- ments. If the current requirement will stallations and other Reserve Compo- not continue through mobilization, nent facilities, see title 10 U.S.C. 2331 care must be exercised to avoid modi- and 2237. fication of the property in a manner (2) Use of reservoir lands of Civil that would prevent its timely return to Works Projects. By informal agree- the holding department to meet the ment with the Resident Engineer or mobilization requirement. If it is con- Manager (when training activities do templated that the current require- not involve exclusive use, construction, ment will continue through mobiliza- or destruction of vegetation) or by per- tion, the property may be modified as mit from the District Engineer (for required and the mobilization plans of other activities when such activities the military departments concerned are compatible with the operation and should be changed accordingly. maintenance of the project and will not (d) Firm requirements and minimum ac- endanger the use by the general public quisition. Requirements in each indi- of public access areas). vidual case will be firmly determined (3) Use of lands, by permit or other- and only the minimum amount of prop- wise, under the control of the other erty necessary will be acquired. military departments. (e) Factors considered insufficient jus- (4) Use of lands by permit of other tification for acquisition by lease. Desir- Government-owned land, including the ability of location in an urban area, republic domain. duced travel time for employees or (5) Use by license or nominal rental business representatives, nominal sav- lease of local, county, or State-owned ings in transportation costs, environ- public lands.

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(6) Use of privately owned land by any information as to whether the pro- short-term co-use lease under the au- posed acquisition has been included in thority granted in § 552.39. a pending budget not yet formally (7) Use of non-Government-owned transmitted to the Congress or is to be land by lease. included in a future budget. Public no- (8) Acquisition of lands excess to the tice and release of information will be requirements of the other military de- on the basis of ‘‘advance planning.’’ partments. (2) General application and exceptions. (9) Acquisition of lands excess to the Non-Government-owned real property requirements of Federal agencies other generally is acquired by negotiations, than the military departments. based on its fair market value as estab- (10) Acquisition of the non-Govern- lished by Government appraisal and re- ment-owned land. gardless of who the owner is, how much (11) As a rule of thumb, lands will not the owner paid for the property, and be acquired for training from any how long the owner has owned the source when the value of the land ex- property. For this reason, public notice ceeds that of rural farm land in the and release of information should not area. tend normally to increase the value of (h) Public notice and release of informa- the land involved or create speculation tion relative to proposed real estate acqui- therein. Experience has proved that in- sitions. It is the policy of the Depart- terest of the Government in specific ment of the Army to give notice to the real property normally tends to dis- public and to release information to courage trafficking therein. Though the public as early as possible (at the normally the release of information site selection stage) and as completely should not result in subsequent dis- as possible, consistent with existing advantage to the Government, infor- regulations. Even though opposition mation will not be released in any spe- may develop in some cases because of cific case where it might have that re- early release of information as to pro- sult. AR 345–15 applies to the acquisi- posed acquisitions, application of this tion of real property only in those in- policy should more often result in fa- stances in which the release of advance vorable public relations, general public support of proposed acquisitions, and information on proposed plans might material assistance in the selection of provide undue discriminatory advan- sites which will fulfill the military re- tage to private or personal interests. quirement and still have the least im- (3) Application to Army Reserve facili- pact on the civilian economy. This pol- ties. During the preliminary site selec- icy will permit consideration of public tion stage for Army Reserve facilities, preferences in the establishment of the Army commander’s representative military facilities. Section 302 of the will contact responsible local public of- Act of July 14, 1960; Pub. L. 86–645, ficials to explain the nature of the pro- which is applicable to military as well posed facility and to obtain their con- as water resources public works currence in the Army’s acquisition and projects, provides for dissemination of use of the site tentatively selected. information on large new installations. Such a statement, including the names (1) Restrictions relating to Agency and titles of officials contacted, will be Budget Estimates and Presidential Budget furnished by the Army commander to Recommendations. Bureau of the Budget the District Engineer for inclusion in Circular No. A–10, as revised, places re- the Real Estate Planning Report. Re- strictions on disclosure of Agency lease of information on Army Reserve Budget Estimates and Presidential centers will be made only by an au- Budget Recommendations. It provides thorized representative of the Army that budget recommendations and esti- commander. mates are administratively confiden- (i) Use of unappropriated and nonnav- tial until made public through formal igable water. It is the policy of the De- transmittal of the budget to Congress. partment of the Army to utilize unap- Public notice and release of informa- propriated and nonnavigable water tion relative to proposed real property upon or under lands under jurisdiction acquisitions will, therefore, exclude in such a manner as is consonant with

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the purposes of water laws which have (iv) Waiver by the lessor of any and been enacted by the several States. all claims for restoration of the leased (j) Permanent construction. If perma- premises. nent construction, defined as that (v) Use of the property for ‘‘Govern- which produces a building suitable and ment purposes’’ rather than for a spe- appropriate to serve a specific purpose cific purpose. for a maximum period of time (at least (5) Reserve Components facilities. Prop- 25 years) and with a minimum of main- erty required for facilities for the Re- tenance, is to be constructed by the serve Components of the Armed Forces, Government, the Government must ei- provided such property can be acquired ther hold or acquire title to the land by lease containing provisions detailed (inclusive of all mineral rights and im- in paragraphs (j)(4) (i), (ii), (iii), and (iv) of this section. When possible the provements) or a permanent easement insertion in a lease of provision re- interest, with the following exceptions: stricting the use of the land to a spe- (1) Right of reuse by exercise of Na- cific purpose will be avoided; use of a tional Security Clause. Property, includ- term as ‘‘Government purposes’’ should ing land or buildings, over which the be employed whenever possible. Government currently holds the right (6) Air defense sites. Property required of reuse by exercise of the National Se- for air defense sites provided such prop- curity Clause. erty can be acquired by lease con- (2) Right of reuse by exercise of Na- taining provisions detailed in para- tional Emergency Use Provision. Prop- graphs (j)(4) (i), (ii), and (iv) of this sec- erty, including land or buildings, over tion and in addition thereto a right of which the Government holds the right continuous use by the Government of reuse by exercise of a National under a firm term or right of renewal Emergency Use Provision. Inasmuch as for as long as required for defense pur- such rights inure to the Government poses. only during the period or periods of na- (7) Exception by Assistant Secretary of tional emergency as may be declared Defense (Installations and Logistics). by the President or the Congress and Where leases (for airbases, facilities for are extinguished by the termination Reserve Components of the Armed thereof, every effort will be made to Forces, or air defense sites) can be ob- negotiate a lease covering such prop- tained containing some but not all of erty under terms that would provide the above-listed provisions or where for the right of continuous possession leases (for all other types of installa- by the Government for a minimum of tions upon which permanent construc- 25 years. tion is to be placed by the Government) (3) Rights-of-way. Property required can be obtained containing similar pro- as a site for installation of utility lines visions and it is considered to be to the and necessary appurtenances thereto, best interest of the Government to ac- provided a long-term easement or lease quire a lesser interest than fee title, it can be secured at a consideration of $1 will be necessary to obtain approval per term or per annum. from the Assistant Secretary of De- fense (Installations and Logistics) prior (4) Airbase. Property required for air- to placing permanent construction bases, provided such property can be thereon. acquired by lease containing provisions (8) Construction projects not in excess of for: $25,000. Construction projects esti- (i) Right of continuous use by the mated to cost not in excess of $25,000 Government under firm term or right will not be considered as permanent of renewal, for a minimum of 50 years. construction for purposes of applying (ii) A rental consideration of $1 per the above policy. term or per annum. (9) Industrial installations. See para- (iii) Reserving to the Government graph (l) of this section. title to all improvements to be placed (k) No permanent construction. Where on the land and the right to dispose of temporary construction or no con- such improvements by sale or abandon- struction is to be placed by the Govern- ment. ment, acquisition of a lesser interest

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(leasehold, easement, license, as appro- (ii) The contractor agrees to pur- priate) will generally be considered to chase the facilities upon the end of the be in the best interest of the Govern- facilities contract at the acquisition ment, with the following exceptions: cost of the facilities, less depreciation; (1) Cost of construction. Where any or proposed temporary construction to be (iii) The Secretary approves other placed by the Government has an esti- provisions as being in the interest of mated cost equal to or in excess of the national defense. current market value of the property. (iv) If location on land in which the (2) Rent plus restoration. Where the Government does not have a disposable calculated period of required use is of interest, as above set out, is authorized sufficient duration that the sum ex- under paragraphs (l)(2)(i), (ii), or (iii) of pended for rentals over this period plus this section, the Government must restoration, if required, would exceed have the right to abandon the facilities 50 percent of the current market value in place, with no obligation to restore of the property. (Apply calculated pe- or rehabilitate the facilities or the riod of required use or 20 years, which- premises on which they are located. ever is less.) (m) Commercial and industrial type fa- (3) Easement costing 75 percent of fee cilities—(1) Policy. Privately owned or Where the cost of acquiring an value. Government-owned and privately oper- easement right exceeds 75 percent of ated commercial and industrial type the current fair market value of the facilities will be used to the greatest property. extent practicable, recognizing the (l) Industrial installations—(1) Defini- basic military necessity for integrated, tions. Industrial facilities as used here- self-sustaining units responsible to in are defined as plants, buildings, util- command and the necessity for oper- ities, improvements, and additions and ating anywhere in the world. It is the appurtenances thereto used for mili- policy of the Department of the Army tary production and related purposes, not to engage in the operation of indus- including testing and development. Nonseverable industrial facilities as trial or commercial type facilities un- used herein are defined as industrial fa- less it can be demonstrated that it is cilities located on other than Govern- necessary for the Government itself to ment-owned land, and which, after perform the required work or service. erection or installation, cannot be re- (2) Definition. Commercial and indus- moved without substantial loss of trial type facilities are defined as those value or damage thereto, or to the devoted to an activity which normally premises where installed. might be performed by private industry (2) Policy. Industrial facilities will be (except commissaries, post exchanges, located on land owned by the Govern- and nonappropriated fund activities) ment or in which the Government has including, but not limited to, ware- a permanent, disposable interest. Non- houses, motor repair shops, bakeries, severable industrial facilities will be laundries, and drycleaning facilities. located on land in which the Govern- (n) Department of Defense policy rel- ment has a disposable interest equal in ative to liaison with Governor of Common- term to the estimated useful life of the wealth of Puerto Rico. By letter dated facilities, unless the Head of a Pro- August 19, 1953, the Secretary of De- curing Activity, with consideration to fense informed the Governor of the any nonrecoverable costs involved, de- Commonwealth of Puerto Rico that the termines that such location is not fea- Department of Defense would establish sible. If the Head of a Procuring Activ- liaison with the Governor to coordi- ity makes this determination, he may nate all military requirements for land authorize the location of such facilities acquisition in Puerto Rico. By memo- on other land, provided: randum dated August 19, 1953, the Sec- (i) The estimated useful life of the fa- retary of Defense instructed that such cilities will not extend beyond the con- liaison would be established under the tract under which the facilities are in- direction of the Department of the stalled or the completion of the work Army, in coordination with the other for which the facilities are provided; or interested services. On September 8,

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1953, the Department of the Army re- § 552.36 Rights-of-entry for construc- quested the Commander in Chief, Car- tion. ibbean Command, to establish such li- (a) When authorized. Rights-of-entry aison. Liaison is being maintained lo- for construction will be obtained by cally between the Commandant of the the district engineer only after a real Caribbean Sea Frontier and the Chair- estate directive or authorization to man of the Puerto Rico Planning lease has been issued and then only Board. The liaison applies to the pro- when the construction schedule does posed acquisition of title or any inter- not allow sufficient time to complete est in land which is other than (Fed- negotiations for an option to purchase eral) Government-owned land. In all or for a lease, as appropriate. cases, liaison action will be initiated (b) Involuntary. Where a right-of- during the advance planning or site se- entry for construction cannot be nego- lection stages. The purpose is to give tiated, under the circumstances set Puerto Rican officials advance notice forth in paragraph (a) of this section, a of military real property requirements right-of-entry will be obtained through and to give them an opportunity to the institution of proceedings for the suggest suitable alternatives in an ef- condemnation of fee title, an easement fort to improve public relations with interest, or a leasehold interest, as ap- Puerto Rican officials, landowners, and propriate. the general public. [27 FR 6140, June 29, 1962] § 552.37 Acquisition by Chief of Engi- neers. § 552.35 Rights-of-entry for survey and (a) Statutory authority. The Chief of exploration. Engineers, under the direction of the (a) Voluntary. Where it is necessary Secretary of the Army, is charged with to enter upon non-Government-owned the acquisition of all real estate for the real estate during site selection, par- use of the Department of the Army (10 ticularly for the purpose of conducting U.S.C. 3038). topographic surveys and test borings, (b) Scope of responsibility. This au- the appropriate division or district en- thority is exercised by the Chief of En- gineer will negotiate rights-of-entry gineers, acting for the Secretary of the for survey and exploration. The instru- Army, in the acquisition of all real es- ment is in the nature of a license which tate and interests therein for the use of does not convey an interest in land but the Department of the Army in conti- precludes the entry from being a tres- nental United States, Territories, pos- pass. Since the entry is for a limited sessions, and the Commonwealth of purpose and for a relatively short pe- Puerto Rico. riod of time, the landowner is not of- (c) Delegated authority. The Chief of fered rental for the privileges re- Engineers or his duly authorized rep- quested. Where the landowner insists resentative has authority to approve, upon payment for the privileges re- for the Secretary of the Army: quested, district engineers are author- (1) Fee, easement, and license acqui- ized to negotiate short-term co-use sitions which do not exceed $5,000 for leases, within the limits of existing any one parcel and which constitute regulations. small tracts of additional land needed (b) Involuntary. Where rights-of-entry in connection with projects for which for survey and exploration or short- final Department of the Army, Depart- term co-use leases cannot be nego- ment of Defense, and/or Congressional tiated, the right-of-entry may be ob- approval has been obtained, or which tained through the institution of pro- constitute rights-of-way for roads, rail- ceedings for the condemnation of a roads, and utility lines necessary to short-term co-use leasehold interest. the construction, maintenance, and op- This action is taken only where it can eration of an approved project. be shown that the entry is imperative (2) Leasehold acquisition where the and that it is impossible to negotiate a estimated annual rental for any single voluntary right-of-entry or short-term leasehold does not exceed $25,000 and co-use lease. the acquisition is not controversial,

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unusual, or inconsistent with Depart- (3) Jurisdiction of Government-owned ment of Army policies. land by transfer or use of Government- (3) Renewal or extension of lease- owned land by permit. holds. (g) Furnishing title evidence. The Chief (4) Acquisition by permit of the right of Engineers, acting under the author- to use real property of another Govern- ity of the Secretary of the Army, will ment department or agency, except as procure any evidence of title required to ‘‘general purpose’’ space from the by the Attorney General. The expense of procurement, except where other- General Services Administration and wise authorized by law or provided by the Post Office Department and all contract, may be paid out of the appro- space in the metropolitan District of priations for the acquisition of land or Columbia area. out of the appropriations made for the (d) Minor boundary changes. The Chief contingencies of the Department of the of Engineers, in accomplishing acquisi- Army (section 355, as amended, of the tion in accordance with Department of Revised Statutes; 50 U.S.C. 175). Defense and Department of the Army (h) Condemnation—(1) General. Fee policies and with real estate directives title, easements, or leasehold interests and authorizations to lease issued by may be acquired by the exercise of the Secretary of the Army or his des- right of eminent domain through the ignee, is authorized to make minor institution of condemnation pro- boundary changes to avoid severance ceedings. These proceedings are insti- damages, by including or excluding tuted in the United States District small tracts of land which will not de- Courts by the Attorney General, based crease the usefulness of the area for upon requests from the Secretary of the purpose for which it is being ac- the Army. Normally, condemnation quired. proceedings are instituted only after (e) Responsibility for all negotiations. agreement cannot be reached with To avoid any possibility of misunder- landowners or other parties in interest as to the value of the real property or standing by property owners and re- interest therein to be acquired by the sultant embarrassment to the Depart- Government; where there are title de- ment of the Army, under no cir- fects which do not permit acquisition cumstances will commitments be made by purchase or lease, as appropriate; or either by negotiation or by dissemina- where construction schedules or occu- tion of information to property owners, pancy dates do not allow the Chief of by any authority other than the Chief Engineers sufficient time to conduct of Engineers. This is not intended to normal negotiations for options to pur- restrict the public notice and release of chase or lease. general information as set forth in (2) Vesting of title or other interest in § 552.34(h). the United States. Under a condemna- (f) Approval of title. The written opin- tion proceeding, title, or other interest ion of the Attorney General, in favor of condemned vests in the United States the validity of the title, will be ob- upon entry of final judgment in the tained for any site or land purchased proceeding. Where it is necessary to by the United States. Unless expressly have title or other interest vested in waived by the pertinent authorization the United States at an earlier date, a act or other act of Congress, this opin- Declaration of Taking, signed by the ion will be obtained prior to the ex- Secretary of the Army, may be filed in penditure of public money upon such the proceeding, with the petition or at site or land (section 355, as amended, of any time before final judgment. Upon the Revised Statutes; 50 U.S.C. 175) ex- the filing of the Declaration of Taking cept: and deposit in the court of the amount (1) Easements acquired for military of estimated compensation, title or purposes. (By agreement with the At- other interest condemned vests in the torney General, his opinion is obtained United States (Act of February 26, 1931; only in acquiring easements at a cost 46 Stat. 1421; 40 U.S.C. 258a). in excess of $100.) [22 FR 9284, Nov. 21, 1957, as amended at 27 (2) Leases and licenses. FR 6142, June 29, 1962]

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§ 552.38 Acquisition of maneuver Subpart E—Solicitation on Military agreements for Army commanders. Reservations (a) Authorization. After a maneuver is authorized by the Department of the AUTHORITY: Sections 552.50 through 552.83 Army, the Army commander will select issued under 15 U.S.C. 1601. the specific areas desired for use. SOURCE: 45 FR 73037, Nov. 4, 1980, unless (b) Real estate coverage. Real estate otherwise noted. coverage will be in the form of agreements with landowners, granting the § 552.50 Purpose. right to conduct maneuvers at a given This regulation— time or periodically. Short-term leases (a) Prescribes general policy on the for exclusive use may also be acquired solicitation and sale of all goods, serv- for special areas (such as headquarters ices, and commodities, including all areas, radio relay sites, base camp types of insurance, on military instal- sites, field hospital sites, and supply lations. These are sold or solicited by dumps) and buildings needed for ware- dealers, tradesmen, and their agents. houses, ordnance shops and similar (b) Prescribes procedures for suspen- purposes directly related to the maneu- sion of solicitation privileges. ver. Permits will also be obtained to (c) Prescribes policies and procedures cover the use of lands under the juris- for investigative and enforcement ac- diction of another Government depart- tions. ment or agency. (d) Permits representatives of credit (c) Responsibility for negotiation and unions, banks, and approved non-profit restoration. The appropriate division or associations to conduct national edu- district engineer will be responsible for cational programs on— negotiating maneuver agreements and (1) Insurance, estate planning, sav- short-term leases and, after the maneu- ings, and budgeting, and ver is completed, will be responsible for (2) The protection and remedies af- negotiating restoration settlements forded consumers under the Truth-in- and/or releases, as appropriate. Lending Act.

§ 552.39 Acquisition of short-term § 552.51 Applicability. leases by local commanding officers. (a) This regulation applies to— Local commanding officers are au- (1) All Department of the Army mili- thorized, without approval by higher tary and civilian personnel, including authority, to make leases of camp Army National Guard and Army Re- sites, buildings, and grounds, for serve personnel on active duty or an- troops; office and storage space for nual training. small detachments; garage or parking (2) Individuals seeking to conduct space; space for recruiting stations; commercial solicitation on military in- and land or space for similar purposes, stallations, including controlled hous- provided: ing areas. They will also be governed by regulations and controls of the local (a) Funds are available to the local commander and, in overseas areas, by commanding officer, regulations of the unified or specified (b) Rental consideration conforms to commander. They must also observe the prevailing rate in the locality, applicable laws, regulations, and agree- (c) The premises are to be occupied ments of the host country. not longer than 3 months or in the case (b) The provisions of this regulation of Reserve training sites, not more do not apply to— than 90 days per year, (1) Commercial companies that fur- (d) Rental for the entire period of oc- nish services to military installations cupancy does not exceed $500, and (such as deliveries of milk, bread, and (e) Clearance is made with the Gen- laundry) when they are authorized by eral Services Administration, where re- the installation commander. quired. (2) An individual who sells his own [22 FR 9284, Nov. 21, 1957, as amended at 23 personal property or privately owned FR 10536, Dec. 31, 1958] dwelling.

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§ 552.52 Explanation of terms. When there is a clear need to prescribe (a) Agent. Anyone who solicits the or- more restrictive requirements for so- dering or purchasing of goods, services, licitation than those in this regulation or commodities in exchange for money. or the regulations of the major com- ‘‘Agent’’ includes an individual who re- mander, these additional requirements ceives remuneration as a salesman for or restrictions must first be reviewed an insurer or whose remuneration is and confirmed by The Adjutant Gen- dependent on volume of sales or the eral Center (DAAG-PSI), or by the making of sales. overseas commander. (b) Solicitation. The conduct of any private business, including the offering § 552.54 Solicitation. and sale of insurance on a military in- The installation commanders may stallation, whether initiated by the permit solicitation and transaction of seller or the buyer. (Solicitation on in- commercial business on military installations is a privilege as distin- stallations. These solicitations and guished from a right, and its control is a responsibility vested in the installa- transactions must conform to installation commander, subject to compliance tion regulations (CONUS and overseas) with applicable regulations.) and must not interfere with military (c) Door-to-door solicitation. A sales activities. No person may enter an in- method whereby an agent proceeds ran- stallation and transact commercial domly or selectively from household to business as a matter of right. household without specific prior appointments or invitations. Door-to- § 552.55 Restrictions. door solicitation is not permitted on To maintain discipline; protect prop- Army installations. erty; and safeguard the health, morale, (d) Specific appointment. A pre- and welfare of his personnel, the instal- arranged appointment that has been lation commander may impose reason- agreed upon by both parties and is defi- able restrictions on the character and nite as to place and time. conduct of commercial activities. (e) Insurer. Any company or associa- Members of the Armed Forces must not tion engaged in the business of selling insurance policies to Department of be subjected to fraudulent, usurious, or Defense (DOD) personnel. unethical business practices. Reason- (f) Insurance carrier. An insurance able and consistent standards must be company issuing insurance through an applied to each company and its agents association or reinsuring or coinsuring in their conduct of commercial trans- such insurance. actions on the installation. (g) Insurance policy. A policy or certificate of insurance issued by an in- § 552.56 Licensing requirements. surer or evidence of insurance coverage To transact personal commercial issued by a self-insured association. business on military installations in (h) DOD personnel. Unless stated oth- the United States, its territories, and erwise, such personnel means all active the Commonwealth of Puerto Rico, in- duty officer and enlisted members, and dividuals must present, on demand, to civilian employees of the Armed the installation commander, or his des- Forces. This includes Government em- ignee, documentary evidence that the ployees of all the offices, agencies, and company and its agents meet the li- departments carrying on functions on a Defense installation, including non-ap- censing requirements of the State in propriated fund instrumentalities. which the installation is located. They must also meet any other applicable § 552.53 Regulatory requirements. regulatory requirements imposed by Commanders may issue regulations civil authorities (Federal, State, coun- governing solicitation within their ty, or municipality). For ease of ad- commands and on their installations. ministration, the installation com- These regulations will avoid discrimi- mander will issue a temporary permit natory requirements which could to agents who meet these require- eliminate or restrict competition. ments.

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§ 552.57 Authorization to solicit. § 552.60 Supervision of on-post commercial activities. (a) Solicitation must be authorized by the installation commander. A spe- (a) General. (1) Installation com- cific appointment must be made with manders will ensure that all agents are the individual and must be conducted given equal opportunity for interviews, in family quarters or in other areas by appointment, at the designated areas. designated by the installation com- (2) DOD personnel will not act in any mander. Before issuing a permit to so- official or business capacity, either di- licit, the commander will require and rectly or indirectly, as liaison with review a statement of past employ- agents to arrange appointments. ment. The commander will also deter- (3) Home address of members of the mine, if practicable, whether the agent command or unit will not be given to is employed by a reputable firm. commercial enterprises or individuals (b) Certain companies seeking solici- engaged in commercial solicitation, ex- tation privileges on military installa- cept when required by Army Regula- tions may arrange personal demonstration 340–17 and Army Regulation 340–21. tions of their products at social gath- The written consent of the individual erings and advise potential customers must be obtained first. on their use. If these added services are (b) Hours and location for solicitation. provided, even though the merchandise (1) Military personnel and their de- sold by these companies is similar to pendents will be solicited individually, that stocked by the post exchange, the by specific appointment, and at hours designated by the installation com- installation commander may authorize mander or his designee. Appointments solicitation privileges. Requests for will not interfere with any military this type of solicitation privilege will duty. Door-to-door solicitation without be coordinated with the local Army a prior appointment, including solici- and Air Force Exchange Service rep- tation by personnel whose ultimate resentative. See paragraph 3–2, Army purpose is to obtain sales (e.g., solic- Regulation 60–10. iting future appointments), is prohibited. Solicitors may contact prospec- § 552.58 Other transactions. tive clients initially by methods such Commercial transactions with other as advertising, direct mail, and tele- than individuals (such as non- phone. appropriated fund activities) are re- (2) Commanders will provide one or stricted to the office of the custodian more appropriate locations on the in- of the specific fund activity. Business stallation where agents may interview will be conducted during normal duty prospective purchasers. If space and hours. other factors dictate limiting the number of agents who may use designated § 552.59 Granting solicitation privi- interviewing areas, the installation leges. commander may publish policy covering this matter. (a) Authorizations (permits) to so- (c) Regulations to be read by solicitors. licit on Army installations will be in A conspicuous notice of installation writing and will be valid for periods of regulations will be posted in a form 1 year or less. and a place easily accessible to all (b) Particular caution must be taken those conducting on-post commercial when granting solicitation permission. activities. Each agent authorized to so- The impression that permission is offi- licit must read this notice and appro- cial indorsement or that the Depart- priate installation regulations. Copies ment of the Army favors, sponsors, or will be made available on installations. recommends the companies, agents, or When practicable, as determined by the the policies offered for sale must not be installation commander, persons con- conveyed. As continuing policy, the ducting on-base commercial activities Department of the Army does not in- will be furnished a copy of the applica- dorse any seller or product. ble regulations. Each agent seeking a permit must acknowledge, in writing,

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that he has read the regulations, un- name of the company or product affili- derstands them, and further under- ation. stands that any violation or non- (13) Use of the ‘‘Daily Bulletin’’ or compliance may result in suspension of any other notice, official, or unofficial, the solicitation privilege for himself, announcing the presence of an agent his employer, or both. and his availability. (d) Forbidden solicitation practices. In- (14) Distribution of literature other stallation commanders will prohibit than to the person being interviewed. the following: (15) Wearing of name tags that in- (1) Solicitation during enlistment or clude the name of the company or induction processing or during basic product that the agent represents. combat training, and within the first (16) Offering of financial benefit or half of the one station unit training other valuable or desirable favors to cycle. military or civilian personnel to help (2) Solicitation of ‘‘mass,’’ group, or or encourage sales transactions. This ‘‘captive’’ audiences. does not include advertising material (3) Making appointments with or so- for prospective purchasers (such as liciting of military personnel who are pens, pencils, wallets, and notebooks, in an ‘‘on-duty’’ status. normally with a value of $1 or less). (4) Soliciting without an appoint- (17) Use of any portion of installation ment in areas used for housing or proc- facilities, to include quarters, as a essing transient personnel, or solic- showroom or store for the sale of goods iting in barracks areas used as quar- or services, except as specifically au- ters. thorized by regulations governing the (5) Use of official identification cards operations of exchanges, commissaries, by retired or Reserve members of the non-appropriated fund instrumental- Armed Forces to gain access to mili- ities, and private organizations. This is tary installations to solicit. not intended to preclude normal home (6) Offering of false, unfair, improper, enterprises, providing State and local or deceptive inducements to purchase laws are complied with. or trade. (18) Advertisements citing addresses (7) Offering rebates to promote trans- or telephone numbers of commercial action or to eliminate competition. sales activities conducted on the in- (Credit union interest refunds to bor- stallation. rowers are not considered a prohibited (e) Business reply system. Agents who rebate.) desire to use a business reply card sys- (8) Use of any manipulative, decep- tem will include the information on tive, or fraudulent device, scheme, or the card which a military member can artifice, including misleading adver- complete to indicate where and when tising and sales literature. the member can meet the agent to dis- (9) Any oral or written representa- cuss the subject. The meeting place tions which suggest or appear that the should be that established in accord- Department of the Army sponsors or ance with paragraph (b)(2) of this sec- endorses the company or its agents, or tion, if the meeting is to be on the in- the goods, services, and commodities stallation. This procedure should assist offered for sale. in removing any impression that the (10) Commercial solicitation by an agent or his company are approved by active duty member of the Armed the Department of the Army. It should Forces of another member who is jun- further prevent an undesirable situa- ior in rank or grade, at any time, on or tion (e.g., military personnel paged on off the military installation (Army a public address system or called by a Regulation 600–50). unit runner to report to the orderly (11) Entry into any unauthorized or room). restricted area. (12) Assignment of desk space for § 552.61 Products and services offered interviews, except for specific pre- in solicitation. arranged appointments. During ap- Products and services, including life pointments, the agent must not display insurance, offered and sold on Army in- desk or other signs announcing the stallations must comply with the laws

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of the States (and other civil jurisdic- of $25 or more, whether under single or tions) in which the installations are lo- multiple contracts, in which the seller cated. If a dispute or complaint arises, or business representative personally the applicable State will make the de- solicits the sale, including those in re- termination (§ 552.56). sponse to or following an invitation by the buyer, and the buyer’s agreement § 552.62 Advertising rules and edu- or offer to purchase is made at a place cational programs. other than the place of business of the (a) The Department of the Army ex- seller. The purpose of the law is to pects that commercial enterprises so- allow the consumer the right to cancel liciting military personnel through ad- a transaction at any time prior to mid- vertisements appearing in unofficial night of the third business day after military publications will voluntarily the date of the transaction. When any observe the highest business ethics in describing both the goods, services, and door-to-door sale or transaction takes commodities and the terms of the sale place anywhere on or off the installa- (such as guarantees and warranties). If tion (other than the seller’s place of not, the publisher of the military pub- business) the consumer must be pro- lication will request the advertiser to vided with a full and complete receipt observe them. The advertising of credit or copy of a contract pertaining to the will conform to the provisions of the sale at the time of its execution which Truth-in-Lending Act, as implemented shall include the ‘‘cancellation state- by Regulation Z, published by the Fed- ments’’ as required by the FTC rule. eral Reserve Board (12 CFR part 226). (b) Commanders will provide appro- § 552.64 Sound insurance underwriting priate information and educational and programing. programs to provide members of the The Department of the Army encour- Army with information pertaining to ages the acquisition of a sound insur- the conduct of their personal commer- ance program that is suitably under- cial affairs (e.g., the protections and written to meet the varying needs of remedies offered consumers under the the individual and is within his finan- Truth-in-Lending Act, insurance, Gov- cial means. Accordingly, insurance ernment benefits, savings, estate plan- agents may conduct personal business ning, and budgeting). The services or on an installation, when feasible, with representatives of credit unions, banks, disinterested third-party counseling and nonprofit military associations ap- provided, interviewing hours set aside, proved by HQDA may be used for this purpose provided their programs are and facilities supplied. However, the entirely educational. Under no cir- privilege of insurance solicitation on cumstances will the services of com- installations is conditioned on full mercial agents, including loan or fi- compliance with this regulation and on nance companies and their associa- the clear understanding that permis- tions, be used for this purpose. Edu- sion is not indorsement of the company cational materials prepared or used by or the policies offered for sale. outside organizations or experts in this field may be adapted or used with ap- § 552.65 Command supervision. plicable permission, provided the mate- (a) All insurance business conducted rial is entirely educational and does on Army installation will be by ap- not contain applications or contract pointment. When setting up the ap- forms. pointment, insurance agents must identify themselves to the prospective § 552.63 ‘‘Cooling off’’ period for door- to-door sales. purchaser as an agent for a specific insurance company. The Federal Trade Commission Rule, (b) Department of Defense personnel 16 CFR part 429, p. 233, effective 7 June are expressly prohibited from rep- 1974, pertains to a cooling off period for door-to-door sales. The rule applies to resenting any insurance company or any sale, lease, or rental of consumer dealing either directly or indirectly goods or services with a purchase price with any insurance company or any

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recognized representative of an insur- tary service or military occupational ance company as an agent or in any of- specialty. ficial or business capacity for the solic- (d) Not vary in the amount of death itation of insurance to personnel on a benefit or premium based on the length military installation with or without of time the policy has been in force, compensation. unless it is clearly described therein. (c) In addition to the forbidden prac- (e) For purposes of paragraphs (b) tices, installation commanders will through (d) of this section, be stamped prohibit the following: with an appropriate reference on the (1) The use of a commercial insur- face of the policy to focus attention on ance agent as a participant in any mili- any extra premium charges imposed tary-sponsored education or orienta- and on any variations in the amount of tion program. death benefit or premium based on the (2) The designation or announcement length of time the policy has been in of any agent as ‘‘Battalion Insurance force. Advisor,’’ ‘‘Unit Insurance Counselor,’’ ‘‘SGLI Conversion Consultant,’’ or (f) Variable life insurance policies similar quasi-official titles. may be offered provided they meet the criteria of the appropriate insurance § 552.66 Actions required by agents. regulatory agency and the Securities (a) The agent must know that— and Exchange Commission. (1) Soldiers to be solicited are in (g) Show only the actual premiums grades E–1, E–2, or E–3, and payable for life insurance coverage. (2) The solicitation of these members is restricted to specified times and lo- § 552.68 Minimum requirements for cations designated by the installation agents. commander. (a) In the United States, its terri- (b) Agents must leave information on tories, and the Commonwealth of Puer- the policy applied for with each mem- to Rico, agents may be authorized to ber in grades E–1, E–2, and E–3 who ap- solicit on an installation provided— plies for insurance and the unit insur- (1) Both the company and its agents ance officer or counselor. Agents must are licensed in the State in which the complete DA Form 2056 (Commercial installation is located. ‘‘State’’ as it Insurance Solicitation Record). Blank pertains to political jurisdictions in- DA Forms 2056 (not allotment forms) cludes the 50 States, territories, and will be available to insurance agents on the Commonwealth of Puerto Rico. request. In the ‘‘Remarks’’ section of (2) The application to solicit is made DA Form 2056, agents will include all by an accredited company (§ 552.69). pertinent information and a clear (b) On Army military installation in statement that dividends are not guar- foreign areas. anteed if the presentation refers to (1) An agent may solicit business on dividends. U.S. military installations in foreign § 552.67 Life insurance policy content. areas if— (i) The company he represents has Insurance policies offered and sold on been accredited by DOD; Army installations must— (a) Comply with the insurance laws (ii) His name is on the official list of of the States or country in which the accredited agents maintained by the installations are located. The applica- applicable major command; ble State insurance commissioner will (iii) His employer, the company, has determine such compliance if there is a obtained clearance for him from the dispute or complaint. appropriate overseas commanders; and (b) Contain no restrictions because of (iv) The commanding officer of the military service or military occupa- military installation on which he de- tional specialty of the insured, unless sires to solicit has granted him permis- restrictions are clearly indicated on sion. the face of the policy. (2) To be employed for overseas solic- (c) Plainly indicate any extra pre- itation and designated as an accredited mium charges imposed because of mili- agent, agents must have at least 1 year

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of successful life insurance under- § 552.69 Application by companies to writing in the United States or its ter- solicit on military installations in ritories. Generally, this is within the 5 the United States, its territories, or years preceding the date of application. the Commonwealth of Puerto Rico. (3) General agents and agents will Before a company may be accredited represent only one accredited commer- to solicit on a military installation, cial insurance company. The overseas the commander must receive a letter of commander may waive this require- application, signed by the company’s ment if multiple representation can be president or vice president. It must be proven to be in the best interest of understood that a knowing and willful DOD personnel. false statement is punishable by fine or (4) An agent must possess a current imprisonment (18 U.S.C. 1001). The let- State license. The overseas commander ter of application will— may waive this requirement on behalf (a) Report the States in which the of an accredited agent who has been company is qualified and licensed to continuously residing and successfully sell insurance. selling life insurance in foreign areas (b) Give the name, complete address, and forfeits his eligibility for a State and telephone number of each agent license, through no fault of his own, who will solicit on the installation if due to the operation of State law or approval is granted; the State in which regulation governing domicile require- licensed; the date of licensing and the ments, or requiring that the agent’s expiration date; and a statement of company be licensed to do business in agreement to report all future addi- that State. The request for a waiver tions and separations of agents em- will contain the name of the State and ployed for solicitation on the installa- jurisdiction, which would not renew tion. the agent’s license. (c) List all policies and their form (5) An agent, once accredited in an numbers that are to be offered for pur- overseas area, may not change his af- chase on the installation. Application filiation from the staff of one general will be offered for purchase and that agent to another, unless the losing these policies meet the requirements of company certifies, in writing, that the § 552.67(d). release is without justifiable prejudice. Attest that— Unified commanders will have final au- (1) The privilege of soliciting the pur- thority to determine justifiable preju- chase of life insurance is not currently dice. suspended or withdrawn from the com- (6) Where the accredited insurer’s pany by any of the military depart- policy permits, an overseas accredited ments. life insurance agent, if duly qualified (2) The privilege of soliciting the pur- to engage in security activities either chase of life insurance is not currently as a registered representative of a suspended or withdrawn by any Armed Forces installations from any of the member of the National Association of agents named. Securities Dealers or an associated person of a broker/dealer registered with (3) The company and the agent named have proper and currently vali- the Securities and Exchange Commis- dated licenses as required by § 552.68. sion only, may offer life insurance and securities for sale simultaneously. In (4) The company assumes full responsibility for its agents complying with cases of commingled sales, the allot- this regulation and with any regula- ment of pay for the purchase of securi- tions published by the installation ties cannot be made to the insurer. commander. (7) Overseas commanders will exercise further agent control procedures § 552.70 Applications by companies to as necessary. solicit on installations in foreign countries. (a) Each May and June only, DOD ac- cepts applications from commercial

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life insurance companies for accredita- cation of an allotment. The purchaser’s tion to solicit the purchase of commer- commanding officer may grant a waiv- cial life insurance on installations in er of this requirement for good cause, foreign countries for the fiscal year be- such as the purchaser’s imminent per- ginning the following October. manent change of station. (b) Information about permission to solicit on installations outside the § 552.73 Minimum requirements for United States (exclusive of its terri- automobile insurance policies. tories and the Commonwealth of Puer- Policies sold on installations by both to Rico) is contained in instructions accepted and accredited insurers will issued by DOD. Applications and any meet all statutory and regulatory re- correspondence relating thereto should quirements of the State or host nation be addressed to Assistant Secretary of Defense (Manpower, Reserve Affairs, in which the installation is located. and Logistics), ATTN: Directorate, Policies will not be issued in amounts Personnel Services, ODASD(MPP), lower than the minimum limits pre- WASH DC 20301. scribed by these authorities. In addi- (c) Advice of action taken by DOD is tion, policies will— announced annually by letters sent to (a) Clearly identify the name of the overseas commanders as soon as prac- insurer and the full address. ticable after 15 September. The list of (1) Applications without the name companies and agents may vary from and address of the insurer underwriting year to year. the insurance may be used; the names of sales or underwriting agents alone is § 552.71 Associations—general. not sufficient. The recent growth of quasi-military (2) Post office box addresses are not associations offering various insurance an acceptable address. plans to military personnel is recog- (b) Provide bodily injury and prop- nized. Some associations are not orga- erty damage liability coverage for all nized within the supervision of insur- drivers authorized by the named in- ance laws of either the Federal or sured to operate the vehicle. Military State Government. While some are or- indorsements, excluding persons other ganized for profit, others function as than the named insured, whether in the nonprofit associations under Internal Revenue Service regulations. Regard- military or not, are not acceptable. less of how insurance plans are offered (c) Not contain unusual limitations to members, the management of the as- or restrictions, including, but not lim- sociation is responsible for assuring ited to, the following: that all aspects of its insurance pro- (1) Limitations specifying that cov- grams comply fully with the instruc- erage is afforded only when the insured tions of this regulation. vehicle is operated in the designated geographic areas in the United States § 552.72 Use of the allotment of pay (e.g., coverage applicable only on a system. military reservation). If the installa- (a) Allotments of military pay will be tion is located within the United made in accordance with Army Regula- States, the standard provision limiting tion 37–104–3. Allotments will not be coverage to the United States and Can- made to an insurer for the purchase of ada is acceptable. a commingled sale (e.g., retirement (2) Coverage limited to exclude liabil- plans, securities). ity for bodily injury to passengers and (b) Under no circumstances will guests if such a liability exists as a agents have allotment forms in their matter of law. possession or attempt to assist or coordinate the administrative processing § 552.74 Grounds for suspension. of such forms. (c) For personnel in grades E–1, E–2, The installation commander will and E–3, at least 7 days should elapse deny or revoke permission of a com- between the signing of a life insurance pany and its agents to conduct com- application or contract and the certifi- mercial activities on the installation if

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it is in the best interests of the com- § 552.77 Suspension approval. mand. The grounds for taking this ac- The installation commander will per- tion will include, but will not be limited to, the following: sonally approve all cases in which solicitation privileges have been denied (a) Failure of company to meet the or suspended for cause. This includes licensing and other regulatory require- agents, companies, or other commer- ments prescribed in § 552.56. cial enterprises. Authority to tempo- (b) An agent or representative en- rarily suspend solicitation privileges gaged in any of the solicitation prac- for 30 days or less while an investiga- tices prohibited by this regulation. tion is conducted may be delegated by (c) Substantiated adverse complaints the commander to the installation so- or reports about the quality of the licitation officer or other designee. Ex- goods, services, or commodities and the ception to this time frame must be ap- manner in which they are offered for proved by The Adjutant General sale. (DAAG-PSI) or by the overseas com- (d) Personal misconduct by agents or mander. The commander will make the representatives while on the military final determination. installation. (e) The possession of or any attempt § 552.78 ‘‘Show cause’’ hearing. to obtain allotment forms, or to assist or coordinate the administrative proc- Before suspending the solicitation essing of such forms. privilege, the company and the agent (f) Knowing and willful violation of will have a chance to show cause why the Truth-in-Lending Act or Federal the action should not be taken. ‘‘Show Regulation Z. cause’’ is an opportunity for the com- (g) Failure to incorporate and abide pany, the agent, or both to present by the Standards of Fairness policies. facts informally on their behalf. The (See § 552.83.) company and agent will be notified, by letter, far in advance of the pending § 552.75 Factors in suspending solicita- hearing. If unable to notify the agent tion privileges. directly or indirectly of the hearing, In suspending privileges for cause, then the hearing may proceed. the installation commander will deter- § 552.79 Suspension action. mine whether to limit suspension to the agent alone or to extent it to the (a) When suspended for cause, imme- company he represents. This decision diately notify the company and the will be based on the circumstances of agent, in writing, of the reason. When the particular case. Included are— the installation commander deter- (a) The nature of the violations and mines that suspension should be ex- their frequencies; tended throughout the Department of (b) The extent to which other agents the Army (whether for the agent or his of the company have engaged in these company), send the case to HQDA practices; (DAAGPSI) WASH DC 20314. Provide (c) Previous warnings or suspensions; all factors on which the commander and based his decision concerning the agent (d) Other matters that show the com- or company (exempt report, para 7–2o, pany’s guilt or failure to take reason- Army Regulation 335–15). This notifica- able corrective or remedial action. tion should include— (1) Copies of the ‘‘show cause’’ hear- § 552.76 Preliminary investigation. ing record or summary, When unauthorized solicitation prac- (2) The installation regulations or ex- tices have apparently occurred, an in- tract, vestigating officer will be appointed (3) The investigation report with (Army Regulation 15–6). The inves- sworn statements by all personnel af- tigating officer will gather sworn fected by or having knowledge of the statements from all interested parties violations, who have any knowledge of the alleged (4) The statement signed by the violations. agent as required in § 552.60(c).

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(5) Notification letters sent to the tablishment be declared ‘‘off limits’’ to company and the agent advising of sus- all military personnel. The procedures pension of installation solicitation for making these determinations are in privileges, and Army Regulation 190.24. (6) If the agent failed to respond to (b) On finding that a company notification of the hearing, a copy of transacting cash or consumer credit the letters sent to him and the com- with members of the Armed Forces, na- pany offering them the opportunity to tionwide or internationally, is engaged be heard. in widespread usurious, fraudulent, or (b) If the grounds for suspension bear deceptive practices, the Secretary of significantly on the eligibility of the the Army may direct Armed Forces agent or company to hold a State li- Disciplinary Control Boards in all geo- cense or to meet other regulatory re- graphical areas where this occurred to quirements, notify the appropriate investigate the charges and take appro- State or local civil authorities. priate action.

§ 552.80 Suspension period. § 552.83 Standards of fairness. All solicitation privileges suspended (a) No finance charge contracted for, by installation commanders will be for made, or received under any contract a specific time. Normally, it will not shall be in excess of the charge which exceed 2 years. When the suspension could be made for such contract under period expires, the agent may reapply the law of the place in which the con- for permission to solicit at the instal- tract is signed in the United States by lation authorizing the denial or suspen- the serviceman. In the event a contract sion. Requests for suspension periods in is signed with a United States company excess of 2 years will be sent with the in a foreign country, the lowest inter- complete case to HQDA (DAAG-PSI) est rate of the state or states in which WASH DC 20314, for approval. Lesser the company is chartered or does busi- suspension may be imposed pending de- ness shall apply. cision. (b) No contract or loan agreement shall provide for an attorney’s fee in § 552.81 Agents or companies with sus- the event of default unless suit is filed pended solicitation privileges. in which event the fee provided in the Quarterly, HQDA will publish the contract shall not exceed 20 percent of names of agents and companies whose the obligation found due. No attorney’s solicitation privileges have been sus- fees shall be authorized if he is a sala- pended throughout the Department of ried employee of the holder. the Army. If no change has occurred in (c) In loan transactions, defenses the latest quarter, no list will be pub- which the debtor may have against the lished. original lender or its agent shall be good against any subsequent holder of § 552.82 Exercise of ‘‘off limits’’ author- the obligation. In credit transactions, ity. defenses against the seller or its agent (a) In appropriate cases, installation shall be good against any subsequent commanders may have the Armed holder of the obligation provided that Forces Disciplinary Control Board in- the holder had actual knowledge of the vestigate reports that cash or con- defense or under condition where rea- sumer credit transactions offered mili- sonable inquiry would have apprised tary personnel by a business establish- him of this fact. ment off post are usurious, fraudulent, (d) The debtor shall have the right to misleading, or deceptive. If it is found remove any security for the obligation that the commercial establishment en- beyond State or national boundaries if gages in such practices; that it has not he or his family moves beyond such taken corrective action on being duly boundaries under military orders and notified; and that the health, morale, notifies the creditor, in advance of the and welfare of military personnel removal, of the new address where the would be served, the Armed Forces Dis- security will be located. Removal of ciplinary Control Board may rec- the security shall not accelerate pay- ommend that the offending business es- ment of the obligation.

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(e) No late charge shall be made in (3) He will be permitted to redeem excess of 5 percent of the late payment, the item by payment of the amount or $5 whichever is the lesser amount. due before the sale, or in lieu thereof Only one late charge may be made for submit a bid at the sale; any tardy installment. Late charges (4) There will be a solicitation for a will not be levied where an allotment minimum of three sealed bids unless has been timely filed, but payment of sold at auction; the allotment has been delayed. (5) The party holding the security, (f) The obligation may be paid in full and all agents thereof are ineligible to at any time or through accelerated bid; payments of any amount. There shall (6) The defaulting purchaser will be be no penalty for prepayment and in charged only those charges which are the event of prepayment, that portion reasonably necessary for storage, re- of the finance charges which have in- conditioning, and resale; and sured to the benefit of the seller or (7) He shall be provided a written detailed statement of his obligations, if creditor shall be prorated on the basis any, following the resale and promptly of the charges which would have been refunded any credit balance due him, if ratably payable had finance charges any. been calculated and payable as equal (j) A contract for personal goods and periodic payments over the term of the services may be terminated at any contract, and only the prorated time before delivery of the goods or amount to the date of prepayment services without charge to the pur- shall be due. As an alternative, the chaser. However, if goods made to the ‘‘Rule of 78’’ may be applied, in which special order of the purchaser result in case its operation shall be explained in preproduction costs, or require prepa- the contract. ration for delivery, such additional (g) No charge shall be made for an in- costs will be listed in the order form or surance premium or for finance charges contract. No termination charge will for such premium unless satisfactory be made in excess of this amount. Con- evidence of a policy, or insurance cer- tracts for delivery at future intervals tificate where State insurance laws or may be terminated as to the undeliv- regulations permit such certificates to ered portion, and the purchaser shall be issued in lieu of a policy, reflecting be chargeable only for that proportion such coverage has been delivered to the of the total cost which the goods or debtor within 30 days after the speci- services delivered bear to the total fied date of delivery of the item pur- goods called for by the contract. (This chased or the signing of a cash loan is in addition to the right to rescind agreement. certain credit transactions involving a (h) If the loan or contract agreement security interest in real estate pro- provides for payments in installments, vided by section 125 of the Truth-in- each payment, other than the down Lending Act, Pub. L. 90–321 (15 U.S.C. payment, shall be in equal or substan- 1601) and § 226.9 of Regulation Z (12 CFR tially equal amounts, and installments part 226). shall be successive and of equal or substantially equal duration. Subpart F—Fort Lewis Land Use (i) If the security for the debt is re- Policy possessed and sold in order to satisfy or reduce the debt, the repossession and SOURCE: 51 FR 11723, Apr. 7, 1986, unless resale will meet the following condi- otherwise noted. tions: (1) The defaulting purchaser will be § 552.84 Purpose. given advance written notice of the in- (a) This regulation establishes proce- tention to repossess; dures governing entry upon the Army (2) Following repossession, the de- training areas on Ft. Lewis, WA, des- faulting purchaser will be served a ignated in § 552.84(c) of this section. complete statement of his obligations (b) These procedures have been estab- and adequate advance notice of the lished to ensure proper use of these sale; Army training areas. Uninterrupted

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military use is vital to maintain and access permit except as outlined in improve the combat readiness of the § 552.87(c) of this section. Procedures US Armed Forces. In addition, condi- are described in §§ 552.91 and 552.92. tions exist within these training areas (2) Authorized Department of Defense which could be dangerous to any unau- (DOD) patrons enroute to or using thorized persons who enter. DPCA recreational areas (appendix A) (c) This regulation governs all use of are not required to possess a permit. the Ft Lewis Military Reservation out- Travel to and from DPCA recreational side cantonment areas, housing areas, use areas is restricted to the most di- Gray Army Airfield, Madigan Army rect route by paved or improved two Medical Center, and recreational sites lane roads, and direct trail access. controlled by the Director of Personnel Other travel in the range complex is and Community Activities (DPCA). governed by this regulation. The areas governed are designated on (3) Recreational use of CTAs without the overprinted 1:50,000 Ft Lewis Spe- permit is authorized only for DOD per- cial Map as Impact Areas, lettered sonnel of Ft. Lewis and their accom- Close-In Training Areas (CTAs), or panied guests. Driving Privately Owned numbered Training Areas (TAs), and Vehicles (POV) in the CTAs is re- are hereafter referred to as the range stricted to paved or improved gravel complex. A full sized map is located at roads, except for direct trail access to the Ft Lewis Area Access Office, Bldg. DPCA recreational areas at Shannon T–6127. Marsh and Wright’s Lake. Other rec- § 552.85 Applicability. reational activities authorized in the CTAs for DOD personnel without per- This regulation is applicable to all mit are walking, jogging and pic- military and civilian users of the range nicking at established picnic sites. complex. (4) Organizations or groups whose au- § 552.86 References. thorized recreational activity is of such a nature as to require special ad- (a) AR 405–70 (Utilization of Real Es- vanced confirmed commitments from tate). Ft. Lewis for land, including Scout (b) AR 405–80 (Granting Use of Real Camporees, seasonal or one-time re- Estate). gional meets, and so on, must apply to (c) AR 420–74 (Natural Resources— the Ft. Lewis Area Access Section in Land, Forest, and Wildlife Manage- writing. If the area is available, the re- ment). (d) FL Reg 215–1 (Hunting, Fishing, quest will be forwarded to the Director and Trapping). of Engineering and Housing (DEH) for (e) FL Reg 350–30 (I Corps and Fort lease processing. Not less than 180 days Lewis Range Regulations). are required for processing of these spe- (f) DA Form 1594 (Daily Staff Journal cial requests. Organizations or groups or Duty Officer’s Log). whose activity requires military equip- (g) HFL Form 473 (Range, Facility, ment or other special support from Ft. and Training Area Request). Lewis must also apply in writing. If a permit is granted, the special assist- § 552.87 General. ance request will be coordinated by the (a) Military training. All use of the Ft. Public Affairs and Liaison Office Lewis range complex for military (PALO). Sample request guide and training is governed by FL Reg 350–30. mailing address are available for the Military training always has priority Access Section. for use of the range complex. (5) All other recreational uses require (b) Hunting. Hunting, fishing, and a permit in accordance with this regu- trapping on Ft. Lewis are governed by lation. FL Reg 215–1. (d) Commerical use. Individuals or or- (c) Recreational use. (1) All individuals ganizations using the range complex or organizations, military or civilian, for profit-generating activities must desiring access to the range complex possess a Real Estate Agreement. Re- for recreational purposes must apply quests for Real Estate Agreements for and possess a valid Ft. Lewis area must be directed to the Real Property

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Branch, DEH, IAW AR 405–80. Real Es- § 552.88 Responsibilities. tate Agreements issued after publica- (a) DPTM. Operate the Ft. Lewis tion of this regulation will require Real Area Access Section as a part of Range Estate Agreement holders to notify the Control. Area Access Section of their entry onto, and departure from, the range (b) Law Enforcement Command. Pro- complex. Profit generating activities vide law enforcement and game warden include individuals or organizations patrols to respond to known or sus- that collect fees for services or that pected trespassers or other criminal ac- sell materials collected from the range tivity on the range complex. complex. Proposed timber sales require (c) DEH. Coordinate with the Ft. prior coordination with the Director of Lewis Area Access Section (thru Plans, Training and Mobilization DPTM) all Real Estate Agreements, (DPTM) to ensure that access can be timber sales, wildlife management, granted for the appropriate areas and construction, and other DEH or Corps times. of Engineers managed actions occur- (e) Installation service and mainte- ring on the range complex. Ensure all nance. DOD personnel and contractual Real Estate Agreements issued after personnel on official business are au- publication of this regulation require thorized on the Ft. Lewis Military Res- Real Estate Agreement holders to no- ervation range complex as provided in tify the Area Access Section of their appendix B. Access to hazard areas for entry onto, and departure from, the such personnel is governed by FL Reg range complex. 350–30. (d) DPCA. Manage the Installation (f) Non-DOD personnel in transit. Indi- Hunting, Fishing, and Trapping pro- viduals in transit along State or Coun- grams in conjunction with DEH Wild- ty maintained roads or roads des- life. Manage those picnic and recre- ignated for public access by the Instal- ation sites located in the range com- lation Commander require no special plex, as listed in appendix A. permits. These routes are listed in ap- (e) PALO. Make initial public release pendix B. of Ft. Lewis Land Use Policy and area (g) Trespassers. Persons or organiza- access procedures, and provide periodic tions entering or using the Ft. Lewis updates through media. Act as inter- range complex outside one of the ac- face, when necessary, to resolve com- cess channels described above are tres- munity relations issues related to land passing on a controlled-access federal use. Coordinate special assistance re- reservation and are subject to citation quests per § 552.86(b). Inform DPTM of by the military police. Trespassers public response to policy execution. may be barred from subsequent authorized access to the installation, and will § 552.89 Activities. be subject to the provisions of this section. (a) Examples of authorized activities (h) Failure to comply. Any person who are listed in appendix C. enters the range complex of the Ft. (b) Activities listed in appendix D are Lewis Military Reservation without not authorized on Ft. Lewis and no per- the consent of the Commanding Officer mit will be issued. or his designated representative is in violation of the provisions of this regu- § 552.90 Permit office. lation. Offenders may be subjected to DPTM Range Control operates the administrative action or punishment Ft. Lewis Area Access Section in Bldg under either the Uniform Code of Mili- T–6126 to issue permits and grant non- tary Justice (UCMJ) or title 18 U.S.C. training acess to the range complex. 1382, of title 50 U.S.C. 797, as appro- The office is open 0700–1900 hours, seven priate to each individual’s status. Ad- days a week, for permit processing and ministrative action may include sus- access control. At other hours, Range pension or loss of recreational privi- Operations will take calls for access leges, or permanent expulsion from the only. Ft. Lewis Military Reservation.

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§ 552.91 Individual permit procedures. (d) Other group write-in requests (a) Individuals desiring area access may be authorized for extraordinary for authorized activities (see appendix circumstances. C) must register in person at the Ft. § 552.93 Permit deadline and duration. Lewis Area Access Section, Bldg T– 6127. Minimum age is 18 years, except (a) Permits will be issued 0700–1900 for active duty military personnel. In- hours daily and may be obtained no dividuals under 18 years of age must be earlier than six months prior to the sponsored and accompanied by a parent event date. Permits for authorized ac- or legal guardian. tivities may be requested and issued on (b) Individual registration requires: the day of the event, but must be in (1) Picture ID. hand prior to individual or group entry (2) Personal information including on to the range complex. Social Security Number. (b) Permits for one-time events are (3) Vehicle identification and license valid for the duration of the event. number, if a vehicle is to be brought on Otherwise, permits are valid for six post. months and are not renewable. When a (4) Names and ages of minor family permit expires, the holder must re- members who will accompany a reg- apply as described in this section. istered person. (c) Access hours are thirty minutes (5) Liability release signature. after daylight to thirty minutes before (6) Certification that intended activi- dark, except for authorized overnight ties are on the authorized list and are activities and as outlined in FL Reg not for-profit commercial activities. 215–1. Persons who submit false certificates are subject to prosecution in Federal § 552.94 Area access procedures. Court Under 5 U.S.C. 1001, and the pro- (a) Holders of current permits desir- visions of this section. ing access must call the Ft. Lewis Area (c) A permit and a vehicle pass will Access Section on the date of entry at be issued to each person authorized the telephone numbers listed on the area access. The permit is not transfer- permit and state the area to be enable. Entry to the range complex with- tered, estimated time of entry, and es- out the issued permit is forbidden. timated time of departure. This check- (d) Individual write-in requests may in may also be done in person at the be authorized for extraordinary cir- Ft. Lewis Area Access Section, Bldg T– cumstances. 6126. Procedures for permits and access for hunting and trapping are outlined § 552.92 Group permit procedures. on FL Reg 215–1. (a) A collective permit will be issued (b) The Ft. Lewis Area Access Sec- to an organization desiring to conduct tion will determine whether the area is a group event. The group leader must available and, if so, authorize entry. If register in person at the Ft. Lewis the area is not open for permit holders, Area Access Section, Bldg T–6127, and and an alternate area cannot be pro- must be 21 years of age or older except vided, access will be denied. All calls for active duty military personnel. and actions will be recorded on DA (b) Group registration requires the Form 1594 (Daily Staff Journal or Duty information listed in § 552.91, except Officer’s Log). that a legible list of names of all per- (c) Permit holders must call or visit sons in the group is required in lieu of the Ft. Lewis Area Access Section im- the names and ages of minors. mediately after leaving the authorized (c) Group permits will be issued with area to obtain checkout clearance. If a the requirement that all members of checkout is not received within three the group will be with the leader hours after the estimated time of de- throughout the event. If the group parture, the Ft. Lewis Area Access Sec- plans to separate while still on post, tion will call the contact phone num- sub-group leaders must be appointed ber in the permit holder’s record and, if and must each obtain a permit as noted necessary, initiate a search through in this section. The group leader per- the Military Police Desk. Permit hold- mit is not transferable. ers who fail to call out twice will be

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barred from area access for thirty days. § 552.97 Communications. A third failure to check out will result The Ft. Lewis Area Access Section in suspension of the permit for the re- communicates by telephone as noted mainder of its normal duration or nine- on the permit. Tactical FM contact ty days, whichever is longer. may be made through Range Oper- (d) Failure to comply with the provi- ations. sions of this paragraph shall subject all persons to the provisions of this sec- Subpart G—Firearms and tion. Weapons § 552.95 Compatible use. SOURCE: 53 FR 1752, Jan. 22, 1988, unless (a) Unit commanders may, during otherwise noted. training area scheduling, request that no permit holders be allowed in their § 552.98 Purpose. areas. Justification must be in the re- This regulation establishes the cri- marks column of HFL Form 473 teria for possessing, carrying, con- (Range, Facility and Training Area Re- cealing, and transporting firearms and/ quest). If this restriction is granted, or other deadly or dangerous weapons the Ft. Lewis Area Access Section will and instruments on Fort Stewart/Hun- close the appropriate areas. In the ab- ter Army Airfield (AAF) installations. sence of a trainer’s request for closure, the following military activities are § 552.99 Applicability. considered incompatible with non- (a) The provisions of this regulation training access and will, when sched- apply to all Department of Defense uled, block affected areas: (DOD) military; civilian personnel; (1) Live-fire training events with sur- U.S. Army Reserve/National Guard face danger zones falling into training (USAR/NG) personnel on post for active duty training or inactive training in areas. conjunction with Active Army ele- (2) Parachute and air assault oper- ments, military family members; civil- ations. ians employed on, visiting, or traveling (3) Field artillery firing. The num- through or on the Fort Stewart/Hunter bered training area occupied by the AAF installation. weapons will be closed. (b) This regulation will not become (4) Motorized infantry operations void in its entirety merely because one that will use the majority of the road part or portion thereof is declared un- net in a training area, traveling at constitutional or void. higher than normal speeds. (c) This regulation is punitive, Mili- (5) Training employing riot agents or tary violators of the regulations may smoke generating equipment. be prosecuted under the Uniform Code (b) The Range Officer may close of Military Justice or may be subject training areas based on multiple occu- to administrative action. Civilian vio- pation by large units. lators may be subject to administrative or judicial action under title 18, (c) Areas allocated to modern firearm United States Code, or title 16, Crimi- deer hunting are closed to training and nal Code of Georgia. recreational activities. When State Fish and Game pheasant release sites § 552.100 Definitions. can be isolated by swamps, streams, or (a) Ammunition. Projectiles together roads from the rest of a training area, with their fuses, propelling charges, multiple occupancy is authorized. and primers that are designed to be ex- pelled from a firearm. This includes § 552.96 Violations. any type of military and commercial Anyone observing violators of this or ammunition (ball, tracer, incendiary, other regulations must report the ac- blank, shotgun, black powder, and tivity, time, and location to the Ft. shot). Items shall only be considered as Lewis Area Access Section or the Mili- ammunition when loaded into a car- tary Police as soon as possible. tridge with its bullets and primer.

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(b) BB and pellet guns. Any type rifle, plosion, and the frame or receiver of pistol or other instrument designed or any such weapon. This does not include redesigned, made or remade, modified antique firearms, antique replicas, and or remodified to expel BBs or pellets by those modern firearms which have been springs, compressed air, CO2 or any rendered permanently incapable of other compressed gas cartridge. being fired. (c) Dangerous instruments. Any device (f) Knives, sabers, swords, and ma- which is designed or redesigned, made chetes. Any instrument having a sharp or remade, modified or remodified to be blade which is fastened to a handle, or used as an offensive or defensive weap- made with a handle. Measurement of on. Devices of this type include but are the blade will be from the tip of the not limited to: blade to the point where the blade (1) ‘‘Constant companion’’ or any meets the handle. This includes folding similar weapon, designed or redesigned, knives, switchblades, gravity knives, made or remade, modified or remodi- stilettos, lock blade knives, swords, sa- fied to be worn as a belt buckle, brass bers, and machetes. kunckles, ‘‘Knucklers,’’ and ‘‘Knucks.’’ (g) Machine gun and automatic weap- (2) Studded or spiked wrist bands, or on. A weapon designed or redesigned, any device designed or redesigned, made or remade, modified or remodi- made or remade, modified or remodified to automatically fire more than fied to fit over the hand or wrist which one shot by a single pull of the trigger. can be used to cause grave bodily (h) Public gathering. Shall include, harm. but shall not be limited to, athletic or (3) Black jacks, slapjacks, slappers, sporting events, schools or school func- saps, including homemade substitutes, tions, churches or church functions, other bludgeons (with or without han- rallies, or establishments at which al- dles), and metal pipes. coholic beverages are sold for consump- (4) ‘‘Nanchaku’’ (num-chucks), two or tion on the premises. more sticks connected by rope, cord or chain and normally used as a martial (i) Shotgun. A weapon designed or re- arts weapon. ‘‘Shuriken’’, a disc or any designed, made or remade, and in- geometrical object designed to be tended to be fired from the shoulder; thrown as a weapon. ‘‘Manrikigusari’’ and designed or redesigned, made or re- or ‘‘Kusari,’’ a rope or cord joined to a made, to use the energy or the explo- weight at each end and designed to be sive in a fixed shotgun shell to fire used as a weapon. through a smooth bore either a number (5) Any finger ring with blades or of ball shot or a single projectile for sharp objects that are capable of being each single pull of the trigger. projected/extended from the surface of (j) Sawed-off shotgun. A shotgun or the ring. any weapon made from a shotgun (6) Any device capable and primarily whether by alteration, modification, or intended for discharging darts or nee- otherwise having one or more barrels dles. less than 18 inches in length or if such (7) All firearms. weapon as modified has an overall (d) Explosive, incendiary, and pyro- length of less than 20 inches. technic devices. Any type of military or (k) Sawed-off rifle. A weapon designed commercial explosive, incendiary, gas or redesigned, made or remade, and in- or smoke bomb, grenade, rocket, mis- tended to be fired from the shoulder; sile, mine, blasting cap, ‘‘dummy’’ and/ and designed or redesigned, made or re- or practice device such as simulators, made, to use the energy of the explo- and other similar detonating devices sive in a fixed metallic cartridge to fire which are capable of being altered to only as a single projectile through a contain a live charge, and pyrotechnic rifle bore for each single pull of the devices such as firecrackers, cherry trigger; and which has a barrel or bar- bombs, bottlerockets, and starclusters. rels of less than 16 inches or has an (e) Firearms. Any type of weapon overall length of less than 26 inches. which is designed or redesigned, made (l) Silencer. Any device used for sup- or remade, modified or remodified to pressing or diminishing the report of expel a projectile by action of any ex- any firearm.

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(m) Weapon. An instrument used in (d) Prohibited Possession and Storage. an offensive or defensive manner. It is prohibited for a person, military or civilian, to possess or store ammuni- § 552.101 Prohibitions. tion, firearms, knives with blades more (a) Prohibited items. It is prohibited to than 3 inches, bows and arrows, cross- possess, carry, conceal, transport, bows, and BB and pellet guns, in loca- store, transfer or sell any of the fol- tions other than those locations speci- lowing weapons or devices on, through fied in § 552.102, except under conditions or within the confines of Fort Stewart specified in § 552.103. Prohibited loca- and Hunter AAF installations unless tions for these items include, but are specifically allowed elsewhere in this not limited to, living spaces and com- regulation: mon areas of billets, squad rooms, pri- (1) Sawed-off shotgun. vately-owned vehicles, exterior storage (2) Sawed-off rifle. sheds, camper trailers, and offices. (3) Machine gun and automatic weap- Commanders will designate an arms ons. room and times for weapons turn-in. (4) Silencers. During periods when arms rooms are (5) Dangerous instruments as defined closed, the Staff Duty Officer (SDO) in § 552.100(c). will ensure the weapon is secured in ac- (6) Explosives, Incendiary and Pyro- cordance with (IAW) this regulation. A technic Devices, as defined in receipt will be given for each weapon § 552.100(d). received, reflecting the weapon’s make, (7) Knives with automatic blade serial number, identity of owner and openers (i.e., switch blades, gravity other data deemed appropriate. knives, stilettos) of any blade length. (e) Exemptions. Nothing in this regu- Folding or fixed bladed knives with a lation shall prohibit: blade length of more than 3 inches. (1) Military members or DOD civilian Swords, sabers, and machetes with employees from possessing or using sharpened blades. military weapons, military ammuni- (8) Any object which carries an election or explosives, or military devices trical current of sufficient wattage to in a lawful manner while in the per- deliver a shock to a person, such as formance of their military duties or for cattle prods, ‘‘taser’’ or ‘‘public defend- training or other authorized purposes, ers.’’ as prescribed by applicable Army Regu- (b) Carrying a concealed weapon. A lations. person commits the offense of carrying a concealed weapon when he/she know- (2) Military and DOD civilian per- ingly has or carries about his/her personnel, while in the performance of of- son, unless in an open manner and fully ficial law enforcement duties, from exposed to view, any bludgeon, metal possessing or using government ammu- knuckles, firearm, or knife designed nition, explosives or devices in a lawful for the purpose of offense and defense, manner, as prescribed by applicable or any other dangerous or deadly weap- laws or regulations or by their lawful on or instrument of like character out- superiors. side of his/her home or place of busi- (3) Federal, state, county or local law ness. enforcement personnel, while in the (c) Carrying Deadly Weapons to or at performance of official law enforce- Public Gatherings. A person commits an ment duties, from possessing or using offense under this section when he/she government or privately-owned weap- carries to or while at a public gath- ons, ammunition, explosives or devices ering any explosive compound, firearm, in a lawful manner, as prescribed by or knife designed for the purpose of of- applicable laws or regulations or by fense and defense. This paragraph shall their lawful superiors. not apply to competitors participating (4) Government contractors, while in in organized sporting events, military performance of their contract from personnel in a formation when a weap- possessing or using weapons, ammuni- on is required, or to police/security per- tion, explosives or devices, IAW the sonnel while in performance of their provisions of their contract and as de- duties. termined by the Contracting Officer.

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(5) Individuals with Federal Firearms these state highways or stopping, other Licenses (Class III) from possessing, than for emergency purposes, while on carrying, and transporting Class III the installation is prohibited. weapons IAW Federal regulations; how- (b) Personnel residing in family hous- ever, they are prohibited from con- ing, BOQ, BEQ/VOQ and guest housing, cealing, storing, transferring, or selling may store legally-acquired, authorized Class III weapons within the confines ammunition, knives with a blade meas- of Fort Stewart and Hunter AAF. uring more than 3 inches, bows and ar- (6) Individuals from possessing, car- rows, registered crossbows, registered rying, transporting, or storing decora- BB and pellet guns and registered fire- tive, ornamental, and ceremonial arms within their quarters. swords and sabers within the confines (c) Personnel residing in troop billets of Fort Stewart and Hunter AAF when may store legally-acquired authorized used strictly for display and cere- ammunition, knives and blades meas- monies. When used as a cutting instru- uring more than 3 inches, bows and ar- ment, they become a prohibited item. rows, registered crossbows, registered (7) Individuals and agencies from pos- BB and pellet guns and registered fire- sessing, transporting, storing, selling, arms in unit arms rooms. The unit or using fixed bladed knives with a arms room should utilize a standard blade length of more than 3 inches weapons card and log book to docu- when used for their lawful purpose (i.e., ment storage, removal, and return. steak knives, cooking knives, hunting (d) Persons using weapons borrowed knives) and when in compliance with from another must have the docu- all other requirements in this regula- mentation required in § 552.103(a) as ap- tion. plicable in their possession when car- § 552.102 Requirements for possession rying, transporting or using the weap- and use. on on the installation. DOD military and civilian personnel, (e) Persons under the age of 17 must their family members, USAR/NG per- be accompanied by a person over the sonnel and civilians employed on, vis- age of 21 who will be responsible for iting or traveling through this installa- compliance with the requirements of tion may possess legally-defined and this regulation while hunting or target privately-owned firearms, ammunition, shooting on the installation and when BB and pellet guns, knives, bows and purchasing legal arms (including arrows, and crossbows under the fol- knives with blades over 3 inches) and lowing conditions: ammunition from installation retail (a) Privately-owned firearms, cross- outlets. bows, BB and pellet guns possessed or (f) Persons must be in compliance stored on the installation must be reg- with federal and state laws regarding istered at the installation Provost possession (i.e., age, criminal record re- Marshal’s Office within three working strictions, etc.) days after arrival on the installation, (g) Storage, accountability and reg- or after obtaining the weapon, except: istration procedures will be IAW Army (1) Firearms legally brought onto the Regulation 190–11 and supplements. installation for the purpose of hunting or firing at an approved firing range, § 552.103 Requirements for carrying and use. and only for the period of time the person possessing the firearms is hunting Persons legally authorized to possess or firing on the range. firearms, ammunition, knives (with (2) Firearms carried by federal, state, blades longer than 3 inches), bows and county or local law enforcement per- arrows, and crossbows, may carry or sonnel when in the performance of offi- transport legally possessed and reg- cial law enforcement duties. istered (if required) weapons under the (3) Firearms carried or transported, following conditions. in full compliance with Georgia State (a) For purposes of hunting: From Laws, on Georgia State Highways 119 quarters, on or off the installation, by and 144 by personnel traveling through the most direct route to hunting area the installation only. Travel off of or Pass and Permit Office and return.

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Stopping at other installation facili- currently used landing or stage fields); ties while enroute is prohibited (i.e., any ammunition storage area (except Post Exchange, Club, offices, etc.). In- on approved firing range when properly dividual must have in his/her posses- authorized). sion weapon registration (if applica- (4) Persons not affiliated with DOD ble), valid state hunting license, valid or this installation must remain on Fort Stewart hunting permit and an Georgia State Highways 119 and 144 area access pass (if applicable). when carrying or transporting weapons (b) For purposes of target shooting, through the installation and must be selling the weapon or having the weap- in full compliance with Georgia State on repaired: From quarters by the most Law governing possession, use and direct route to approved range or to transportation of said weapons. Travel the location where the weapon is to be off of these highways or stopping, for sold or repaired and returned. Stopping other than emergency purposes, while at other installation facilities while on the installation, is prohibited. enroute is prohibited. Individual must have in his/her possession at all times § 552.104 Disposition of confiscated/ his/her registration (if applicable). seized weapons. (1) When carried, weapons will be carried in an open manner (not concealed). All weapons, ammunition, explosives Firearms will be unloaded when carried or other devices defined in this regula- (i.e., projectiles physically separated tion, that are confiscated pursuant to from the firearms, not just removed the commission of a crime or violation from the chamber), except when actu- of this or other regulation or found un- ally engaged in hunting or shooting. secured/unattended on the installation, Knives will be carried in a sheath or will be immediately turned over to the scabbard worn in a clearly visible man- military police, U.S. Army Criminal ner. Commanders may authorize the Investigation Command (USACIDC), or carrying of a privately-owned knife the Federal Bureau of Investigation with a blade over 3 inches to field duty, (FBI) for investigation, retention as provided it is carried IAW Victory evidence, or other lawful disposition. Standard and exposed in a sheath/scab- When retention for investigation or bard. The Provost Marshal may au- evidence is no longer required by mili- thorize the carrying of a privately- tary police, USACIDC, or other law en- owned, sheathed, lock blade knife on forcement or judicial agencies, the military and DOD police officers’ pistol items will be disposed of under the pro- belts. visions of AR 195–5, Evidence Proce- (2) When transported in a vehicle, dures. weapons will be in plain view in the passenger area of the vehicle or secured (locked) in the trunk or other rear Subpart H—Regulation Controlling compartment of the vehicle, not read- the Access to the Fort Lewis ily accessible from the passenger area Main Cantonment Area and (i.e., locked tool box secured to bed of Prohibiting Certain Conduct a truck). Firearms will be unloaded and Upon Fort Lewis Military Res- the ammunition physically separated ervation from the firearms. The glove compartment of a vehicle is NOT an authorized compartment for storing pistols. SOURCE: 52 FR 25862, July 9, 1987, unless (3) Firearms, bows and arrows, cross- otherwise noted. Redesignated at 53 FR 1752, bows, BB and pellet guns will not be Jan. 22, 1988. loaded, fired or used within the canton- § 552.105 Purpose. ment areas of the installation; within 50 yards of any public highway, street (a) This regulation establishes proce- or Fort Stewart numbered road or dures governing access control require- across same; within 100 yards of any ments for the Main Cantonment Area, designated recreation area, managed Fort Lewis, Washington, and prohibits waters, building or similar structures; certain forms of conduct upon the Fort any aircraft landing facility (to include Lewis Military Reservation.

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(b) These procedures and require- Training Areas, or numbered Training ments have been established in con- Areas. A full sized map is located at junction with other efforts to improve the Fort Lewis Area Access Office, the physical security of the Fort Lewis Building T–6127. As defined, the Main Military Reservation. It is essential Cantonment Area includes, but is not that entrance to, and exit from, the in- necessarily limited to, those areas of stallation be made only at controlled the installation containing Govern- access points, and that certain forms of ment housing areas, schools, medical conduct be restricted. facilities, troop billets, the installation (c) This regulation governs all access command and control facilities, Gray to the Main Cantonment Area of the Army Air Field, Madigan Army Med- Fort Lewis Military Reservation, in- ical Center, and certain recreational cluding, but not limited to, all housing sites controlled by the Director of Per- areas, Gray Army Air Field, and Mad- sonnel and Community Activities. igan Army Medical Center. It further (3) Entry of the general public into prohibits all persons from engaging in the Main Cantonment Area at any lo- certain forms of conduct anywhere on cation other than through established the Fort Lewis Military Reservation. manned access control points is strictly prohibited. For the purposes of this § 552.106 Applicability. regulation, entry includes the entrance This regulation is applicable to all of the person, or the insertion of any persons, both military and civilian, part of his body, or the introduction of who enter the Fort Lewis Military Res- any unauthorized material. ervation. (b) Trespassers. Persons entering or § 552.107 References. remaining upon the Main Cantonment Area of the Fort Lewis Military Res- (a) AR 190–5 (Motor Vehicle Traffic ervation in violation of this regulation Supervision) are trespassing on a closed federal res- (b) AR 190–52 (Countering Terrorism ervation and are subject to citation by and Other Major Disruptions on Mili- the military police. Trespassers may be tary Reservations) barred from subsequent access to the (c) AR 210–7 (Commercial Solicita- installation and will be subject to the tion on Army Installations) provisions of this regulation. A person (d) AR 210–10 (Administration) violates this regulation when he enters (e) Fort Lewis Supplement 1 to AR or remains upon the Main Cantonment 190–5 (Motor Vehicle Traffic Super- Area when he is not licensed, invited, vision) (f) I Corps and Fort Lewis Installa- or otherwise authorized to so enter or tion Security and Closure Plan remain. All such persons are tres- (g) HFL Form 1138 (Fort Lewis Vis- passers for the purpose of this regula- itor Pass) tion. (c) Prohibited Activities. Department § 552.108 General. of Defense policy permits commanders (a) Access controls. (1) Fort Lewis is a to prohibit any expressive activity closed post. Access to the installation which could interfere with or prevent is limited to persons with prior ap- the orderly accomplishment of the in- proved permission to enter. stallation’s mission, or which presents (2) Public access into the Main Can- a clear danger to the loyalty, discipline tonment Area of Fort Lewis is con- or morale of their soldiers. Therefore, trolled through a series of static secu- unless the prior approval of the instal- rity posts manned by sentries empow- lation commander or his designated ered to grant or deny access to persons representative has been obtained, no and material. The ‘‘Main Cantonment person while on the Fort Lewis Mili- Area’’ is that area of the Fort Lewis tary Reservation shall: Military Reservation shown on the (1) Engage in protests, public speech- overprinted 1:50,000 Fort Lewis Special es, sit-ins, or demonstrations pro- Map (DMA Stock No. V791SFTLEWIS) moting a political point of view. excluding those areas designated there- (2) Engage in partisan political cam- on as Impact Areas, lettered Close-In paigning or electioneering.

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(3) Display or distribute commercial vehicles, privately owned motor vehi- advertising or solicit business. cles registered in accordance with Fort (4) Interrupt or disturb a military Lewis Supplement 1 to Army Regula- formation, ceremony, class or other action (AR) 190–5, and pedestrians in pos- tivity. session of current active duty, retired, (5) Obstruct movement on any street, dependent, or DoD civilian identifica- sidewalk, or pathway without prior au- tion cards are authorized unimpeded thority. access to Fort Lewis during periods of (6) Utter to any person abusive, in- routine installation operations unless sulting, profane, indecent or otherwise prohibited or restricted by action of provocative language that by its very the Installation Commander. utterance tends to incite an immediate (b) Visitor access. All visitors to the breach of the peace. installation will report to the visitor’s (7) Distribute or post publications, information center where the visitor’s including pamphlets, newspapers, mag- name, vehicle license number, purpose azines, handbills, flyers, leaflets, and and duration of visit will be recorded other printed material, except through prior to granting access. Visitor’s regularly established and approved dis- passes for visitors to Madigan Army tribution outlets. Medical Center and the Logistics Cen- (8) Circulate petitions or engage in ter/Civilian Personnel Office will be picketing or similar demonstrations issued at the Madigan and Logistics for any purpose. Center gates respectively. (9) Disobey a proper request or order (c) Visitor’s passes. HFL Form 1138 by Department of Defense (DoD) police, (Fort Lewis Visitor Pass) valid for a military police, or other competent au- period not to exceed 24 hours unless thority to disperse or to leave the in- otherwise noted below, may be issued stallation. only when one or more of the following (d) Failure to comply. Any person who criteria is met. enters or remains upon the Main Can- (1) Personnel in possession of proper tonment Area of Fort Lewis Military orders directing temporary duty at Reservation when he is not licensed, Fort Lewis may be issued a visitor’s invited or otherwise authorized by the pass for periods not to exceed 13 days. terms of this regulation or who enters Personnel ordered to temporary duty or remains upon the Fort Lewis Mili- at Fort Lewis for periods in excess of 13 tary Reservation for a purpose of en- days but less than 90 days will be re- gaging in any activity prohibited by quired to obtain a temporary vehicle this regulation is in violation of the registration. provisions of the regulation. Violators (2) Persons visiting Fort Lewis mili- of this regulation may be subjected to tary personnel or their family members administrative action or criminal pun- may be issued visitor’s passes for peri- ishment under the Uniform Code of ods up to and including 13 days when Military Justice (UCMJ), title 18 U.S.C. personally requested by the military 1382, or title 50 U.S.C. 797, as appro- sponsor. priate to each individual’s status. Max- (3) Moving vans and commercial de- imum punishment under title 18 U.S.C. livery vehicles will be issued visitor’s 1382 is a fine of not more than $500 or passes after the operator displays a bill imprisonment for not more than six of lading or other official documenta- months, or both. Maximum punish- tion demonstrating a legitimate need ment under 50 U.S.C. 797 is a fine of to enter Fort Lewis. $5,000 or imprisonment for not more (4) Contract vehicles not qualifying than one year, or both. Administrative for installation vehicle registration action may include suspension of ac- pursuant to Fort Lewis Supplement 1 cess privileges, or permanent expulsion to AR 190–5 will be issued a visitor’s from the Fort Lewis Military Reserva- pass as provided in paragraph (c) of tion. this section, after the purpose of the visit has been verified by the Con- § 552.109 Routine security controls. tracting Officer’s Representative, or (a) Unimpeded access. Military vehi- the Contractor when the former is not cles, emergency vehicles, mail delivery available.

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(5) Prior to issuing a visitor’s pass to § 552.111 Severability. unsponsored personnel who desire to visit unit areas, club facilities and If a provision of this Regulation is other recreational facilities, security declared unconstitutional, or the appli- personnel will telephonically contact cation thereof to any person or cir- the person to be visited. If the person cumstance is held invalid, the constitu- to be visited cannot be contacted to tionality or validity of every other pro- verify the visit, the visitor will be de- vision of this Regulation shall not be nied entry. Unsponsored personnel de- affected thereby. siring to visit the Fort Lewis Museum may be issued a visitor’s pass valid Subpart I—Physical Security of until museum closing time on day of Arms, Ammunition, and Explo- issue, provided security personnel tele- sives—Fort Lewis, Washington phonically contact the museum and verify the hours of public operation that day prior to issuing the visitor’s SOURCE: 56 FR 25040, June 3, 1991, unless pass. otherwise noted. (6) Soldiers, dependent family members, and Department of the Army em- § 552.112 Purpose. ployees who sponsor visitors to the in- To provide enhanced security for the stallation remain responsible for the protection of arms, ammunition, explo- conduct of their guests on Fort Lewis sives (AA&E) and sensitive items at for the duration of the visit. Fort Lewis. (d) Heightened security controls. Access control measures implemented during § 552.113 References. periods of enhanced security will be in This regulation is to be used in con- accordance with AR 190–52 and the I junction with the following: Corps and Fort Lewis Installation Se- (a) AR–190–11 with Forces Command curity and Closure Plan. During periods of heightened security controls, and Training Command Supplement 1 sponsors may be required to personally (Physical Security of Arms, Ammuni- report to the Visitor’s Information tion and Explosives). Center to accept responsibility for the (b) AR 190–13 with Forces Command visitor. and Training Command Supplement 1 (The Army Physical Security Pro- § 552.110 Requests for exception. gram). The installation commander or his (c) Fort Lewis Regulation 210–1 (In- deputy may grant exceptions to the stallation Fort Lewis Post Regula- prohibitions contained in paragraph tions). (c)(4) of this section. An application for (d) Headquarters Fort Lewis Form exception shall be submitted to the in- 816 (Registration of Personal Fire- stallation Public Affairs Liaison Offi- arms). cer at least seven days prior to the date of the requested activity. The ap- § 552.114 Violations. plication must be in writing, and must Violations of the provisions of this specify the particular activity pro- regulation are subject to disciplinary posed, the names of the persons and or- actions under the Uniform Code of ganizations sponsoring the activity, Military Justice, judicial action as au- the number of participants, and the thorized by state or federal law, or ad- time, date and specific place or places ministrative action as provided by con- the requester proposes the activity occur. In addition, the application trolling regulation. shall be signed by the requester or by a § 552.115 Applicability. representative of the requesting organization, if any, and contain an address This regulation is applicable to all and local telephone number where the Active Army, Reserve Officer Training requester or representative can be Corps (ROTC), U.S. Army Reserve reached in the event further informa- (USAR), and Army National Guard tion is needed. (ARNG) units training and/or assigned/

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attached to Fort Lewis and its sub-in- Form 3749 (Equipment Receipt), will be stallations. This regulation also ap- turned in and the weapon will be signed plies to tenant units/activities sta- out on Headquarters Fort Lewis Form tioned on Fort Lewis. It is also applica- 938 (Weapons/Ammunition and Sen- ble to all persons, both military and ci- sitive Item Issue and Turn-In Reg- vilian, who reside on or who otherwise ister). The armorer will provide the enter Fort Lewis Military Reservation owner with a copy of Headquarters for whatever reason. Fort Lewis Form 816 (Registration of Personal Firearms), which will remain § 552.116 Privately owned weapons— with the weapon at all times. When the security. weapon is turned back in to the arms Privately owned arms and ammuni- room, the HFL Form 816 will be turned tion will be secured in the manner re- in also. quired for military weapons and ammunition but separate from military § 552.119 Registration and storage. arms, ammunition, and explosives (a) All types of personal weapons to (AA&E) items. include rifles, shotguns, handguns and antique firearms owned by personnel § 552.117 Disposition of Commander’s residing on Fort Lewis Military Res- Letter of Authorization. ervation will be registered at the The unit commander’s written ap- Weapons Registration Office, Law En- proval to withdraw privately owned forcement Command, within 72 hours weapons from the unit arms room will (three working days) after signing in to be attached to the record of the next his/her permanent unit of assignment. weekly arms, ammunition, and explo- HFL Form 816, Registration of Per- sive (AA&E) inventory. Following is a sonal Firearms, will be completed in Sample Request for Authorization to triplicate. The unit commander is re- Withdraw Weapon from Arms Room: sponsible for verifying proof of legal ownership paperwork on all data en- Office Symbol llllllllllllllll tered on HFL 816. The Military Police Date lllllllllllllllllllll Memorandum for Commander of unit Weapons Registration Section will re- concerned, Fort Lewis, WA 98433 tain two copies of the completed reg- Subject: Request Authorization to Re- istration form and issue one copy to move Privately Owned Firearm/ the individual to be retained with the Weapon from the Unit Arms Room weapon at all times. The Weapons Reg- 1. Request authorization to remove istration Section will forward one copy the following firearm/weapon reg- of the form to the individual’s unit istered in my name from the arms commander. The commander’s copy of room. The firearm/weapon is a the registration will be maintained in the unit arms room for personnel stor- lllll (type) and serial number is ing personal weapons in the unit arms llllllll. 2. The firearm/weapon will be re- room. When an individual possessing a personal weapon transfers (intra-in- moved on lllll (date) and returned stallation), the losing commander will on lllll (date). 3. The reason for removal is ensure that HFL Form 816 is forwarded to the gaining commander. The gaining . lllllllllllllllllllllll commander will ensure that the indi- (Name/rank/unit/signature of individual vidual re-registers the personal weapon making request) within 72 hours (three working days). Office Symbol 1st End SFC Jones/ The commander of 525th Replacement mmm/telephone CDR, Unit concerned, Fort Lewis, WA 98433 Detachment is responsible for the stor- FOR (individual making request plus com- age of personal weapons of newly arriv- plete address) Approval is granted. ing personnel, temporarily assigned to (Signature block of authorizing official) the unit. Personnel residing off post who wish to bring personal weapons on § 552.118 Issuance from unit arms post are also required to register those room. weapons. Weapons registration forms When privately owned weapons are (HFL 816) will be turned in at the withdrawn from the arms room, DA Weapons Registration Section when

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clearing post. Upon any sale or transfer erning possession and use of privately of a registered weapon, the transaction owned weapons. will be immediately reported within 72 (d) Weapons stored in unit arms hours (three working days) to the Reg- rooms may be issued to registered own- istration Office. For additional guid- ers only for authorized hunting or par- ance on weapon registration, refer to ticipation in authorized target prac- Fort Lewis Regulation 210–1. tices or matches. Request for issue of a (b) All soldiers are required to inform privately owned weapon from the arms the unit commander if they are storing room must be in writing indicating the privately owned weapons within a 100 inclusive dates and times, reasons and mile radius of Fort Lewis. Soldiers re- serial number of weapon for issue. siding off-post must inform the unit of Weapons stored in the unit arms rooms the location of the weapon(s). Those may not be issued to anyone other than weapons must be registered if they are the registered owner. to be brought onto the installation for (e) Properly registered privately any type of authorized use. owned weapons may be kept at the (c) Privately owned weapons of sol- owners assigned government family diers residing in the unit billets, Bach- quarters if approved in writing by the elor Enlisted Quarters (BEQ), or Bach- unit commander. One copy of the com- elor Officer Quarters (BOQ), will be pleted HFL Form 816 will be main- stored in the assigned unit arms room tained on file in the unit arms room. under the following provisions: Intra-post transfer rules as stated in (1) Commanders may authorize their paragraph (a) of this section apply. personnel who reside in billets, BEQ or (f) Privately owned weapons with a BOQ to store privately owned weapons maximum of 100 rounds of ammunition in the off post quarters of another (per weapon) may be stored in the unit member of his/her unit or in the quar- arms room. Weapons and ammunition ters of immediate family members re- will be stored separately. The owner of siding in the area. a privately owned weapon will be Family members will be considered issued a hand receipt when the weapon sponsors for paragraph (b) (2) thru (5) and/or ammunition is turned in to the of this section. arms room. The owner will return the (2) A unit member who resides off hand receipt when the weapon and/or post may sponsor a maximum of one ammunition is removed from the arms unit member who resides in billets, room for any reason. BEQ or BOQ for storage of privately (g) Weapons cancellation and instal- owned weapons. lation clearance will be as follows: (3) Request to store weapons off post (1) Commander will ensure that pri- must be submitted in writing to the vately owned weapons registered with unit commander, indicating the name, Weapons Registration Section are de- exact address and phone number of the registered during the outprocessing or proposed unit sponsor. Request must be when legally disposed of. accompanied by a written authoriza- (2) Individuals who register a pri- tion from the sponsor to store the vately owned weapon and legally dis- weapons, and a copy of HFL 816. Re- pose of the weapon while it is still reg- quest must be kept on file in the unit istered will surrender the registration arms room until legal disposition of certificate to the Weapons Registra- the weapon is presented to the unit tion Section at the time of disposal commander. along with appropriate disposition doc- (4) Civilians (except for immediate uments. family residing in the area) and military dependents will not be considered § 552.120 Possession and control. as sponsors to store privately owned weapons for military members. (a) Possession of weapons on the post (5) Unit commanders have the re- by civilians is prohibited with the fol- sponsibility to verify the off post loca- lowing exceptions: tion for off post storage requests and (1) Engaged in authorized hunting. ensure that military members comply (2) Engaged in authorized target with both local and state laws gov- practice.

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(3) Engaged in authorized and orga- (b) Any incendiary devices, military nized shooting matches. ammunition and/or explosives. (b) Request for authorization for (c) Any weapons not legally obtained. these exceptions will be submitted in (d) Any instrument commonly used writing to the Commanding General, I in the practice of martial arts, for ex- Corps and Fort Lewis. Prior coordina- ample, a nunchaku, except during the tion for the use of ranges will be made legitimate martial arts training. If through the Range Control Officer or martial arts use is authorized, storage Range Scheduling. Civilians who fail to of these instruments during non- comply with this regulation are subject training periods will be in a location to charges of Trespassing, Unlawful other than the arms room, as designed Discharge of a Firearm, and other by the unit commander for soldiers re- criminal offenses as applicable. siding in troop billets, BEQ or BOQ. (c) Military or civilian personnel are Martial arts instruments may be not authorized to bring personal weap- stored in assigned government family ons into field training sites. quarters during nontraining periods. (d) Carrying of concealed privately (e) Any weapons on which the name owned weapons by either military or of the manufacturer, serial number of civilian personnel is prohibited while identification have been changed, al- on the Fort Lewis Military Reservation tered, removed or obliterated unless regardless of whether a state or county done for legitimate repair or part re- permit has been obtained. For the pur- placement. pose of this regulation, a concealed weapon is any instrument used or de- § 552.122 Personnel not authorized to signed to be used in an offensive or de- possess or retain personal weapons. fensive manner which is carried in such (a) Possession, retention or storage a way as to be hidden from ordinary of personal weapons or ammunition by view. Folding knives with a blade of person(s) described below is prohibited: three inches or less are specifically excluded from this definition. Request to (1) Any person who has been con- carry concealed weapons will be sub- victed in any court of a crime of vio- mitted in writing, with full what and lence. For the purpose of this regula- why justification, to the Commanding tion, a crime of violence is one in General, I Corps and Fort Lewis, which the use of force or threat of force through appropriate channels. is an element. (2) Any person who is a fugitive from § 552.121 Possession or retention of justice. prohibited weapons. (3) Any person who has been con- Prohibited weapons are defined as: victed in any court of the possession, (a) Any instrument or weapon of the use, or sale of marijuana, dangerous or kind usually known as a sling shot, narcotic drugs. sand club, metal knuckles, spring blade (4) Any person who is presently de- knife, or any knife from which the clared as mentally incompetent or who blade is automatically released by a is presently committed to any mental spring mechanism or other mechanism institution. or other mechanical device, or any (5) Any civilian, or other than a mili- knife having a blade which opens, falls, tary family member or a law enforce- or is effected into position by force of ment officer authorized to carry the gravity or an outward thrust or cen- weapon under state or federal law, trifugal movement, or any knife with a while on Fort Lewis or a sub-installa- blade with a length in excess of three tion, except while hunting or engaged inches. This does not include knives de- in authorized target practice or an or- signed for and used during hunting and ganized match, unless specifically au- fishing activities. However, such thorized in writing by the Commanding knives may only be carried while par- General, I Corps and Fort Lewis. ticipating in those activities. The pos- (b) Any person under the age of session of knives kept in quarters and eighteen is prohibited from the use of designed for the use in the preparation firearms unless accompanied and su- of food is authorized. pervised by a parent or legal guardian.

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(c) Delivery of a personal handgun to description of the weapon to Com- persons known to be under the age of mander, I Corps and Fort Lewis, ATTN: twenty-one, persons known to have AFZH-PMS-P, Fort Lewis, WA 98433– been convicted of a crime or violence, 5000. A copy of this notification will be persons known to be a drug abuser or maintained with the weapon pending under the influence of drugs, persons final disposition. known to be an alcoholic or currently under the influence of alcohol or a per- Subpart J—Control of Firearms, son known to be of unsound mind, is Ammunition and Other Dan- prohibited. gerous Weapons on Fort Gor- § 552.123 Storage of personal weapons don other than firearms or handguns. Privately owned weapons, such as SOURCE: 56 FR 37130, Aug. 2, 1991, unless knives, swords, air guns, BB guns, cross otherwise noted. bows, pellet guns, bow and arrows, of personnel residing the unit billets will § 552.126 Definitions. be stored in a separate locked con- For the purpose of this part, the fol- tainer, within a secured storage area lowing definitions apply: designated for this purpose by the unit (a) Ammunition. Projectiles together commander, in a location other than with their fuses, propelling charges, the unit arms room. and primers that are designed to be ex- pelled from a firearm. This includes § 552.124 Transportation of privately any type of military and commercial owned weapons and ammunition. ammunition (ball, trace, incendiary, (a) Privately owned firearms and am- blank, shotgun, black powder, and munition will be transported in the fol- shot). Items shall only be considered as lowing manner: ammunition when loaded into a car- (1) Weapons, other than weapons tridge with its bullet and primer. being transported into Fort Lewis for (b) Pellet and BB Guns. Any type rifle, the first time, may be carried in vehi- pistol, or other instrument designed or cles only when traveling to and from redesigned, made or remade, modified an authorized hunting area during or remodified to expel BBs or pellets by hunting seasons or enroute to or from springs, compressed air, CO2, or any authorized target practice and other compressed gas cartridge. matches. (c) Dangerous Instruments. Any device (2) The carrying of loaded privately which is designed or redesigned, made owned weapons in a vehicle is prohib- or remade, modified or remodified to be ited. used as an offensive or defensive weap- (3) Privately owned weapons carried on. Devices of this type include but are in a vehicle will be secured in the not limited to: trunk or encased and carried in such a (1) ‘‘Constant companion’’ or any manner that they will not be readily similar weapon, designed or redesigned, available to the driver or passenger. made, or remade modified or remodi- (b) Personnel who remove privately fied to be worn as a belt buckle, brass owned weapons from Fort Lewis or sub- knuckles, ‘‘Knucklers,’’ and ‘‘Knucks.’’ installations will comply with applica- (2) Studded or spiked wrist bands, or ble Federal, state, and local laws per- any device designed or redesigned, taining to the ownership, possession made or remade, modified or remodi- and/or registration of weapons. fied to fit over the hand or wrist which can be used to cause grave bodily § 552.125 Disposition of confiscated harm. weapons. (3) Blackjacks, slapjacks, slappers, Commanders will maintain con- saps, including homemade substitutes, fiscated weapons in the unit arms room other bludgeons (with or without han- pending final disposition. They will dles), and metal pipes. provide written notification of the cir- (4) ‘‘Nanchaku’’ (num-chucks), two or cumstances or loss or recovery of such more sticks connected by rope, cord, or weapons and a complete and accurate chain and normally used as a martial

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arts weapon. ‘‘Shuriken’’, a disc or any gun or rifle shall be determined by geometrical object designed to be measuring the distance between the thrown as a weapon. ‘‘Manrikiqusari’’ muzzle and the face of the bolt, breech, or ‘‘Kusari,’’ a rope or cord joined to a or breechlock when closed and when weight at each end and designed to be the shotgun or rifle is cocked. The used as a weapon. ‘‘Sai’’ fighting forks overall length of a weapon made from a or other similar weapons. shotgun or rifle is the distance between (5) Any finger ring with blades or the extreme ends of the weapon meas- sharp objects that are capable of being ured along a line parallel to the center projected/extended from the surface of line of the bore. the ring. (f) Knives, sabers, swords, and ma- (6) Any device capable and primarily chetes. Any instrument having a sharp intended for discharging darts or nee- blade which is fastened to a handle, or dles. made with a handle. Measurement of (7) All firearms. the blade will be from the tip of the (8) Slingshots (not including small blade to the point where the blade slingshots made for use by children), meets the handle. This includes folding other missile throwing devices, or any knives, switchblades, gravity knives, other instrument designed to produce stilettos, lock blade knives, swords, sa- bodily harm. bers, and machetes. (d) Explosive, incendiary, and pyro- (g) Machine gun and automatic weap- technic devices. Any type of military or on. Any weapon which shoots, is de- commercial explosive, incendiary, gas signed to shoot, or can be readily re- or smoke bomb, grenade, rocket, mis- stored to shoot automatically more sile, mine, blasting cap, ‘‘dummy’’ and/ than one shot without manual reload- or practice device such as simulators, ing, by a single function of the trigger. and other similar detonating devices The term shall also include the frame which are capable of being altered to or receiver of any such weapon, any contain a live charge, and pyrotechnic part designed and intended solely and devices such as firecrackers, cherry exclusively, or combination of parts bombs, bottlerockets, and starclusters. designed and intended, for use in con- (e) Firearms. (1) A shotgun having a verting a weapon into a machine gun, barrel or barrels of less than 18 inches and any combination of parts from in length. which a machine gun can be assembled (2) A weapon made from a shotgun, if if such parts are in the possession or such weapon as modified has an overall under the control of a person. length of less than 26 inches or a barrel or barrels of less than 18 inches in (h) Pistol. A weapon originally de- length. signed, made, and intended to fire a (3) A rifle having a barrel or barrels projectile (bullet) from one or more of less than 16 inches in length. barrels when held in one hand, and hav- (4) A weapon made from a rifle if ing: such weapon as modified has an overall (1) A chamber(s) as an integral length of less than 26 inches or a barrel part(s) of, or permanently aligned with, or barrels of less than 16 inches in the bore(s). length. (2) A short stock designed to be (5) A machine gun. gripped by one hand and at an angle to (6) A muffler or a silencer for any and extending below the line of the firearm whether or not such firearm is bore(s). included within this definition. The (i) Public gathering. Shall include, but term shall not include an antique fire- shall not be limited to, athletic or arm or any device (other than a ma- sporting events, schools or school func- chine gun) which, although designed as tions, churches or church functions, a weapon, by reason of the date of its rallies, or establishments at which al- manufacture, value, design, and other coholic beverages are sold for consump- characteristics is primarily a collection on the premises. tor’s item and is not likely to be used (j) Revolver. A projectile weapon, of as a weapon. For purpose of this defini- the pistol type, having a breechloading tion, the length of the barrel on a shot- chambered cylinder so arranged that

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the cocking of the hammer or move- knives, stilettos) of any blade length. ment of the trigger rotates it and Folding or fixed bladed knives with a brings the next cartridge in line with blade length of more than 3 inches. the barrel for firing. Swords, sabers, and machetes with (k) Rifle. A weapon designed or rede- sharpened blades. signed, made or remade, and intended (8) Any object which carries an elec- to be fired from the shoulder. Also, de- trical current of sufficient wattage to signed or redesigned and made or re- deliver a shock to a person, such as made to use the energy of the explosive cattle prods, stun guns, ‘‘taser’’ or in a fixed cartridge to fire only a single ‘‘public defenders.’’ projectile through a rifled bore for (9) Umbrellas, canes, or walking each single pull of the trigger, and sticks with sharpened points or remov- shall include any such weapon which able handles which convert into a may be readily restored to fire a fixed sword type instrument. cartridge. (b) Carrying a concealed weapon. A (l) Shotgun. A weapon designed or re- person commits the offense of carrying designed, made or remade, and in- a concealed weapon when he/she know- tended to be fired from the shoulder; ingly has or carries about his/her per- and designed or redesigned, made or re- son, unless in an open manner and fully made, to use the energy or the explo- exposed to view, any bludgeon, metal sive in a fixed shotgun shell to fire knuckles, firearm, or knife designed through a smooth bore either a number for the purpose of offense and/or de- of projecting (ball shot) or a single pro- fense, or any other dangerous or deadly jectile for each single pull of the trig- weapon or instrument of like character ger and shall include any such weapon outside of his/her home or place of which may be readily restored to fire a business. fixed shotgun shell. (c) Carrying deadly weapons to or at (m) Silencer. Any device for silencing, public gatherings. A person commits an muffling, or diminishing the report of a offense under this section when he/she portable firearm, including any com- carries to, or possesses while at, a pub- bination of parts, designed or rede- lic gathering any explosive compound, signed, and intended for the use in as- firearm, or knife designed for the pur- sembling or fabricating a firearm si- pose of offense and/or defense. This lencer or firearm muffler, and any part paragraph shall not apply to necessary intended only for use in such assembly equipment for military personnel in a or fabrication. formation when a weapon is required, (n) Weapon. An instrument used in an or to police/security personnel while in offensive or defensive manner. performance of their duties. (d) Prohibited possession and storage. It § 552.127 Prohibitions. is prohibited to possess or store ammu- (a) Prohibited items. It is prohibited to nition, firearms, knives with blades possess, carry, conceal, transport, more than 3 inches, bows and arrows, store, transfer or sell any of the fol- crossbows, and BB and pellet guns, in lowing weapons or devices, on, locations other than those specified in through, or within the confines of Fort § 552.128 except under conditions speci- Gordon unless specifically allowed else- fied in § 552.129. Prohibited locations for where in this part: these items include, but are not lim- (1) Sawed-off shotgun. ited to, living spaces and common (2) Sawed-off rifle. areas of billets, squad rooms, privately- (3) Machine gun and automatic weap- owned vehicles, exterior storage sheds, ons. camper trailers, and offices. Com- (4) Silencers. manders will designate an arms room (5) Dangerous instruments as defined and times for weapons turn-in. During in § 552.126(c) of this part. periods when arms rooms are closed, (6) Explosives, Incendiary and Pyro- the Staff Duty Officer (SDO) will en- technic Devices, as defined in sure the weapon is secured in accord- § 552.126(d) of this part. ance with (IAW) this subpart. A receipt (7) Knives with automatic blade will be given for each weapon received, openers (i.e., switch blades, gravity reflecting the weapon’s make, serial

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number, identity of owner and other steak knives, cooking knives, hunting data deemed appropriate. knives) and when in compliance with (e) Carrying of straight razors, unless all other requirements in this subpart. the razor is in the original sealed pack- (8) Flares used for emergency warn- age, is prohibited. ing devices in automobiles may be (f) Exemptions. Nothing in this sub- transported in the locked trunk or part shall prohibit: glove compartment of an automobile. (1) Military members or DOD civilian employees from possessing or using § 552.128 Requirements for possession military weapons, military ammuni- and use. tion or explosives, or military devices All persons entering or otherwise on in a lawful manner while in the per- Fort Gordon may possess legally-de- formance of their military duties while fined and privately-owned firearms, acting under orders of superior mili- ammunition, pellet and BB guns, tary authority, for training, or other knives, bows and arrows, and crossbows authorized purposes, as prescribed by under the following conditions: applicable Army Regulations. (a) Privately-owned firearms, cross- (2) Military and DOD civilian per- bows, pellet and BB guns possessed or sonnel, while in the performance of of- stored on the installation must be reg- ficial law enforcement duties, from istered at the Installation’s Provost possessing or using government ammu- Marshal Office within 3 working days nition, explosives or devices in a lawful after arrival on the installation, or manner, as prescribed by applicable after obtaining the weapon, except: laws or regulations or by their lawful superiors. (1) Firearms legally brought onto the (3) Federal, state, county or local law installation for the purpose of hunting enforcement personnel, while in the or firing at an approved firing range, performance of official law enforce- and only for the period of time the per- ment duties, from possessing or using son possessing the firearms is hunting government or privately-owned weap- or firing on the range. ons, ammunition, explosives or devices (2) Firearms carried by federal, state, in a lawful manner, as prescribed by county, or local law enforcement per- applicable laws or regulations or by sonnel when in the performance of offi- their lawful superiors. cial law enforcement duties. (4) Government contractors, while in (b) Personnel residing in family hous- performance of their contract from ing, bachelor officers’ quarters/bach- possessing or using weapons, ammuni- elor enlisted quarters/visiting officer tion, explosives or devices, IAW the quarters (BOQ/BEQ/VOQ) and guest provisions of their contract and as de- housing, may store legally-acquired, termined by the contracting officer. authorized ammunition, knives with a (5) Individuals with Federal firearms blade measuring more than 3 inches, licenses (class III) from possessing, car- bows and arrows, registered crossbows, rying, and transporting class III weap- registered pellet and BB guns, and reg- ons IAW Federal regulations; however, istered firearms within their quarters. they are prohibited from concealing, (c) Personnel residing in troop billets storing, transferring, or selling class may store legally-acquired authorized III weapons within the confines of Fort ammunition, knives and blades meas- Gordon. uring more than 3 inches, bows and ar- (6) Individuals from possessing, car- rows, registered crossbows, registered rying, transporting, or storing decora- pellet and BB guns and registered fire- tive, ornamental, and ceremonial arms in unit arms rooms. The unit swords and sabers within the confines arms room should utilize a standard of Fort Gordon when used strictly for weapons card and log book to docu- display and ceremonies. ment storage, removal, and return. (7) Individuals and agencies from pos- (d) Persons 17 or under must be ac- sessing, transporting, storing, selling, companied by a person over the age of or using fixed bladed knives with a 21, who will be responsible for compli- blade length of more than 3 inches ance with the requirements of this sub- when used for their lawful purpose (i.e., part while hunting or target shooting

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on the installation and when pur- from the chamber), except when actu- chasing legal arms (including knives ally engaged in hunting or shooting. with blades over 3 inches) and ammuni- Knives will be carried in a sheath or tion from installation retail outlets. scabbard worn in a clearly visible man- (e) Persons must be in compliance ner. Commanders may authorize the with federal and state laws regarding carrying of a privately-owned, knife possession (i.e., age, criminal record re- with a blade over 3 inches to field duty. strictions, etc.). The provost marshal may authorize the (f) Storage, accountability, and reg- carrying of a privately-owned, istration procedures will be in accord- sheathed, lock blade knife on military ance with (IAW) Army Regulation (AR) and DOD police officers’ pistol belts. 190–11 (Physical Security of Arms, Am- (2) When transported in a vehicle, munition and Explosives) and supple- weapons will be in plain view in the ments. Copies of the AR may be ob- passenger area of the vehicle or secured tained from the National Technical In- (locked) in the trunk or other rear formation Service, 5285 Port Royal compartment of the vehicle, not read- Road, Springfield, VA 22161. ily accessible from the passenger area (g) Loss or theft of firearms and am- (i.e., locked tool box secured to bed of munition will be reported to the Fort a truck). Firearms will be unloaded and Gordon military police desk sergeant the ammunition physically separated immediately. Reports will contain all from the firearms. THE GLOVE COM- available details of the incident and a PARTMENT OF A VEHICLE IS NOT description of the lost item. AN AUTHORIZED COMPARTMENT § 552.129 Requirements for carrying FOR STORING PISTOLS. and use. (3) Firearms, bows and arrows, crossbows, pellet and BB guns will not be Persons legally authorized to possess loaded, fired, or used within any hous- firearms, ammunition, knives (with ing area or cantonment area of the in- blades longer than 3 inches), bows and stallation; within 50 yards of any pub- arrows, and crossbows, may carry or lic highway, street or Fort Gordon transport legally possessed and registered (if required) weapons under the named street or numbered road, or following conditions: across same; within 100 yards of any (a) For purposes of hunting: From designated recreation area, managed quarters, on or off the installation, by waters, building or similar structures; the most direct route to hunting area any aircraft landing facility; any am- and return. Stopping at other installa- munition storage area (except on ap- tion facilities while en route is prohib- proved firing ranges when properly au- ited (i.e., post exchange, club, offices, thorized); be discharged from vehicles. etc.). Individual must have in his/her § 552.130 Disposition of confiscated/ possession weapon registration (if ap- seized weapons. plicable), valid state hunting license, valid Fort Gordon hunting permit and All weapons, ammunition, explosives, an area access pass (if applicable). or other devices defined in this sub- (b) For purposes of target shooting, part, that are confiscated pursuant to selling the weapon or having the weap- the commission of a crime or violation on repaired: From quarters by the most of this subpart or other regulation or direct route to approved range or to found unsecured/unattended on the in- the location where the weapon is to be stallation, will be immediately turned sold or repaired and returned. Stopping over to the military police, U.S. Army at other installation facilities while en Criminal Investigation Command route is prohibited. Individual must (USACIDC), or the Federal Bureau of have in his/her possession at all times Investigation (FBI) for investigation, his/her registration (if applicable). retention as evidence, or other law dis- (1) When carried, weapons will be car- position. When retention for investiga- ried in an open manner (not concealed). tion or evidence is no longer required Firearms will be unloaded when carried by military police, USACIDC, or other (i.e., projectiles physically separated law enforcement or judicial agencies, from the firearms, not just removed the items will be disposed of under the

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provisions of AR 195–5, Evidence Proce- Government Printing Office or can be dures. Copies of the AR may be ob- reviewed in any Public Library. Army tained from the National Technical In- publications referenced in this subpart formation Service, 5285 Port Royal may be obtained from the U.S. Army Road, Springfield, VA 22161. Publications and Printing Command, Alexandria, VA 22331–0302. Subpart K—Restriction of Training a. 16 U.S.C. 1531–1543. Areas on the Installation of b. 16 U.S.C. 470. c. Title 18, U.S.C. 1382. Fort Benjamin Harrison, Indi- d. Internal Security Act of 1950, sec- ana tion 21 (50 U.S.C. 797). e. Army Regulation 420–74. AUTHORITY: 16 U.S.C. 470; 1531–1543; 18 f. 10 U.S.C. 801–940. U.S.C. 1382; 50 U.S.C. 797. g. Article 92, Uniform Code of Mili- SOURCE: 59 FR 42755, Aug. 19, 1994, unless tary Justice. otherwise noted. § 552.143 Definitions. § 552.140 Purpose. (a) For purpose of this subpart, re- (a) This subpart establishes restric- stricted areas on the installation of tions governing the operation of unau- Fort Benjamin Harrison, Indiana area thorized vehicles, motorized and non- defined as training areas A thru J, to motorized, on the army training areas include the gold course. A map defining of Fort Benjamin Harrison, Indiana, as these areas is located in the Direc- defined in § 552.134 of this subpart. Un- torate of Plans, Training, and Mobili- authorized vehicles are restricted to zation, Security, Plans and Operations paved roads on the installation of Fort Division, Training Branch, Building Benjamin Harrison, Indiana. 600, Room B, Fort Benjamin Harrison, (b) These restrictions are established Indiana. to prevent the interruption of the use (b) Unauthorized motor and non-mo- of these Army training areas by any torized vehicles are defined as any person or persons. The continued and wheeled or tracked vehicle. This may uninterrupted use of these training include, but not limited to, bicycles, areas by the military is vital in order ATV, snow mobiles, motor cycles, to maintain and improve the combat automobiles, trucks, etc. readiness of the U.S. Armed Forces. Training conditions exist within these § 552.144 Procedures. areas which could be dangerous to un- (a) Except for the soldiers, Army ci- authorized persons entering these vilians and authorized contractors who areas. enter the restricted areas in the per- (c) In addition, these restrictions formance of their official duties, entry have been established to prevent prop- of unauthorized vehicles is prohibited erty damage, threatening of endan- for any purpose whatsoever without gered flora and fauna in the areas, and the advanced consent of the Com- to prevent the harassment of protected mander, United States Army Soldier species such as the Blue Heron and the Support Center (USASSC), Fort Ben- Indiana Bat by any person or persons. jamin Harrison, Indiana, or his/her authorized representative. § 552.141 Applicability. (b) Any person or group of persons The restrictions outlined in this sub- desiring advanced consent shall, in part apply to all individuals, with the writing, submit a request to the fol- exception of soldiers and Army civilian lowing address: HQ, USASSC and Fort employees and authorized contractors, Benjamin Harrison, ATTN: Public Af- who may enter the restricted areas in fairs Office, Building 600, Fort Ben- the performance of their official duties. jamin Harrison, Indiana 46216–5040.

§ 552.142 References. § 552.145 Violations. Required and related publications are (a) Any person/persons entering or re- listed below. U.S. Codes referenced in maining on any training area as de- this subpart can be obtained from the fined in § 552.134 without the advance

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consent of the Commander, USASSC, regulations specifically prohibit other or his authorized representative, shall activities or practices. See appendix A be subject to the penalties prescribed to this subpart. by § 552.133 of this subpart, which provides in pertinent part: ‘‘Whoever, § 552.152 Prohibited practices. within the jurisdiction of the United The following activities are prohib- States, goes upon any military, naval, ited: or Coast Guard reservation, post, fort, (a) The possession, delivery, sale, arsenal, yard, station or installation, transfer, or introduction into the infor any purpose prohibited by law or stallation of Fort Jackson of any de- lawful regulation * * * shall be fined vice, instrument or paraphernalia de- for not more than $500.00 or imprisoned signed or reasonably intended for use not more than six months, or both. in introducing into the human body a (b) Moreover, any person who will- controlled substance, as defined in the fully violates this subpart is subject to Controlled Substances Act, 21 U.S.C. a fine not to exceed $5,000.00 or impris- 801, et seq., is prohibited. onment for not more than 1 year as (b) Unless an exception is approved provided in § 552.133(d) of this subpart. by the Chief of Staff or a Major Subor- (c) In addition, violation of this sub- dinate Commander for a special occa- part by persons subject to the Uniform sion, consumption of alcoholic bev- Code of Military Justice (10 U.S.C. 801– erages, or the possession of an open 940) is a violation of Article 92 of the container thereof, is prohibited under Uniform Code of Military Justice. the circumstances listed in this section. For the purpose of this part, an Subpart L—Prohibited Personnel ‘‘alcoholic beverage’’ is any liquid bev- Practices on the Installation of erage containing any amount of ethyl Fort Jackson, South Carolina alcohol, including wines, malt beverages and distilled spirits. (1) By military personnel in uniform AUTHORITY: 10 U.S. Code, Ch. 47, 21 U.S. during duty hours (0730–1630). Code 801, et seq. (2) By military personnel during SOURCE: 59 FR 31144, June 17, 1994, unless their assigned duty hours when dif- otherwise noted. ferent than those in paragraph (b)(1) of this section. § 552.150 Purpose. (3) By civilian employees during This part is punitive in nature and their assigned duty hours. Lunch time applies to all persons assigned to, at- is not considered duty time for civilian tached to, or present on the installa- employees. tion of Fort Jackson, South Carolina. (4) By civilian or military personnel A violation of, attempted violation of, in places of duty. or solicitation or conspiracy to violate (5) By any person in a public place, any provision of this part provides the except: in the Twin Lakes and Weston basis for criminal prosecution under Lake Recreational Areas, in the imme- the Uniform Code of Military Justice, diate vicinity of Oyster Point (Officers’ applicable Federal Law, other regula- Club), at installation club facilities tions, and/or adverse administrative governed by section II of AR 215–2, and action. Civilian visitors may be barred at Army/Air Force Exchange Service from the installation of Fort Jackson (AAFES) eating establishments which and prosecuted under appropriate Fed- serve alcoholic beverages for on-prem- eral laws. The enumeration of prohib- ises consumption. ited activities in this part is not in- (6) By any person in any Fort Jack- tended to preclude prosecution under son parking lot or parking area, to in- other provisions of law or regulation. clude the Burger King parking lot and all parking lots of AAFES facilities § 552.151 Scope. and installation club facilities. This part does not list all activities (c) The presence of any person in a or practices prohibited on the installa- training area or of any permanent tion of Fort Jackson, South Carolina. party soldier or civilian employee in a Various other Army and Fort Jackson trainee/receptee billeting area while

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impaired by alcoholic beverages or ille- (6) Carrying a concealed firearm on gal drugs is prohibited. For the purpose one’s person, except by military, state of this part, ‘‘Impaired by alcoholic and Federal law enforcement authori- beverages’’ for military personnel is ties in the performance of their duties, defined as having a blood alcohol level is prohibited. of .05 percent (.05 is equivalent to 55 (7) It is prohibited to transport in a milligrams of alcohol per 100 milliliters vehicle any privately owned firearm of blood) or more. except in a manner prescribed by the (d) Privately Owned Firearms and laws of South Carolina. Ammunition. For the purpose of this (8) It is prohibited to carry on one’s part, a ‘‘firearm’’ means any device person or transport in a vehicle any which is designed to or readily may be privately owned firearm within the converted to expel a projectile by the Weston Lakes and Twin Lakes Recre- action of an explosive. Air/pellet guns, ation areas. BB guns and bows are subject to all of (e) Weapons Other Than Privately the provisions of this paragraph except Owned Firearms. The possession of the paragraph (d)(1) of this section. following privately owned weapons or (1) It is prohibited for persons resid- devices is prohibited: ing on the installation to fail to reg- (1) Any knife having a switchblade or ister privately owned firearms with automatic blade. their unit commander. (2) Brass knuckles or similar devices. (2) Storage of privately owned fire- (3) Blackjacks, saps, nunchaku and arms in the barracks is prohibited. For similar devices. As exceptions, the purposes of this part, ‘‘barracks’’ nunchucks may be possessed for bona does not include BOQs or SBEQs. fide educational instruction or com- (3) It is prohibited to store privately petition in a recognized martial arts owned firearms in BOQs, SBEQs, or program and may be carried and trans- family quarters unless the firearm is ported directly to and from educational unloaded, ammunition is stored sepa- and competitive martial arts events. rately from the firearm in a locked (4) When carried on one’s person in container, and one of the following an unconcealed manner, knives with methods for firearms storage is em- blades in excess of three inches in ployed: by using a trigger locking de- length except while engaged in author- vice, by storing the firearm in a locked ized hunting, fishing, camping or other container, by removing the firing pin outdoor recreational activities, or from the firearm and storing the firing when required by duty purposes. pin in a locked container, or by dis- (5) When carried on one’s person in a assembling the firearm and storing the concealed manner, knives with blades disassembled parts in separate places. in excess of three inches, razors and ice For the purposes of this part a ‘‘locked picks. container’’ and a ‘‘locking device’’ (f) The charging of a usurious inter- mean locked containers and locking est rate, defined as a rate exceeding devices the keys to which are stored in thirty-six (36) percent per annum or a place not assessable to persons under three (3) percent per month, for the 18 years of age. loan of money or for the extension of (4) It is prohibited to carry on one’s credit, is prohibited. person any privately owned firearm in (g) Sexual intercourse or any inde- a public place on the installation of cent, lewd or lascivious act in any of- Fort Jackson unless participating in fice, barracks, training area, duty loca- an authorized sporting activity or tion, parking lot, public recreation hunting in accordance with applicable area or public place is prohibited. regulations. (h) Relationships between service (5) In addition to the requirements of members of different rank or sex which paragraph (d)(4) of this section, a per- involve or reasonably give the appear- son under 18 years of age is prohibited ance of partiality, preferential treat- from carrying on his or her person a ment, the improper use of rank or posi- firearm outside the presence of a re- tion for any personal gain, or which sponsible adult. can otherwise be reasonably expected

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to undermine discipline, authority or interfere with any person lawfully in morale, are prohibited. any public place, or obstruct or hinder (i) Being present in any ‘‘off-limits’’ the free passage of vehicles or pedes- or ‘‘limited access’’ areas, except as au- trians. Any person loitering as defined thorized in Fort Jackson Regulation above in any public place may be or- 190–3, is prohibited (See appendix A to dered by a law enforcement officer to this subpart). leave that place or the Fort Jackson (j) Use of a metal detector for other military reservation. than official purposes is prohibited. (k) When directed to do so by the § 552.153 Dissemination. Military Police, failure to relinquish (a) Unit commanders and supervisors possession or control to the Military shall ensure that newly assigned or at- Police of abandoned property found on tached military and civilian personnel the installation is prohibited. are informed of the prohibitions con- (l) Scavenging in or removal of waste tained in this regulation. Soldiers-in- items or recyclable materials from training will be informed of the provi- dumpsters, garbage cans, outdoor trash sions of this regulation at the begin- receptacles, recycling collection ning of each training cycle. points, or landfill areas is prohibited, (b) All permanent party personnel except for official purposes. This part and civilian employees will be re- does not prohibit persons from col- minded annually of their duty to com- lecting and disposing of scattered lit- ply with this part. ter, including aluminum cans, from roadsides, parking lots and recreation APPENDIX A TO SUBPART L OF PART areas. 552—PARTIAL LIST OF OTHER PUBLI- (m) It is prohibited for military per- CATIONS APPLICABLE ON FORT JACK- sonnel to engage in outside employ- SON WHICH LIST PROHIBITED PRAC- ment of any nature, including owner- TICES ship or operation of a private business, without the prior written approval of These publications are available for inspec- their commander. Soldiers reassigned tion at the Office of the Staff Judge Advo- cate, Fort Jackson, SC 29207–5000. or reattached from one Fort Jackson 1. Distribution of Written Materials on the unit to another Fort Jackson unit Installation—Fort Jackson Supplement 1 to must obtain approval for continued AR 210–10. employment from the gaining com- 2. Demonstrations, Pickets, Sit-ins, etc.— mander within 30 days of reassignment. Fort Jackson Supplement 1 to AR 210–10. (n) Except as authorized by the In- 3. Standards of Ethical Conduct for Em- stallation Commander, Chief of Staff ployees of the Executive Branch, 5 Code of or a Major Subordinate Commander, Federal Regulations, part 2635. the use of radios, stereos, tape players, 4. Improper Associations—Fort Jackson compact disk players or any other Regulation 600–5. similar electronic sound generating or 5. Mistreatment of Soldiers-in-Training— Fort Jackson Regulation 350–1. amplification source, including equip- 6. Participation in Military Labor Unions— ment installed or located in motor ve- Army Regulation 600–20. hicles, in a manner that can be heard 7. Traffic Violations—Fort Jackson Regu- more than 125 feet from the source, is lation 190–5. prohibited. This paragraph does not 8. Areas of Access—Fort Jackson Regula- apply to law enforcement or emergency tion 190–3. vehicles, or safety warning devices. (o) Loitering in any public place on Subpart M—Land Use Policy for Fort Jackson, to include all parking Fort Lewis, Yakima Training lots, is prohibited. Loitering is defined Center, and Camp Bonne- as remaining idle in essentially one location, spending time idly, loafing, or ville walking around without a purpose in a public place in such a manner as to cre- AUTHORITY: 16 U.S.C. 470, 1531–1543; 18 ate a disturbance or annoyance to the U.S.C. 1382; 50 U.S.C. 797. comfort of any person, create a danger SOURCE: 59 FR 34762, July 7, 1994, unless of a breach of the peace, obstruct or otherwise noted.

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§ 552.160 Purpose. affiliated with the Army or Fort Lewis (a) This subpart establishes proce- per AR 210–1 require a Corps of Engi- dures for entry to maneuver training neers Real Estate Agreement. Requests areas at Fort Lewis, Yakima Training for fund-raisers by such non-profit or- Center (YTC), and Camp Bonneville. ganizations, to be conducted on the Procedures for other sub-installations Fort Lewis range complex, will be sent to Fort Lewis will be developed by the to the Director of Plans, Training, and Commanders of those installations. Mobilization (DPTM) Range Division of (b) Uninterrupted military use of preparation of a DPTM staffing docu- training areas is vital to the mainte- ment. The document will be circulated nance of US and Allied Armed Forces for comment to Director of Personnel combat readiness. In addition, maneu- and Community Activities (DPCA), ver training areas may be dangerous to Staff Judge Advocate (SJA), Public Af- persons entering without warnings pro- fairs Officer (PAO), and Director of En- vided during training scheduling or use gineering and Housing (DEH). If the permit processing. event can be supported, DPTM will advise the organization to contact the Di- § 552.161 References. rector of Engineering and Housing Real See appendix E to this subpart. Property Branch. Requests for such activities at Yakima Training Center § 552.162 Abbreviations. will be sent to the Yakima Training See appendix F to this subpart. Center Commander for review and processing. For Camp Bonneville, the § 552.163 Applicability. entry point is the Vancouver Barracks (a) This subpart is applicable to all Commander. Corps of Engineers Real military and civilian users of the range Estate Agreements require up to 8 complexes at Fort Lewis, Yakima months to process, and includes pay- Training Center, and Camp Bonneville. ment of a $375.00 minimum administra- (b) This subpart governs all use of tive fee, with actual costs determined the Fort Lewis, Yakima Training Cen- on a case by case basis. Requests for ter and Camp Bonneville Military Res- fundraisers in the cantonment area by ervations outside cantonment areas, private organizations are processed per housing areas, and recreational sites AR 210–1 by the Director of Personnel controlled by the Director of Personnel and Community Activities (DPCA). and Community Activities (DPCA). (d) Commercial use. Individuals or These areas are designated on the Fort organizations using the range complex Lewis, Yakima Training Center and for profit-generating activities must Camp Bonneville Military Installation possess a Corps of Engineers Real Es- Maps as Impact Areas and lettered or tate Agreement. As stated above, these numbered Training Areas (TAs), and agreements require up to 8 months to comprise the range complexes for each process and include a minimum admin- Installation. istrative fee of $375.00, with actual costs determined on a case by case § 552.164 General. basis. Entry point for these agreements (a) Military training. Use of the Fort is the DEH Real Property Branch. Lewis, Yakima Training Center, and Profit-generating activities include Camp Bonneville range complexes for collection of fees for services per- military training is governed by FL formed on the range complex, or sell- Regs 350–30, 350–31, and 350–32. Sched- ing materials collected from the range uling is per FL Policy Statement 350–2. complex. Real Estate Agreement hold- Military training always has priority. ers must check into the range complex (b) Hunting. Hunting, fishing, and daily by calling or coming to Area Ac- trapping on the range complexes are cess. governed by FL Reg 215–1 and the Yak- (e) Installation service and mainte- ima Training Center Hunting Letter of nance. Department of Defense (DoD) Intent (LOI). and contractor personnel on official (c) Fund raising. Fund raising events business are authorized on the range for non-profit private organizations not complex per appendix C to this subpart.

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Access to hazard areas for such per- (3) Respond to DEH coordination on sonnel is governed by the appropriate timber sales and other commercial use Installation Range Regulations. of the range complex. (f) Non-DoD personnel in transit. In- (d) Law Enforcement Agency (LEC). dividuals in transit across Fort Lewis Provide law enforcement and game on State or County maintained roads, warden patrols on the range complexes. or roads designated for public access by (e) Director of Engineering and Hous- the Installation Commander, require ing (DEH). no special permits. See appendix B to (1) Coordinate with DPTM and the this subpart. This measure does not appropriate Sub-Installation Com- apply at Yakima Training Center or mander on Real Estate Agreements, Camp Bonneville. timber sales, wildlife management, (g) Alcoholic Beverages. No alcoholic construction, forest management, In- beverages may be consumed on the stallation Training Area Management range complexes except as authorized (ITAM), and other DEH or Corps of En- per FL Reg 210–1. gineers managed actions occurring on (h) Failure to comply. Persons enter- the range complex ing the Fort Lewis, Yakima Training (2) Ensure that Real Estate Agree- Center, or Camp Bonneville range comment holders are required to notify plex without permit or scheduling, Fort Lewis Area Access, YTC DPCA, or which constitute the consent of the Camp Bonneville Range Control, as ap- Commanding Officer or his designated propriate, of range complex entry. representative, are in violation of this (f) DPCA. With DEH, manage Instal- regulation and trespassing on a con- lation hunting, fishing, and trapping trolled access Federal Reservation. Of- programs. Manage picnic and recre- fenders may be cited by Military Police ation sites located in the Fort Lewis and may be subjected to administrative range complex, as listed in appendix A action or punishment under either the to this part. Advise DPTM on private Uniform Code of Military Justice organizations requesting use of the UCMJ) or Title 18 US Code Section Fort Lewis range complex for fund- 1382, or Title 50 U.S. Code Section 797, raisers. as appropriate to each individual’s sta- (g) Public Affairs Office (PAO). tus. Administrative action may include (1) Act as interface to resolve com- suspension or loss of recreational privi- munity relations issues related to land leges, or permanent expulsion from the use. Military Reservations. (2) Coordinate equipment and special assistance requests per § 552.165, and ad- § 552.165 Responsibilities. vise DPTM or the appropriate Sub-In- stallation Commander if permit re- (a) Commander, Yakima Training quirements have been waived by the Center: Command Group for a particular event (1) Schedule the Yakima Training or activity. Center range complex per FL Reg 350– (3) Inform DPTM or the appropriate 31 and FL PS 350–2. Sub-Installation Commander of public (2) Process requests for non-military, response to policy execution. non-commercial use per § 552.166. (b) Commander, Vancouver Barracks: § 552.166 Recreational use. (1) Schedule the Camp Bonneville (a) Fort Lewis: range complex per FL Reg 350–32 and (1) Individuals or organizations, mili- FL PS 350–2. tary or civilian, desiring access to the (2) Process requests for non-military, Fort Lewis range complex for recre- non-commercial use per Paragraph 6c. ation must obtain a Fort Lewis Area (c) Fort Lewis DPTM. Access permit, composed of HFL Form (1) Schedule the Fort Lewis range 652 and HFL Form 653. Exceptions are complex per FL Reg 350–30 and FL PS outlined below. 350–2, including allocation of and for (2) Exception 1: DoD ID card holders recreational use. enroute to or using DPCA recreational (2) Operate the Fort Lewis Area Ac- areas listed in appendix A to this sub- cess Section. part need no permit other than the ID

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card. However, travel to and from mits and grant non-training access to DPCA areas is restricted to the most the range complex. direct paved or improved two lane (b) Area Access is located in Range roads. DoD personnel participating in Control, Building T–6127, 19th and Ta- non-commercial recreational activities coma Streets, Main Post Fort Lewis. listed in appendix C to this subpart Telephone numbers are (206) 967–4686/ must have an Area Access permit. 6277. Fax extension is 967–4520. E-mail (3) Exception 2: Organizations or is ‘‘rangeflw.’’ Business hours vary de- groups whose activity requires ad- pendent on personnel fill, and are vanced commitment of a specific site available by calling the above num- or area, such as Scout Camporees, sea- bers. sonal or one-time regional meets, and (c) Individuals desiring access for au- so on, must apply to the Fort Lewis thorized activities must register in per- DPTM, ATTN: Range Division, in writ- son at Area Access during business ing. At least 30 days are required to hours. Minimum age is 18 years, except process these requests. If the requested for active duty military personnel. Per- use is allowable and an appropriate sons under 18 years of age must be area is available, DPTM may approve sponsored and accompanied by a parent the request. Groups with approved land or legal guardian. Individual registra- commitments will be scheduled onto tion requires: the Range Complex using HFL 473. Ac- (1) Picture ID. tual commitments of land will not be (2) Address and telephone number. made until after the Quarterly Range Scheduling Conference that covers the (3) Vehicle identification and license time period in question. Groups who number, if a vehicle is to be brought on need military equipment or other spe- post. cial support from Fort Lewis must (4) Names and ages of minor family apply in writing directly to the I Corps members who will accompany a spon- Public Affairs Office (PAO). sor or permit holder. (b) Yakima Training Center: Access (5) Liability release signature. to the Yakima Training Center range (6) Certification that intended activi- complex for recreation requires appli- ties are on the authorized list and are cation in writing to the Commander, not for profit or fund-raising. Persons Yakima Training Center, Yakima WA who submit false certificates are sub- 98901–9399. Camping is normally not ject to prosecution in Federal Court permitted on Yakima Training Center. under Title 18, United States Code, Exceptions may be granted by the Yak- Section 1001, and the provisions of ima Training Center Commander for § 552.165 of this subpart. special events. (d) A wallet-sized permit (HFL Form (c) Camp Bonneville: Access to the 653) and a vehicle pass (HFL Form 652) Camp Bonneville range complex for will be issued to each person author- recreation requires a call to Range ized access. The permit is not transfer- Control, telephone (206) 892–5800, the able. Entry to the Fort Lewis range day before or the day of the activity. complex without the permit is prohib- Access will be permitted if no military ited. maneuver or live fire training is sched- (e) A collective permit will be issued uled for the day requested. to an organization desiring to conduct a one-time group event not tied to a § 552.167 Activities. specific area or site, maximum length 3 (a) Authorized activities are listed in days. The group leader must register in appendix C to this subpart. person at the Area Access Office and (b) Prohibited activities are listed in must be 21 years of age or older except appendix D to this subpart. for active duty military personnel. (1) Group registration requires the § 552.168 Fort Lewis Area Access Of- information listed for individual per- fice. mits above for the group leader(s), plus (a) DPTM Range Division operates a list of names of all persons in the the Area Access Section to issue per- group.

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(2) Group permits require that all § 552.171 Compatible use. members of the group be with the lead- (a) Military unit commanders may er throughout the event. If the group request during initial scheduling or plans to separate while on Fort Lewis, subsequent training event coordination sub-group leaders must be appointed that no permit holders be allowed in and must obtain separate group per- areas they have scheduled for training. mits. The group leader permit is not If this restriction is granted, the In- transferable. stallation Range Control will close ap- (3) Events requiring commitment of propriate areas. The following military land must be processed per § 552.166. activities are considered incompatible (f) Aside from the land commitment with non-training access and automati- coordination time requirement in cally close affected areas: § 552.166, there is no deadline for permit (1) Live-fire training events with dan- application. Permits for authorized ac- ger zones extending into training tivities that do not require commit- areas. ment of land may be obtained on the (2) Parachute and air assault oper- day of the event. ations. (g) Group event permits for special- (3) Field Artillery firing. The num- ized one-time activities are valid for bered training area occupied by the the duration of the event, not to exceed weapons will be closed. 3 days. Individuals activities permits (4) Training involving riot agents or are valid for one year. When a permit smoke generating equipment. expires, the holder must re-register to (b) The Installation Range Officer renew privileges, and a new permit will may also close training areas based on be issued. density of occupation by military (h) Access hours are 30 minutes after units, unit size, or training to be con- daylight to 30 minutes before dark, ex- ducted. cept for authorized overnight activities (c) Areas allocated to modern firearm deer hunting are closed to both train- and as outlined in FL Reg 215–1. ing and other recreational activities. (i) All permit holders must check in At Fort Lewis, when pheasant release with Area Access, either telephonically sites can be isolated by swamps, or in person, no earlier than 0800 the streams, or roads from the rest of a day prior to the event. It is the respon- training area, multiple use of the af- sibility of each permit holder to inform fected training area (TA) is authorized. a friend or relative of the area being used, the estimated time of return, and § 552.172 Violations. the vehicle being used. Anyone observing violators of this or (j) Except when land commitment other regulations must report the ac- has been coordinated and approved, tivity, time, and location to the appro- Area Access will determine when called priate Area Access Office or the Mili- for entry whether the area requested is tary Police (MP) as soon as possible. available. If the requested area is not open for permit holders and an alter- APPENDIX A TO SUBPART M OF PART nate area cannot be provided or is not 552—DPCA RECREATIONAL AREAS IN acceptable to the requestor, access will TRAINING AREAS be denied. 1. This listing applies to Fort Lewis only. There are no such facilities at Yakima § 552.169 Yakima Training Center Area Training Center or Camp Bonneville. Access Office. 2. For DoD member use only, no permit The Yakima Training Center DPCA other than ID card required. functions as the Area Access Officer NOTE: Use of specific sites is authorized (AAO). only to military, retired military, DoD civilian personnel, their family members and accompanied guests. § 552.170 Camp Bonneville Area Access Office. Boat launch adjacent to Officer’s Club Beach on American Lake—Beachwood area Camp Bonneville Range Control Cat Lake Picnic and Fishing Area—Training (CBRC) functions as Area Access. Area 19

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Chambers Lake Picnic and Fishing Area— East Gate Road (C–5 Mock-up to 8th Ave Training Area 12 (See Para 3 below) South, ET 423097) Fiander lake Picnic and Fishing Area— Roy Cut-off (Chambers Lake) Road (East Training Area 20 Gate Road to Roy City Limits), when Johnson Marsh—Training Area 10 open. Lewis Lake Picnic and Fishing Area—Train- Lincoln Avenue (Old Madigan to ET 390179) ing Area 16 4. The Solo Point Road is open to No Name Lake—Training Area 22 Weyerhauser Corporation personnel for busi- Sequalitchew Lake Picnic Area—Training ness and recreation. Area 2 5. DoD personnel and Fort Lewis con- Shannon Marsh—CTA D tractor personnel on official business may Skeet Trap Range—2d Division Range Road, use all DEH-maintained range roads and CTA E trails in the training areas. Solo Point Boat Launch—North Fort, CTA A 6. Range roads closed for training by barri- West cades or road guards will not be used. Barri- Sportman’s Range—East Gate Road, Range cades and guards will not be by-passed. 15 Wright Marsh/Lake—CTA C APPENDIX C TO SUBPART M OF PART Vietnam Village Marsh—Training Area 9 and 552—AUTHORIZED ACTIVITIES FOR 10 MANEUVER TRAINING AREA ACCESS Spanaway Marsh—Training Area 9 Sears Pond—Beachwood Housing 1. Fort Lewis: Nisqually River—Training Area 18 Military Training (FL Reg 350–30) 3. For non-DoD member use, permit re- DEH or Corps of Engineers Real Estate quired: Chambers Lake and Nisqually River Agreement for commercial use (AR 405– for fishing only. 80) 4. The Solo Point road and the South Sani- Installation service and maintenance (AR tary Fill roads are also open in an east-west 420–74, FL Reg 350–30) direction only to personnel of the Non-DoD personnel in transit on public-ac- Weyerhaeuser Corporation and Lone Star cess routes (appendix B) non-commercial rec- Corporation, and their assigns, for business reational use: or recreation access to adjacent Army owned real estate. Hunting, fishing and trapping (FL Reg 215–1) Dog training (not allowed 1 April through 31 APPENDIX B TO SUBPART M OF PART July in selected areas per FL Reg 215–1) 552—NON-PERMIT ACCESS ROUTES Horseback riding on roads and vehicle tracks Walking, distance running 1. This listing applies only to Fort Lewis. Model airplane and rocket flying (Range There are no such routes on Yakima Train- Control scheduling and Notice to Airmen ing Center or Camp Bonneville. (NOTAM) required) 2. The following public easement routes Model boating may be used without permit or check-in: I-5. Orienteering Steilacoom-DuPont Road (ET 286163 or ET Sport parachuting 301229). Organized rifle and pistol competition Pacific Highway Southeast (ET 231121 to ET (Range Control scheduling required) 249143). Scout activities and weekend camporees Washington State Route 507 (ET 363065 to ET Observation of wildlife and vegetation 428146). Non-commercial picking of ferns, mush- Goodacre and Rice Kandle Roads (ET 386090 rooms, blackberries, apples and other to ET 449076). vegetation 8th Avenue South (ET 424047 to ET 423127). Photography 8th Avenue East (ET 439077 or ET 439128). Hiking 208th Avenue (ET 423128 to ET 431128). 2. Yakima Training Center: Washington State Route 510 (ET 234065 to ET Military Training (FL Reg 350–31) 246056 and ET 260048 to ET 272022). DEH or Corps of Engineers Real Estate Yelm Highway (ET 231058 to ET 238061). Agreement for commercial use (AR 405– Rainier Road Southeast (ES 167999 to ES 80) 212943). Installation service and maintenance (AR Military Road Southeast (ES 212943 to ES 420–74) 214945). Non-Commercial recreational use: Spurgeon Creek Road (ES 177988 to ES Hunting, fishing and trapping (FL Reg 215–1) 178999). Dog training Stedman Road (ES 152989 to ES 167998). Horseback riding on roads and vehicle tracks 3. The following military routes may be Walking, distance running used without permit ot check-in: Model airplane and rocket flying (Range Huggins Meyer Road (North Fort Road, ET Control scheduling and Notice to Airmen 304204–ET 327215) (NOTAM required)

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Orienteering Overnight camping outside of DPCA sites Sport parachuting (camping on DPCA sites is open to DoD Organized rifle and pistol competition members only, per above). (Range Control scheduling required) Consumption of alcoholic beverages. Scout activities 2. Yakima Training Center: Observation of wildlife and vegetation Civilian paramilitary activities and combat Photography games. Hiking Off-pavement motorcycle riding. Camping, per Paragraph 6 Off-road vehicle operation. 3. Camp Bonneville: Hang gliding. Military Training (FL Reg 350–32) Ultralight aircraft flying. DEH or Corps of Engineers Real Estate Hot air ballooning. Agreement for commercial use (AR 405– Souvenir hunting and metal-detecting, in- 80) cluding recovery of ammunition residue Installation service and maintenance (AR or fragments, archaeological or cultural 420–74) artifacts. Non-Commercial recreational use: Vehicle speed contests. Commercial activities conducted for profit, Hunting, fishing and trapping (FL Reg 215–1) including dog training for reimburse- Dog training ment, or fund-raising events for other Horseback riding on roads and vehicle tracks than non-profit organizations working in Walking, distance running the public good. Fund raisers require Model boating DEH Real Estate Agreement. For-profit Orienteering activities require Corps of Engineer Organized rifle and pistol competition leases or permits, obtained through the (Range Control scheduling required) DEH Real Estate Office. Scout activities and weekend camporees Overnight camping except where specifically Observation of wildlife and vegetation permitted as part of the activity by the Non-commercial picking of ferns, mush- Commander, Yakima Training Center. rooms, blackberries, apples and other Consumption of alcoholic beverages. vegetation 3. Camp Bonneville: Photography Civilian paramilitary activities and combat Hiking games. NOTE: Permit holders for the above activi- Off-pavement motorcycle riding. ties must certify that they are non-commer- Off-road vehicle operation. cial and not for profit. Hang gliding. Ultralight aircraft flying. APPENDIX D TO SUBPART M OF PART Hot air ballooning. 552—UNAUTHORIZED ACTIVITIES IN Souvenir hunting and metal-detecting, in- MANEUVER TRAINING AREAS cluding recovery of ammunition residue or fragments, archaeological or cultural 1. Fort Lewis: artifacts, or geological specimens. Civilian paramilitary activities and combat Vehicle speed contests. games. Wood cutting or brush picking, without DEH Off-pavement motorcycle riding. or Corps of Engineer permit. Off-road vehicle operation. Commercial activities conducted for profit, Hang gliding. including horseback riding rentals or Ultralight aircraft flying. guide service, dog training for reimburse- Hot air ballooning. ment, or fund-raising events for other Souvenir hunting and metal-detecting, in- than non-profit organizations working in cluding recovery of ammunition residue the public good. Fund raisers require or fragments, archaeological or cultural DEH Real Estate Agreement. For-profit artifacts, or geological specimens. activities require Corps of Engineer Vehicle speed contests. leases or permits, obtained through the Wood cutting or brush picking, without DEH DEH Real Estate Office. or Corps of Engineer permit. Overnight camping. Commercial activities conducted for profit, Consumption of alcoholic beverages. including horseback riding rentals or Model airplane and rocket flying. guide service, dog training for reimburse- Sport parachuting. ment, or fund-raising events for other than non-profit organizations working in APPENDIX E TO SUBPART M OF PART the public good. Fund raisers require 552—REFERENCES DEH Real Estate Agreement. For-profit activities require Corps of Engineer Army Regulations referenced in this sub- leases or permits, obtained through the part may be obtained from National Tech- DEH Real Estate Office. nical Information Services, U.S. Department

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of Commerce, 5285 Port Royal Road, Spring- § 552.180 Purpose. field, VA 22161. Fort Lewis Regulations and forms ref- This subpart prescribes policies and erenced in this subpart may be viewed at the procedures for the operation and use of Office of the Staff Judge Advocate General, fishing facilities located at Fort Mon- Fort Lewis, Washington or at the Range Of- roe, Virginia. fice, Headquarters, I Corps and Fort Lewis. AR 210–1 (Private Organizations on Depart- § 552.181 Applicability. ment of the Army Installations), with This subpart applies to all personnel Fort Lewis Supplement 1 to include military and civilian per- AR 405–70 (Utilization of Real Estate) sonnel assigned to Fort Monroe, resi- AR 405–80 (Granting Use of Real Estate) dents and visitors to the State of Vir- AR 420–74 (Natural Resources—Land, Forest, and Wildlife Management) ginia who utilize the fishing facilities FL Reg 190–11 (Physical Security of Arms, located at Fort Monroe. Ammunition, and Explosives) FL Reg 210–1 (Fort Lewis Post Regulations) § 552.182 References. FL Reg 215–1 (Hunting, Fishing, and Trap- Publications referenced in this sec- ping) tion may be reviewed in the Office, Di- FL Reg 250–30 (I Corps and Fort Lewis Range rectorate of Community and Family Regulations) Activities, Fort Monroe, Virginia. FL Reg 350–31 (Yakima Training Center Range Regulations) (a) AR 215–1, Administration of Army FL Reg 350–32 (Camp Bonneville Range Regu- Morale, Welfare, and Recreation activi- lations) ties and Non appropriated Fund Instru- FL Policy Statement 350–2 (Training Re- mentalities, February 20, 1984. source Scheduling) (b) Fort Monroe Vehicle Code. HFL Form 473 (Training Resource Request) (c) Codes of Virginia S 28.1–48(c), HFL Form 652 (Range Control Vehicle Per- S 28.1–174, 28.1–187, and S 28.2–302.1–9. mit) (d) Virginia Marine Resources Com- HFL Form 653 (Range Control Area Access mission (VMRC) regulations. Card) (e) Department of Defense (DD) Form APPENDIX F TO SUBPART M OF PART 1805, United States District Court Vio- lation Notice. 552—ABBREVIATIONS (f) Fort Monroe Fishing Map (appen- AAO Area Access Officer dix A to this subpart). AR Army Regulation CBRC Camp Bonneville Range Control § 552.183 Responsibilities. DEH Director of Engineering and Housing (a) Director of Community and Fam- DPCA Director of Personnel and Commu- nity Activities ily Activities (DCFA) is responsible for DPTM Director of Plans, Training and Mo- the overall operation of the installa- bilization tion fishing program. FL Fort Lewis (b) Directorate of Installation Sup- ITAM Installation Training Area Manage- port is responsible for— ment (1) Trash and debris disposal. LEC Law Enforcement Command (2) Real property facility mainte- LOI Letter of Intent nance and repair. MP Military Police (3) Periodic hosing of all piers, as re- PAO Public Affairs Office quired. TA Training Area SJA Staff Judge Advocate (c) The Directorate of the Provost UCMJ Uniform Code of Military Justice Marshal (DPM) will— YTC Yakima Training Center (1) Enforce this subpart and all other policies imposed by the Fort Monroe Subpart N—Operation and Use of Installation Commander and state and federal fishing regulations. Fort Monroe, Virginia, Fishing (2) Open and close fishing areas in ac- Facilities cordance with this subpart. Seasonal safety factors and ongoing ceremonies AUTHORITY: 10 U.S.C. Chapter 27; 16 U.S.C. will, at times, delay opening of fishing 470, 1531–1543; 18 U.S.C. 1382; 50 U.S.C. 797. areas. SOURCE: 59 FR 45212, Sept. 1, 1994, unless (3) Issue DD Form 1805 for violations, otherwise noted. as appropriate.

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§ 552.184 Policy. gal and a violation of existing law to (a) Fort Monroe fishing facilities are throw fishing line, paper, plastic mate- available for use by authorized per- rials, and other debris into the water. sonnel on a daily basis. Doing so may lead to a fine or impris- (b) Direct requests for information onment, or both. All man-made mate- and/or assistance to the Outdoor Recre- rials will be deposited in proper trash ation Office at commercial (804) 727– receptacles or recycled. 4305 or (804) 727–2384. (g) Cleaning of fish is not allowed on (c) Personal equipment restrictions Fort Monroe piers and seawalls. on all piers located on Fort Monroe are (h) Littering (to include leaving sea- as follows: weed, bait, or fish on piers) is prohib- (1) Two fishing rods per person, 18 ited. Failure to comply with estab- years of age and older; one fishing rod lished policies may result in the loss of per person, under 18 years of age. installation fishing privileges. (2) Dip nets with handles exceeding 4 (i) Children under 12 years of age feet in length are prohibited on all piers at Fort Monroe. must be accompanied by a responsible (3) Personnel using cast nets to catch adult at all Fort Monroe fishing piers. food fish must have a current state (j) The moat is off limits to fishing. cast net license in their possession. (k) The Fort Monroe fishing map at (4) Personnel are authorized to take appendix A to this subpart, visually or catch crabs with one crab trap or outlines all areas authorized for each crab pot per person from Fort Monroe category of user. Copies of this map are piers. available at the Outdoor Recreation Of- (d) Saltwater fishing licenses. Per- fice, Building 165. sons ages 16 through 64, fishing with a (l) In accordance with the Direc- rod and reel, or any other fishing de- torate of Provost Marshal, police offi- vice, in Virginia’s portion of the Chesa- cers from the Virginia Marine Re- peake Bay or in saltwater or tidal trib- sources Commission (VMRC) will en- utaries require a saltwater fishing li- force VMRC fishing regulations at Fort cense. Refer to the 1994 Virginia Fresh- Monroe fishing areas. water and Saltwater Fishing Regula- tions booklet for exemptions and fee § 552.185 Eligibility. information. This booklet is available at the Outdoor Recreation Office, The following personnel are author- Building 165, Fort Monroe. ized to fish on Fort Monroe: (e) In accordance with Codes of Vir- (a) Active duty and retired military ginia S 28.1–174 and S 28.1–165, persons personnel, their family members, and without a license to take crabs will be Department of Defense civilian em- permitted to take or catch 1 bushel of ployees, as specified on the fishing map hard-shell crabs and 2 dozen peeler at appendix A to this subpart. crabs per day, per household. A first (b) All other personnel, as specified violation of any regulation under the on the fishing map at appendix A to Code of Virginia in regards to fishing, this subpart. crabbing, etc., is a Class 3 misdemeanor; second or subsequent violations of these provisions is a Class 1 Subpart O [Reserved] misdemeanor in accordance with S 28.2–903, Code of Virginia. Subpart P—Protests, Picketing, (f) All patrons are responsible for the and Other Similar Demonstra- conduct of their family members and tions on the Installation of Ab- guests. They are also responsible for erdeen Proving Ground, the proper disposal of all personal refuse into the proper receptacles. Maryland Refuse such as seaweed, leftover bait, unwanted fish, crabs, etc., will NOT be AUTHORITY: 18 U.S.C. Sec. 1382. left on piers or placed in trash recep- SOURCE: 62 FR 33998, June 24, 1997, unless tacles. All refuse of this type will be otherwise noted. thrown overboard. However, it is ille-

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§ 552.211 Purpose. class, court-martial, hearing, or other military business. This subpart establishes policies, re- (3) Obstruct movement on any street, sponsibilities, and procedures for pro- road, sidewalk, pathway, or other vehi- tests, pickeing, and other similar dem- cle or pedestrian thoroughfare. onstrations on the Aberdeen Proving (4) Utter to any person abusive, in- Ground installation. sulting, profane, indecent, or otherwise § 552.212 Scope. provocative language that by its very utterance tends to excite a breach of (a) The provisions of this subpart the peace. apply to all elements of U.S. Army (5) Distribute or post publications, Garrison, Aberdeen Proving Ground including pamphlets, newspapers, mag- (USAGAPG), and the supported organi- azines, handbills, flyers, leaflets, and zations and activities on the Aberdeen other printed materials, except and Edgewood Areas of Aberdeen Prov- through regularly established and ap- ing Ground. proved distribution outlets and places. (b) The provisions of this subpart (6) Circulate petitions or engage in cover all public displays of opinions picketing or similar demonstrations made by protesting, picketing, or any for any purpose. other similar demonstration. (7) Engage in partisan political cam- (c) The provisions of this subpart are paigning or electioneering. applicable to all people, military and (8) Disobey a request from Depart- civilian employees, and all visitors, ment of Defense police, other govern- family members, or others, entering, ment law enforcement officials (e.g., upon or present at Aberdeen Proving Federal, State, or local law enforce- Ground. ment officials), military police, or other competent authority to disperse, § 552.213 Policy. move along or leave the installation. (a) Aberdeen Proving Ground is a (c) In appropriate cases, the Com- non-public forum and is open for expen- mander, U.S. Army Garrison, Aberdeen sive activity only under certain cir- Proving Ground may give express writ- cumstances. Aberdeen Proving Ground ten permission for protests, picketing, is a military installation under the ex- or any other similar demonstrations on clusive federal jurisdiction at which of- Aberdeen Proving Ground property ficial business of the federal govern- outside the gates adjacent to the in- ment is conducted, including military stallation borders, only if the proce- training, testing of weapon systems dures outlined below in 32 CFR 552.214 and other military equipment, and are followed. other official business. (b) On Aberdeen Proving Ground, ex- § 552.214 Procedures. cept for activities authorized under 5 (a) Any person or persons desiring to United States Code Chapter 71, Labor protest, picket, or engage in any other Management Relations, it is unlawful similar demonstrations on Aberdeen for any person to engage in any public Proving Ground must submit a written displays of opinions made by pro- request to the Commander, U.S. Army testing, picketing or any other similar Garrison, Aberdeen Proving Ground, demonstration without the approval of ATTN: STEAP-CO, 2201 Aberdeen Bou- the Commander, U.S. Army Garrison, levard, Aberdeen Proving Ground, Aberdeen Proving Ground. Therefore, Maryland 21005–5001. The request must unless prior approval has been obtained be received at least 30 calendar days as outlined below in 32 CFR 552.214, it prior to the demonstration, and it will be unlawful for any person on Ab- must include the following: erdeen Proving Ground to: (1) Name, address, and telephone (1) Engage in protests, public speech- number of the sponsoring person or or- es, marches, sit-ins, or demonstrations ganization. (If it is an organization, in- promoting a point of view. clude the name of the point of contact.) (2) Interrupt or disturb the testing (2) Purpose of the event. and evaluating of weapon systems, or (3) Number of personnel expected to any training, formation, ceremony, attend.

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(4) Proposed date, time, location and APPENDIX A TO PART 552—DPCA REC- duration of the event. REATIONAL AREAS IN TRAINING (5) Proposed means of transportation AREAS to and from APG. (6) Proposed means of providing secu- 1. DOD use only, permit not required: rity, sanitary services and related an- NOTE. Use is authorized only to military, cillary services to the participants. retired military, DOD civilian personnel, their family members and accompanied (b) Based on the Commander’s con- guests. cerns for discipline, mission accom- Boat launch adjacent to Officer’s Club Beach plishment, protection of property, and on American Lake/Beachwood area the safeguarding of the health, morale, Cat Lake Picnic and Fishing Area—Training and welfare of the APG community, Area 19 the Commander will determine wheth- Chambers Lake Picnic and *Fishing Area— er to grant the request and, if granted, Training Area 12 (See para 2 below) any limitations as to where and when Ecology Park Hiking Path—North Fort, CTA it will take place. A West Fiander Lake Picnic and Fishing Area— § 552.215 Responsibilities. Training Area 20 Johnson Marsh—Training Area 10 (a) Director, Law Enforcement and Lewis Lake Picnic and Fishing Area—Train- Security, U.S. Army Garrison, Aber- ing Area 16 deen Proving Ground, will furnish po- Miller Hill Trail Bike Area (DOD only)— lice support as needed. Main Post (b) Chief Counsel and Staff Judge Ad- No Name Lake—Training Area 22 vocate, U.S. Army Test and Evaluation Sequalitchew Lake Picnic Area—Training Area 2 Command, will provide a legal review Shannon Marsh—CTA D of the request. Skeet Trap Range—2d Division Range Road, CTA E § 552.216 Violations. Solo Point Boat Launch—North Fort, CTA A (a) A person is in violation of the West terms of this subpart if: Sportman’s Range—East Gate Road, Range (1) That person enters or remains 15 upon Aberdeen Proving Ground when Wright Marsh/Lake—CTA C Vietnam Village Marsh—Training Area 9 and that person is not licensed, invited, or 10 otherwise authorized by the Com- 2. Non-DOD use, permit required: Cham- mander, U.S. Army Garrison, Aberdeen bers Lake, fishing only. Proving Ground pursuant to the terms of § 552.214; or APPENDIX B TO PART 552—NON-PERMIT (2) That person enters upon or re- ACCESS ROUTES mains upon Aberdeen Proving Ground 1. The following public easement routes for the purpose of engaging in any ac- may be used without permit or check-in: tivity prohibited or limited by this I-5 subpart. Steilacoom-DuPont Road (EH 286156 to EH (b) All persons (military personnel, 302227). Department of the Army civilian em- Pacific Highway Southeast (EH 232119 to EH ployees, civilians, and others) may be 250141). prosecuted for violating the provisions Washington State Route 507 (EH 363061 to EH of this subpart. Military personnel may 429144). Goodacre (unpaved) and Rice Kandle (paved) be prosecuted under the Uniform Code Roads (EH 386088 to EH 450074). of Military Justice. Department of the 8th Avenue South (EH 424045 to EH 424126). Army civilian employees may be pros- 8th Avenue East (EH 440074 to EH 440126). ecuted under 18 U.S.C. 1382, and/or dis- 208th Avenue (EH 424126 to EH 432126). ciplined under appropriate regulations. Washington State Route 510 (EH 235063 to EH Civilians and others may be prosecuted 247054 and EH 261046 to EH 273020). under 18 U.S.C. 1382. Yelm Highway (EH 233056 to EH 239058). (c) Administrative sanctions may in- Rainer Road Southeast (EG 167997 to EG 213941). clude, but are not limited to, bar ac- Military Road Southeast (EG 213941 to EG tions including suspension of access 215944). privileges, or permanent exclusion Spurgeon Creek Road (EG 178986 to EG from Aberdeen Proving Ground. 179997).

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Stedman Road (EG 153987 to EG 167995). APPENDIX D TO PART 552—UNAUTHOR- 2. The following military routes may be IZED ACTIVITIES IN FORT LEWIS MA- used without permit or check-in: NEUVER AREAS Huggins Meyer Road (North Fort Road, EH 305202–EH 328213) Civilian paramilitary activities and combat East Gate Road (C–5 Mock-up to 8th Ave games. South—EH 328213) Off-pavement motorcycle riding, except as 260th (EH 440074 to EH 457074) noted in appendix A Off-road vehicle operation. Roy cut-off (Chambers Lake) Road (East Hang gliding. Gate Road to Roy City Limits) Ultralight aircraft flying. Lincoln Avenue (Madigan to EH 391179) Hot air ballooning. 3. The Solo Point Road is open to Souvenir hunting and metal-detecting, in- Weyerhauser Corporation personnel for busi- cluding recovery of ammunition residue ness and recreation. of fragments, archaeological or cultural 4. DOD personnel and Fort Lewis con- artifacts, or geological specimens. tractor personnel on official business may Vehicle speed contests. use all DEH-maintained paved roads and two Wood cutting or brush picking, without DEH lane gravel roads in the training areas. The or Crops of Engineer permit. use of one lane gravel lanes, or any estab- Commercial activities conducted for profit lished road not identified above, must be co- that require a Real Estate Agreement or ordinated with the Area Access Office prior commercial permit per AR 405–80, includ- to use except as specified in § 552.87(b)(2) ing horseback riding rentals or guide 5. All range roads closed because of train- service, and dog training for reimburse- ing activities will not be used until opened ment. by the Range Officer. Such road closures will normally involve barricades and road guards. PART 553—ARMY NATIONAL Barricades and road guards placed by direc- CEMETERIES tion of Range Control may not be by-passed. Sec. APPENDIX C TO PART 552—AUTHORIZED 553.1 Purpose. ACTIVITIES FOR FORT LEWIS MANEU- 553.2 Statutory authority. VER AREA ACCESS 553.3 Scope and applicability. 553.4 Responsibilities. Military Training (FL Reg 350–30) 553.5 Federal jurisdiction. DEH or Corps of Engineers Real Estate 553.6 Donations. Agreement for commercial use (AR 405– 553.7 Design and layout of Army national 80) cemeteries. Installation service and maintenance (AR 553.8 Arlington Memorial Amphitheater. 420–74, FL Reg 350–30) 553.9 Power of arrest. Non-DOD personnel in transit on public-ac- 553.10 Solicitations. cess route only (appendix B) 553.11 Procurement. Non-Commercial recreational use: 553.12 Encroachments and revocable licenses. Hunting, fishing and trapping (FL Reg 215– 553.13 Standards of construction, mainte- 1) nance, and operations. Dog training (not allowed 1 April through 553.14 Authority for interments. 31 July in selected areas) 553.15 Persons eligible for burial in Arling- Horseback riding on roads and vehicle ton National Cemetery. tracks 553.15a Persons eligible for inurnment of Walking, distance running cremated remains in Columbarium in Ar- Model airplane and rocket flying lington National Cemetery. Model boating 553.16 Persons eligible for burial in Soldiers’ Orienteering Home National Cemetery. Sport parachuting 553.17 Persons ineligible for burial in an Army national cemetery. Organized rifle and pistol competition 553.18 Assignment of gravesites. Service group camping and activities (Boy 553.19 Disinterments. Scouts, etc.) 553.20 Headstones and markers. Observation of wildlife and vegetation 553.21 Monuments and inscriptions at pri- Non-Commercial picking of ferns, mush- vate expense. rooms, blackberries, apples and other 553.22 Visitors’ rules for the Arlington Na- miscellaneous vegetation tional Cemetery. Photography APPENDIX A TO PART 553—SPECIFICATIONS Hiking FOR TRIBUTES IN ARLINGTON NATIONAL Historical Trails CEMETERY

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AUTHORITY: 24 U.S.C. Ch. 7. administration, operation, and mainte- SOURCE: 42 FR 25725, May 19, 1977, unless nance. Specific responsibilities for Ar- otherwise noted. lington and Soldiers’ Home National Cemeteries are delegated to the Com- § 553.1 Purpose. mander, Military District of Wash- The following specifies the authority ington in accordance with a Memo- and assigns the responsibilities for the randum of Understanding. development, operation, maintenance, and administration of the Arlington § 553.5 Federal jurisdiction. and Soldiers’ Home National Ceme- Where the State legislature has given teries, a civil works activity of the De- the consent of that State to purchase partment of the Army. the land which now comprises an Army national cemetery, the jurisdiction and § 553.2 Statutory authority. power of legislation of the United Basic statutory authority pertaining States over Army national cemeteries to the Army national cemeteries is in will, in all courts and places, be held to chapter 7, title 24, United States Code, be the same as is granted by Section 8, entitled ‘‘National Cemeteries.’’ Many Article 1, Constitution of the United of the provisions of this chapter were States. repealed by section 7(a) of the National Cemeteries Act of 1973 (Pub. L. 93–43, 18 § 553.6 Donations. June 1973, 38 U.S.C. 1000 et seq.); but (a) Policy. Under Department of the section 7(b) provides that nothing in Army policy, proffered donations or this section shall be deemed to affect gifts for beautifying Army national in any manner the functions, powers, cemeteries may be accepted from le- and duties of the Secretary of the gitimate societies and organizations or Army with respect to Arlington and from reputable individuals, subject to Soldiers’ Home National Cemeteries. the following provisions: (1) The society, organization, or indi- § 553.3 Scope and applicability. vidual does not associate the name of (a) Scope. The development, oper- the Department of the Army in any ation, maintenance, and administra- way with soliciting for the donation or tion of Arlington National Cemetery gift. and the Soldiers’ Home National Ceme- (2) Delivery is made to the cemetery tery are governed by this part and TM or to another point designated by the 10–287. AR 210–190 assigns responsibil- Department of the Army without ex- ities for the operation, maintenance, pense to the Government. and administration of Army post ceme- (3) Installing, constructing, placing, teries. or planting is in keeping with the (b) Applicability. The provisions of AR planned development of the cemetery 290–5 are applicable to active and re- and the donor agrees to the use of the tired members of the Armed Forces, gift at any designated place within the certain disabled veterans, and veterans cemetery. who were awarded certain military (4) The donor is not permitted to decorations. affix any commemorative tablet or plaque to the items donated or to place § 553.4 Responsibilities. one in the cemetery or elsewhere on The Army national cemeteries, con- Department of the Army property. sisting of the Arlington National Cem- (b) Processing. All proffers of dona- etery, Arlington, Virginia, and Sol- tions to Army national cemeteries will diers’ Home National Cemetery, Wash- be referred to The Adjutant General ington, DC, are under the jurisdiction with the recommendation of the ceme- of the Department of the Army. The tery superintendent as to the action to Assistant Secretary of the Army for be taken. Civil Works is directly responsible to (c) Conditional gifts. The Secretary of the Secretary of the Army for policy the Army is authorized, at his discre- formulation in the administration of tion, to accept, receive, hold, admin- these cemeteries. The Adjutant Gen- ister, and expend any gift, devise, or eral is responsible for their day-to-day bequest of real or personal property on

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condition that the item be used for the within the Arlington Memorial Amphi- benefit of, or in connection with, the theater. operation maintenance, or administration of the two national cemeteries § 553.9 Power of arrest. under the jurisdiction of the Depart- The superintendents of Army na- ment of the Army. The Adjutant Gen- tional cemeteries are authorized to ar- eral will take appropriate action on rest any person who willfully destroys, conditional gifts as prescribed in AR 1– cuts, breaks, injures, or removes any 100. tree, shrub, or plant within the limits (d) Unconditional gifts. All proffers or of the cemetery and to bring that per- donations of gifts which are uncondi- son before any United States mag- tional will be accompanied by a report istrate or judge of any district court of stating all material facts in connection the United States within any State or with the source, nature, and purpose of district where the cemeteries are situ- the gift. ated, to hold that person to answer for the misdemeanor, and then and there § 553.7 Design and layout of Army na- to make a complaint in due form. tional cemeteries. (a) General cemetery layout plans, § 553.10 Solicitations. landscape planting plans and gravesite Solicitations to the public of any layout plans for Army national ceme- type of business including the sale of teries will be maintained by The Adju- souvenirs and refreshments within the tant General. cemetery are prohibited. Violators who (b) New burial sections will be opened do not leave when so ordered or who and prepared for burials only with the unlawfully reenter the cemetery after approval of The Adjutant General and being evicted will be subject to pros- after types and sizes of monuments on ecution. permanent sites have been established. § 553.11 Procurement. § 553.8 Arlington Memorial Amphi- Cemetery supplies and services will theater. be procured in accordance with the pro- (a) The Act of 2 September 1960 (74 visions of the Armed Services Procure- Stat; 24 U.S.C. 295a) provides that the ment Regulation (ASPR) and the Army Secretary of Defense or his designee Procurement Procedure (APP). may send to Congress or his designee may send to Congress in January of § 553.12 Encroachments and revocable each year recommendations on the me- licenses. morials to be erected and the remains (a) Encroachments. No railroads will of deceased members of the Armed be permitted upon the right-of-way ac- Forces to be entombed in the Arlington quired by the United States leading to Memorial Amphitheater in Arlington Arlington or Soldiers’ Home National National Cemetery. The Act further Cemetery or to encroach upon any provides that— roads or walks thereon and maintained (1) No memorial may be erected and by the United States. no remains may be entombed in the Ar- (b) Revocable licenses. The construc- lington Memorial Amphitheater unless tion or erection of poles and lines (in- specifically authorized by Congress; cluding underground lines) for trans- (2) The character, design, or location mitting and distributing electric power of any memorial authorized by Con- or for telephone and telegraph pur- gress is subject to the approval of the poses, as well as water and sewer pipes, Secretary of Defense or of his designee. will not be permitted without the au- (b) Under the provisions of the Act of thority of the Department of the 2 September 1960, the Secretary of the Army. Requests for revocable licenses Army has been designated to act in be- to construct water, gas, or sewer lines half of the Secretary of Defense. or other appurtenances on or across (c) The Department of the Army will the cemetery or an approach road in seek the advice of the Commission of which the Government has a right-of- Fine Arts concerning any requests rel- way or fee simple title or other inter- ative to inscriptions or memorials est will be submitted for final action to

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the cemetery superintendent with a serving on active duty for training complete description of the privilege only). desired and a map showing the location (b) Any retired member of the Armed of the project on the roadway in ques- Forces. A retired member of the Armed tion. The superintendent will forward Forces, in the context of this para- the application and inclosures with his graph, is a retired member of the comments and recommendation to Army, Navy, Air Force, Marine Corps, Headquarters, Department of the Coast Guard, or a Reserve component Army. who has served on active duty (other than for training), is carried on an offi- § 553.13 Standards of construction, maintenance, and operations. cial retired list, and is entitled to receive retired pay stemming from serv- The following standards of the De- ice in the Armed Forces. If, at the time partment of the Army will be observed of death, a retired member of the in the development, operation, mainte- Armed Forces is not entitled to receive nance, administration, and support of retired pay stemming from his service Army national cemetries and will be in the Armed Forces until some future considered in relation to budgetary re- date, the retired member will not be el- views within the Department of the igible for burial. Army: (a) As permanent national shrines (c) Any former member of the Armed provided by a grateful nation to the Forces separated for physical disability honored dead of the Armed Forces of prior to 1 October 1949 who has served the United States, the standards for on active duty (other than for training) construction, maintenance, and oper- and who would have been eligible for ation of Army national cemeteries will retirement under the provisions of 10 be commensurate with the high pur- U.S.C. 1201 had that statute been in ef- pose to which they are dedicated. fect on the date of his separation. (b) Structures and facilities provided (d) Any former member of the Armed for Army cemetaries will be permanent Forces whose last active duty (other in nature and of a scope, dignity, and than for training) military service ter- aesthetic design suitable to the pur- minated honorably and who has been pose for which they are intended. awarded one of the following decora- (c) Cemeteries will be beautified by tions: landscaping and by means of special (1) Medal of Honor. features based on the historical as- (2) Distinguished Service Cross (Air pects, location, or other factors of Force Cross or Navy Cross). major significance. (3) Distinguished Service Medal. (d) Accomodations and services pro- (4) Silver Star. vided to the next of kin of the honored (5) Purple Heart. dead and to the general public will be (e) Persons who have held any of the of high order. following positions, provided their last § 553.14 Authority for interments. period of active duty (other than for training) as a member of the Armed The Act of 14 May 1948 (62 Stat. 234), Forces terminated honorably: as amended by the Act of 14 September 1959 (73 Stat. 547; 24 U.S.C. 281), and (1) An elective office of the United other laws specifically cited in this States Government. part authorize burial in Arlington and (2) Office of the Chief Justice of the Soldiers’ Home National Cemeteries United States or of an Associate Jus- under such regulations as the Sec- tice of the Supreme Court of the retary of the Army may, with the ap- United States. proval of the Secretary of Defense, pre- (3) An office listed in 5 U.S.C. 5312 or scribe. 5 U.S.C. 5313. (4) The Chief of a mission who was at § 553.15 Persons eligible for burial in any time during his tenure classified in Arlington National Cemetery. class I under the provisions of 411 of (a) Any active duty member of the the Act of 13 August 1946, 60 Stat. 1002, Armed Forces (except those members as amended (22 U.S.C. 866, 1964 ed.).

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(f) Any former prisoner of war who, provided that child was incapable of while a prisoner of war, served honor- self-support up to the time of death be- ably in the active military, naval, or cause of physical or mental condition. air service, whose last period of active At the time of death of an adult child, military, naval, or air service termi- a request for interment will be sub- nated honorably and who died on or mitted to the Superintendent of Ar- after November 30, 1993. lington National Cemetery. The re- (1) The term ‘‘former prisoner of quest must be accompanied by a nota- war’’ means a person who, while serv- rized statement from an individual who ing in the active military, naval, or air has direct knowledge as to the marital service, was forcibly detained or in- status, degree of dependency of the de- terned in line of duty— ceased child, the name of that child’s (i) By an enemy government or its parent, and the military service upon agents, or a hostile force, during a pe- which the burial is being requested. A riod of war; or certificate of a physician who has at- (ii) By a foreign government or its tended the decedent as to the nature agents, or a hostile force, under cir- and duration of the physical and/or cumstances which the Secretary of mental disability must also accompany Veterans Affairs finds to have been the request for interment. comparable to the circumstances under (h) Widows or widowers of service which persons have generally been members who are interred in Arlington forcibly detained or interned by enemy National Cemetery as part of a group governments during periods of war. burial may be interred in the same (2) The term ‘‘active military, naval, cemetery but not in the same grave. or air service’’ includes active duty, (i) The surviving spouse, minor child, any period of active duty for training and, at the discretion of the Secretary during which the individual concerned of the Army, unmarried adult child of was disabled or died from a disease or any person already buried in Arlington. injury incurred or aggravated in line of (j) The parents of a minor child or duty, and any period of inactive duty unmarried adult child whose remains, training during which the individual based on the eligibility of a parent, are concerned was disabled or died from an already buried in Arlington National injury incurred or aggravated in line of Cemetery. duty. [42 FR 25725, May 19, 1977, as amended at 59 (g) The spouse, widow or widower, FR 60559, Nov. 25, 1994] minor child and, at the discretion of the Secretary of the Army, unmarried § 553.15a Persons eligible for adult child of any of the persons listed inurnment of cremated remains in above. Columbarium in Arlington National (1) The term ‘‘spouse’’ refers to a Cemetery. widow or widower of an eligible mem- (a) Any member of the Armed Forces ber, including the widow or widower of who dies on active duty. a member of the Armed Forces who (b) Any former member of the Armed was lost or buried at sea or officially Forces who served on active duty determined to be permanently absent (other than for training) and whose in a status of missing or missing in ac- last service terminated honorably. tion. A surviving spouse who has re- (c) Any member of a Reserve compo- married and whose remarriage is void, nent of the Armed Forces, and any terminated by death, or dissolved by member of the Army National Guard or annulment or divorce by a court with the Air National Guard, whose death basic authority to render such decrees occurs under honorable conditions regains eligibility for burial in Arling- while he is on active duty for training ton National Cemetery unless it is de- or performing full-time service; per- termined that the decree of annulment forming authorized travel to or from or divorce was secured through fraud that duty or service; or is on author- or collusion. ized inactive duty training including (2) An unmarried adult child may be training performed as a member of the interred in the same grave in which the Army National Guard or the Air Na- parent has been or will be interred, tional Guard. Also included are those

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members whose deaths occur while hos- United States has been or may here- pitalized or undergoing treatment at after be engaged, served in the Armed the expense of the United States for in- Forces of any government allied with jury or disease contracted or incurred the United States during that war, under honorable conditions while on whose last active service terminated that duty or service or performing that honorably by death or otherwise, and travel or inactive duty training. who was a citizen of the United States (d) Any member of the Reserve Offi- at the time of entry on such service cers’ Training Corps of the Army, and at the time of death. Navy, or Air Force whose death occurs (g) Commissioned officers, United under honorable conditions while at- States Coast and Geodetic Survey (now tending an authorized training camp or National Oceanic and Atmospheric Ad- on an authorized practice cruise, per- ministration) who die during or subse- forming authorized travel to or from that camp or cruise, or hospitalized or quent to the service specified in the undergoing treatment at the expense of following categories and whose last the United States for injury or disease service terminated honorably: contracted or incurred under honorable (1) Assignment to areas of immediate conditions while attending that camp military hazard. or cruise, performing that travel, or (2) Served in the Philippine Islands undergoing that hospitalization or on December 7, 1941. treatment at the expense of the United (3) Transferred to the Department of States. the Army or the Department of the (e) Any former prisoner of war who, Navy under certain statutes. while a prisoner of war, served honor- (h) Any commissioned officer of the ably in the active military, naval, or United States Public Health Service air service, whose last period of active who served on full-time duty on or military, naval, or air service termi- after July 29, 1945, if the service falls nated honorably and who died on or within the meaning of active duty for after November 30, 1993. training as defined in 38 U.S.C. 101(22) (1) The term ‘‘former prisoner of or inactive duty training as defined in war’’ means a person who, while serv- 38 U.S.C. 101(23) and whose death re- ing in the active military, naval, or air sulted from a disease or injury incurred service, was forcibly detained or in- or aggravated in line of duty. Also, any terned in line of duty— commissioned officer of the Regular or (i) By an enemy government or its Reserve Corps of the Public Health agents, or a hostile force, during a pe- Service who performed active service riod of war; or (ii) By a foreign government or its prior to July 29, 1945 in time of war; on agents, or a hostile force, under cir- detail for duty with the Armed Forces; cumstances which the Secretary of or while the service was part of the Veterans Affairs finds to have been military forces of the United States comparable to the circumstances under pursuant to Executive order of the which persons have generally been President. forcibly detained or interned by enemy (i) Spouses, minor children, and de- governments during periods of war. pendent adult children of the persons (2) The term ‘‘active military, naval, listed above. or air service’’ includes active duty, (24 U.S.C. 281) any period of active duty for training during which the individual concerned [43 FR 35043, Aug. 8, 1978, as amended at 59 was disabled or died from a disease or FR 60559, Nov. 25, 1994; 60 FR 8305, Feb. 14, injury incurred or aggravated in line of 1995] duty, and any period of inactive duty training during which the individual § 553.16 Persons eligible for burial in Soldiers’ Home National Cemetery. concerned was disabled or died from an injury incurred or aggravated in line of The Board of Commissioners of the duty. US Soldiers’ and Airmen’s Home will (f) Any citizen of the United States prescribe rules governing burial in the who, during any war in which the Soldiers’ Home National Cemetery.

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§ 553.17 Persons ineligible for burial in decedent give their written consent or an Army national cemetery. when a court order directs the disinter- (a) A father, mother, brother, sister, ment. and in-law is not eligible for interment (b) All requests for authority to dis- by reason of relationship to an eligible inter remains will include the fol- service person even though he/she is de- lowing information: pendent upon the service member for (1) A full statement of reasons for the support and/or is a member of his/her proposed disinterment. household. (2) Notarized statements by all close (b) A person whose last separation living relatives of the decedent that from one of the Armed Forces was they interpose no objection to the pro- under other-than-honorable conditions posed disinterment. ‘‘Close relatives’’ is not eligible for burial even though he are widow or widower, parents, adult may have received veterans benefits, brothers and sisters, and adult childern treatment at a Veterans Administra- tion hospital or died in such a hospital. of the decedent and will include the (c) A person who has volunteered for person who directed the initial inter- service with the Armed Forces but has ment, if living, even though the legal not actually entered on active duty. relationship of that person to the dece- (d) Nonservice-connected spouses who dent may have changed. have been divorced from the service- (3) A sworn statement by a person connected members or who have remar- who knows that those who supplied af- ried after the interment of the service- fidavits comprise all the living close connected spouse and whose remar- relatives of the deceased, including the riage is still valid are not eligible be- person who directed the initial inter- cause of the decedent’s service. ment. (e) Dependents are not eligible for (c) In lieu of the documents required, burial in Arlington National Cemetery an order of a court of competent juris- unless the Service-connected family diction will be recognized. The Depart- member has been or will be interred in ment of the Army or officials of the that cemetery. This does not apply to widows or widowers of members of the cemetery should not be made a party Armed Forces lost or buried at sea or or parties to the court action since this officially determined to be perma- is a matter that concerns the family nently absent in a status of missing or members involved. missing in action. (d) Any disinterment that may be authorized under this paragraph must be § 553.18 Assignment of gravesites. accomplished without expense to the (a) Under present policy of the De- Government. partment of the Army, only one gravesite is authorized for the burial of § 553.20 Headstones and markers. a service member and eligible family All graves in Army national ceme- members. teries will be appropriately marked in (b) Gravesites will not be reserved. accordance with 24 U.S.C. 279. Govern- (c) Gravesite reservations made in ment headstones and markers are pro- writing before the one-gravesite-per- vided by the Veterans Administration family unit policy was established will in accordance with the provisions of remain in effect as long as the reservee the National Cemeteries Act of 1973. remains eligible for burial in Arling- When requested by the next of kin, an ton. appropriate memorial headstone or § 553.19 Disinterments. marker will be furnished by the Vet- (a) Interments in Arlington National erans Administration and erected by Cemetery of eligible decedents are con- cemetery personnel in a memorial sec- sidered permanent and final, and dis- tion of the cemetery which has been interments will be permitted only for set aside for this purpose. Headstones cogent reasons. Disinterments and re- will be of white marble, upright slab moval of remains will be approved only design. when all living close relatives of the

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§ 553.21 Monuments and inscriptions directives should be consulted for all at private expense. other matters not within the scope of (a) The erection of markers and these rules. monuments at private expense to mark (b) Scope. Pursuant to title 40 United graves in lieu of Government States Code, sections 318a and 486, and headstones and markers is permitted based upon delegations of authority only in sections of Arlington National from the Administrator, General Serv- Cemetery in which private monuments ices Administration, the Secretary of and markers were authorized as of 1 Defense, and the Secretary of the January 1947. These monuments will be Army, this section applies to all Fed- of simple design, dignified, and appro- eral property within the charge and priate to a military cemetery. The control of the Superintendent, Arling- name of the person(s) or the name of an ton National Cemetery, and to all per- organization, fraternity, or society re- sons entering in or on such property. sponsible for the purchase and erection At the discretion of the Secretary of of the marker will not be permitted on the Army, any person or organization the marker or anywhere else in the that violates any of the provisions of cemetery. Approval for the erection of paragraphs (d), (e), (f), (g), and (h), or a private monument will be given with (i) of this section may be barred from the understanding that the purchaser will make provision for its future conducting memorial services and cere- maintenance in the event repairs are monies within the Cemetery for two necessary. The Department of the years from the date of such violation. Army will not be liable for mainte- Any such person shall also be subject nance of or damage of the monument. to the penalties set out in title 40, (b) Where a monument has been United States Code section 318c. erected to an individual interred in Ar- (c) Definitions. When used in this sec- lington National Cemetery and the tion; next of kin desires to have inscribed on (1) The term memorial service or cere- it the name and appropriate data per- mony means any formal group activity taining to a deceased spouse, parent, conducted within the Arlington Na- son, daughter, brother, or sister whose tional Cemetery grounds intended to remains have not been recovered and honor the memory of a person or per- who would have been eligible in their sons interred in the Cemetery or those own right for burial in Arlington, such dying in the military service of the inscriptions may be incised on the United States or its allies. ‘‘Memorial monument at no expense to the Gov- service or ceremony’’ includes a ‘‘pri- ernment. The words ‘‘In Memoriam’’ or vate memorial service,’’ ‘‘public memo- ‘‘In Memory Of’’ are mandatory ele- rial service,’’ ‘‘public wreath laying ments of these inscriptions. ceremony’’ and ‘‘official ceremony’’ as (c) Except as may be authorized for defined in this section. marking group burials, ledger monu- (2) The term official ceremony means a ments of freestanding cross design, memorial service or ceremony ap- narrow shafts, mausoleums, or over- ground vaults are prohibited. Under- proved by the Commanding General, ground vaults may be placed at private Military District of Washington, in expense, if desired, at the time of inter- which the primary participants are au- ment. thorized representatives of the United (d) Specific instructions concerning States Government, a state govern- private monuments and markers are ment, a foreign country, or an inter- contained in TM 10–287. national organization who are participating in an official capacity. § 553.22 Visitors’ rules for the Arling- (3) The term private memorial service ton National Cemetery. means a memorial service or cere- (a) Purpose. The rules of this section mony, other than an official ceremony, define the standards of conduct re- conducted at a private gravesite within quired of all visitors to the Arlington Arlington National Cemetery by a National Cemetery, Arlington, Vir- group of relatives and/or friends of the ginia. Applicable Army regulations and person interred or to be interred at

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that gravesite. Private memorial serv- (f) Conduct within the Cemetery. Be- ices may be closed to members of the cause Arlington National Cemetery is a public. shrine to the honored dead of the (4) The term public memorial service Armed Forces of the United States and means a ceremony, other than an offi- because certain acts, appropriate else- cial ceremony, conducted by members where, are not appropriate in the Cem- of the public at the Arlington Memo- etery, all visitors, including persons at- rial Amphitheater, the Confederate tending or taking part in memorial Memorial, the Mast of the Maine, the services and ceremonies, shall observe John F. Kennedy Grave or at an his- proper standards of decorum and de- toric shrine or at a gravesite within cency while within the Cemetery Arlington National Cemetery des- grounds. Specifically, no person shall: ignated by the Superintendent, Arling- ton National Cemetery. All public me- (1) Conduct any memorial service or morial services are open to any mem- ceremony within the Cemetery, except ber of the public to observe. private memorial services, without the (5) The term public wreath laying cere- prior approval of the Superintendent or mony means a brief ceremony, other Commanding General. All memorial than an official ceremony, in which services and ceremonies shall be con- members of the public, assisted by ducted in accordance with the rules es- members of the Tomb Guard, present a tablished in paragraph (h) and, except wreath or similar memento, approved for official ceremonies, paragraph (i) of by the Superintendent or Commanding this section. Official ceremonies shall General, at the tomb and plaza area of be conducted in accordance with guid- the Tomb of the Unknown Soldier (also ance and procedures established by the known as the Tomb of the Unknowns). Commanding General; Participants follow the instructions of (2) Engage in any picketing, dem- the Tomb Guards, Superintendent and onstration or similar conduct within Commanding General in carrying out the Cemetery grounds; the presentation. The ceremony is open (3) Engage in any orations, speeches, to any member of the public to ob- or similar conduct to assembled groups serve. of people, unless the oration is part of (6) The term Superintendent means the Superintendent, Arlington Na- a memorial service or ceremony au- tional Cemetery or his representative. thorized by this section; (7) The term Commanding General, (4) Display any placards, banners, means the Commanding General, U.S. flags or similar devices within the Army Military District of Washington Cemetery grounds, unless, in the case or his representative. of a flag, use of the same is approved (d) Visitors hours. Visitors’ hours by the Superintendent or Commanding shall be established by the Super- General and is part of a memorial serv- intendent and posted in conspicuous ice or ceremony authorized by this sec- places. Unless otherwise posted or an- tion; nounced by the Superintendent, visi- (5) Distribute any handbill, pam- tors will be admitted during the fol- phlet, leaflet, or other written or print- lowing hours: ed matter within the Cemetery grounds October through March—8 a.m. through 5 except that a program may be distrib- p.m. uted if approved by the Superintendent April through September—8 a.m. through 7 or Commanding General and such dis- p.m. tribution is a part of a memorial serv- No visitor shall enter or remain in the Ceme- tery beyond the time established by the ap- ice or ceremony authorized by this sec- plicable visitors’ hours. tion; (6) Allow any dog, cat, or other pet to (e) Destruction or Removal of Property. run loose within the Cemetery grounds; No person shall willfully destroy, damage, mutilate or remove any monu- (7) Use the Cemetery grounds for rec- ment, gravestone, structure, tree, reational activities such as sports, ath- shrub, plant or other property located letics, or picnics; within the Cemetery grounds.

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(8) Ride a bicycle within Cemetery (v) Obstructs movement on the grounds except on Meigs Drive, Sher- streets, sidewalks, or pathways of the man Drive and Schley Drive or as oth- Cemetery grounds without prior au- erwise authorized by the Super- thorization by competent authority; intendent under this subparagraph. All (vi) Disobeys a proper request or other bicycle traffic will be directed to order by the Superintendent, Cemetery the Visitors’ Center where bicycle special police, park police, or other racks are provided. Exceptions for bi- competent authority to disperse or to cycle touring groups may be authorized leave the Cemetery grounds; or in advance and in writing by the Super- (vii) Otherwise creates a hazardous or intendent. An individual visiting a rel- physically offensive condition by any ative’s gravesite may be issued a tem- act not authorized by competent au- porary pass by the Superintendent to thority. permit him to proceed directly to and (g) Soliciting and Vending. No person from the gravesite by bicycle; shall display or distribute commercial (9) Deposit or throw litter on Ceme- advertising or solicit business while tery grounds; within the Cemetery grounds. (10) Play any radio, tape recorder, or (h) Requests to Conduct Memorial Serv- musical instrument, or use any loud- ices and Ceremonies. (1) Requests by speaker within the Cemetery grounds members of the public to conduct me- unless use of the same is approved by morial services or ceremonies shall be the Superintendent or Commanding submitted to the Superintendent, Ar- General and is part of a memorial serv- lington National Cemetery, Arlington, ice or ceremony authorized by this sec- Virginia 22211. Such requests shall de- tion; scribe the proposed memorial service (11) Drive any motor vehicle within or ceremony in detail to include the Arlington National Cemetery in excess type of service, its proposed location, of twenty miles per hour or such lesser the name of the individual or organiza- speed limit as the Superintendent tion sponsoring the service, the names posts; of all key individuals participating in (12) Park any motor vehicle in any the service, the estimated number of area on the Cemetery grounds des- persons expected to attend the service, ignated by the Superintendent as a no the expected length of the service, the parking area; or leave any vehicle in service’s format and content, whether the Visitors’ Center Parking Lot at the permission to use loud-speaker systems Cemetery beyond two hours; or musical instruments or flags during (13) Engage in any disorderly conduct the service is requested and, if so, the within the Cemetery grounds. For pur- number, type, and how they are poses of this section, a person shall be planned to be used, whether permission guilty of disorderly conduct if, with to distribute printed programs during purpose to cause, or with knowledge the service is requested, and, if so, a that he is likely to cause, public incon- description of the programs, and venience, annoyance or alarm, he: whether military support is requested. (i) Engages in, promotes, instigates, Individuals and organizations spon- encourages, or aids and abets fighting, soring memorial services or ceremonies or threatening, violent or tumultuous shall provide written assurance that behavior; the services or ceremonies are not par- (ii) Yells, utters loud and boisterous tisan in nature, as defined in paragraph language or makes other unreasonably (i) of this section, and that they and loud noise; their members will obey all rules set (iii) Interrupts or disturbs a memo- out in this section and act in a dig- rial service or ceremony; nified and proper manner at all times (iv) Utters to any person present abu- while in the Cemetery grounds. sive, insulting, profane, indecent or (2) Requests to conduct official cere- otherwise provocative language or ges- monies shall be submitted to the Com- ture that by its very utterance tends to manding General. incite an immediate breach of the (3) Memorial services or ceremonies peace; other than private memorial services

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may be conducted only after permis- the Government of the United States sion has been received from the Super- or any state of the United States; if it intendent or Commanding General. espouses the cause of a political party; Private memorial services may be con- or if it has as a primary purpose to ducted only at the gravesite of a rel- gain publicity or engender support for ative or friend. All other memorial any group or cause. If a service is services and ceremonies may be con- closely related, both in time and loca- ducted only at the area or areas des- tion, to partisan activities or dem- ignated by the Superintendent or Com- onstrations being conducted outside manding General as follows: the Cemetery, it will be determined to (i) Public memorial services may be be partisan and therefore inappro- authorized to be conducted only at the priate. If a service is determined to be Arlington Memorial Amphitheater, the partisan by the Superintendent or the Confederate Memorial, the John F. Commanding General, permission to Kennedy Grave, or other sites des- conduct memorial services or cere- ignated by the Superintendent. monies at the Cemetery will be denied. (ii) Public wreath laying ceremonies (3) Participants in public wreath lay- may be authorized to be conducted at ing ceremonies shall remain silent dur- the tomb and plaza area of the Tomb of ing the ceremony. the Unknown Soldier (also known as (4) Participants in public memorial the Tomb of the Unknowns). services at the John F. Kennedy Grave (iii) Official ceremonies may be au- shall remain silent during the service. thorized to be conducted at sites des- (5) Public memorial services and pub- ignated by the Superintendent or Com- lic wreath laying ceremonies shall be manding General. open to all members of the public to (i) Conduct of Memorial Services and observe. Ceremonies. All memorial services and (6) Participants in public wreath lay- ceremonies within Arlington National ing ceremonies shall follow all instruc- Cemetery, other than official cere- tions of the Tomb Guards, Super- monies, shall be conducted in accord- intendent, and Commanding General ance with the following rules: relating to their conduct of the cere- (1) Memorial services and ceremonies mony. (40 U.S.C. 318a, 486, and delega- shall be purely memorial in purpose tions of authority from the Adminis- and dedicated only to the memory of trator, General Services Administra- all those interred in the Cemetery, to tion, Secretary of Defense, and Sec- all those dying in the military service retary of the Army). of the United States, to all those dying (j) Tributes in Arlington National Ceme- in the military service of the United tery to commemorate individuals, events, States while serving during a par- units, groups and/or organizations—(1) ticular conflict or while serving in a General. Tributes, which include particular military unit or units, or to plaques, medals, and statues, will be the memory of the individual or indi- accepted only from those veterans or- viduals interred or to be interred at the ganizations listed in the Directory of particular gravesite at which the serv- Veterans Organizations and State De- ice or ceremony is held. partment of Veterans Organizations (2) Partisan activities are inappro- published annually by the Veterans Ad- priate in Arlington National Cemetery, ministration or those substantially due to its role as a shrine to all the similar in nature. honored dead of the Armed Forces of (2) Plaques at trees and other donated the United States and out of respect items. Plaques may be accepted and for the men and women buried there placed at trees or other donated items and for their families. Services or any to honor the memory of a person or activities inside the Cemetery con- persons interred in Arlington National nected therewith shall not be partisan Cemetery or those dying in the mili- in nature. A service is partisan and tary service of the United States or its therefore inappropriate if it includes allies.- commentary in support of, or in oppo- Plaques placed at trees or other do- sition to, or attempts to influence, any nated items must conform to the speci- current policy of the Armed Forces, fications described in appendix A,

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Specifications for Tributes in Arling- additional or all the Unknowns, or a new ton National Cemetery. A rendering of tribute may be substituted for the old one. the proposed plaque shall be sent to the 4. Design—a. Character. The design of the Superintendent, Arlington National tribute shall be artistically proportioned and shall be consistent with the sacred purpose Cemetery, Arlington, Virginia 22211– of the shrine, which is to honor heroic mili- 5003 for approval. tary service as distinguished from civilian (k) Tributes to the Unknowns (Un- service however notable or patriotic. known Soldier)—(1) General. Tributes, b. Dimensions. The surface area of the trib- normally plaques, to the Unknowns by ute, including the mounting, shall not ex- those organizations described in ceed 36 square inches; and the thickness or § 553.22(j) above must conform to speci- height shall not exceed two (2) inches when mounted. fications and guidelines contained in c. Inscriptions—(1). Tributes to the Un- appendix A, Specifications for Tributes knowns. Tributes are accepted only for the in Arlington National Cemetery. De- purpose of commemorating and paying hom- scriptions of the character, dimensions, age and respect to one or more of the Un- inscription, material and workmanship knowns. Thus all tributes must include, ei- of the tribute must be submitted in ther in the basic design or on a small plate writing to Superintendent, Arlington affixed thereto, a clear indication of such National Cemetery, Arlington, Virginia commemoration. Suggestions follow: 22211–5003 for approval. (2) Tributes to the Unknowns (Un- —In Memory Of The American Heroes Known But to God known Soldier) Presented by Foreign Dig- —The American Unknowns nitaries. Presentation of tributes by —The Unknown American Heroes Foreign Dignitaries is allowed as part —The Unknown Soldier of an official ceremony as defined here- —The Unknown of World War II in. —The Unknown of the Korean War (l) Monuments. Monuments (other —The Unknown American of World War II than private monuments or markers) —The Unknown American of the Korean War to commemorate an individual, group The identity of the donor/Date of Presen- or event may be erected following joint tation. 2. Other Tributes including plaques at trees or concurrent resolution of the Con- and other donated Items. Inscriptions on trib- gress. utes will be in keeping with the dignity of Arlington National Cemetery. APPENDIX A TO PART 553—SPECIFICA- d. Material and Workmanship. The material TIONS FOR TRIBUTES IN ARLINGTON and workmanship of the tribute, including NATIONAL CEMETERY the mounting, shall be of the highest quality, free of flaws and imperfections. 1. Purpose. The appendix provides specifica- 5. Applications. Requests for authority to tions and guidelines for obtaining approval present tributes shall be submitted in writ- for the donation of tributes at Arlington Na- ing to the Superintendent, Arlington Na- tional Cemetery. - tional Cemetery, Arlington, Virginia 22211– 2. Approval. The Superintendent, Arlington 5003. National Cemetery, Arlington, Virginia a. A scale drawing or model, showing the 22211–5003 exercises general supervision over exact inscription and other details of the Arlington National Cemetery; and his ap- proposed tribute. proval of proposed tributes to be placed in b. A copy of the constitution and bylaws of Arlington National Cemetery is required. the organization desiring to make the pres- 3. Who May Offer Tributes. a. Tributes will entation. be accepted only from those veterans’ orga- 6. Final Approval. Upon fabrication, the nizations listed in the Directory of Veterans completed tribute will be forwarded to the Organizations and State Department of Vet- Superintendent, Arlington National Ceme- erans Organizations published annually by tery, Arlington, Virginia 22211–5003 for visual the Veterans Administration or those sub- inspection prior to its presentation. stantially similar in nature. Tributes will 7. Presentation of Tributes. After authorized not be accepted from individuals or from acceptance of the tribute the sponsoring or- subdivisions of parent organizations. ganization may arrange appropriate presen- b. Only one tribute will be accepted from tation ceremonies with the Superintendent, an organization. However, with prior ap- Arlington National Cemetery, Arlington, proval, the inscription of a tribute already Virginia 22211–5003. If presentation cere- presented in Memory of the Unknown Sol- monies are not desired, the Superintendent dier (World War I) may be reworded by the will acknowledge receipt of the tribute and donating organization to commemorate one inform the sponsoring organization of the

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number of the case in which it reposes in the § 555.3 References. Memorial Display Room at the Amphi- theater at Arlington National Cemetery. (a) AR 10–5. (b) AR 37–27. [45 FR 80524, Dec. 5, 1980, as amended at 51 (c) AR 70–1. FR 19708, May 30, 1986; 51 FR 43742, Dec. 4, (d) ER 1–1–6. 1986] (e) ER 1–1–7. (f) ER 70–1–5. PART 555—CORPS OF ENGINEERS, (g) ER 70–1–10. RESEARCH AND DEVELOPMENT, (h) ER 1110–1–8100. LABORATORY RESEARCH AND (i) ER 1110–2–8150. DEVELOPMENT AND TESTS, WORK (j) ER 1140–2–302. FOR OTHERS (k) ER 1140–2–303.

Sec. § 555.4 Policy. 555.1 Purpose. (a) The policies and procedures cov- 555.2 Applicability. ered herein extend and supplement the 555.3 References. performance of work for other Federal 555.4 Policy. Agencies authorized in ER 1140–2–302, 555.5 Terms of providing reimbursement for and services for State and local govern- work performed. mental units authorized in ER 1140–2– 555.6 Authority. 303, and the policy set forth by the Sec- 555.7 Submission of technical proposals. retary of Defense in appendix A. 555.8 Program documentation. (b) Subject to the authority limita- 555.9 Reporting requirements for work in tions contained in § 555.6 of this part, support of DOE. research and development and tests 555.10 Coordination requirements. may be performed for other agencies of APPENDIX A TO PART 555—DIRECTOR OF DE- the Federal Government, State and FENSE RESEARCH AND ENGINEERING local governments, foreign govern- AUTHORITY: 10 U.S.C. 3036; 22 U.S.C. 2357; 22 ments and private firms under the fol- U.S.C. 2421; 31 U.S.C. 686; 42 U.S.C. 4221–4225. lowing conditions: (1) The work is performed on a cost SOURCE: 45 FR 32302, May. 16, 1980, unless otherwise noted. reimbursable basis; or on a cooperative basis with the Department of Energy § 555.1 Purpose. (DOE), utilizing the resources of both DOE and the Corps; or as a part of di- This regulation defines and estab- rect funded programs for the Army Ma- lishes policies and procedures applica- teriel Development and Readiness ble to the performance of research and Command (DARCOM) or the Defense development and tests at Corps of En- Mapping Agency (DMA), as provided gineers laboratory installations for for in §§ 555.6(a)(1), 555.6(a)(2), 555.7, and other governmental and private agen- 555.9 of this part. cies and organizations. (2) Performance of the work will not interfere with performance of services § 555.2 Applicability. essential to the mission of the Corps. This regulation applies to the U.S. (3) Performance of the work will not Army Engineer Waterways Experiment require an increase in the permanent Station (WES), the U.S. Army Con- staff of the facility. struction Engineering Research Lab- (4) Performance of the work will not oratory (CERL), the U.S. Army Engi- require expansion of normal facilities. neer Topographic Laboratories (ETL), (5) The work is within the scope of the U.S. Army Coastal Engineering Re- authorized activities of the laboratory search Center (CERC), the U.S. Army at which the work is to be performed. Cold Regions Research and Engineering (6) Performance of the work will not Laboratory (CRREL), the U.S. Army be adverse to the public interest. Facilities Engineering Support Agency (7) Work will not be performed for (FESA), the U.S. Army Corps of Engi- foreign government or private firms neers Water Resources Support Center unless it is firmly established that (WRSC). other laboratory facilities capable of

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performing the services are not avail- the period of performance in accord- able, or because of location or for other ance with Section 40 of the Water Re- reasons it is clearly impractical to uti- sources Development Act of 1974. lize other laboratory services. (8) Prior to performing any research § 555.6 Authority. and development or tests for private The following delegations of author- firms, CE laboratories will obtain a ity to perform research and develop- written certification from such firms ment and tests apply. stating that the results of the work to (a) Major Corps of Engineers Research be performed will not be used in litiga- and Development Laboratories. The tion or for promotional purposes. major Corps of Engineers research and § 555.5 Terms of providing reimburse- development organizations are identi- ment for work performed. fied as WES, CERL, ETL, CERC, and CRREL. While not major CE R&D Lab- (a) Federal Agencies. Reimbursement oratories, FESA, IWR, and HEC are re- for work for the Department of De- sponsible for performance of specific fense, the Department of the Army, R&D functions. and other Federal Agencies will be in accordance with the procedures pre- (1) Subject to the provisions of § 555.8 scribed in AR 37–27. of this regulation, the Commanders (b) Private firms and Foreign Govern- and Directors of WES, ETL and CRREL ments. Funds to cover the total esti- are authorized to perform direct funded mated cost of the work or an initial in- work for DARCOM and DMA in accord- crement of the estimated cost based on ance with the applicable memoran- an approved schedule of payment will dums of understanding. be deposited with the installation per- (2) Subject to the provisions of §§ 555.7 forming the work before any obliga- and 555.9, the Commanders and Direc- tions or expenses in connection with tors of CERL, CRREL, WES and FESA, the work are incurred; and when funds for specific research and development are being deposited on an approved functions, are authorized to perform schedule, no obligations or expenses work for DOE in accordance with the will be incurred in connection with the applicable memorandum of under- work in excess of funds on deposit. standing. Charges shall include a surcharge of (3) Except as provided for in para- 15% of all applicable costs, except graphs (a) (5) and (6) of this section, the under the following conditions: Commanders and Directors of WES, (1) When the final product will di- CERL, CERC, CRREL, ETL and FESA rectly contribute to planning, design, are authorized to perform reimbursable research, or construction activities in work without OCE prior approval for which Federal funds are involved by Army agencies, Federal, State and grant or otherwise. local governmental agencies where the (2) Where an exception is granted total estimated cost of each request for based on a direct benefit to the Govern- research and development or test is ment. Adequate justification, outlining $50,000 or less. The Research and Devel- the direct benefits which are expected opment Office will be advised of each to accrue to the Government, will be request for research and development forwarded to HQDA (DAEN-RD) WASH or test having an estimated cost ex- DC 20314, for review and approval prior ceeding $20,000 (excluding cement sam- to deletion of the surcharge. pling and testing work covered in (c) State and Local Governments. Work § 555.6(a)(5) herein). Reimbursable re- for State and local governments will be search and development and test work performed only to the extent that cash for which the cost is estimated to be in has been received and deposited with excess of $50,000 will not be initiated the U.S. Treasury in advance of actual until authorization is received. Written expenditures. When the work for State requests for authorization to conduct and local governments is to be perwork beyond the $50,000 limit and noti- formed as part of an authorized Civil fication of all scheduled work costing Works Project, reimbursement may be between $20,000 and $50,000 shall be sub- made in annual installments during mitted to DAEN-RD. These requests

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should accompany the technical pro- sources, will be forwarded to DAEN-RD posal copy required by § 555.7(a) herein. for securing prior approval from the It should include an explanation of the DA and DOD Program Coordinators. proposed work including how the work Copies of proposals which exceed the complements or impacts on-going re- delegation of authority contained in search. this ER will be submitted to the Chief (4) Except as provided for in of Engineers marked for the attention § 555.6(a)(5), the Commanders and Direc- of DAEN-RD. tors of WES, CERL, CERC, CRREL, (b) The above authority for direct ETL and FESA are delegated authority submission of technical proposals does to perform reimbursable research and not include authority to perform work development for U.S. private firms and when proposals are accepted if the esti- foreign governments when the total es- mated cost exceeds the limits stated timated cost of each request for re- before. Authority to proceed will be as search and development or test is outlined in § 555.6. $20,000 or less. Approval is required when estimated costs exceed this au- § 555.8 Program documentation. thority. Written requests for approval Program documentation will be sub- shall be addressed to DAEN-RD. mitted in accordance with instructions (5) Corps R&D Laboratories are au- provided by the sponsoring agency with thorized to participate in the Depart- two copies to HODA (DAEN-RD) WASH ment of Defense Technology Transfer DC 20314. Consortium. Participation in and effort undertaken to adapt existing tech- § 555.9 Reporting requirements for nology or on-going research for trans- work in support of DOE. fer to the civil sector as a result of par- The following reports are to be sub- ticipation in this consortium shall be mitted to HODA with a copy to Com- subject to the provisions of appendix A. mander and Director, CERL. CERL has (6) The Director of WES is authorized been assigned the responsibility of to perform sampling and testing of ce- Principal Laboratory for Energy R&D. ment and pozzolan for Federal, State, (a) All executed agreements subordi- and local governmental agencies with- nate to the DOD-DOE Memorandum of out limitation on cost. Approval is re- Understanding will be reported to quired prior to performance of sam- DAEN-RD for forwarding to DA and pling and testing of cement and DOD Program Coordinators within 20 pozzolan for private firms and foreign days of their consummation. governments when the total estimated (b) Reports analyzing each agreement cost of sampling and testing services and the DOD-DOE Memorandum of Un- exceeds $2,500. Requests for approval derstanding will be prepared as a ‘‘Re- shall be addressed to DAEN-RD. port on the Department of Defense— (7) The Director of CERL is author- Department of Energy Interagency ized to perform compliance testing of Agreement’’, Report Control Symbol paint for Federal, State and local gov- DD-M(SA)1511 and forwarded to DAEN- ernmental agencies without limitation RD within 20 days after the end of the on cost. second and fourth quarters each fiscal year. Reports are to be prepared in ac- § 555.7 Submission of technical pro- cordance with the procedures pre- posals. scribed in DEPPM, No. 78–8. In addi- (a) Corps of Engineers research and tion, informal reporting of other coop- development laboratories are author- erative work with DOE not falling ized to submit technical proposals di- under the MOU, will also be reported at rectly to other Federal agencies cov- those times. ering proposed work in their assigned (c) Notifications of non-compliance. fields except that proposals submitted DAEN-RD should be promptly notified to DMA must be submitted through if the Corps component or DOE fail to DAEN-RD for approval. Proposals for comply with the terms of the DOD- cooperative effort projects under the DOE Memorandum of Understanding or DOD-DOE Memorandum of Under- subordinate agreements. This notifica- standing utilizing DOD and DOE re- tion shall include:

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(1) A brief statement of the problem. exists in our DOD laboratories for the so- (2) Nature of corrective action pro- lutions of domestic problems. Separate posed. and distinct from work done for defense (3) Any recommended action for the oriented agencies such as AEC and DOD Program Coordinator. NASA, our DOD laboratories have, for may years, performed selected projects § 555.10 Coordination requirements. for other agencies upon request. Re- cently, fifteen of these laboratories have All reimbursable work accepted by a formed a consortium for the purpose of laboratory which falls into a category coordinating the non-defense work being for which a Principal Laboratory has performed by them for other government been designated by DAEN-RD, will be organizations. Although the level of ef- reported to the designated POC in the fort is a very small percentage in these Principal Laboratory, with a copy of laboratories at the present time, the ag- the notification to DAEN-RD. gregate can have a substantial beneficial impact on domestic programs. APPENDIX A TO PART 555—DIRECTOR OF It is generally conceded that the most effi- DEFENSE RESEARCH AND ENGINEERING cient transfer of technology occurs when the adaptation of a technology to a new purpose JUNE 14, 1974. is carried out by the team which carried out MEMORANDUM FOR ASSISTANT SECRETARIES OF the original development. Recognizing this, THE MILITARY DEPARTMENTS (R&D) the Federal Council on Science and Technology (FCST) has approved a ‘‘Policy for Expanded Subject: Non-Defense Work in DoD Labs and Interagency Cooperation in Use of Federal Lab- R & D Facilities. The Deputy SECDEF, in his memorandum oratories’’ (attached). I endorse the spirit and of 21 January 1972 to the Secretaries of the intent of this policy. Military Departments, on the above subject, The Military Services are encouraged to par- (enclosure 1), outlined broad policy consider- ticipate in this endeavor consistent with mission ations for the DoD Laboratory Consortium and legislative constraints. The level of effort formed to coordinate non-defense work being in any laboratory is the prerogative of the performed by them for other government or- cognizant Military Department which may, ganizations. In order to establish more pre- in turn, issue more detailed policy guidance cise guidelines for the Consortium, an oper- as appropriate. Any Military Department ating policy has been developed (enclosure 2) policy shall be subject to the following con- which establishes criteria for Consortium siderations: membership and the type of work that may (a) The level of effort of the work undertaken be undertaken. Also, the following additional shall be such that it does not impede the accom- constraints are placed upon the operation of plishment of the missions of the Military Serv- this Consortium; ices and the defense laboratories. • The expenditure of in-house effort in any one laboratory shall be limited to 3% of the (b) The projects selected for non-defense professional man-years at that laboratory work shall be compatible with the technological unless expressed approval of the parent Mili- capability of the laboratory performing the tary Department is granted to exceed this work. limit. (c) Projects may be undertaken in support • The DoD commitment to support the of federal, state and local government orga- brokerage function at the National Science nizations. Non-defense work will be performed Foundation shall not exceed two man-years for the private industrial sector only on an ex- per year through FY 76, subject to the conception basis. tinued willingness of the Military Depart- (d) The full costs of projects undertaken ments to absorb the costs. shall be supported by transfer of funds through Malcolm R. Currie. formal written agreements. January 21, 1972. (e) Jointly sponsored projects are permitted Memorandum for Secretaries of the Military when there is also a direct application to a Mili- Departments Director of Defense Re- search and Engineering Assistant Sec- tary requirement. The commitment of funds retary of Defense (Comptroller). and resources to joint programs shall be Subject: Non-Defense Work in DOD Labora- commensurate with the interest of each tories and R&D Facilities Civil govern- agency in the project. ment agencies are expressing an in- The Assistant Secretary of Defense (Comp- creased interest in the application of de- troller) shall explore with the Office of Man- fense and aerospace technology to the so- agement and Budget means for providing re- lution of problems in the civil sector. In- lief from any imposed manpower constraints cluded in this interest is the desire to ex- to the extent of the DOD participation in ploit the technological expertise which non-defense work.

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OPERATING POLICY OF THE DEPARTMENT OF should rely on the private enterprise system DEFENSE TECHNOLOGY TRANSFER CONSORTIUM to provide those services which are reasonably and expeditiously available through or- Purpose—The purpose of this policy is to dinary business channels. The laboratories establish the basic framework and direction shall attempt to provide a supplemental re- of the Department of Defense (DOD) Tech- source that is not technically available or nology Transfer Consortium. that is obtainable only at an excessive cost. Background—The DOD currently funds ap- Such services shall not supplant existing pri- proximately half of the total Federal expend- vate or industrial resources but are offered iture for R&D. Civil government agencies are to enable other Federal agencies, State and expressing an increased interest in the ex- local governments to avoid unnecessary du- ploitation of defense technology for the solu- plication of special service functions. tion of problems in the civil sector. The Mili- tary Departments have been encouraged to The following criteria shall apply for the cooperate in this endeavor, subject to consid- conduct of work undertaken in the tech- erations promulgated by the Secretary of nology transfer program: • Defense. In order for work to be undertaken for Consortium Purpose—The DOD Laboratories any government organization each of the fol- are a source of technology for the solution of lowing criteria must be satisfied: these civil sector problems which are ame- a. Laboratory staff will not increase as a nable to technological solutions. The pri- result of the additional work. mary role of the in-house laboratories is to b. Laboratory facilities will not be added provide a research and development base for for non-DOD work. the development of systems required to ful- c. Proposed work should relate to a labora- fill the national security mission of the tory’s area of particular expertise and the DOD. However, these laboratories can serve laboratory should be a significant resource a vital secondary role in the adaptation of in the particular subject area. technology to other fields and areas of need d. A determination should be made that to the extent that it does not adversely im- the laboratory’s background, experience and pact on the primary DOD mission. A consor- facilities are such that private industry tium of DOD Laboratories is formed for the could not perform the work except at a sig- purpose of coordinating interactions with nificantly increased cost. other Federal Agencies and technology users • The major emphasis of the Technology at federal, state, and local level, and of co- Transfer Consortium should be directed to: ordinating the efforts in this endeavor. The a. The transfer or adaptation of existing technology transfer consortium is an asso- technology, either directly, or after being ciation of DOD Laboratories working to- subjected to adaptive engineering. gether through an informal affiliation. The b. The preparation of documentation and main thrust of the consortium activity is technical assistance in those activities through the individual and cooperative ef- unique to the mission of the DOD forts of the laboratories involved, with an laborabories. emphasis on the transfer and adaptation of • Work will be performed for private indus- technology through person-to-person mecha- try only on an exception basis, such as when nisms. the laboratory possesses unique facilities Criteria for Laboratory Consortium Member- that are required and which are not available ship. The following criteria for the participa- in the private sector. tion of a DOD Laboratory in Consortium ac- • Description of the work to be accom- tivities shall apply: plished and the funds to be transferred will • The participation of any laboratory shall normally be specified in a formal inter- be undertaken with the full knowledge of the agency agreement. parent Military Department and the director • All costs shall be recovered from the re- or commander of the laboratory. ceiving government organization, including • For each participating laboratory an in- realistic overhead costs, except that cooper- dividual shall be designated by name to rep- ative developments on a shared cost basis resent that laboratory to the consortium, are encouraged where there is a distinct and to coordinate the technology transfer military application. activities of that laboratory. Procedures • Laboratory production of hardware shall should be adopted within each laboratory to normally be limited to prototypes or test preclude the dilution of the efforts of middle units required to prove feasibility. and top level management by their involve- • Adaptive engineering shall not be per- ment in the administrative aspects of the formed on technological innovations for technology transfer effort. which a patent application has been made by • Any laboratory may withdraw from the a private industrial firm unless permission is Consortium by notifying the Consortium received in writing from that firm. Tech- Chairman of this intent. nical, consulting, and support services will Criteria for Conduct of Work—It is the view not normally be furnished another agency on of the Consortium that the civil sector a continuing basis.

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• Work in the form of analytic services petitive industry. An exception to this provi- shall not normally be undertaken in areas sion is acceptable in areas of problem defini- where comparable expertise exists in com- tion where existing Defense technology offers a unique potential solution.

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PART 562—RESERVE OFFICERS’ man and sophomore years in a military TRAINING CORPS junior college (MJC)). (d) Basic camp. The 6-week ROTC Sec. training course held at a military in- 562.1 Purpose. stallation. This course is normally 562.2 Applicability. taken before the applicant’s junior aca- 562.3 Definitions. demic year. It is a prerequisite to en- 562.4 Objectives. rollment in the 2-year ROTC program. 562.5 Policies. 562.6 Responsibilities. (e) Basic course. The 2-year senior 562.7 Program information. ROTC basic course (MS-I and MS-II) 562.8 Army Advisory Panel on ROTC Af- normally pursued by the cadet during fairs. freshman and sophomore years in col- AUTHORITY: 10 U.S.C. 2101–2111, unless oth- lege. erwise noted. (f) Branch material. Designation of a course of instruction designed to pre- SOURCE: 44 FR 51221, Aug. 31, 1979, unless otherwise noted. pare the cadet for appointment as a commissioned officer in a specific § 562.1 Purpose. branch of the Army. A branch material This regulation gives policies for unit may offer training in one or more conducting the Army’s Senior Reserve specific branches. Officers’ Training Corps (ROTC) Pro- (g) Cadet. A term applied to each en- gram. rolled member of the ROTC program, including alien students in MS-I or MS- § 562.2 Applicability. II. As a grade of rank, this term applies This regulation applies to the pro- only to advanced course cadets. gram given at college level institutions (h) Four-year Senior ROTC Program. and at the college level in military jun- The 4-year Senior ROTC Program con- ior colleges. sisting of 4 years of military science (MS-I, –II, –III, and –IV), and ROTC ad- § 562.3 Definitions. vanced camp. The following terms apply to the (i) General military science (GMS). A Army’s Senior Reserve Officers’ Train- ROTC instruction program to prepare a ing Corps Program: cadet for appointment as a commis- (a) Academic year. A period covering sioned officer in any branch of the two semesters, or the equivalent, in Army for which he/she is qualified. which a student should complete one- (j) Military science (MS). The Senior fourth of the baccalaureate degree re- ROTC curriculum which consists of quirements under a 4-year college cur- two courses, the basic course (MS-I and riculum, or one-fifth of the require- MS-II) and the advanced course (MS-III ments under a 5-year curriculum. The and MS-IV). vacation period or summer session (k) Professor of Military Science (PMS). which follows is not normally included. The academic and military title of the (b) Advanced camp. The advanced senior commissioned Army officer as- camp training period held on a mili- signed to a Senior ROTC unit. tary installation. This is part of the (l) Region commander. The com- advanced course and normally attended manding general of a U.S. Army ROTC between Military Science (MS)–III and Region who is responsible for the oper- MS-IV. (The Ranger camp is an accept- ation, training, and administration of able alternate). the ROTC program within his/her geo- (c) Advanced course. The Senior ROTC graphical area. Region commanders are 2–year advanced course of study (MS- located at: III and MS-IV), including advanced (1) US Army First ROTC Region, camp. This advanced study normally Fort Bragg, NC 28307. taken by the cadet during his/her jun- (2) US Army Second ROTC Region, ior and senior years in college (fresh- Fort Knox, KY 40121.

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(3) US Army Third ROTC Region, (b) The Army Senior ROTC program Fort Riley, KS 66442. is a cooperative effort, contracted be- (4) US Army Fourth ROTC Region, tween the Army and host institution to Fort Lewis, WA 98433. provide junior officer leadership in the (m) ROTC ranger camp. The ranger interest of national security. The course conducted by the US Army In- Army maintains a cordial and coopera- fantry School for volunteer cadets. tive relationship with host institu- Those selected attend in lieu of ad- tions. The Army’s goal is to continue vanced camp. to develop well-educated young men (n) Two-year ROTC Program. A Senior and women with potential as leaders in ROTC Program of the same status as both civilian enterprise and national the 4-year program. It consists of the defense. The Army is receptive to valid advanced course, preceded by basic criticism, regardless of source, as a camp as a qualifying step (in lieu of means of maintaining a workable pro- MS-I and MS-II). gram. The right of orderly campus dis- sent is recognized. However, anti-ROTC § 562.4 Objectives. activities which degrade and distort The objectives of the ROTC program the Army image cannot be ignored. are to: Consequently, the Army must look to its institutional hosts to provide cam- (a) Attract, motivate, and prepare pus support for the ROTC program. students with potential to serve as (c) The program meets changing edu- commissioned officers in the Regular cational philosophies and concepts. It Army or the US Army Reserve. gives a flexible course of study in the (b) Understand the concepts and prin- changing environment of the academic ciples of military art and science. community. A curriculum in the ROTC (c) Develop potential to lead and program is not restricted to classroom manage. teaching. Program objectives may be (d) Understand other professions. satisfied in a variety of ways. A pro- (e) Develop integrity, honor, and re- gram may include a curriculum of sponsibility. other than classroom instruction if: it (f) Appreciate the need for national provides stated learning results, it is security. Attaining these objectives adopted by the host institution as part prepares students for commissions and of its curriculum, and it follows the establishes a basis for future profes- program of instruction published by sional development and performance in the US Army Training and Doctrine the Army. Command. The PMS has authority, subject to limits set by the region com- § 562.5 Policies. mander, to develop courses that accom- (a) The ROTC draws young men and plish program objectives of the host in- women from all geographic areas and stitution. Activities which are part of all strata of our country. It uses the the host school’s curriculum require many educational disciplines required the same degree of support as other for the modern Army. The ROTC en- elements of the curriculum. The goal of sures that men and women educated in the ROTC program is to commission a variety of American schools of higher well-educated young men and women learning are commissioned annually in in the Army. the Army officer corps. In the future, (d) The PMS is responsible to see the ROTC will continue to be the major that each cadet realizes the importance source of newly commissioned officers of choice of branch preferences and for the Active Army, both Regular what is involved in making an intel- Army and Reserve forces. In addition, ligent selection. Each graduating cadet ROTC provides an advantage both to by Army policy is assigned to the the Army and institutions of higher branch indicated by personal pref- learning by assisting in the education erence, academic major, physical quali- of future Army Officers and providing a fications, ROTC training, and dem- communication link between our mili- onstrated abilities, whenever possible. tary leaders and our developing stu- However, the assignment must be made dents. by the needs of the service and may

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prevent selection based on the other (iv) Make available for use by the factors. In assigning branches consider- Senior ROTC unit necessary and ade- ation is given to the cadet’s academic quate classrooms, administrative of- specialization. fices, office equipment, storage space, drill field, and other required facilities § 562.6 Responsibilities. in a fair and equitable manner in com- (a) The Commanding General, US Army parison with other departments of the Military Personnel Center, 200 Stovall institution (or other elements of the Street, Alexandria, VA 22332, is the institution, if the institution does not adminstrator of the Department of the have departments) and to pay the costs Army for ROTC. of utilities and maintenance thereof. (b) The Commanding General, US Army (v) Grant appropriate academic cred- Training and Doctrine Command, Ft. it applicable toward graduation for Monroe, VA 23651, manages and oper- successful completion of courses of- ates the ROTC program, except for fered by the Department of Military those functions and responsibilities re- Science. tained by Headquarters, Department of (vi) Arrange for the scheduling of the Army. military classes to make it equally (c) The Professor of Military Science convenient for students to participate (PMS) is the key to the success of the in ROTC as in other courses at the ROTC program. He/she is responsible same educational level. for setting up the Military Science (vii) Include a representative of the Program to blend the philosophies of Department of Military Science des- the institution with the needs of the ignated by the PMS on all faculty com- Army. mittees whose recommendations would directly affect the Department of Mili- [44 FR 51221, Aug. 31, 1979; 45 FR 9262, Feb. 12, tary Science. 1980] (viii) Provide, without expense to the Army, adequate storage and issue fa- § 562.7 Program information. cilities for all Government property (a) The Senior ROTC is conducted at provided for the ROTC program, when military colleges, civilian colleges and the Army assumes accountability and universities and military junior col- responsibility for Government prop- leges. School authorities may apply for erty. Adequate facilities will consist of a ROTC unit to the region commander safe, well-lighted, dry, heated, venti- of the area in which the school is lo- lated areas, provided with office space, cated or to TRADOC. To be eligible for shelving, bins, clothing racks, and a unit, the institution must: cabinets, as required, and suitable stor- (1) Be a 4-year degree granting col- age space for arms and ammunition. lege or university. All windows will be securely barred or (2) Be accredited by an appropriate provided with heavy mesh screen, and regional accrediting association or ac- doors will be reinforced and fitted with credited by a nationally recognized cylinder locks. Such facilities will be professional accrediting association. separate and apart from those occupied (3) Have an enrollment large enough by any other department of the institu- to ensure that officer production re- tion or other Government agency. De- quirements will be met. termination will be made by the region (4) Agree to— commander as to adequacy, safety, and (i) Establish a Department of Mili- satisfactory nature of storage and issue tary Science as an integral academic facilities. and administrative department of the (5) Produce a minimum annual aver- institution. age of 15 qualified commissioned offi- (ii) Adopt as part of the institution’s cers from each 4-year senior division curriculum either the 2- or 4-year pro- unit or a combination of a 4- and 2-year gram (or both) of the senior ROTC. senior division unit; or a minimum an- (iii) Require each cadet enrolled in nual average of 10 qualified officers any ROTC course to devote the number from each 2-year senior division unit. of hours to military instruction pre- (6) Comply with the following re- scribed by the Secretary of the Army. quirements:

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(i) There will be no discrimination § 562.8 Army Advisory Panel on ROTC with respect to admission to the insti- Affairs. tution or subsequent treatment of stu- (a) The Army Advisory Panel on dents on the basis of race, color, or na- ROTC Affairs (AAP) was established on tional origin. April 28, 1952. The AAP provides for a (ii) The senior commissioned officer continuous exchange of views between of the ROTC unit at the institution the U.S. Army Training and Doctrine will be given the academic rank of Pro- Command, the Department of the fessor. Army, and the academic community. (b) Institutional authorities may, (b) Membership is drawn from na- subject to approval of Department of tional educational associations, fac- the Army, elect to— ulty members and administrators from (1) Administer a GMS unit or a ROTC host institutions and nationally branch material unit. Their preference prominent individuals. will be given consideration, but the (c) The AAP meets as required, but type of unit approved for establishment not less than once annually and the will be determined on the basis of the meetings are open to the public. needs of the Army. [45 FR 39502, June 11, 1980] (2) Administer the 4-year or the 2- year ROTC program, or both. PART 564—NATIONAL GUARD (3) Maintain accountability and re- REGULATIONS sponsibility for Government property issued for the ROTC program by com- MEDICAL ATTENDANCE AND BURIAL plying with the following requirements or apply for relief therefrom. Sec. 564.37 Medical care. (i) Appoint an officer of the institu- 564.38 For whom authorized. tion as military property custodian 564.39 Medical care benefits. who will be empowered to requisition, 564.40 Procedures for obtaining medical receive, stock, and account for Govern- care. ment property issued to the institu- 564.41 Burial. tion, and otherwise transact matter CLAIMS FOR DAMAGES INVOLVING THE pertaining thereto for and in behalf of NATIONAL GUARD AND AIR NATIONAL GUARD the institution. (ii) Conform to the regulations of the 564.51 Purpose. 564.52 Statutory authority. Secretary of the Army relating to 564.53 Definitions. issue, care, use, safekeeping turn-in 564.54 Claims payable. and accounting for such Government 564.55 Claims not payable. property as may be issued to the insti- 564.56 Action by claimant. tution. 564.57 Procedure. (iii) Comply with the provisions of 564.58 Determination of amount allowable. law and regulations of the Secretary of AUTHORITY: Section 110, 70A Stat. 600; 32 the Army pertaining to the furnishing U.S.C. 110. of a bond to cover the value of all Gov- ernment property issued to the institu- MEDICAL ATTENDANCE AND BURIAL tions, except uniforms, expendable articles, and supplies expendable in oper- SOURCE: Sections 564.37 through 564.41 appear at 44 FR 16385, Mar. 19, 1979, unless oth- ation, maintenance, and instruction. erwise noted. (c) Students desiring enrollment in a unit must: § 564.37 Medical care. (1) Be enrolled in and attending (a) General. The definitions of med- fulltime a regular course of instruction ical care; policies outlining the man- at a school participating in the pro- ner, conditions, procedures, and eligi- gram. bility for care; and the sources from (2) Be a citizen of the United States. which medical care is obtained are enu- (3) Be at least 17 years of age. merated in AR 40–3. (4) Be physically capable of partici- (b) Elective care. Elective care in ci- pating in the program. vilian medical treatment facilities or

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by civilian medical and dental per- or repair by civilian sources over and sonnel is not authorized. The medical above the allowable rates will be paid care authorized by this regulation is from the individual’s personal funds. limited to that necessary for the treat- (E) In cases covered by paragraphs ment of the disease or injury incurred (c)(2) (ii) and (iii) of this section, the under the conditions outlined herein. unit commander will furnish a state- (c) Prosthetic devices, prosthetic ment to support the voucher as follows: dental appliances, hearing aids, spec- Statement tacles, orthopedic footwear, and orthopedic appliances. These items will be Namellllll, Rankllllll, SSNllllll, llllllllllll, furnished— llllll, while engaged in training under (1) By Army medical facilities. (i) section *(502 *(503) *(504) *(505) of title 32, When required in the course of treat- United States Code sustained the *(loss) ment of a disease or injury contracted *(damage) *(destruction) of his/her spectacles or incurred in line of duty. llllllllllll, description of loss, (ii) When required to replace items damage or destruction (type of lens and that have been lost, damaged, or de- frames) not the result of misconduct or negligence on his/her part. The *(repair) stroyed while engaged in training *(replacement) would interfere with his/her under sections 502–505 of title 32, performance of duty as a member of the U.S.C., not the result of negligence or Army National Guard. Date,llllll, sig- misconduct of the individual con- nature of unit commanderllllll. cerned. *Indicate applicable portions. (2) By civilian sources. (i) Under the circumstances enumerated in para- (F) Approval must be obtained from graph (c)(1)(i) of this section, after ap- the USPFO of the respective State proval of the United States Property prior to repair or replacement of spec- and Fiscal Officer’s (USPFO) of the re- tacles. spective States. (32 U.S.C. 318–320 and 502–505) (ii) Under the circumstances enumerated in paragraph (c)(1)(ii) of this sec- § 564.38 For whom authorized. tion, in the case of prosthetic devices, (a) In line of duty. Medical care is au- prosthetic dental appliances, hearing thorized for members who incur a dis- aids, orthopedic footwear, and ortho- ease or injury in line of duty under the pedic appliances when the unit com- following circumstances: mander determines that: (1) When a disease is contracted or (A) Member is far removed from a injury is incurred while enroute to, Federal medical treatment facility. from, or during any type of training or (B) Lack of such device would inter- duty under sections 503, 504, 505, and for fere with the individual’s performance Guardmembers on orders for over 30 of duty as a member of the ARNG. days performing duty under section (C) Approval must be obtained from 502f of title 32, U.S.C. Such training in- the USPFO’s of the respective States cludes, but is not limited to annual prior to replacement. training, maneuvers and field exer- (iii) Under the circumstances enu- cises, service schools, small arms merated in paragraph (c)(1)(ii) of this meets, and FTTD under aforemen- section, in the case of spectacles upon tioned sections. a determination by the unit com- (2) When an injury is incurred while mander that: engaged in any type of training under (A) The member is far removed from section 502 of title 32, U.S.C. Such military medical treatment facility. training includes, but is not limited to, (B) The member has no other service- unit training assembly, multiple unit able spectacles. training assembly, and training in aer- (C) Lack of a suitable pair of special flight, other than FTTD under 502f. tacles would interfere with the mem- (3) While not on duty and while vol- ber’s performance of duty as a member untarily participating in aerial flights of the ARNG. in Government-owned aircraft under (D) Charges for replacement of spec- proper authority and incident to train- tacles will not exceed the rates stated ing. Guardmembers are authorized in AR 40–330. Charges for replacement medical and dental care required as the

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result of an injury incurred in line of it appears that a finding of ‘‘not in line duty. of duty’’ may be appropriate, a formal (4) Medical care is not authorized at line of duty investigation should be Army expense for members who incur promptly conducted, and a copy of the an injury while enroute to or from any report furnished the treatment facility. type of training under section 502, ex- If these findings result in a ‘‘not in line cept for Guardmembers ordered to per- of duty’’ determination prior to the form duty for over 30 days under sec- date the training is terminated, every tion 502f of title 32, U.S.C. Line of duty effort should be made to assist the hos- investigations and authorization for pital concerned in disposing of the pa- any medical treatment for conditions tient from the hospital by the date the incurred while the members were per- training is terminated or as soon there- forming Reserve Enlistment Program after as he/she becomes transportable. of 1963 (REP 63) training in a Federal Medical care furnished such member status, or training under title 10, after the termination of the period of U.S.C. are the responsibility of the training is not authorized at Army ex- Army Area commander under whose ju- pense unless the ‘‘not in line of duty’’ risdiction the member was training, determination is ultimately reversed. even though the individual may have The individual may be furnished med- returned to his/her National Guard sta- ical care at Army expense from the tus. date the training is terminated to the (b) Not in line of duty. Members who date the member receives notification incur an injury or contract a disease of this action. Medical care received during any type of training or duty subsequent to the member’s receipt of under sections 502f, 503, 504, or 505 of such notification is not authorized at title 32, U.S.C., when it is determined Army expense. In the event a line of to be not in line of duty, may be fur- duty investigation has not been made nished medical care at Army expense by the date the training is terminated, during the period of training. every effort will be made to arrive at a (c) Armory drill status. Members who determination as soon thereafter as incur an injury while in an armory possible. drill status under section 502 of title 32, (32 U.S.C. 318–320 and 502–505) U.S.C., when it is determined to be not in line of duty, may not be furnished § 564.40 Procedures for obtaining med- medical care at Army expense. ical care. (32 U.S.C. 318–320 and 502–505) (a) When a member of the ARNG incurs a disease or an injury, while per- § 564.39 Medical care benefits. forming training duty under sections (a) A member of the ARNG who in- 502–505 of title 32, U.S.C., he/she will, curs a disease or injury under the con- without delay, report the fact to his/ ditions enumerated herein is entitled her unit commander. Each member to medical care, in a hospital or at his/ will be informed that it is his/her re- her home, appropriate for the treat- sponsibility to comply with these in- ment of his/her disease or injury until structions, and that failure to prompt- the resulting disability cannot be ma- ly report the occurrence of a disease or terially improved by further medical injury may result in the loss of medical care. benefits. (b) If it is determined that the dis- (b) Authorization for care in civilian ease or injury was directly related to facility. (1) An individual who desires authorized activities surrounding the medical or dental care in civilian med- care of the original disease or injury, ical treatment facilities at Federal ex- medical care may be continued in the pense is not authorized such care with- same manner as if it had occurred dur- out written or verbal authorization by ing the training period. the Chief, National Guard Bureau or (c) When members who incur a dis- his/her designee, except in an emer- ease or an injury during a period of gency. training or duty under title 32, U.S.C. (2) When medical care is obtained 503, 504, 505, or 502f are admitted to an without prior authorization, the de- Army medical treatment facility, and tails will be submitted to NGB-ARS as

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soon as practicable. The notification of ignate responsibilities for the care and medical care will be made following disposition of remains of members of the format in the appendix. The notifi- the Army National Guard entitled to cation will be reviewed by NGB-ARS burial at Federal expense. and replied to as deemed appropriate. (b) Authority. Act of 10 August 1956 (c) Status while undergoing hos- (70A Stat. 112) as amended, title 10 pitalization. The ARNG status of an in- U.S.C., sections 1481 through 1488, ap- dividual is not affected by virtue of his plicable to military personnel and hospitalization. The provisions of AR their dependents. 135–200 will apply. Determination of re- (c) Policy. The provisions of AR 638–40 quirement for continued hospitaliza- are applicable to battalion and higher tion will be made by the MTF com- level units of the Army National mander. Paragraph (d) of this section Guard, except as modified herein. will apply when a final ‘‘not in line of (d) Responsibilities. (1) The Chief, Na- duty’’ determination has been made. tional Guard Bureau is responsible for Under no condition will an individual prescribing procedures for the care and be assigned to the medical holding unit disposition of remains of members of of a hospital. the ARNG who die while— (d) Disposition of hospitalized cases. (i) Performing full-time training at When it is determined that a hospital- other than an Active Army installation ized ARNG member has obtained the under sections 316, 502, 503, 504, and 505, maximum benefits from hospitaliza- title 32, U.S.C. tion and there is no disability remain- (ii) Performing authorized travel to ing from the condition for which hos- or from training outlined in paragraph pitalized, he/she will be returned to his/ (d)(1)(i) of this section. her duty station or, if none, to his/her (iii) Being hospitalized or undergoing home of record at the time of entry treatment at Government expense for into the hospital. an injury incurred or disease con- APPENDIX tracted while performing duty indicated in paragraphs (d)(1) (i) and (ii) of NOTIFICATION OF INJURY this section. Date llllll (iv) Performing inactive duty train- SUBJECT: Notification of Medical Care and/ ing (IDT) under section 502, title 32, or Hospitalized Beyond the End of Training U.S.C. (It is to be noted that present Periods. law does not provide for payment of THRU: The Adjutant General State of burial expenses from Federal funds for llll. ARNG personnel killed while traveling TO: NGB-ARS, Washington, DC 20310. to or from IDT.) In accordance with paragraph 8, NGR 40–3, (2) Active Army installations are re- notification of medical care is furnished sponsible for the care and disposition below: of remains of members of the National Name: llllllllllllllllllll SSN: lllllllllllllllllllll Guard who die while— Grade: llllllllllllllllllll (i) Performing active duty for train- Parent unit and station: llllllllll ing under title 10 and training or other Type and inclusive dates of training: llll full-time training duty at an Active Date and place of incident: lllllllll Army installation under sections 502, Diagnosis: llllllllllllllllll 503, 504, and 505, title 32, U.S.C. LOD status: lllllllllllllllll Name and distance of nearest Federal med- (ii) Performing authorized travel to ical facility: llllllllllllllll or from training specified in paragraph Name and address of medical facilities uti- (d)(2)(i) of this section. lized: lllllllllllllllllll (iii) Being hospitalized or receiving Estimated cost and duration of treatment: l treatment at Government expense as a Summary of incident: llllllllllll result of injury incurred or disease con- llllllllllllllllllllllll tracted while performing duty indi- (32 U.S.C. 318–320 and 502–505) cated in paragraphs (d)(2) (i) and (ii) of this section. § 564.41 Burial. (3) State adjutants general are re- (a) Purpose. The purpose of this sec- sponsible for notification of death in tion is to provide policies and des- accordance with chapter 10, AR 600–10.

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(e) Limitation of burial expense. Pay- ered for all purposes as if it were duty ment of burial expenses is limited to an with pay. amount not exceeding that allowed by [44 FR 18489, Mar. 28, 1979] the Government for such services and in no circumstances may payment ex- CLAIMS FOR DAMAGES INVOLVING THE ceed the amount actually expended. NATIONAL GUARD AND AIR NATIONAL The amount allowed when relatives GUARD incur the expenses will be in accordance with the following limitation: SOURCE: Sections 564.51 through 564.58 ap- (1) If death occurs where a properly pear at 19 FR 5168, Aug. 17, 1954, unless other- approved Contract for Care of Remains wise noted. Redesignated at 26 FR 12767, Dec. is in force (Army, Navy, or Air Force 30, 1961. contracts), the amount to be allowed for each item will not exceed the § 564.51 Purpose. amount allowable under such contract. Sections 564.51 to 564.58 are published (2) If death occurs where no contract for the information and guidance of all is in force, reimbursement for items or concerned to implement the statutory services, including preparation and authority by defining the claims pay- casketing will be limited to the stipu- able thereunder and the procedure for lated amount included in chapter 4, AR establishing, determining, and settling 638–40. such claims. They provide the exclu- (3) Reimbursement for transportation sive authorization and procedure for will be limited to the amount for which the determination and settlement of the Government could have obtained claims within the following statutory required common carrier transpor- authority. tation plus the change made for hearse servce from the common carrier ter- § 564.52 Statutory authority. minal to the first place of delivery. (a) Limited authority for the pay- (4) Reimbursement for interment expenses is limited to the amounts pro- ment of claims arising out of National vided in chapter 13, AR 638–40. Guard and Air National Guard activities has been granted annually for sev- (f) Accountability for clothing. (1) If in a serviceable condition, the uniform in eral years by provisions of the annual possession of the deceased will be used Appropriations Act for the Department and accountability dropped in accord- of Defense. A recent provision is as fol- ance with NGR 710–2. lows: (2) If a serviceable uniform is not in The following sums are appropriated, * * * possession of the deceased, a request For payment of * * *; claims (not to exceed for issue of required items will be pre- $1,000 in any one case) for damages to or loss pared. Accountability and responsi- of private property incident to the operation bility for items issued will be termi- of Army and Air National Guard camps of in- nated by the responsible officer upon struction, either during the stay of units of execution of a statement on DA Form said organizations at such camps or while en 3078 or 3345, substantially as follows: route thereto or therefrom; * * * (Act of Au- gust 1, 1953, Public Law 179, 83d Cong.). The items of clothing enumerated above were issued to clothe the remains of (b) In accordance with general prin- lllll for funeral purposes. At the time ciples of law, the National Guard and of his/her death, the deceased was a member the Air National Guard when not in in good standing in this organization. Federal service are not agencies of the United States, and the United States is (g) ARNG personnel serving in a non- pay status. In accordance with title 32, not liable for injury or damage arising U.S.C. section 503, a member may, with from their activities. Thus, claims for his/her consent, either with or without such injury or damage are not cog- pay, be ordered to perform training or nizable under the Federal Tort Claims other duty in addition to that pre- Act, as revised and codified (62 Stat. scribed under title 32, U.S.C. section 982, 28 U.S.C. 3671–80). By the statutory 502(a). Duty without pay will be consid- provisions referred to in paragraph (a)

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of this section, the United States as- committed by the claimant, would not sumes an obligation to settle adminis- constitute a basis for denial of his tratively limited classes of claims re- claim. For example, violations of stat- lating to activities of the National utes or ordinances providing standards Guard and the Air National Guard. of safety may be negligence in themselves, but may not constitute the § 564.53 Definitions. bases of liability or for denial of a As used in §§ 564.51 to 564.58, the fol- claim. lowing terms shall have the meaning (f) Scope of employment. Scope of em- hereinafter set forth: ployment is determined in accordance (a) Claim. A written demand for pay- with the law of the place where the ac- ment in money. cident or incident occurred, except (b) Private property. Real or personal that statutes in derogation of the com- property, excluding property owned by any government entity, Federal, State, mon law, such as statutes creating a city, county, or town, and excluding presumption that an employee is in stocks, bonds, chose in action, debts, scope of employment if using the em- and insurance policies. ployer’s car with permission, are not (c) Camps of instruction. Regularly controlling. An act or omission is with- scheduled training for units in orga- in the scope of employment if such ac- nized camps, or bivouacs and maneu- tivity is expressly or impliedly di- vers away from such camps consti- rected or authorized by competent au- tuting part of such training. thority or is at least in part intended (d) While en route thereto or therefrom. to further the mission of the unit or or- The period of time during which a unit ganization, or the interests of the Na- as distinguished from its individual tional Guard or the Air National members if travelling from its ren- Guard. In determining whether an act dezvous to a camp of instruction or re- or omission was within the scope of turn, or from the camp of instruction employment, consideration must be or on a regularly scheduled maneuver given to all the attendant facts and cir- and return thereto, and the routes fol- cumstances, including the time, place, lowed by the unit. The term does not and purpose thereof; whether it was in include the movement of individuals. furtherance of the omission of the unit (e) Proximate cause. No precise defini- of the National Guard or Air National tion of this term can be given. Whether Guard; whether it was usual for or rea- acts or omissions of personnel con- sonably to be expected of personnel of stitute proximate cause must be determined in accordance with the local the classification and grade involved; law. In general, an act or omission may and whether the instrumentality caus- be said to have been a proximate cause ing the damage or injury resulted was of the accident or incident if it was one property of the National Guard or Air of the impelling forces resulting in the National Guard, or of a State or the accident or incident. For example, in a Federal Government being used by the rear-end collision, the failure of the National Guard or Air National Guard. driver of the following car to stop in time is said to be the proximate cause § 564.54 Claims payable. of the accident. But, if the driver of the Claims for damage to or loss of pri- leading car stopped so suddenly and vate property proximately resulting without warning that the second car, from authorized activities incident to using the utmost diligence, could not the operation of camps of instruction, have stopped, the conduct of the driver including maneuvers, field exercises, of the leading car would be said to have training of units and personnel, move- been the proximate cause of the acci- ment of vehicles, operation of aircraft, dent. An act or omission without the maintenance and support of units and existence of which the accident or inci- personnel, tortious acts or omissions of dent would not have occurred but which cannot be said to have brought it about is a condition and would not constitute a basis for liability, or, if

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military personnel or civilian employ- curred the expense for which the claim ees of the National Guard or Air Na- is made. tional Guard in the scope of employ- (b) Form of claim. A claim shall be ment, and claims arising under a con- submitted in the form of a statement tract, executed incident to camps of in- signed by the claimant, setting forth struction, even though legally enforce- his address, and stating briefly all the able under the express terms of the facts and circumstances relating to the contract and no other, are payable damage for which compensation is under §§ 564.51 to 564.58. claimed, including a description of the property, evidence of its value, the na- § 564.55 Claims not payable. ture and extent of the damage, the date (a) Contributory negligence. Neg- and place such damage was incurred, ligence or wrongful act of the claimant the agency by which it was caused, if or of his agent or employee, a proxi- known, and the amount. Standard mate cause of the accident or incident, Form 95 (Claim for Damage or Injury), bars a claim. The law of the place appropriately modified by deleting ref- where the accident or incident oc- erences to ‘‘injury’’ and ‘‘personal incurred will be followed in determining jury,’’ may be used for this purpose. whether contributory negligence is The claim and all papers accompanying present but the doctrine of compara- it which are signed by the claimant tive negligence will not be applied. should bear like signatures. (b) Personal injury. Claims for per- (c) Time within which claim must be sonal injury are not cognizable under presented. A claim cognizable under the act of §§ 564.51 to 564.58. §§ 564.51 to 564.58 must be submitted (c) Use and occupancy. Claims for use within two years of the date of occur- and occupancy, payment of which is rence of the accident or incident. governed by the terms of a lease or contract, are not cognizable under (d) Place of filing. A claim cognizable §§ 564.51 to 564.58. under §§ 564.51 to 564.58 must be presented in writing to the adjutant gen- § 564.56 Action by claimant. eral, or his duly authorized representa- (a) Who may present a claim. A claim tive, of the State, Territory, Common- for damage to or loss of private prop- wealth, or District of Columbia, having erty may be presented by the owner, or jurisdiction over the personnel or unit his agent or legal representative. The involved in the accident or incident out word ‘‘owner’’, as so used, includes of which the claim arose, or to the of- bailees, lessees, mortgagors, condi- fice of the Chief, National Guard Bu- tional vendors, and subrogees, but does reau, The Pentagon, Washington, DC not include mortgagees, conditional 20310. vendors, and others having title for (e) Evidence to be submitted by claim- purposes of security only. If filed by an ant—(1) General. A claim for damage to agent or legal representative, the or loss of private property must be spe- claim should be filed in the name of cific and substantiated by evidence of the owner, signed by such agent or the damage or loss. A mere statement legal representative, showing the title that such property was damaged or lost or capacity of the person signing, and and that a certain amount is a fair be accompanied by evidence of the ap- compensation therefor is not sufficient pointment of such person as agent, ex- to support a claim. ecutor, administrator, guardian, or (2) Motor vehicles, buildings, fences, other fiduciary. If filed by a corpora- and other structures. The claimant must tion the claim should show the title or submit, if repairs or replacement has capacity of the officer signing it and be been effected, itemized bills therefor, accompanied by evidence of his author- signed and certified as just and correct ity to act. In case of the death of the by the repairman or suppliers, together proper claimant, if it appears that no with evidence of payment thereof, if legal representative has been or will be made; if repairs or replacement has not appointed, the claim may be presented been effected, an estimate of the cost by any person who, by reason of the thereof signed by a person competent family relationship, has in fact in- to effect such repairs or replacement.

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(3) Crops, trees, land, and other realty. immediately prior to the accident or The claimant must submit an itemized incident. Subject to the foregoing, the signed estimate of the cost of repairs amount allowable is the cost, incurred or restoration of the property, sup- or estimated to be incurred, of replac- ported by evidence of the number of ing the property, or of restoring it to acres of land, crops, or trees involved, the condition in which it was imme- the normal yield per acre and the mar- diately prior to the accident or inci- ket value of the property per unit of dent. However, if as the result of the measure common to the property dam- repairs effected, the value of the prop- aged, or the estimated length of time erty is appreciably enhanced, a sum the land will be unfit for grazing, the normal rental value per acre of similar equal to the increase in value will be land in the vicinity, and such other in- deducted from the cost of restoring the formation as may be necessary. property in determining the amount al- (4) Contracts. A copy of the contract, lowed. Conversely, if after the repairs or competent evidence of the provi- have been effected, the value of the sions thereof, will be furnished by the property is appreciably less than that claimant in support of a claim cog- prior to the accident or incident, the nizable under § 564.54. difference in value will be added to the (5) Additional evidence. The claims of- cost of repairs in determining the ficer, the interested State adjutant amount allowed. However, no award in general, or the Chief National Guard excess of the amount claimed may be Bureau, may require the claimant to made. submit such additional evidences as he (b) In determining the amount allow- deems necessary to substantiate the able for repairs, the permanency of claim, including, without limiting the parts replaced will be considered and generality of the foregoing, estimates deductions made for depreciation as of cost, of repairs from repairman appropriated. Thus, an automobile tire other than those whose estimates the claimant has submitted with the claim is not expected to last through the life and evidence of ownership of or inter- of a vehicle so that when a tire three- est in the property. fourths worn is replaced with a new tire, the amount allowable is one- § 564.57 Procedure. fourth of the cost of the new tire. The Responsibility for the investigation same principle applies to batteries and of claims cognizable under §§ 564.51 to other items of equipment or acces- 564.68 and of accidents or incidents sories during relatively short wearout which may give rise to such claims periods. However, no allowance for de- rests in the adjutants general of the preciation is made in replacing parts, several States. Accordingly, claims re- such as fenders, bumpers, radiators, ceived by the National Guard Bureau, which normally would last through the or other agencies of the United States, life of the vehicle. will be referred to the adjutants gen- (c) Deprivation of use of property (in- eral of the interested States. Regula- cluding motor vehicles) is allowable as tions promulgated by the State adju- an item of damages, but only in those tants general should require the cases where the claimant has sustained prompt investigation of all accidents legally provable damages. Towing or incidents which might result in charges are also allowable items of claims cognizable hereunder, whether or not claims have been filed. damage. However, interest, cost of preparation of claim and of securing § 564.58 Determination of amount al- supporting evidence, inconvenience, lowable. and similar items are not property al- (a) The maximum amount which may lowable items of damage. be allowed is the value of the property

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PART 571—RECRUITING AND (2) Reenlistment. The second or subse- ENLISTMENTS quent voluntary enrollment in the Reg- ular Army or a Reserve Component as Subpart A—Recruiting and Enlistment an enlisted member. Eligibility (3) United States Army. The Regular Army, Army of the United States Sec. (AUS), Army National Guard of the 571.1 General. 571.2 Basic qualifications for enlistment. United States (ARNGUS), and the 571.3 Waiver enlistment criteria. United States Army Reserve (USAR). 571.4 Periods of enlistment. (4) Regular Army (RA). The Regular 571.5 Enlistment options. Army is the component of the Army AUTHORITY: 10 U.S.C. 504, 505, 509, 513, 520, that consists of persons whose contin- 3262. uous service on active duty in both peace and war is contemplated by law SOURCE: 72 FR 43162, Aug. 3, 2007, unless otherwise noted. and of retired members of the Regular Army. Subpart A—Recruiting and (5) Prior Service (PS). For persons en- Enlistment Eligibility listing in the RA, those who have 180 days or more of active duty in any § 571.1 General. component; or, for persons enlisting in a Reserve Component, those who have (a) Purpose. This part gives the qualifications for men and women enlisting 180 days of active duty in any compo- in the Regular Army (RA) or Reserve nent of the armed forces and who have Components (RC). The procedures sim- been awarded an MOS; or former mem- plify and standardize the processing of bers of an armed forces academy who recruited applicants. The applicant’s did not graduate and who served 180 ability to meet all requirements or ex- days or more. ceptions will determine eligibility. (6) Non-Prior Service (NPS). Those per- This includes obtaining prescribed sons who have never served in any waivers. component of the armed forces or who (b) References— have served less than 180 days of active (1) Required publications. duty as a member of any component of (i) AR 601–210, Active and Reserve the armed forces. Reserve Component Components Enlistment Program. applicants must not have been awarded (Cited in §§ 571.2, 571.3, and 571.5). an MOS; or have enlisted illegally (ii) AR 40–501, Standards of Medical while underage and been separated for Fitness. (Cited in §§ 571.2 and 571.3). a void enlistment; or be a former mem- (iii) AR 600–9, The Army Weight Con- ber of a service academy who did not trol Program. (Cited in §§ 571.2 and graduate and who served fewer than 180 571.3). days; or have completed ROTC and (2) Related publications. served only Active Duty for Training (i) DOD Directive 1304.26, Qualifica- as an officer. tions for Enlistment, Appointment, (7) Delayed Entry Program (DEP). A and Induction. program in which Soldiers may enlist (ii) Army Retention Program. and are assigned to a United States (c) Definitions. The following definitions apply to this part: Army Reserve (USAR) Control Group (1) Enlistment. Voluntary contract until they enlist in the Regular Army. (DD Form 4) for military service that The Commanding General, United creates military status as an enlisted States Army Recruiting Command member of the Regular Army or a Re- (USAREC) is authorized by 10 U.S.C. serve Component. This includes enlist- 513 to organize and administer DEP. ment of both non-prior service and prior service personnel.

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§ 571.2 Basic qualifications for enlist- PART 575—ADMISSION TO THE ment. UNITED STATES MILITARY ACADEMY (a) Age requirements for non-prior service and prior service personnel are Sec. defined in AR 601–210. 575.1 Military Academy. (b) Applicants must meet citizenship 575.2 Admission; general. requirements as defined in AR 601–210. 575.3 Appointments; sources of nominations. (c) Non-prior and prior service appli- 575.4 [Reserved] cants must meet medical fitness stand- 575.5 Entrance requirements. ards prescribed in AR 40–501. Height 575.6 Catalogue, United States Military and weight standards for non-prior Academy. service personnel AR 40–501 and in AR AUTHORITY: Secs. 3012, 4331, 70A Stat. 157, 600–9 for prior service personnel. 238; 10 U.S.C. 3012, 4331–4355. (d) Education standards, dependency criteria, and trainability requirements SOURCE: 44 FR 11781, Mar. 2, 1979, unless otherwise noted. are prescribed in AR 601–210. § 575.1 Military Academy. § 571.3 Waiver enlistment criteria. (a) Organization and administration. (a) Waiver criteria— (1) The United States Military Acad- (1) All persons who process applicants emy is under the general direction and for enlistment in the Army use the ut- supervision of the Department of the most care to procure qualified per- Army. The Secretary of the Army has sonnel. Eligibility of personnel for en- designated the Chief of Staff of the listment will be based upon their abil- Army as the officer in direct charge of ity to meet all requirements, including all matters pertaining to West Point. procurement of prescribed waivers. (2) The immediate government and (2) Applicants applying for moral or military command of the Academy and medical waivers will document their the military post at West Point are waiver requests, as prescribed by AR vested in the Superintendent. In the 601–210 or AR 40–501. absence of the Superintendent, the (3) The approval authorities for var- Deputy Superintendent, if present for ious types of waiver requests are set duty, shall have such government and forth in AR 601–210. Commanders at command. The Dean of the Academic levels below the approval authority Board has charge of the faculty and all may disapprove waivers for applicants academic work, and acts as representa- who do not meet prescribed standards tive of the academic departments and and who do not substantiate a meri- as adviser on academic matters to the torious case. Superintendent. The Commandant of (4) Unless otherwise stated in AR 601– Cadets is in charge of the administra- 210, waivers are valid for 6 months. tion and training of the Corps of Cadets (b) Nonwaiver medical, moral, and and is also head of the Department of administrative disqualifications are de- Tactics. fined in AR 601–210. (b) Mission. The mission of the United States Military Academy is to educate, § 571.4 Periods of enlistment. train, and motivate the Corps of Cadets so that each graduate shall have the Enlistments are authorized for peri- character, leadership, and other at- ods of 2, 3, 4, 5, 6, 7, or 8 years. tributes essential to progressive and continuing development throughout a § 571.5 Enlistment options. career of exemplary service to the Na- Personnel who enlist in the Regular tion as an officer of the Regular Army. Army for 2 or more years may select (c) Courses of instruction. Courses in- certain initial assignments or classi- clude academic education and military fications, provided they meet the cri- training. In accomplishing its mission, teria set forth in AR 601–210 and valid the Military Academy strives to de- Army requirements exist for the as- velop in each cadet the following signments and skills. traits:

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(1) The knowledge, skill, intellectual (c) The candidate’s physical quali- curiosity, discipline, and motivation fications are determined by a thorough provided by a sound education in the medical examination and physical apti- arts and sciences requisite for contin- tude test. To qualify, a candidate must ued professional and intellectual be in good health, have good vision and growth. hearing, have no deformities, and have (2) A highly developed sense of per- the physical strength, endurance, co- sonal honor and professional ethics. ordination, and agility of active per- (3) Professional and personal com- sons in their late teens. The medical mitment to the responsibilities of an examination and physical aptitude officer for soldiers. tests are held at selected military in- (4) Selflessness. stallations throughout the country (5) The willing acceptance of respon- (and overseas) on the Thursday and sibility for personal actions and the ac- Friday preceding the regularly sched- tions of subordinates. uled March administration of the Col- (6) The initiative and good judgment lege Board tests. to take appropriate action in the ab- § 575.3 Appointments; sources of nomi- sence of instructions or supervision. nations. (7) Physical and moral courage. Admission to the Military Academy (8) The physical strength, endurance, is gained by appointment to one of the and conditioning habits required of a cadetships authorized by law. Gradua- soldier. tion of the senior class normally leaves about 915 vacancies each year. Can- § 575.2 Admission; general. didates are nominated to qualify for (a) In one major respect, the require- these vacancies the year prior to ad- ments for admission to the United mission. Those nominees appointed States Military Academy differ from enter the Academy the following July the normal requirements for admission and upon graduation are obligated to to a civilian college or university; each serve in the Army for a period of not candidate must obtain an official nom- less than 5 years. There are two major ination to the Academy. The young categories of nomination (Congres- person interested in going to West sional/Gubernatorial and Service-Con- Point should, therefore, apply for a nected) and two minor categories (Fili- nomination from one of the persons au- pino and Foreign Cadets). Cadetships thorized to make nominations listed in authorized at the Military Academy § 575.4. In the application, each prospec- are allocated among various sources of tive candidate should request a nomi- nominations from the major categories nation to the United States Military as follows: Academy, and give residence, reasons for wanting to enter the Academy, and Cadets at the Acad- status of education and training. Congressional/Gubernatorial emy at any (b) A candidate’s mental qualifica- one time tions for admission are determined by Vice President ...... 5 performance on one of the regularly ad- 100 Senators (5 each) ...... 500 ministered College Entrance Examina- 435 Representatives (5 each) ...... 2,175 tion Board series of tests. The Military Delegates in Congress from: Academy will consider scores made on District of Columbia ...... 5 Virgin Islands ...... 1 the tests which are offered in Decem- Guam ...... 1 ber, January, March, and May at more Governor/Residential Commissioner of Puerto than 700 College Board Test Centers Rico ...... 6 throughout the United States and Governors of: Canal Zone ...... 1 abroad. In general, a center will be American Samoa ...... 1 within 75 miles of the candidate’s home. Candidates register for the pre- Annually Al- scribed tests in accordance with the Service-Connected located Ca- regularly published instructions of the detships College Board and pay the required fee Presidential ...... 100 directly to the College Board. Enlisted Members of the Regular Army ...... 85

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Annually Al- tainer pay. Children of reservists re- Service-Connected located Ca- tired while not on active duty are ineli- detships gible. Applications should include the Enlisted Members of the Army Reserve/Na- name, grade, social security number/ tional Guard ...... 85 service number, and branch of service Sons and Daughters of Deceased and Dis- abled Veterans (approximately) ...... 10 of the parent as a member of such reg- Honor Military, Naval Schools and ROTC ...... 20 ular component, and the full name, ad- Sons and Daughters of persons Awarded the dress, and date of birth of the applicant Medal of Honor ...... Unlimited (complete military address and social (a) Congressional / Gubernatorial Nomi- security number, if in the Armed nation. (1) Up to 10 nominations may be Forces). Adopted children are eligible submitted for each vacancy. Nomi- for appointment if they were adopted nating authorities may use one of prior to their 15th birthday; a copy of three methods of nomination: the order of court decreeing adoption, (i) Name 10 nominees on a totally duly certified by the clerk of the court, competitive basis, must accompany the application. (ii) Name a principal nominee, with (2) Children of Deceased and Disabled nine competing alternates, or Veterans: This category is for children (iii) Name a principal nominee, with of deceased or 100 percent disabled nine alternates in order of preference. Armed Forces veterans whose deaths or (2) The priority that a fully qualified disabilities were determined to be serv- candidate may receive when considered ice-connected, and for children of mili- for appointment is actually governed tary personnel or federally employed by the method of nomination used. For civilians who are in a missing or cap- example, a principal nominee who is tured status. Candidates holding a found minimally qualified must be of- nomination under this category are not fered an appointment. Conversely, the eligible for nomination under the Pres- same individual nominated on a totally idential or Medal of Honor category. competitive basis, may be ranked as The Veterans Administration deter- one of the least qualified nominees for mines the eligibility of all applicants. that vacancy and, consequently, may The application should include the full not be offered an appointment. Many name, date of birth, and address of the nominating authorities hold prelimi- applicant (complete service address nary competitive nomination examina- should be given if the applicant is in tions to select their nominees. Those the Armed Forces), and the name, selected are required to be actual resi- grade, social security number/service dents of the geographic location rep- number, and last organization of the resented by the nominating authority. veteran parent, together with a brief (b) Service-connected nominations. statement concerning the time, place, There is no restriction on the residence and cause of death. The claim number of nominees who compete for an ap- assigned to the veteran parent’s case pointment under these quotas. All ap- by the Veterans Administration should plications for a service-connected nom- also be furnished. ination must be submitted to the Su- (3) Children of Persons Awarded the perintendent, United States Military Medal of Honor: Applications from Academy, West Point, NY 10996, not children of persons awarded the Medal later than 15 December for the class en- of Honor should contain the applicant’s tering the following July. A descrip- full name, address, and date of birth tion of the Service-Connected nomina- (complete service address should be tion categories follows: given if the applicant is in the Armed (1) Presidential: Children of career Forces); the name, grade, and branch of military personnel in the Armed service of the parent; and a brief state- Forces who are on active duty, retired, ment of the date and circumstances of or deceased, are nominated through the award. Candidates appointed from this category. The term ‘‘career’’ in- this source may qualify in the same cludes members of the Reserve Compo- manner as a congressional principal nents currently serving 8 or more years candidate. All who are found fully of continuous active duty and Reserve qualified will be admitted as cadets, re- retirees receiving either retired or regardless of the number.

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(4) Honor Military Schools: Certain other foreign countries have been per- Honor Military Schools designated by mitted from time to time to attend the Department of the Army, Department Military Academy upon specific au- of the Navy, and Department of the Air thorization of the United States Con- Force are invited to recommend three gress in each case. Applications must candidates for nomination annually be submitted to the United States Gov- from among their honor graduates. Ap- ernment through diplomatic channels pointments are filled by selecting the by the governments concerned. Re- best qualified candidates regardless of quirements for the admission, advance- the school from which nominated. Ap- ment, and graduation of foreign cadets plication should be made through the are similar to those for United States school Senior Army Instructor. Cadets. (5) Army ROTC: This category is for members of college and high school § 575.4 [Reserved] Army Reserve Officers’ Training Corps units. Application should be made § 575.5 Entrance requirements. through the Professor of Military This section describes the specific re- Science or Senior Army Instructor at quirements which candidates must ful- the school. fill in addition to obtaining an appoint- (6) Regular Army: This category is ment as outlined in § 575.3. for enlisted members of the active (a) Age. On 1 July of the year admit- Army. Appointments may be awarded ted to the Military Academy a can- to 85 Regular Army candidates. Appli- didate must be at least 17 years of age cation for admission, through com- and must not have passed his/her 22d mand channels to the United States birthday. The age requirements for all Military Academy Preparatory School candidates are statutory and cannot be (USMAPS) constitutes application for waived. nomination under this category. (b) Citizenship. A candidate must be a (7) Reserve Components: This cat- citizen of the United States, except egory is for enlisted members of the those appointed specifically as foreign Army Reserve and Army National cadets. Guard. Application for admission (c) Character. Every candidate must should be made through command be of good moral character. channels to USMAPS. Enlisted mem- (d) Marital Status. A candidate must bers who are not on active duty should be unmarried and not be pregnant or apply to the Commandant, United have a legal obligation to support a States Military Preparatory School, child or children. Fort Monmouth, New Jersey 07703. (c) Filipino cadets. The Secretary of § 575.6 Catalogue, United States Mili- the Army may permit each entering tary Academy. class one Filipino, designated by the The latest edition of the catalogue, President of the Republic of the Phil- United States Military Academy, con- ippines, to receive instruction at the tains additional information regarding United States Military Academy. the Academy and requirements for ad- (d) Foreign cadets. The law permits 20 mission. This publication may be ob- persons at a time from the Latin- tained free of charge from the Reg- American Republics and Canada to re- istrar, United States Military Acad- ceive instruction at the United States emy, West Point, NY 10996, or from the Military Academy. A maximum of United States Army Military Per- three persons from any one country sonnel Center, HQDA (DAPC-OPP-PM), may be cadets at the same time. Such 200 Stovall Street, Alexandria, VA persons receive the same pay and al- 22332. lowances (including mileage from their homes in proceeding to the Military PART 581—PERSONNEL REVIEW Academy for initial admission) as ca- BOARD dets appointed from the United States. However, they are not entitled to ap- Sec. pointment in the United States Armed 581.1 Army Disability Review Board. Forces upon graduation. Citizens of 581.2 Army Discharge Review Board.

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581.3 Army Board for Correction of Military view the proceedings and findings of Records. boards referred to in paragraph (a)(1)(i) AUTHORITY: 10 U.S.C. 1552, 1553, 1554, 3013, of this section; and to receive addi- 3014, 3016; 38 U.S.C. 3103(a). tional evidence bearing on the causes and service-connection of disabilities § 581.1 Army Disability Review Board. in the cases of officers referred to in (a) General provisions—(1) Constitution, paragraph (a)(1)(ii) of this section, purpose, and jurisdiction of review board. whose cases were the subject of find- (i) The Army Disability Review Board ings by a retiring or disposition board, (called the review board in this sec- and who were separated from the serv- tion) is an administrative agency cre- ice or released to inactive service, ated within the Department of the without pay, by reason of physical dis- Army under authority of section 302, ability, whether denial of retirement or title I, Act of June 22, 1944 (58 Stat. retirement pay benefits, as the case 284), as amended by section 4, Act of may be, was pursuant to the adverse December 28, 1945 (59 Stat. 623), to re- findings of a board, or was pursuant to view, at the request of any officer re- administrative action in a case where tired or released from active service, there was favorable action by a board. without pay, for physical disability pursuant to the decision of a retiring (iv) In carrying out its duties under board or disposition board, the findings this memorandum such review board and decisions of such board. The review shall have the same powers as exer- board is charged with the duty, in cised by, or vested in, the board whose cases within its jurisdiction, of findings and decisions are being re- ascertaining whether an applicant for viewed. review who was separated from the (2) Application for review. (i) Any offi- service or released to inactive service, cer desiring a review of his case will without pay, for physical disability, in- make a written application therefor on curred such physical disability in line WD AGO Form 0258 (Application for of duty or as an incident of the service. Review of Army Retiring Board Pro- When the review board determines in ceedings) which may be obtained from an individual case within its jurisdic- The Adjutant General, Washington, DC tion that physical disability was so in- 20310, Attention: AGPO-S-D. curred, it is authorized in the manner (ii) No application for review will be prescribed by this memorandum, to re- granted unless received by the Depart- verse prior findings in such regard and ment of the Army within 15 years after to make such findings in lieu thereof as the date on which such officer was sep- are warranted by the evidence or perti- arated from the service or released to nent regulations. Such remedial action inactive service, without pay, for phys- is intended primarily to insure that no ical disability, or within 15 years after officer separated from the service or June 22, 1944, whichever date is the returned to an inactive status without later. pay, for disability, shall be deprived (iii) The Adjutant General, upon re- unjustly of retirement pay benefits, or retired status and retired pay, as the ceipt of an application for review, will case may be, by reason of erroneous note thereon the time of receipt there- findings. of and will, in cases where the jurisdic- (ii) The class of officers whose cases tion for review by the review board is are reviewable shall include officers of established, assemble the originals or the Army of the United States, other certified copies of all available Depart- than officers of the Regular Army, who ment of the Army and/or other record were discharged or released to inactive pertaining to the health and physical service under the conditions prescribed condition of the applicant, including in paragraph (a)(1)(i) of this section; the record of the proceedings and find- and former officers of the Regular ings of all retiring and disposition Army who were wholly retired under boards in question and the records of section 1252, Revised Statutes. all administration and/or executive ac- (iii) The review board is authorized, tion taken thereon. Such records, to- upon timely application therefor, to re- gether with the application and any

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supporting documents submitted there- notice shall be mailed at least 30 days with, will be transmitted to the presi- in advance of the date on which the dent of the review board. case is set for hearing except in cases (3) Changes in procedure of review in which the applicant waives the right board. The review board may initiate of personal appearance and/or represen- recommendation for such changes in tation by counsel. Such notice shall procedures as established herein as constitute compliance with the re- may be deemed necessary for the prop- quirement of notice to applicant and er functioning of the review board. his counsel. The record shall contain Such changes will be subject to the ap- the certificate of the secretary that proval of the Secretary of the Army. written notice was given applicant and (b) Proceedings of review board—(1) his counsel, if any, and the time and Convening of review board. (i) The re- manner thereof. view board will be convened at the call (iii) An applicant who requests a of its president and will recess or ad- hearing and who, after being duly noti- journ at his order. In the event of the fied of the time and place of hearing, absence or incapacity of the president, fails to appear at the appointed time, the next senior member will serve as either in person or by counsel, or, in acting president for all purposes. writing, waives his right to appear, (ii) Unless otherwise directed by its thereby waives such right. president, the review board will con- (iv) In the conduct of its inquiries, vene in Washington, DC, at the time the review board shall not be limited and place indicated by him. by the restrictions of common law (iii) The review board will assemble rules of evidence. in open session for the consideration (v) In the case wherein it is advisable and determination of cases presented and practicable, the review board may, to it. After the conclusion of such hear- at the request of the examiner, or upon ing, the review board will as soon as its own motion, request The Surgeon practicable thereafter convene in General to detail one or more medical closed session for determination. officers to make physical examination (2) Hearings. (i) An applicant for re- of the applicant, if available, and review, upon request, is entitled by law port their findings resulting from such to appear before the review board in examination with respect to the mat- open session either in person or by ters at issue, either in person or by af- counsel of his own selection. Witnesses fidavit. When testifying in person at a shall be permitted to present testi- hearing, such medical witnesses will be mony either in person or by affidavit. subject to cross-examination. Simi- As used in the regulations in this part larly the medical members of the board the term ‘‘counsel’’ shall be construed may examine the applicant, if avail- to include members of the Federal bar, able, and testify as witnesses con- the bar of any state, accredited rep- cerning the results of such examina- resentatives of veterans’ organizations tion. recognized by the Veterans’ Adminis- (vi) Expenses incurred by the appli- tration under section 200 of the Act of cant, his witnesses, or in the procure- June 29, 1936 (49 Stat. 2031), and such ment of their testimony, whether in other persons who, in the opinion of person, by affidavit or by deposition the review board, are considered to be will not be paid by the Government. competent to present equitably and (3) Continuances. The review board comprehensively the claim of the ap- may continue a hearing on its own mo- plicant for review. In no case will the tion. A request for continuance by the expenses or compensation of counsel examiner or by or on behalf of the ap- for the applicant be paid by the Gov- plicant may be granted, if in the ernment. board’s discretion, a continuance ap- (ii) In every case in which a hearing pears necessary to insure a full and fair is authorized, the secretary will trans- hearing. mit to the applicant and to designated (c) Findings, conclusions, and direc- counsel for the applicant, if any, a tions—(1) Findings, conclusions, and di- written notice by registered mail stat- rections of review board. (i) The review ing the time and place of hearing. Such board will make written findings in

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closed session in each case. Such find- view board, and when made, will be ings will include: signed by each member of the review (a) Statement of complete findings of board who concurs therein, filed, and the retiring or disposition board and of authenticated by the secretary. administrative action subsequent (d) Disposition of and action upon pro- thereto in the proceedings under re- ceedings—(1) Record of proceedings. (i) view; When the review board has concluded (b) A finding affirming or reversing its proceedings in any case, the sec- the findings of such retiring or disposi- retary will prepare a complete record tion board or such administrative ac- thereof. Such record shall include the tion, specifying which of the findings application for review; a transcript of or administrative actions are affirmed the hearing if any; affidavits, papers and which are reversed. and documents considered by the re- (ii) In the event the review board review board; all briefs and written argu- verses any of such original findings or ments filed in the case; the report of administrative actions, the review the examiner; the findings, conclu- board will then make complete find- sions, and directions of the review ings which shall include the affirmed board; any minority report prepared by findings of the original board or of ad- dissenting members of the review ministrative action subsequent there- board; and all other papers and docu- to. Such complete findings shall in- ments necessary to reflect a true and clude the following: complete history of the proceedings. (a) Whether the applicant was perma- The record so prepared will be signed nently incapacitated for active service by the president of the review board at the time of his separation from the and authenticated by its secretary as service or release to inactive service. being true and complete. In the event (b) The cause or causes of the inca- of the absence or incapacity of the sec- pacity. retary, the record may be authenti- (c) The approximate date of origin of cated by a second participating mem- each incapacitating defect. ber of the review board. (d) The date officer became incapaci- (ii) All records of proceedings of the tated for active service. review board shall be confidential, ex- (e) Whether the cause or causes of the cept that upon written request from incapacity was or was not an incident the applicant, his guardian or legal of service. representative, The Adjutant General (f) Whether the cause or causes of the will furnish a copy of the proceedings incapacity had been permanently ag- of the review board, less any exhibits gravated by military service. which it may be found impracticable to (g) Whether such incapacity for ac- reproduce out which will include: tive service was or was not the result (a) A copy of the order appointing the of an incident of service. board. (h) Whether the officer’s incapacity (b) The findings of the Army retiring was or was not incurred in combat with board affirmed. an enemy of the United States or (c) The findings of the Army retiring whether it did or did not result from an board reversed. explosion of an instrumentality of war (d) The findings of the review board. in line of duty. (iii) In the event the review board (e) The conclusions which were made finds the officer permanently incapaci- by the review board. tated for active service and that the in- (f) The directions of the Secretary of capacity was an incident of service, it the Army. will make an additional finding speci- If it should appear that furnishing such fying the grade in which the officer is information would prove injurious to entitled to be retired or to be certified the physical or mental health of the for retirement pay benefits. applicant, such information will be fur- (iv) The findings, conclusions, and di- nished only to the guardian or legal rections of a majority of the review representative of the applicant. The board shall constitute the findings, Adjutant General, subject to the fore- conclusions, and directions of the re- going restrictions, will make available

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for inspection, upon request of the ap- WD AGO Form 0413 (Application for plicant, his guardian or legal rep- Review of Findings of the Army Dis- resentative, a record of the proceedings ability Review Board) which may be of any case reviewed by the review obtained from The Adjutant General, board, but copies of the proceedings of Washington, DC 20310, Attention: any case heard prior to January 4, 1946, AGPO-S-D. will not be furnished if such copies are [13 FR 6805, Nov. 19, 1948, as amended at 19 not readily available. FR 6706, Oct. 19, 1954] (2) Final action by review board. When the review board has completed the § 581.2 Army Discharge Review Board. proceedings and has arrived at its deci- (a) Purpose. This regulation imple- sion, the proceedings, together with ments 10 U.S.C. 1553, Pub. L. 95–126, and the review board’s decision, will be DOD Directive 1332.28 (app. A). transmitted to The Adjutant General (b) Explanation of terms—(1) Legal con- for appropriate Department of the sultant of the Army Discharge Review Army action. The Adjutant General, in Board (ADRB). An officer of The Judge the name of the President of the Advocate General’s Corps assigned to United States, will indicate on the the ADRB to provide opinions and record of such proceedings and decision guidance on legal matters relating to the President’s approval or disapproval ADRB functions. of the action of the review board, and (2) Medical consultant of the ADRB. An will perform such administerial acts as officer of the Army Medical Corps as- may be necessary and thereafter will signed to the ADRB to provide opinions notify the applicant and/or his counsel and guidance on medical matters relat- of the action taken. Written notice, ing to ADRB functions. specifying the action taken and the (3) Video tape hearing. A hearing con- date thereof, will be transmitted by ducted by an ADRB hearing examiner The Adjutant General to the president at which an applicant is given the op- of the review board to be filed by the portunity to present his/her appeal to secretary as a part of the records of the the hearing examiner, with the entire board pertaining to each case. presentation, including cross-examina- (e) Rehearings—(1) Policy on the grant- tion by the hearing examiner, recorded ing of rehearings. After the review board on video tape. This video tape presen- has reviewed a case and its findings tation is later displayed to a full ADRB and decision have been approved, the panel. Video tape hearings will be con- case will normally not be reconsidered ducted only with the consent of the ap- except on the basis of new, pertinent, plicant and with the concurrence of the and material evidence, which if pre- President of the ADRB. viously considered could reasonably be (c) Composition and responsibilities—(1) expected to have caused findings and a Authority. The ADRB is established decision other than those rendered as under Pub. L. 95–126 and 10 U.S.C. 1553 the result of the original review. An and is responsible for the implementa- application for rehearing must be made tion of the Discharge Review Board within a reasonable time after the dis- (DRB) procedures and standards within covery of the new evidence, mentioned DA. in this subparagraph, and the request (2) The ADRB president. The president for rehearing must be accompanied by is designated by the Secretary of the such new evidence and by a showing Army (SA). The President— that the applicant was duly diligent in (i) Is responsible for the operation of attempting to secure all available evi- the ADRB. dence for presentation to the review (ii) Prescribes the operating proce- board when his case was previously re- dures of the ADRB. viewed and that the reason for the (iii) Designates officers to sit on pan- delay in discovering such new evidence els. was not due to fault or neglect on the (iv) Schedules panels to hear dis- part of the applicant. charge review appeals. (2) Application for rehearing. Any offi- (v) Monitors the DOD directed re- cer desiring a rehearing of his case will sponsibilities of the SA on service dis- make a written application therefor on charge review matters for the DOD.

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(3) ADRB panels and members. The CATEGORY ‘‘G’’ in block 7, DD Form ADRB will have one or more panels. 293, (Application for Review of Dis- Each panel, when in deliberation, will charge or Dismissal from the Armed consist of five officers. The senior offi- Forces of the United States). Such ap- cer (or as designated by the president plications will be reviewed expedi- ADRB) will act as the presiding officer. tiously by a designated official who (4) Secretary Recorder (SR) Branch. will either send the individual an hon- The Chief, SR— orable discharge certificate if the indi- (i) Ensures the efficient overall oper- vidual falls within the scope of para- ation and support of the ADRB panels. graph (d)(1) of this section or forward (ii) Authenticates the case report and the application to the ADRB if the in- directives of cases heard. dividual does not fall within the scope (5) Secretary Recorder. The SR is an of paragraph (d)(1) of this section. The officer assigned to the SR Branch action of the designated official will whose duties are to— not constitute an action or decision by (i) Schedule, coordinate, and arrange the ADRB. for panel hearings at a designated site. [50 FR 33035, Aug. 16, 1985] (ii) Administer oaths to applicants and witnesses under Article 136 UCMJ. § 581.3 Army Board for Correction of (iii) Ensure that the proceedings of Military Records. the cases heard and recorded into the case report and directive of cases. (a) General—(1) Purpose. This section (6) Administrative Specialist. An Ad- prescribes the policies and procedures ministrative Specialist is an enlisted for correction of military records by member assigned to the SR Branch the Secretary of the Army, acting whose duties are to— through the Army Board for Correction (i) Assist the SR in arranging panel of Military Records (ABCMR). hearings. (2) Statutory authority. Title 10 U.S.C (ii) Operate and maintain video and Section 1552, Correction of Military voice recording equipment. Records: Claims Incident Thereto, is (iii) Aid the SR in the administrative the statutory authority for this regula- operations of the panels. tion. (7) Administrative personnel. Such ad- (b) Responsibilities—(1) The Secretary ministrative personnel as are required of the Army. The Secretary of the Army for the proper functions of the ADRB will oversee the operations of the and its panels will be furnished by the ABCMR. The Secretary will take final SA. action on applications, as appropriate. (d) Special standards. (1) Under the (2) The ABCMR Director. The ABCMR November 27, 1979, order of the United Director will manage the ABCMR’s States District Court for the District day-to-day operations. of Columbia in ‘‘Giles v. Secretary of (3) The chair of an ABCMR panel. The the Army’’ (Civil Action No. 77–0904), a chair of a given ABCMR panel will pre- former Army service member is enti- side over the panel, conduct a hearing, tled to an honorable discharge if a less maintain order, ensure the applicant than honorable discharge was issued to receives a full and fair opportunity to the service member who was dis- be heard, and certify the written record charged before 1 January 1975 as a re- of proceedings in pro forma and formal sult of an administrative proceeding in hearings as being true and correct. which the Army introduced evidence (4) The ABCMR members. The ABCMR developed by or as a direct or indirect members will— result of compelled urinalysis testing (i) Review all applications that are administered for the purpose of identi- properly before them to determine the fying drug abusers (either for the pur- existence of error or injustice. pose of entry into a treatment program (ii) If persuaded that material error or to monitor progress through reha- or injustice exists, and that sufficient bilitation or follow up). evidence exists on the record, direct or (2) Applicants who believe they fall recommend changes in military within the scope of paragraph (d)(1) of records to correct the error or injus- this section should place the work tice.

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(iii) Recommend a hearing when ap- quest of the ABCMR staff, the Direc- propriate in the interest of justice. tor, DFAS, will— (iv) Deny applications when the al- (i) Furnish advisory opinions on mat- leged error or injustice is not ade- ters within the DFAS area of expertise quately supported by the evidence, and upon request. when a hearing is not deemed proper. (ii) Obtain additional information or (v) Deny applications when the appli- documentation as needed before pro- cation is not filed within prescribed viding the opinions. time limits and when it is not in the (iii) Provide financial records upon interest of justice to excuse the failure request. to file in a timely manner. (iv) On behalf of the Army, settle (5) The director of an Army records claims that are based on ABCMR final The director of an holding agency. actions. Army records holding agency will— (v) Report quarterly to the ABCMR (i) Take appropriate action on rou- Director on the monies expended as a tine issues that may be administratively corrected under authority inher- result of ABCMR action and the names ent in the custodian of the records and of the payees. that do not require ABCMR action. (c) ABCMR establishment and func- (ii) Furnish all requested Army mili- tions—(1) ABCMR establishment. The tary records to the ABCMR. ABCMR operates pursuant to law (10 (iii) Request additional information U.S.C. 1552) within the Office of the from the applicant, if needed, to assist Secretary of the Army. The ABCMR the ABCMR in conducting a full and consists of civilians regularly em- fair review of the matter. ployed in the executive part of the De- (iv) Take corrective action directed partment of the Army (DA) who are ap- by the ABCMR or the Secretary of the pointed by the Secretary of the Army Army. and serve on the ABCMR as an addi- (v) Inform the Defense Finance and tional duty. Three members constitute Accounting Service (DFAS), when ap- a quorum. propriate; the applicant; applicant’s (2) ABCMR functions. (i) The ABCMR counsel, if any; and interested Mem- considers individual applications that bers of Congress, if any, after a correc- are properly brought before it. In ap- tion is complete. propriate cases, it directs or rec- (vi) Return original records of the ommends correction of military soldier or former soldier obtained from records to remove an error or injustice. the Department of Veterans Affairs (ii) When an applicant has suffered (VA). reprisal under the Military Whistle- (6) The commanders of Army Staff agen- blower Protection Act 10 U.S.C. 1034 cies and commands. The commanders of and Department of Defense Directive Army Staff agencies and commands (DODD) 7050.6, the ABCMR may rec- will— ommend to the Secretary of the Army (i) Furnish advisory opinions on mat- that disciplinary or administrative ac- ters within their areas of expertise tion be taken against any Army offi- upon request of the ABCMR, in a time- cial who committed an act of reprisal ly manner. against the applicant. (ii) Obtain additional information or (iii) The ABCMR will decide cases on documentation as needed before pro- the evidence of record. It is not an in- viding the opinions to the ABCMR. vestigative body. The ABCMR may, in (iii) Provide records, investigations, its discretion, hold a hearing (some- information, and documentation upon times referred to as an evidentiary request of the ABCMR. hearing or an administrative hearing (iv) Provide additional assistance in 10 U.S.C. 1034 and DODD 7050.6) or re- upon request of the ABCMR. quest additional evidence or opinions. (v) Take corrective action directed (d) Application procedures—(1) Who by the ABCMR or the Secretary of the may apply. (i) The ABCMR’s jurisdic- Army. tion under 10 U.S.C. 1552 extends to any (7) The Director, Defense Finance and military record of the DA. It is the na- Accounting Service (DFAS). At the re- ture of the record and the status of the

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applicant that define the ABCMR’s ju- by the ABCMR. The application may be risdiction. returned without action if— (ii) Usually applicants are soldiers or (i) The applicant fails to complete former soldiers of the Active Army, the and sign the application. U.S. Army Reserve (USAR), and in cer- (ii) The applicant has not exhausted tain cases, the Army National Guard of all other administrative remedies. the United States (ARNGUS) and other (iii) The ABCMR does not have juris- military and civilian individuals af- diction to grant the requested relief. fected by an Army military record. Re- (iv) No new evidence was submitted quests are personal to the applicant with a request for reconsideration. and relate to military records. Re- (2) Burden of proof. The ABCMR be- quests are submitted on DD Form 149 gins its consideration of each case with (Application for Correction of Military the presumption of administrative reg- Record under the Provisions of 10 ularity. The applicant has the burden U.S.C. 1552). Soldiers need not submit of proving an error or injustice by a applications through their chain of preponderance of the evidence. command. (3) ABCMR consideration. (i) A panel (iii) An applicant with a proper inter- consisting of at least three ABCMR est may request correction of another members will consider each application person’s military records when that that is properly brought before it. One person is incapable of acting on his or panel member will serve as the chair. her own behalf, missing, or deceased. (ii) The panel members may consider Depending on the circumstances, a a case on the merits in executive ses- child, spouse, parent or other close rel- sion or may authorize a hearing. ative, heir, or legal representative (iii) Each application will be re- (such as a guardian or executor) of the viewed to determine— soldier or former soldier may be able to (A) Whether the preponderance of the demonstrate a proper interest. Appli- evidence shows that an error or injus- cants must send proof of proper inter- tice exists and— est with the application when requesting correction of another person’s mili- (1) If so, what relief is appropriate. tary records. (2) If not, deny relief. (2) Time limits. Applicants must file (B) Whether to authorize a hearing. an application within 3 years after an (C) If the application is filed outside alleged error or injustice is discovered the statute of limitations and whether or reasonably should have been discov- to deny based on untimeliness or to ered. The ABCMR may deny an un- waive the statute in the interest of jus- timely application. The ABCMR may tice. excuse untimely filing in the interest (f) Hearings. ABCMR hearings. Appli- of justice. cants do not have a right to a hearing (3) Administrative remedies. The before the ABCMR. The Director or the ABCMR will not consider an applica- ABCMR may grant a formal hearing tion until the applicant has exhausted whenever justice requires. all administrative remedies to correct (g) Disposition of applications—(1) the alleged error or injustice. ABCMR decisions. The panel members’ (4) Stay of other proceedings. Applying majority vote constitutes the action of to the ABCMR does not stay other pro- the ABCMR. The ABCMR’s findings, ceedings. recommendations, and in the case of a (5) Counsel. (i) Applicants may be rep- denial, the rationale will be in writing. resented by counsel, at their own ex- (2) ABCMR final action. (i) Except as pense. otherwise provided, the ABCMR acts (ii) See DODD 7050.6 for provisions for for the Secretary of the Army, and an counsel in cases processed under 10 ABCMR decision is final when it— U.S.C. 1034. (A) Denies any application (except (e) Actions by the ABCMR Director and for actions based on reprisals inves- staff—(1) Criteria. The ABCMR staff will tigated under 10 U.S.C. 1034). review each application to determine if (B) Grants any application in whole it meets the criteria for consideration or in part without a hearing when—

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(1) The relief is as recommended by ABCMR has not previously reconsid- the proper staff agency in an advisory ered the matter, the ABCMR staff will opinion; and review the request to determine if it (2) Is unanimously agreed to by the contains evidence (including, but not ABCMR panel; and limited to, any facts or arguments as (3) Does not involve an appointment to why relief should be granted) that or promotion requiring confirmation was not in the record at the time of the by the Senate. ABCMR’s prior consideration. If new (ii) The ABCMR will forward the evidence has been submitted, the re- decisional document to the Secretary quest will be submitted to the ABCMR of the Army for final decision in any for its determination of whether the case in which— new evidence is sufficient to dem- (A) A hearing was held. onstrate material error or injustice. If (B) The facts involve reprisals under no new evidence is found, the ABCMR the Military Whistleblower Protection staff will return the application to the Act, confirmed by the DOD Inspector applicant without action. General (DODIG) under 10 U.S.C. 1034 (ii) If the ABCMR receives a request and DODD 7050.6. for reconsideration more than 1 year (C) The ABCMR recommends relief after the ABCMR’s original decision or but is not authorized to act for the after the ABCMR has already consid- Secretary of the Army on the applica- ered one request for reconsideration, tion. then the case will be returned without (3) Decision of the Secretary of the action and the applicant will be ad- Army. (i) The Secretary of the Army vised the next remedy is appeal to a may direct such action as he or she court of appropriate jurisdiction. deems proper on each case. Cases re- (h) Claims/Expenses—(1) Authority. (i) turned to the Board for further consid- The Army, by law, may pay claims for eration will be accompanied by a brief amounts due to applicants as a result statement of the reasons for such ac- of correction of military records. tion. If the Secretary does not accept (ii) The Army may not pay any claim the ABCMR’s recommendation, adopts previously compensated by Congress a minority position, or fashions an ac- through enactment of a private law. tion that he or she deems proper and (iii) The Army may not pay for any supported by the record, that decision benefit to which the applicant might will be in writing and will include a later become entitled under the laws brief statement of the grounds for de- and regulations managed by the VA. nial or revision. (2) Settlement of claims. (i) The (ii) The Secretary of the Army will ABCMR will furnish DFAS copies of de- issue decisions on cases covered by the cisions potentially affecting monetary Military Whistleblower Protection Act entitlement or benefits. The DFAS will (10 U.S.C. 1034 and DODD 7050.6). In treat such decisions as claims for pay- cases where the DODIG concluded that ment by or on behalf of the applicant. there was reprisal, these decisions will (ii) The DFAS will settle claims on be made within 180 days after receipt of the basis of the corrected military the application and the investigative record. The DFAS will compute the report by the DODIG, the Department amount due, if any. The DFAS may re- of the Army Inspector General (DAIG), quire applicants to furnish additional or other Inspector General offices. Un- information to establish their status as less the full relief requested is granted, proper parties to the claim and to aid these applicants will be informed of in deciding amounts due. Earnings re- their right to request review of the de- ceived from civilian employment dur- cision by the Secretary of Defense. ing any period for which active duty (4) Reconsideration of ABCMR decision. pay and allowances are payable will be An applicant may request the ABCMR deducted. The applicant’s acceptance to reconsider a Board decision under of a settlement fully satisfies the claim the following circumstances: concerned. (i) If the ABCMR receives the request (3) Payment of expenses. The Army for reconsideration within 1 year of the may not pay attorney’s fees or other ABCMR’s original decision and if the expenses incurred by or on behalf of an

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applicant in connection with an appli- received from the applicant or unless cation for correction of military the Board is otherwise authorized by records under 10 U.S.C. 1552. law. (i) Miscellaneous provisions—(1) Special [65 FR 17441, Apr. 3, 2000, as amended at 70 standards. (i) Pursuant to the Novem- FR 67368, Nov. 7, 2005] ber 27, 1979 order of the United States District Court for the District of Co- lumbia in Giles v. Secretary of the Army PART 583—FORMER PERSONNEL (Civil Action No. 77–0904), a former [RESERVED] Army soldier is entitled to an honorable discharge if a less than honorable PART 584—FAMILY SUPPORT, CHILD discharge was issued to the soldier on CUSTODY, AND PATERNITY or before November 27, 1979 in an administrative proceeding in which the Sec. Army introduced evidence developed 584.1 General. by or as a direct or indirect result of 584.2 Family support and child custody. 584.3 Paternity claims. compelled urinalysis testing adminis- 584.4 Adoption proceedings. tered for the purpose of identifying 584.5 U.S. citizenship determinations on drug abusers (either for the purposes of children born out of wedlock in a foreign entry into a treatment program or to country. monitor progress through rehabilita- 584.6 Procedures governing nonactive duty tion or follow-up). or discharged personnel. (ii) Applicants who believe that they 584.7 Basic allowance for quarters. fall within the scope of paragraph 584.8 Garnishment. 584.9 Involuntary allotments. (i)(1)(i) of this section should place the APPENDIX A TO PART 584—REFERENCE term ‘‘CATEGORY G’’ in block 11b of DD Form 149. Such applications should AUTHORITY: 10 U.S.C. 3012. be expeditiously reviewed by a des- SOURCE: 50 FR 52447, Dec. 24, 1985, unless ignated official, who will either send otherwise noted. the individual an honorable discharge certificate if the individual falls within § 584.1 General. the scope of paragraph (i)(1)(i) of this (a) Purpose. This regulation sets forth section, or forward the application to the Department of the Army (DA) pol- the Discharge Review Board if the indi- icy, responsibilities, and procedures vidual does not fall within the scope of on— paragraph (i)(1)(i) of this section. The (1) Support and nonsupport of family action of the designated official will members. not constitute an action or decision by (2) Child custody. the ABCMR. (3) Paternity claims. (2) Public access to decisions. (i) After (4) Adoption proceedings involving deletion of personal information, a re- the children of soldiers. dacted copy of each decision will be in- (b) References. Required and related dexed by subject and made available publications and prescribed and ref- for review and copying at a public read- erenced forms are listed in appendix A. ing room at Crystal Mall 4, 1941 Jeffer- (c) Explanation of abbreviations and son Davis Highway, Arlington, Vir- terms. Abbreviations and special terms ginia. The index will be in a usable and used in this regulation are explained in concise form so as to indicate the topic the glossary. considered and the reasons for the deci- (d) Responsibilities. (1) The Deputy sion. Under the Freedom of Informa- Chief of Staff for Personnel will set tion Act (5 U.S.C. 552), records created policy for processing— on or after November 1, 1996 will be (i) Nonsupport complaints. available by electronic means. (ii) Child custody complaints. (ii) Under the Freedom of Informa- (iii) Paternity claims. tion Act and the Privacy Act of 1974 (5 (iv) Requests on adoption proceedings U.S.C. 552a), the ABCMR will not fur- of children of soldiers. nish to third parties information sub- (2) The Commanding General (CG), mitted with or about an application U.S. Army Community and Family unless specific written authorization is Support Center (USACFSC) will—

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(i) Set procedures for processing the duct, self-incrimination protections following: (article 31, Uniform Code of Military (A) Nonsupport complaints. Justice (UCMJ) and rights advisement) (B) Child custody complaints. must be provided. (See § 584.2(g)(4).) (C) Paternity claims. (iv) Answer all correspondence re- (D) Requests regarding adoption pro- ceived from CG, USACFSC and other ceedings of children of soldiers. DA officials. In answering this cor- (ii) Process nonsupport complaints, respondence, the commander will— child custody complaints, and pater- (A) Furnish complete details regard- nity claims received at USACFSC re- ing nonsupport complaints, child cus- garding Army soldiers. tody complaints, and paternity claims. (iii) Carry out the objectives of this (B) Reveal whether or not the soldier regulation to protect the rights of the authorized the release outside the De- soldier, the family, and the interests of partment of Defense (DOD) of informa- the Army. tion obtained from a system of records. (iv) Advise and assist the heads of His or her decision should be recorded Headquarters, Department of the Army on DA Form 5459–R (Authorization to (HQDA) agencies, commanders of the Release Information from Army major Army commands, and other Records on Nonsupport/Child Custody/ commanders on matters pertaining Paternity Complaints). to— (v) Answer all correspondence re- (A) Nonsupport. ceived directly from family members, (B) Child custody. legal assistance attorneys, and others. (C) Paternity. Normally, replies will not include in- (D) Adoption proceedings of children formation obtained from a system of of soldiers. records without the soldier’s written (3) Officers having general court-mar- consent. (See § 584.1(f).) Commanders tial jurisdiction will give special em- may coordinate responses with the phasis to the support of family mem- Staff Judge Advocate (SJA). Also, the bers in command information pro- commander will ask the SJA for guid- grams. This includes informing soldiers ance in unusual or difficult situations. of Army policy and of their responsi- (vi) Inform the first level field grade bility to provide adequate support for commander of all instances of the sol- all family members and to comply with dier’s repeated failure to meet the re- all court orders. quirements of this regulation or to (4) First level field grade com- comply with court orders. Also, point manders will monitor all instances of out actions taken or contemplated to soldiers’ repeated failure to meet the correct instances of nonsupport of fam- requirements of this regulation that ily members or continuing violations are brought to their attention. They of court orders. will take action, when proper. (vii) Refer correspondence or queries (5) Immediate commanders will— received from news media organiza- (i) Ensure that soldiers are informed tions to the unit, installation, or com- of the DA policy on support of family mand public affairs officer for re- members and that they comply with sponse. court orders. They will also inform sol- (viii) Take appropriate action diers of the possible consequences of against soldiers who fail to comply failing to fulfill financial obligations. with this regulation. These actions in- This information will be included dur- clude, but are not limited to, the ac- ing inprocessing and outprocessing tions in § 584.1(d)(5)(viii) (A) through briefings, particularly during proc- (E). Failure to comply with the min- essing for mobilization and oversea imum support requirements (§ 584.2(d)) movement. or the child custody provisions (ii) Process nonsupport complaints, (§ 584.2(e)) of this regulation may be child custody complaints, and pater- charged as violations of article 92, nity claims per this regulation. UCMJ. Article 132, UCMJ, prohibits the (iii) Counsel soldiers when com- making of false claims. Article 133, plaints and claim are received. If the UCMJ, covers conduct unbecoming an soldier is suspected of criminal con- officer. Article 134, UCMJ, concerns

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dishonorable failure to pay debts and (iv) Child care and development. conduct of a nature to bring discredit (v) Community support services. upon the Armed Forces. Also, the (3) Because of military duty, soldiers criminal laws of some States prohibit and their families often live in States the abduction of children by a parent in which they have not established or the nonsupport of family members domicile. Frequently, they reside in in violation of existing court orders. foreign nations. This often places sol- These laws may also apply against soldiers beyond the judicial process of diers under article 134, UCMJ, and As- State courts. similative Crimes Act, section 13, title (4) The Army recognizes the tran- 18, United States Code (18 U.S.C. 13). sient nature of military duty. This reg- (A) Denial of reenlistment for en- ulation prohibits the use of a soldier’s listed members (AR 601–280). military status or assignment to deny (B) Letter of reprimand for filing in a financial support to family members or soldier’s Military Personnel Records to evade court orders on child support Jacket or Official Military Personnel or custody. Commanders have a respon- File (AR 600–37). sibility to ensure that soldiers provide (C) Administrative separation from for the welfare of their families. Before the service (AR 635–100 or AR 635–200). recommending approval of requests for, (D) Nonjudicial punishment under ar- or extensions of, oversea assignments, ticle 15, UCMJ. commanders should consider whether (E) Court-martial. the soldier’s oversea assignment will (ix) Urge soldiers to provide addi- adversely affect the legal rights of fam- tional financial support beyond the re- ily members in pending court actions quired minimum whether the needs of against the soldier. the family so require. (5) The policy in this regulation re- (x) After coordination with the SJA garding the financial support of family and appropriate command representa- members is solely intended as an in- tives, and under applicable State, Fed- terim measure until the parties— eral, and host country laws, take reme- (i) Arrive at a mutually satisfactory dial steps to assist in the following: agreement, or (A) Elimination of continuing viola- (ii) Resolve their differences in court. tions of court orders and this regula- (6) Soldiers are entitled to the same tion on child custody. legal rights and privileges in State (B) Return of such children to the courts as civilians. This includes deter- parent or guardian entitled to custody. mining the extent and amount of their (6) The unit, installation, or com- support obligations to family members. mand public affairs officer will— This regulation is not intended to be (i) Answer correspondence and que- used as a guide by courts in deter- ries received from news media organi- mining the following: zations. (i) The existence of support obliga- (ii) Coordinate with the SJA before tions. making any response. (ii) The amount of past, present, or (e) Policy. (1) Soldiers of the Army future support obligations. are required to manage their personal (f) Release of information. (1) Soldiers affairs statisfactorily. This responsi- will be provided the opportunity of bility includes— completing DA Form 5459–R before (i) Providing adequate and contin- being questioned about compliants or uous support to or for family members. claims under this regulation. Informa- (See § 584.2.) tion voluntarily provided by soldiers (ii) Complying with all court orders. may be used by commanders to answer (2) The Army has an interest in the inquiries. Replies normally will not in- welfare of both soldiers and their fami- clude information obtained from a sys- lies. This is recognized by numerous tem of records without the soldier’s laws and programs authorizing the fol- written consent. lowing: (2) Some information may be re- (i) Family housing. leased outside DOD from a system of (ii) Living and travel allowances. records even without the soldier’s writ- (iii) Medical care. ten consent. Under the Privacy Act (5

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U.S.C. 552a(b)(2) and AR 340–21, para 3– this regulation, information that un- 3), information may be released, if re- duly invades the privacy of the soldier quired, under the Freedom of Informa- or his or her family should not be re- tion Act. Under 5 U.S.C. 552(b)(6) and leased. AR 340–17, chapter III, information (g) Penalties. Compliance with the from personnel and other similar files minimum support requirements may be released if it does not con- § 584.2(d)) and child custody provisions stitute a ‘‘clearly unwarranted inva- (§ 584.2(e)) of this regulation will be en- sion of privacy.’’ The information re- forced by administrative and criminal leased must be in the public interest. remedies as appropriate. (3) The type of information that may (h) Basic allowance for quarters. A be released from a system of records summary of the rules regarding enti- without the soldier’s consent will vary tlements to basic allowance for quar- from case to case. In each case, the ters (BAQ) is in § 584.7. The minimum public interest of having soldiers sup- support requirements of this regulation port their families and obey court or- are stated in amounts equal to a sol- ders must be balanced against the sen- dier’s BAQ at the ‘‘with dependents’’ sitivity of the privacy interests in- rate. However, a soldier’s entitlement volved. Army policy favors permanent or lack of entitlement to such allow- resolution of support and custody mat- ances has no relationship to the obliga- ters in court. The denial of information tion under this regulation to support that hinders such resolution is not in family members. Except for the public interest. § 584.2(f)(2)(ii)(B), the actual receipt or (4) Before releasing information from nonreceipt of BAQ also has no relation- a system of records without the sol- ship to that obligation. dier’s consent, commanders may con- (i) Entitlement of variable housing al- sult the SJA. Generally, the types of lowance. Soldiers entitled to BAQ at information shown below may be re- the ‘‘with’’ or ‘‘without dependents’’ leased to the complaining family mem- rate may be entitled to variable hous- ber entitled to support or those author- ing allowance (VHA). Terms for receiv- ized by the family member to act in his ing VHA are set forth in the Joint or her behalf (for example, legal assist- Travel Regulations, M4550 through ance attorneys, Member of Congress, M4557. Soldiers may use VHA to defray courts, Government welfare agencies). housing costs for family members. (i) Present unit of assignment, in- (j) Garnishment. A summary of the cluding port calls and future duty as- rules regarding garnishment of Federal signments, permanent or temporary, if wages is in § 584.8. known. (k) Involuntary allotments. A sum- (ii) Scheduled separation and retire- mary of the rules regarding involun- ment dates from the Service. tary allotments from pay and allow- (iii) Rank and authorized pay and al- ances is in § 584.9. lowances for that grade. (iv) Allotments authorized or being § 584.2 Family support and child cus- authorized for or in behalf of the fam- tody. ily member entitled to support. (a) General. (1) This chapter requires (v) The soldier’s stated intentions, if soldiers to provide financial support to any, regarding resolution of the com- family members and to obey court or- plaint. ders on child custody. It also provides (vi) The general whereabouts of the guidance and policy to commanders to soldier’s children, if known. follow when resolving nonsupport and (5) The SJA should be consulted for child custody issues. Consistent with legal advice before the residential ad- specific provisions below, a soldier dress of a soldier or family member is will— released. (i) Furnish financial support to fam- (6) Any information released should ily members that meets at least the be pertinent to the inquiry. The sol- minimum support requirements of this dier’s relationship, if any, to the per- regulation (§ 584.2(d)). son making the inquiry, should be con- (ii) Provide such additional support sidered. Consistent with the purpose of within his or her financial ability to

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meet the financial needs of family port agreements. Where an oral agree- members (§ 584.2(j)). ment exists and is being followed, the (iii) Comply with all court-imposed Army need not and will not interfere. obligations (§ 584.2(c)(3)). When a dispute arises, the Army will (iv) Obey court orders and this regu- require compliance only with the pro- lation on child custody and visitation visions of this regulation. Thus, if a rights (§ 584.2(e)). family member complains that a sol- (2) It is the responsibility of soldiers dier is not sending an agreed upon to resolve nonsupport issues with fam- amount that is less or more than the ily members by one of the methods minimum required by § 584.2(d), the shown in § 584.2(a)(2)(i) through (iii). In commander will advise the soldier to all cases, Army support policy for fam- either send the agreed upon amount or ily members should be considered tem- the minimum amount required by porary until either an agreement has § 584.2(d). Section 584.2(d) applies when been reached between the parties (in- the parties cannot reach an oral agree- cluding those acting on behalf of minor ment or the amount agreed upon is in children) or court action has been dispute. In appropriate cases, the com- taken. mander can order additional support (i) Oral agreements. beyond the minimum amount required (ii) Written support agreements. by § 584.2(d). (See § 584.2(j).) (iii) Court orders. (2) Written support agreement. If the (3) Each complaint of nonsupport will parties are separated and have a signed be considered individually by the sol- written agreement, the amount of sup- dier’s immediate commander. Alleged port specified in such an agreement desertion or other marital misconduct controls. A signed written agreement on the part of a spouse has no effect on includes a separation agreement or a a soldier’s obligation to provide finan- property settlement agreement. A cial support as required by § 584.2(d). written agreement on support also may (b) Separation from family due to mili- be shown by letters exchanged between tary service. Military service often re- the parties in which the amount of sup- quires soldiers to live separately from port has been agreed to by the parties. their families during oversea service or If the agreement is silent on an extended temporary duty. Soldiers amount of spousal and/or child support, must plan carefully for the support of the interim minimum financial support their families during these periods. requirements of § 584.2(d)(2) apply. The Commanders will educate soldiers and amount specified in the written agree- their families on the advantages of ment will be deemed adequate until joint bank accounts. Such arrange- modified by— ments usually minimize the hardship (i) Another agreement reduced to and financial burden on family mem- writing and signed by both parties. bers that may occur during periods of (ii) Court order. such separation. If proper, commanders (3) Court order. (i) Court orders often will urge soliders to start an allotment contain other financial obligations, to or for their family to ensure contin- such as provisions for property divi- uous financial support. The amount of sion, marital property awards, and pay- such a support allotment should be set ment of medical and other expenses. up by agreement between the soldier Commanders have a responsibility to and his or her family. In the absence of ensure that soldiers comply with these such an agreement or a court order, provisions. Soldiers will comply with the provisions of § 584.2(d)(2) apply. all court-imposed obligations. Failure Each soldier is expected to keep rea- to do so may result in costly and time- sonable contact with family members consuming litigation or court con- to minimize inquiries, claims, and tempt proceedings. These actions often compliants sent to Army officials. are to the detriment of the soldier and (c) Support by oral agreement, written the unit’s readiness mission. Section support agreement, or court order—(1) 584.2 (d)(1)(i), however, only applies to Oral agreement. It is not the Army’s court orders directing the soldier to policy to involve itself in disputes over provide financial support to family the terms or enforcement of oral sup- members on a periodic basis.

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(ii) Court orders under this regula- (2) Occupying Government family tion include those orders issued by the quarters. courts of the Federal Republic of Ger- (B) Family living in Government many (FRG). The courts must have ac- family quarters. While the supported quired valid jurisdiction consistent family is occupying Government fam- with the provisions of articles 32 ily quarters, the soldier will provide an through 37 of the Supplementary amount equal to the difference between Agreement concerning foreign forces BAQ at the with- and without-depend- stationed in the FRG. This agreement ents rate. When the supported family supplements the North Atlantic Treaty members move out of Government fam- Organization Status of Forces Agree- ily quarters, support will be provided ment. A soldier will comply with all in an amount equal to BAQ at the other foreign nation court and admin- with-dependents rate for the soldier’s istrative orders that are recognized by rank. treaty or international agreement. (ii) Multiple-family units. In multi- (iii) Commanders should be aware family unit support situations, each that conditions may have changed supported family member will receive a greatly from when a court order was pro-rata share of the BAQ at the with- issued. For example, a soldier may dependents rate. This share will be de- have gained other family termined by dividing an amount equal responsibilies. Many outstanding and to BAQ at the with-dependents rate for uncontested support orders against sol- the soldier’s rank by the total number diers cause severe hardship. Such or- of supported family members (exclud- ders can only be modified by a court. If ing former spouses). The following a soldier’s income appears inadequate modifications apply: First, any court to satisfy an outstanding order and ordered support will be paid as stated. still maintain the soldier, the com- Secondly, supported families living in mander should urge the individual to Government family quarters will re- consult a legal assistance attorney. ceive an amount equal to the difference However, the soldier will comply with between BAQ at the with- and without- the terms of a court order until re- dependents rate for the soldier’s rank. lieved of this obligation by modifica- Lastly, any remaining family members tion of the order by a court. (excluding former spouses) will receive a pro-rata share of the BAQ amount. (d) Minimum support requirements. (1) This will be provided regardless of the Soldiers will not violate the following: amount of support paid to other family (i) Financial support provisions of a members. Following are examples: court order. (A) Example 1. A soldier is divorced (ii) Financial support provisions of a and has three children from that mar- written support agreement in the ab- riage. The soldier is required by a court sence of a court order. order to pay $300 per month for the (iii) Interim minimum financial sup- children and $100 per month for the port requirements of § 584.2(d)(2) in the former spouse. The soldier has remar- absence of a court order or written sup- ried and has two more family members port agreement. (spouse and child) living in private (2) In the absence of a court order or housing. The soldier now has a total of written support agreement, and until five family members that he or she such an order or agreement is obtained, must support under Army policy. (A the following interim minimum finan- former spouse does not qualify as a cial support requirements apply: family member in pro-rata determina- (i) Single family units. (A) Family not tions.) The children by the previous living in Government family quarters. marriage must receive $300 and the The soldier will provide support in an former spouse must receive $100 per the amount equal to the soldier’s BAQ at court order. The present spouse and the with-dependents rate. This amount child should receive support equal to of financial support will be provided for two-fifths of BAQ at the with-depend- this family unit regardless of whether ents rate for the soldier’s rank. or not the soldier is— (B) Example 2. A soldier has one child (1) Receiving BAQ. by a previous marriage. There is no

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court order for child support. The sol- of which military member, if any, is dier is unable to show that the court receving BAQ or occupying Govern- granting the divorce had personal ju- ment family quarters. risdiction over the soldier so as to be (2) Single family units when the able to order child support. The soldier Army soldier has custody of the child has remarried and has a spouse and two or children of the marriage (for exam- children living in private housing. The ple, Army soldier has custody of one soldier now has a total of four family child and spouse has custody of two members that he or she must support children). In this situation, the Army under Army policy. (These family soldier is not required to provide a members are the child by a previous minimum amount of financial support marriage and the present spouse and for the children in the other military two children.) Each family member member’s custody. should receive support equal to one- (B) Multiple-family units. The provi- fourth of BAQ at the with-dependents sions of § 584.2(d)(2)(ii) apply. However, rate for the soldier’s rank. the amount in § 584.2(d)(2)(iv)(A) will (C) Example 3. A soldier has two chil- not be diminished by proration because dren by a previous marriage. The sol- of the Army soldier’s financial support dier is required by court order to pay obligations to other family members. $200 per month for these children. Also, For example: An Army soldier has an the soldier is required to pay $75 per adopted child from a previous mar- month for support of a child per a riage. The soldier is required by court court order that has declared him to be order to pay $150 per month for this the father. He has remarried and has a child. The soldier presently is married spouse and three children living in to a spouse on active duty with the Air Government family quarters. The sol- Force. They have two children from dier now has a total of seven family this marriage. The Air Force member members that he must support under and children reside in private housing. Army policy. The children by his pre- The Army soldier has a total of three vious marriage must receive $200 per family members that he or she must the court order. His other child must support. The Army soldier will pay $150 receive $75 per the court order. The a month to the adopted child per the spouse and children of his present mar- court order. The children from the riage should receive an amount equal present marriage will receive an to the difference between BAQ at the amount equal to the difference between with- and without-dependents rate for his or her BAQ at the with- and with- the soldier’s rank. out-dependents rates for the Army sol- (iii) Military members married to dier’s rank. one another. In the absence of a court (3) A commander has no authority to order or written support agreement, an excuse a soldier from complying with Army soldier is not required to provide the interim minimum support require- support to a spouse on active duty in ments of § 584.2(d)(2) when they are ap- the Armed Forces. plicable. (iv) Children of military member par- (4) In the absence of a contrary provi- ents. sion in a written support agreement or (A) Single family units. In the absence court order, monthly financial support of a court order or written support to family members will be sent before agreement, the following interim sup- the last calendar day of the month for port requirements apply: which the support is due. If the family (1) Single family units when the members are not residing together, the Army soldier does not have custody of soldier will ensure each family member any children of the marriage. The receives his or her pro-rata share. (For Army soldier will pay an amount equal example, spouse lives along and the to the difference between his or her children live with their grandparents.) own BAQ at the with- and without-de- (e) Child custody. (1) A soldier rel- pendents rate to the military member ative, who is aware that another person having custody of the child or children is a lawful custodian of an unmarried of the marriage. This amount of finan- child under the age of 14 years, will cial support will be provided regardless not—

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(i) Abduct, taken, entice, or carry (2) The financial support provisions away the child from the lawful custo- of a written support agreement. dian. (3) The interim minimum financial (ii) Withhold, detain, or conceal the support requirements of § 584.2(d)(2). child away from the lawful custodian. (4) Court orders without financial (2) A ‘‘lawful custodian’’ is a person support provisions. authorized, either along or together (iii) A soldier will provide financial with another person or persons, to have support to family members unless ex- custody and exercise control over a pressly relieved of this obligation by— child less than 14 years of age by order (A) Court order. of a court. The fact that joint custody (B) Written support agreement. has been awarded to both parents by a (iv) A soldier will provide financial court does not preclude a violation of support under § 584.2(f)(2) to family this paragraph by the soldier parent. members, which meets at least the However, in the absence of a court minimum support requirements of this order to the contrary, the mother of a regulation. The financial support will child born out of wedlock who is not be provided even when a court order then, nor has ever been, married to the contains no provision as to support ex- father of the child is deemed the ‘‘law- cept as follows: ful custodian’’ of that child for the purpose of this regulation. (A) A soldier has no obligation to (3) A soldier relative is a soldier who provide financial support to a former is the parent, grandparent, brother, sis- spouse except by order of court. ter, uncle, aunt, or one who has at (B) A soldier has no obligation to some time been the lawful custodian of provide financial support to minor the child. children of the marriage if he or she (4) It is a defense to a violation of can show the following: this paragraph that the soldier— (1) The court issuing the final order (i) At the time of the offense had cus- of divorce had personal jurisdiction tody of the child to the exclusion of over the soldier to order child support. others pursuant to a valid order of a (2) The soldier is not receiving BAQ court having jurisdiction over the at the ‘‘with dependents’’ rate based child; or solely on the support of the minor chil- (ii) Voluntarily returned the child to dren in question. the lawful custodian within 96 hours (3) Written support agreements. If a fi- after return was demanded by the law- nancial support obligation is evidenced ful custodian. by a written agreement between the (f) Relief from the minimum support re- parties, the soldier can only be relieved quirement. (1) Court orders with finan- of this obligation by another written cial support provisions. agreement or by court order. (i) Court ordered financial support (4) Greater spousal income. In the ab- will be by the terms of the court order. sence of a written support agreement Relief from a court order can only be or court order, a soldier has no obliga- obtained under the law. Nothing in this tion to support a civilian spouse who is regulation affects or lessens a soldier’s receiving an annual income equal to or legal obligation to comply strictly greater than the annual gross pay of with the terms of a court order. the soldier. The income of the spouse (ii) A soldier who disobeys a court does not affect the soldier’s obligation order may be held in contempt of the to provide financial support to the chil- court that issued the order. Also, a sol- dren of that marriage in the physical dier may be punished for violating this custody of the spouse on a pro-rata regulation. It is, however, a defense to basis. Example: A soldier is living in any violation of § 584.2(d)(1)(i) that— Government family quarters with one (A) The court issuing the order was of their children. The soldier’s spouse without jurisdiction to do so, and deserted the soldier and lives in private (B) The soldier at all times has been housing with their other child. The sol- complying with any of the following: dier’s spouse earns $5,000 more in an- (1) The financial support provisions nual income from a civilian job than of another court order. the soldier earns in annual gross pay.

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There is no court order or written sup- (4) In any case in which the soldier is port agreement. The soldier has a total suspected of violating this regulation of three family members. However, (§ 584.2(d) or (e)), or of having com- under Army support policy, the soldier mitted other offenses, the commander, does not have to provide a pro-rata prior to questioning the soldier, will share of financial support to the spouse advise him or her of— because the spouse’s income exceeds (i) The suspected offense. that of the soldier. (Note that under (ii) The right to remain silent under § 584.2(a)(3) marital misconduct is not a article 31, UCMJ. relevant consideration.) The soldier (iii) The right to counsel under the must support the child in Government Fifth Amendment. family quarters. In addition, the sol- (h) Form of support payment. (1) Un- dier must provide an amount equal to less otherwise provided in the court one-third of BAQ (pro-rata share) at order or by agreement, a financial sup- the ‘‘with dependents’’ rate to the port payment will be made in one of spouse on behalf of the child living the following ways: with the spouse. (i) In cash. (2) [Reserved] (ii) By check or money order. (g) Commander’s inquiries. (1) If a sol- (iii) By allotment. dier denies he or she has a financial ob- (2) A soldier will receive credit for ligation to support a spouse or children payments made to others on behalf of, for any reason, the soldier’s com- and with the agreement of, the sup- mander will— ported family members. Examples of (i) Inquire into the matter. support provided in kind include— (ii) Consult with the SJA prior to de- (i) Rent. termining whether or not there is a (ii) Utility services. support obligation. If there is no sup- (iii) Interest and principal due on port obligation, BAQ at the ‘‘with de- loans, mortgages, or charge accounts. pendents’’ rate should be stopped. (iv) Insurance payments. (2) If a soldier claims he or she has (i) Arrearages—(1) General. A soldier made support payments as required by who falls into arrears without legal this regulation, the soldier’s com- justification or excuse is in violation of mander will— § 584.2(d). (i) Request the soldier to provide (2) Court orders and written support proof of payment in one of the fol- agreements. lowing forms: (i) Amounts in arrears based on a (A) Canceled personal checks. past failure to comply with a court (B) Leave and earnings statements order or written support agreement showing allotments. will be paid at once in a lump sum (C) Postal or money order receipts amount. If an immediate lump sum accompanied by a sworn statement payment is impractical, soldiers are from the soldier that the order was expected to work out arrangements sent to the family member. If possible, with the court or the affected family evidence that the postal or money members to pay arrearages on a sched- order was cashed by the complaining uled basis. If arrangements can not be party should be provided. worked out, commanders will intervene (D) Other acceptable evidence of pay- and order payment of arrearages on a ment. scheduled basis based on the soldier’s (ii) Consult with the SJA, if nec- ability to pay. essary, to determine whether the sol- (ii) When arrearages arise from non- dier has provided enough proof of pay- compliance with court orders and writ- ment. ten support agreements, this may re- (3) If a soldier is suspected of vio- sult in— lating a child custody or visitation (A) Garnishment of the soldier’s pay rights in a court order, the soldier’s account (§ 584.8). commander will— (B) Initiation of an involuntary allot- (i) Inquire into the matter. ment against the soldier’s pay account (ii) Consult with the SJA prior to (§ 584.9). taking action. (C) Contempt of court proceedings.

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(D) Recoupment of BAQ received by (ii) The earning capacity of the fam- the soldier. ily member on whose behalf support is (iii) Administrative or punitive ac- requested. tion may be taken on a violation of (iii) The financial savings of the sol- this regulation for any month in which dier and family member. the soldier failed to provide the re- (iv) The separate and joint debts of quired financial support even if the the soldier and family member, by amount in arrears eventually is paid. whom those debts were incurred, and (3) Interim minimum financial sup- the reasons behind them. port requirements. A soldier should be (v) The soldier’s duty to provide fi- encouraged to pay the amount in ar- nancial support to other family mem- rears based on past noncompliance bers, including former spouses. with the interim minimum financial (vi) The financial needs of the soldier support requirements (§ 584.2(d) (1)(iii) and the family member and whether and (2)). However, a soldier cannot be these needs are temporary or perma- ordered to pay such an amount. Never- nent in nature. theless, administrative or punitive ac- (vii) The standard of living of the sol- tion may be taken on a violation of dier and family member and whether this regulation for any month in which such standard of living is reasonable the soldier failed to provide the re- under the circumstances. quired financial support even if the (viii) With regard to spousal support, amount in arrears eventually is paid. the duration of the marriage and the Also, failure to provide required finan- circumstances under which the parties cial support in the past may be consid- separated. ered, together with other factors, in a (ix) The extent of the soldier’s or commander’s determination of the family member’s compliance with ex- amount of additional support that may isting court orders and written support be ordered. (See § 584.2(j).) agreements. This includes those provisions dealing with child custody, visi- (j) Additional support where there is tation rights, property division, and no support agreement or court order. marital property awards. (1) Ordinarily, a soldier should not be (x) The amount in arrears owed by required to provide financial support the soldier based on past noncompli- beyond that required by § 584.2(d)(1)(iii). ance with the minimum support re- However, a soldier should provide addi- quirements. (See § 584.2 (d) and (i).) tional support within his or her ability (xi) Any other fact which, in the to meet the basic financial needs of judgment of the commander, has a log- family members when the interim sup- ical bearing upon the amount of addi- port requirements of this regulation tional support the soldier reasonably are shown to be inadequate. should be expected to provide. (2) If there is a demonstrated need for (k) Procedure for making complaints. immediate and temporary additional (1) Complaints about nonsupport of support because of unexpected and un- family members and noncompliance foreseen circumstances and the parties with court orders on financial support are unable to agree on such additional and child custody should be sent support, a commander may order tem- through command channels. The com- porary additional support. plainant should be referred to the im- (3) Commanders will consider the fol- mediate commander of the soldier con- lowing factors in determining the cerned. amount of additional support, if any, (2) The Inspector General (IG) may that a soldier should provide when a re- assist in properly routing the com- quest for additional support is re- plaint. The IG also may assist if the received: sponsible commander has failed to re- (i) The pay, allowances, separate in- spond in a satisfactory manner or as come, and other financial resources of required by this regulation. (See AR both the soldier and the family mem- 20–1, para 4–9.) ber for whom additional support is re- (3) The USACFSC (DACF-IS-PA) has quested. set up an office to assist in these cases.

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USACFSC will provide policy interpre- (iii) Notify the soldier of the com- tations and guidance on unresolved or plaint of nonsupport or of a violation complex cases, as needed. USACFSC of a child custody court order. normally will go through command (iv) Require the soldier to complete channels to the immediate commander and sign DA Form 5459–R. Information of the soldier concerned requesting obtained from a system of records ordi- that action be taken under this regula- narily will not be released outside DOD tion. without the soldier’s consent. (See (4) Family members who present § 584.1(f).) complaints against a military member (v) If the soldier is suspected of vio- of another Service (Air Force, Marine lating this regulation or of having Corps, Navy, or Coast Guard) should be committed other offenses, the com- referred to the appropriate Service. mander, prior to questioning the sol- (l) Commander’s actions. (1) Upon re- dier, will also advise him or her of— ceipt of a complaint of nonsupport or (A) The suspected offense. noncompliance with court orders, in- (B) The right to remain silent under cluding provisions on child custody or article 31, UCMJ. visitation rights, the commander will (C) The right to counsel under the review the complaint. He or she will do Fifth Amendment. the following if the information is in- (vi) Explain the following to the sol- complete: dier: (i) Acknowledge receipt of the com- (A) The Army’s policies regarding plaint. support of family members and compli- (ii) Explain that the information or ance with court orders. documentation sent is not enough to (B) That refusal to give required sup- give proper help. port per this regulation may result in (iii) If appropriate, send the com- administrative or punitive action. plainant DA Form 5460–R (Request for (C) That a soldier is not entitled to Help in Receiving Support and/or Iden- BAQ at the ‘‘with dependents’’ rate tification Cards for Family Members). when no part of the allowance is given (iv) Advise that help will be given to family members. Therefore, collec- with the complaint upon return of the tion action may be initiated by the completed form and other requested in- Army. formation and documents. (vii) Explain what garnishment is (§ 584.8) and how it might affect the sol- (v) If appropriate, advise that DA dier’s pay, allowances, and allotments. Form 5460–R alone is not enough docu- For example, explain that the amount mentation for issuance of a dependent garnisheed monthly might signifi- identification card (ID card) (AR 640–3). cantly exceed monthly support obliga- Documentation (that is, court orders, tions previously agreed upon. birth certificates, marriage certifi- (viii) Tell the soldier of any court cates, etc.) must be provided to support order for attachment or garnishment eligibility for benefits. that has been received. Immediately (vi) Answer any policy or procedural send the court documents to the Com- questions that have been asked. mander, U.S. Army Finance and Ac- (2) Upon receipt of DA Form 5460–R counting Center (USAFAC), ATTN: or a complaint that has enough infor- FINCL-G, Indianapolis, IN 46249–0260 mation to properly respond, the com- for action. (See § 584.8(b).) Also, inform mander will— the soldier that if the document is in (i) Review soldier’s legal financial ob- proper legal form, a portion of the sol- ligations in light of the complaint and dier’s pay and allowances will be gar- the facts presented by all parties con- nisheed. cerned. (ix) Explain involuntary allotments (ii) If necessary, ask the SJA if the (§ 584.9) if appropriate. complaint is valid, if the soldier must (x) Coordinate with the soldier’s serv- provide financial support or give up icing finance and accounting office custody of children, and any other re- (FAO) for problems of pay, allowances, lated questions. and allotments.

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(xi) Urge soldiers to provide contin- (4) If proper to the situation, remind uous support to family members by al- complainant of other helping agencies lotment. The allotment should be for on post, such as the chaplain and Army the mutually agreed amount, court Community Service. These agencies order, or as computed under this regu- can give timely, interim help to meet lation. An account may be set up in a immediate needs pending a more per- financial institution by the recipient manent resolution of the problem. to receive the allotment. This action (5) Retain the statements allowing or may preclude delays in receipt and forbidding release of information to other related problems in the future. the complainant and the soldier’s in- (xii) Help the soldier start an allot- tentions with the case file for future ment to make the required support reference. Documents/records will be payments. Also, advise the soldier to filed per AR 600–37 and the Army Func- let the commander know if there is a tional Files System (AR 340–2 and AR change or stoppage to the support al- 340–18). lotment. (6) Monitor actions closely to ensure (xiii) Give the soldier a chance to promises of support or other actions by consult with a legal assistance attor- soldiers to complainants are being met. ney if he or she desires. However, the (7) Consider administrative or puni- commander should ensure that this is tive action if proper. not used as a delaying tactic. Where (8) Inform the first level field grade appropriate, a support payment plan commander of the soldier’s repeated should be initiated without delay. failure to meet the requirements of (xiv) Urge soldiers thinking about di- this regulation. Also, point out actions vorce to seek legal advice from a legal taken or contemplated to correct in- assistance attorney. Also, advise the stances of nonsupport of family mem- soldier to ensure an amount of support bers or violations of child custody is included in the court order for their court orders. children. This action may help to prevent future disputes. § 584.3 Paternity claims. (xv) Ensure that the soldier is not receiving BAQ at the ‘‘with dependents’’ (a) General. (1) This chapter sets pol- rate when not entitled to it. (See icy and procedures to process paternity § 584.7.) claims against male Army soldiers. (xvi) Ask the soldier about his or her These procedures apply to claims made intentions. Give the soldier the chance in the continental United States and in to furnish a voluntarily signed state- foreign countries. They apply to claims ment admitting or denying the com- made by the claimant or on behalf of plaint and stating his or her inten- the claimant by attorneys, court offi- tions. cials, and others. (xvii) Send complaints received to (2) Soldiers will be informed of pater- the soldier’s new duty station if he or nity claims against them. Commanders she has been reassigned. Advise the will ensure that soldiers are advised of complainant of the soldier’s reporting their legal rights and will advise sol- date and the unit address to which cor- diers of their moral and legal obliga- respondence should be sent. If proper, tions in the matter. Soldiers admitting give the complainant a copy of DA paternity will be urged to provide the Form 5460–R. necessary financial support to the (3) Advise the complainant cour- child. Also, they will take any other teously and promptly— action proper under the circumstances. (i) Of the Army policy in suitable (b) Procedures for questioning sol- areas of concern. diers about paternity claims upon re- (ii) Of the soldier’s intentions, if the ceipt of a claim of paternity against a soldier allows release of the informa- soldier, the commander will take the tion. following actions: (iii) That personal problems outside (1) If there is evidence that an offense the requirements of this regulation (for example, rape, indecent acts with a must be resolved in court if the parties minor) may have been committed— cannot agree. (i) Inform law enforcement officials.

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(ii) Inform the soldier of the sus- (2) The commander will reply di- pected offense. Before questioning, ad- rectly to the claimant or the attorney vise the soldier of his right to remain or court official she has authorized to silent under article, 31, UCMJ, and his act in her behalf. Information obtained right to counsel under the Fifth from a system of records ordinarily Amendment. will not be released outside DOD with- (iii) Coordinate further action under out the soldier’s consent. (See this regulation with the SJA and law § 584.1(f).) enforcement officials if appropriate. (3) If the soldier admits paternity and (2) If there is no evidence that an of- agrees to provide financial support, fense was committed— then the commander will— (i) Allow the soldier a chance to talk (i) Ask the claimant to provide a with a legal assistance attorney about copy of the birth certificate. his legal rights and obligations. (ii) Help the soldier in filing for an (ii) Require the soldier to complete allotment or providing other financial and sign DA Form 5459–R. Information aid. obtained from a system of records nor- (iii) Advise the claimant of the mally will not be released outside DOD amount, effective date, and means of without the soldier’s consent. (See payment. § 584.1(f).) (iv) Help the soldier apply for BAQ at (iii) Inform the soldier of Army pol- the ‘‘with dependents’’ rate, if applica- icy on the support of family members ble. (A birth certificate may be re- contained in this regulation. quired.) (iv) Advise the soldier that a court (v) Ensure an ID card is issued for the order against him on the paternity child after the relationship is docu- claim, followed by a refusal to support mented, if proper. (A birth certificate a child born out of wedlock, could re- may be required.) (See AR 640–3, para sult in— 3–3, for dependency criteria for ID (A) Administrative or punitive action cards.) for violating this regulation. (vi) Allow the soldier to take ordi- (B) Garnishment of the soldier’s pay nary leave in order to marry the claim- account (§ 584.8). ant, if leave is requested for this pur- (C) Initiation of an involuntary allot- pose. However, the leave may be de- ment against the soldier’s pay account layed if it will interfere with military (§ 584.9). requirements. Travel in connection (D) Contempt of court proceedings. with leave (including travel to and (v) Ask the soldier about his inten- from overseas commands) is the re- tions. Give the soldier the chance to sponsibility of the soldier. Travel will furnish a voluntarily signed statement be at no expense to the Government. If admitting or denying the claim and the marriage is to take place overseas, stating his intentions. the soldier must comply with AR 600– (c) Procedures for processing paternity 240 and AR 608–61 in applying for au- claims. (1) When one of the conditions thorization to marry (DA Form 2029–R) in § 584.3(c)(1)(i) applies, a claimant will (Application for Authorization to be advised of the statement in Marry Outside of the United States). § 584.3(c)(1)(ii). (d) Court orders. If a court order of pa- (i) A soldier— ternity and support has been issued, (A) Refuses to answer questions the commander will— about the paternity claim. (1) Advise the soldier of the policy re- (B) Denies paternity. garding support of family members. (C) Admits paternity, but refuses to (2) Advise the soldier that refusal to provide financial support. support his child born out of wedlock (ii) No action can be taken on the could result in— claim of paternity in the absence of a (i) Garnishment of the soldier’s pay court order. The court order must iden- account (§ 584.8). tify the soldier in question as the fa- (ii) Initiation of an involuntary allot- ther of the child. Also, the court order ment against the soldier’s pay account must direct that the soldier provide fi- (§ 584.9). nancial support to the child. (iii) Contempt of court proceedings.

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(iv) Administrative or punitive ac- (v) Since the soldier is not present tion for violating this regulation. because (give specific reasons), (for ex- (3) Refer the soldier to a legal assist- ample, temporary duty or leave), a ance attorney for advice on his legal complete response cannot be made rights and obligations. until (date). (4) Help the soldier file an attotment (vi) The soldier is no longer in this or give other financial aid. command. The commander will provide (5) Advise the claimant of the the soldier’s new military address to amount, effective date, and means of the court or judge. The commander payment. then will send a copy of the inquiry to (6) Help the soldier apply for BAQ at the soldier’s new commander and ad- the ‘‘with dependents’’ rate, if applica- vise the court or judge of this action. ble. (4) Furnish the soldier with a copy of (7) Ensure an ID card is issued for the the communication and the reply. child. (8) Consider administrative or puni- § 584.5 U.S. citizenship determinations on children born out of wedlock in tive action if the soldier fails to obey a foreign country. the court order. (See § 584.1(d)(5)(viii.) (9) Inform the first level field grade (a) General. (1) A child born out of commander of the soldier’s repeated wedlock in a foreign country of an failure to meet the requirements of American citizen father and an alien this regulation. Also, point out actions mother does not automatically gain taken or contemplated to correct in- U.S. citizenship. The child must first stances of nonsupport of family mem- be legally acknowledged by the father. bers. Marriage to the mother may be required in order for the child to acquire § 584.4 Adoption proceedings. U.S. citizenship. The father also must establish that he had at least 10 years (a) General. This chapter does not of physical presence in the United apply to those situations were a soldier States prior to the child’s birth. Five is trying to adopt a child. It applies to of those years must have been spent in those situations where another person the United States after the father’s is trying to adopt a legitimate or ille- 14th birthday. United States military gitimate child of a soldier. A child born service counts as physical presence in in or out of wedlock normally may not the United States. (See 8 U.S.C. be put up for adoption without the con- 1101(c)(1), 1401(g), and 1409(c).) Whether sent of the parents. Therefore, commu- the child gains the citizenship of its nications from a judge or court asking mother depends entirely upon the laws that a soldier appear at an adoption of the nation in which she is a citizen. hearing must be answered. (2) A child born out of wedlock in a (b) Commander’s actions. The com- foreign country to an American citizen mander will— mother and an alien father or U.S. Cit- (1) Inform the soldier or the inquiry. izen father gains U.S. citizenship at (2) Urge the soldier to see a legal as- birth if the mother had been physically sistance attorney. present in the United States for a (3) Advise the court or judge, as ap- continous period of 1 year prior to the propriate, that— child’s birth. (See 8 U.S.C. 1409(c).) The (i) A request by the soldier for leave child will gain the citizenship of the fa- to attend an adoption hearing on (date) ther only if the laws of the nation of has been granted. which the father is a citizen so provide. (ii) A request by the soldier for leave (b) Procedures for claiming U.S. citizen- to attend an adoption hearing on ship rights. (1) A father desiring rights (date), if made, would be approved. of U.S. citizenship for a foreign-born (iii) Due to military requirements, child must legally acknowledge the the soldier cannot be granted leave to child as his own and prepare a case file. attend any court hearing until (date). Each case is decided on its own merits. (iv) The soldier has stated that he or The Department of State, if the child is she is not the natural parent of the in a foreign nation, or the Immigration child. and Naturalization Service (INS), if the

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child is in the United States, will make the American Consul abroad, will de- the decision. Documents that may be cide if the child is a U.S. citizen. important in supporting a citizenship (3) If both father and child are within determination are listed below: the United States, a decision of citizen- (i) Proof of father’s citizenship. This ship status can be obtained from the may consist of any of the following: INS. The soldier should file Form N–600 (A) A certified copy of his birth cer- (Application for Certificate of Citizen- tificate (with a raised seal of the reg- ship) at the nearest INS office. This istrar of births). form can be obtained from the INS. (B) A report of birth abroad (FS The appendix of AR 608–3 lists the loca- Form 240 (Report of Birth Abroad of a tion of INS offices. Citizen of the United States)). (4) Any soldier who claims to be a (C) A certificate of citizenship. U.S. citizen has the burden of proving (D) A certificate of naturalization. that claim to the Department of State (E) A valid U.S. Passport. or INS, as applicable. (F) A certified copy of an approved U.S. passport application. § 584.6 Procedures governing non- (G) Any secondary evidence accept- active duty or discharged per- able by the State Department or INS. sonnel. (ii) Affidavit of paternity. (a) Procedures governing nonactive (iii) Proof of presence in the foreign duty personnel. (1) Nonsupport com- country at time of conception. (This plaints and paternity claims against information can be extracted from the former soldiers or other not on active passport, DA Form 2–1 (Personnel duty will be sent to the Commander, Qualification Record—Part II), etc.). U.S. Army Reserve Components Per- (iv) Child’s birth certificate. sonnel and Administration Center (v) Proof of the father’s physical (RCPAC), ATTN: DARC-PSE-VS, 9700 presence in the United States for 10 Page Boulevard, St. Louis, MO 63132– years (5 after age 14). 5200. (vi) Blood type tests of the mother, (2) After RCPAC verifies the status, the father, and the child. (At the re- the following officials will act as pre- quest of the examining officer.) scribed below: (vii) Two sworn affidavits (at the re- (i) Chief, National Guard Bureau, quest of the examining officer) from in- WASH DC 20310–2500, for members of dividuals who personally knew the the Army National Guard. mother, father, and child at the time of birth and can identify the child. (ii) The area commander concerned (viii) A copy of a certified English for Ready Reservists assigned to troop translation of all needed legal docu- program units under his or her control. ments that are in a foreign language. (See AR 140–1, para 1–6.) (ix) An executed passport application (iii) Commander, RCPAC for nonunit with three signed pictures of the child. members assigned to Control Groups of (2) The soldier may consult a legal the Ready Reserve, Standby Reserve, assistance attorney for help in pre- and Retired Reserve. paring the case file. The case file (3) The officials cited above will en- should be taken to the nearest Amer- sure that correspondence claiming non- ican Embassy, Consulate General, or support or paternity is delvered to the Consulate in the country where he and person concerned, using military chan- his child live. If the father is not nels. When the correspondence cannot present in the country where the child be delviered through military chan- lives, he will do one of the following— nels, it will be sent to the last known (i) Take the necessary documents to mailing address of the person by cer- the nearest American Embassy, Con- tified mail (PS Form 3811 (Return Re- sulate General, or Consulate. ceipt, Registered, Insured and Certified (ii) Mail the documents to the De- Mail)). It should be marked ‘‘Return partment of State, ATTN: Office of Receipt Requested—Deliver to Ad- Citizens Consular Service, WASH DC dressee Only.’’ This form is available at 20520. That office, in conjunction with U.S. post offices.

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(4) After delivery of correspondence, (ii) Place stamped envelope in a sec- the responsible official will advise the ond envelope and send to the Com- complainant or claimant— mander, RCPAC, ATTN: DARC-PSE- (i) Of the date and method of deliv- VS, 9700 Page Boulevard, St. Louis, MO ery. 63132–5200. (ii) That the military department (3) Commander, RCPAC will send the does not control the personal affairs of correspondence to the retired member nonactive duty personnel. These per- but cannot release the address under sonnel usually are in a civilian status the provisions of the Privacy Act of and are not subject to military dis- 1974. cipline. Therefore, the matter has been left to the person’s discretion. § 584.7 Basic allowance for quarters. (iii) Of the person’s mailing address (a) Eligibility. (1) Soldiers entitled to only if the conditions in § 584.6(c) are basic pay, who have family members, met. are entitled to BAQ at the rates pre- (b) Procedures governing discharged scribed for soldiers ‘‘with dependents’’ personnel. Nonsupport complaints or under certain conditions. The Depart- paternity claims against persons who ment of Defense Military Pay and Al- have been discharged from the Service lowances Entitlements Manual will be sent to RCPAC. These persons (DODPM) governs entitlements. (See do not hold any military status what- DODPM, part 3, chap 2.) soever. Commander, RCPAC will return (2) Soldiers may receive BAQ at the the correspondence and all accom- ‘‘with dependents’’ rate as long as they panying documentation and advise the pay at least the difference between complainant or claimant— BAQ at the with- and without-depend- (1) That the person is no longer a ents rate each month in support of member of the Army or the Reserve their families. (See DODPM, part 3.) Components. This is so even if a divorce decree or (2) Of the date of discharge. court order is silent on support or re- (3) That the Army no longer has con- leases the soldier from the responsi- trol or authorty over the discharged bility of supporting the family. (See member. Therefore, the Army can take § 584.2(f)(2).) Normally, a soldier is not no further action in the matter. entitled to BAQ on behalf of a former (4) Of the person’s mailing address spouse or stepchildren after the di- only if the conditions in § 584.6(c) are vorce. BAQ at the ‘‘with dependents’’ met. rate is not authorized when the soldier (c) Conditions for disclosing mailing ad- or the supported family is residing in dress. Nonactive duty and discharged Government family quarters. Also, if personnel’s mailing addresses will not two soldier member-parents are sup- be disclosed except for one of the fol- porting the same child, only one sol- lowing reasons: dier member is entitled to BAQ at the (1) The person consents in writing to ‘‘with dependents’’ rate. the release of his or her address. (b) False claims. BAQ at the ‘‘with de- (2) The complainant or claimant pendents’’ rate is not payable to soldier sends a court order directing the re- who are not supporting their families. lease of the address. Cases involving alleged failure or re- (3) Any other reason that does not fusal of soldiers to pay at least the dif- constitute a violation of the Privacy ference between BAQ at the with- and Act of 1974. without-dependents rate for the sup- (d) Retired personnel. (1) Court orders port of family members will be referred for garnishment or attachment of pay to the proper FAO after investigation. of retired persons will be sent to Nonsupport of family members for USAFAC. whom BAQ is claimed may result in— (2) The complainant or claimant will (1) Collection of BAQ received but be advised that correspondence may be not given to the family members. sent to the retired member as follows: (2) Stoppage of BAQ at the ‘‘with de- (i) Place correspondence in a stamped pendents’’ rate. envelope with retired member’s name (3) Punitive or administrative action typed or printed on the envelope. against a soldier for—

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(i) Violating the minimum support (i) Items of pay and bonus subject to requirements of this regulation. garnishment. (ii) Submitting a fraudulent claim (A) Basic pay. for BAQ based on false information. (B) Special pay (including enlistment (c) Forfeiture of BAQ. Forfeiture of and reenlistment bonuses). the ‘‘with dependents’’ portion of BAQ (C) Incentive pay. does not relieve the soldier of the obli- (D) Inactive duty training pay. gation to support family members as (E) Academy officials pay (except set up in this regulation. personal money allowances). (d) BAQ entitlements versus Army (F) Accrued leave payments (basic minimum support requirements Terms pay portion only). for entitlements to BAQ are set forth (G) Retired and retainer pay. in DODPM, part 3, chapter 2. Except as (H) Lump-sum Reserve bonus. provided in this regulation, BAQ enti- (I) Separation payments (readjust- tlements have no relationship to Army ment pay and severance pay). minimum support requirements. (ii) Deductions not subject to garnishment. § 584.8 Garnishment. (A) Federal income tax withholding. (a) General. (1) Pub. L. 93–647 (42 (B) State income tax withholding. U.S.C. 659) permits garnishment, at- (C) Servicemen’s Group Life Insur- tachment, or assignment of Federal ance. wages and retirement payments to en- (D) Social Security taxes (Federal In- force court-ordered child support and surance Contributions Act). alimony obligations that are in ar- (E) United States Soldier’s and Air- rears. It includes foreign court orders men’s Home. when— (F) Survivor Benefit Plan. (i) Required by treaty or inter- (G) Retired Servicemen’s Family national agreement. (A soldier is sub- Protection Plan. ject to garnishment for child support (H) Indebtedness to the United States issued by the FRG only while phys- and delinquent Federal taxes. ically stationed in Germany.) (I) Fines and forfeitures ordered by a (ii) Recognized by a court of com- court-martial or commander. petent jurisdiction. Applicable State (b) USAFAC procedures. The USAFAC laws govern legal procedures to be used will process most garnishment orders. by complainants. Jurisdictional or pro- Unless the order is contrary to Federal cedural challenges to garnishment ac- law or the laws of the jurisdiction from tions remain the responsibility of indi- which it was issued, the soldier’s pay vidual members. will be garnished per the court order. (2) In the absence of State law more Garnishment orders will be sent by cer- favorable to the soldier, 15 U.S.C. 1673 tified or registered mail to the Com- limits the amount of pay that can be mander, USAFAC, ATTN: FINCL-G, In- garnisheed as follows: dianapolis, IN 46249–0160. However, all (i) Fifty percent of disposable pay legal process issued by German courts when a soldier is supporting a spouse will be processed under DODPM, sec- or dependent child who is not the sub- tion 70710, when the soldier is stationed ject of the support order. (See in the FRG. The documents must ex- § 584.8(a)(3) for an explanation of dispos- pressly state they pertain to child sup- able pay.) port or alimony. Also, the name and (ii) Sixty percent of disposable pay social security number (SSN) of the when a soldier is not supporting such soldier must be included. The submis- spouse or dependent child. sion of a divorce decree or support (iii) An additional 5 percent in each order alone is not enough, as a garnish- of the above cases if payments are ment order is required. more than 12 weeks overdue. (3) The items of pay listed in § 584.9 Involuntary allotments. § 584.8(a)(3)(i) are subject to garnish- (a) General. Pub. L. 97–248 (42 U.S.C. ment except for amounts deducted for 665) permits involuntary allotments the items listed in § 584.8(a)(3)(ii). from pay and allowances of soldiers on

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active duty as child, or child and end-of-month payday after 30 days have spousal, support payments when— elapsed since notice was given to the (1) The soldier has failed to make affected soldier. payments under a court order for 2 months or in a total amount equal to APPENDIX A TO PART 584—REFERENCE or in excess of the support obligations Section I—Required Publications for 2 months. (2) Failure to make such payments is AR 340–17 established by notice from an author- Release of Information and Records from Army Files. (Cited in § 584.1(f)(2).) ized person to the Commander, AR 340–21 USAFAC, ATTN: FINCL-G, Indianap- The Army Privacy Program. (Cited in olis, IN 46249–0160. An authorized per- § 584.1(f)(2).) son is— AR 600–37 (i) Any agent or attorney of any Unfavorable Information. (Cited in State having in effect a plan approved §§ 584.1(d)(5)(viii)(B) and 584.2(l)(5).) under part D of title IV of the Social AR 640–3 Security Act (42 U.S.C. 651–664), who Identification Cards, Tags, and Badges. (Cited in §§ 584.2(l)(1)(v) and 584.3(c)(3)(v).) has the duty or authority under the Misc Pub 13–1 plan to seek recovery of any amounts DOD Military Pay and Allowances Entitle- owed as child or child and spousal sup- ments Manual. (Cited In §§ 584.7a, 584.7(d) port (including, when authorized under and 584.8(b).) a State plan, any official of a political Uniform Code of Military Justice subdivision). (Cited In §§ 584.1(d)(5), 584.2(g)(4)(ii), (ii) A court or agent of the court that 584.2(l)(2)(v)(B), and 584.3(b)(1)(ii).) has authority to issue an order against Section II—Related Publications the soldier for the support and maintenance of a child. A related publication is merely a source of additional information. The user does not (3) Such notice must give the sol- have to read it to understand this regula- dier’s full name and SSN. Also, it must tion. list the name and address of the person AR 11–2 to whom the allotment is payable. The Internal Control Systems amount of the allotment will be the AR 20–1 amount needed to comply with the sup- Inspector General Activities and Proce- port order. The allotment may include dures arrearages as well as amounts for cur- AR 140–1 rent support if provided for in the sup- Mission, Organization, and Training port order. A copy of this must be in- AR 340–2 Maintenance and Disposition of Records cluded with the notice. If proper, a for TOE Units and Certain Other Units of statement must be included that the the Army. support allotment qualifies for the ad- AR 340–18 ditional 5 percent in excess of the max- The Army Functional Files System imum percentage limitations. These AR 600–240 limitations are prescribed in 15 U.S.C. Marriage in Oversea Commands 1673. Also, a copy of the underlying AR 601–280 support order must be included with Army Reenlistment Program AR 608–3 the notice. An allotment under this Naturalization and Citizenship of Military provision will be adjusted or discon- Personnel and Dependents tinued only upon notice from an au- AR 608–61 thorized person. Application for Authorization to Marry (b) Procedures. No action will be Outside of the United States taken to set up an allotment until the AR 635–100 soldier has the chance to consult a Officer Personnel (Separations) legal assistance attorney. The purpose AR 635–200 Enlisted Personnel (Separations) of the meeting is to discuss the legal Misc Pub 8–1 and other factors involved with respect Joint Travel Regulations, Volume 1: Mem- to the soldier’s support obligation and bers of the Uniformed Services failure to make payments. If the soldier has not consulted with legal coun- Section III—Prescribed Forms sel, the allotment will start the first DA Form 5459–R

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Authorization to Release Information from VHA Army Records on Nonsupport/Child Cus- Variable Housing Allowance tody/Paternity Complaints. (Cited in §§ 584.1(d)(5)(iv)(B), 584.1(f)(1), Section II—Terms 584.2(1)(2)(iv), and 584.3(b)(2)(ii).) Arrearage DA Form 5460–R Request for Help in Receiving Support and/ The total amount of money a soldier owes or Identification Cards for Family Mem- a family member for prior months in which bers. (Cited in § 584.2(1).) the soldier failed to comply with the minimum support requirements of this regula- Section IV—Referenced Forms tion. DA Form 2–1 Basic Allowance for Quarters Personnel Qualification Record-Part II DA Form 2029–R An amount of money prescribed and lim- Application for Authorization to Marry ited by law that a soldier receives to pay for Outside of the United States quarters not provided by the Government. FS Form 240 Report of Birth Abroad of a Citizen of the Child Custody Complaint United States A written or oral complaint by a family Form N–600 member, or a third party acting on behalf of Application for Certificate of Citizenship a family member, that alleges that the sol- PS Form 3811 dier is violating a court order granting cus- Return Receipt, Registered, Insured, and tody of minor children to someone other Certified Mail than the soldier. It also includes a complaint by a mother of a child born out of wedlock GLOSSARY against a soldier father who has abducted or Section I—Abbreviations detained the child. ARNGUS Court Order Army National Guard of the United States As used in this regulation, court order in- BAQ cludes all judicial and administrative orders Basic allowance for quarters DA and decrees, permanent and temporary, Department of the Army granting child custody, directing financial DOD support, and executing paternity findings. It Department of Defense also includes any foreign nation court or ad- DODPM ministrative order recognized by treaty or Department of Defense Military Pay and international agreement. Court orders are Allowances Entitlements Manual presumed valid in the absence of evidence to FAO the contrary. Finance and accounting office Family Member FRG Federal Repubic of Germany For the purpose of this regulation only, a HQDA family member includes— Headquarters, Department of the Army a. A soldier’s present spouse. (A former ID cards spouse is not a family member. However, ex- Identification cards cept as otherwise indicated, the term ‘‘fam- IG ily member’’ includes any former spouse for Inspector general whom the soldier is required by any court INS order to provide financial support.) Immigration and Naturalization Service b. A soldier’s minor children from present RCPAC and former marriages, including children le- U.S. Army Reserve Components Personnel gally adopted by the soldier. (A family mem- and Administration Center ber does not include the child of a soldier SJA who has been legally adopted by another per- Staff Judge Advocate son.) SSN c. Minor children born out of wedlock to— Social Security Number (1) A woman soldier. UCMJ (2) A male soldier if evidenced by a decree Uniform Code of Military Justice of paternity identifying the soldier as the fa- USACFSC ther and ordering the soldier to provide sup- U.S. Army Community and Family Sup- port. port Center d. Any other person (for example, parent, USAFAC stepchild, etc.) for whom the soldier has an U.S. Army Finance and Accounting Center obligation to provide financial support under USAR the law of the domicile of either the soldier U.S. Army Reserve or the supported person.

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Financial Support Provision System of Records The provision in a court order or separa- Any record under DA control from which tion agreement directing the soldier to pro- information is retrieved by the name of the vide financial support to a family member on individual or by his or her SSN. a periodic basis. Variable Housing Allowance Government Family Quarters An amount of money prescribed by law Any sleeping accommodations or family- that a soldier receives to defray high housing type housing owned or leased by the U.S. costs in the continental United States. Government. Written Support Agreement Gross Pay Any written agreement between husband For support purposes, gross pay includes and wife in which the amount of periodic fi- basic pay and allowances to include special, nancial support to be provided by the soldier incentive, and other pay when received on a spouse has been agreed to by the parties. A monthly basis. Gross pay does not include written support agreement may be contained funds not received on a monthly basis (that in a separation agreement or property settle- is, enlistment and reenlistment bonuses and ment agreement. Also, the support agree- accrued leave payments). Gross pay does not ment may be shown by letters exchanged be- include wages from off-duty employment. tween the parties in which the amount of support has been agreed to by the parties. Legal Assistance Attorney Army lawyers designated to advise and as- PART 589—COMPLIANCE WITH sist soldiers and their families on family law COURT ORDERS BY PERSONNEL matters. Such matters include marriage, divorce, adoption, paternity, child custody AND COMMAND SPONSORED problems, and support obligations. In the FAMILY MEMBERS context of this regulation, a legal assistance attorney also includes a lawyer retained by a Sec. soldier at his or her own expense. 589.1 Definitions. 589.2 Policy. Minor Children 589.3 Applicability. Unmarried children under 18 years of age 589.4 General. who are not on active duty with the Armed AUTHORITY: Public Law 100.456 and 10 Forces. U.S.C., 814.

Nonsupport Complaint SOURCE: 55 FR 47042, Nov. 8, 1990, unless A written or oral complaint by a family otherwise noted. member, or a third party acting on behalf of a family member, that alleges one of the fol- § 589.1 Definitions. lowing: (a) Court. Any judicial body in the a. Soldier is providing no financial support. United States with jurisdiction to im- b. Soldier is providing insufficient finan- pose criminal sanctions of a DoD mem- cial support. ber, employee, or family member. c. Soldier is failing to comply with— (1) An oral agreement, (b) DoD Employee. A civilian em- (2) A written support agreement, or ployed by a DoD Component, including (3) A court order that sets up a financial an individual paid from nonsupport requirement. appropriated funds, who is a citizen or national of the United States. Soldier (c) DoD Member. An individual who is As used in this regulation, the term soldier a member of the Armed Forces on ac- includes commissioned officers, warrant offi- tive duty and is under the jursidiction cers, and enlisted personnel. of the Secretary of a Military Depart- ment, regardless whether that indi- Staff Judge Advocate vidual is assigned to duty outside that The chief legal officer and his or her staff Military Department. who advise commanders on laws and regulations affecting the command. Includes com- § 589.2 Policy. mand judge advocates and post judge advocates, but not legal assistance attorneys or (a) This part (chapter) implements attorneys assigned to the Trial Defense Serv- procedural guidance in Department of ice. Defense Directive 552 5.9, ‘‘Compliance

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of DoD members, employees, and fam- § 589.4 General. ily members outside the United States (a) Courts of federal, state, or local with court orders.’’ This guidance ap- officials desiring to initiate a request plies to all soldiers and Department of for assistance pursuant to this section the Army and Nonappropriated Fund must forward the request, with appro- (NAF) civilian employees serving out- priate court orders, as follows: side the United States, as well as to (1) For soldiers and members or their their command sponsored family mem- family, to the soldier’s unit com- bers. mander of Office, Deputy Chief of Staff (b) DODD 5525.9 requires DoD co- for Personnel (ODCSPER), ATTN: operation with courts and federal, DAPE-MP (703–695–2497); and state, and local officials in enforcing (2) For Department of the Army ci- court orders pertaining to military per- vilian employees and members of their sonnel and DoD employees serving out- family, to the servicing civilian per- side the United States, as well as their sonnel office for the employee’s com- command sponsored family members, mand, or ODCSPER, ATTN: DAPE- who— CPL, (703–697–4429). (1) Have been charged with or con- (3) Nonappropriated Fund (NAF) em- victed of any felony. ployees and members of their family, (2) Have been held in contempt of a to the servicing civilian personnel office for the employee’s command, or court for failure to obey a court order, ODCSPER, ATTN: CFSC-HR-P (703–325– or 9461). (3) Have been ordered to show cause (b) Upon receipt of such requests for why they should not be held in con- assistance concerning courts orders de- tempt for failing to obey a court order. scribed in paragarph (a) of this section This guidance does not affect the au- and AR 190–9, commanders/supervisors, thority of Army officials to cooperate with the advice of their servicing with courts and federal, state, or local Judge Advocates and legal advisors, officials, such as is currently described will take action as appropriate as out- in Army Regulation 27–3, Legal Serv- lined below: ices, Army Regulation 190–9, Military (1) Determine whether the request is Absentee and Deserter Apprehension based on an order issued by a court of Program, and Army Regulation 608–99, competent jurisdiction. An ‘‘order Family Support, Child Custody, and issued by a court of competent jurisdic- Paternity, in enforcing orders against tion’’ is an order that appears valid on soldiers and employees in matters not its face and is signed by a judge. discussed below. The guidance below (2) If the order appears valid on its does not authorize Army personnel to face and is signed by a judge, attempt serve or attempt to serve process from to resolve the matter in a timely man- U.S. courts on military or DoD employ- ner to the satisfaction of the court ees overseas. (See also AR 27–40, Litiga- without the return of, or other action tion, paragraph 1–7.) affecting, the soldier, Army civilian employee, or family member. Due re- § 589.3 Applicability. gard should be given to mission requirements, applicable international This section applies to the following agreements, and ongoing DoD inves- personnel: tigations or courts-martial. (a) Army personnel on active duty or (3) If the matter cannot be resolved, inactive duty for training in overseas afford the subject of the court order a areas. This includes the National reasonable opportunity to provide evi- Guard when federalized. dence of legal efforts to resist the court (b) Department of the army civilian order or otherwise show legitimate employees, including Nonappropriated cause for noncompliance. If it is deter- Fund Instrumentalities (NAFI) em- mined that efforts to provide such evi- ployees. dence or to show cause for noncompli- (c) Command sponsored family mem- ance warrant a delay in taking further bers of Army personnel or Department action, a request for delay, not to ex- of the Army civilian employees. ceed 90 days, must be sought from the

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Secretary of the Army. Such requests, tains to any felony or to a contempt fully setting forth the reasons justi- involving the unlawful or contemp- fying delay and the estimated delay tuous removal of a child from the necessary, will be forwarded within 30 jurisidiction of a court or the custody days directly to ODCSPER, ATTN: of a parent or another person awarded DAPE-MP (for military personnel and custody by court order, a request for their family members or ODCSPER, exception to policy will be forwarded ATTN: DAPE-CPL (for Army civilian directly to the appropriate office listed employees and their family members) in § 589.3(b)(3) with an information copy or ODCSPER, ATTN: CFSC-HR-P (for to HQDA, DAJA-AL, within 30 days un- NAF employees and their family mem- less a delay has been approved by bers). These offices must promptly for- ASA(M&RA). The offices listed in ward the request for delay to the As- § 589.3(b)(3) must forward the request sistant Secretary of Army (Manpower for an exception promptly through and Reserve Affairs) ASA(M&RA), for ASA(M&RA) to ASD(FM&P) for deci- approval. If a delay is approved, sion, copy furnished to General Coun- ASA(M&RA) will promptly notify the sel, DOD. Assistant Secretary of Defense (Force (6) All actions, whether to invoke the Management and Personnel) ASD DOD Directive or not, must be reported (FM&P), copy furnished General Coun- promptly to ASD(FM&P) and General sel, Department of Defense (GC, DOD). Counsel, Department of Defense. See (4) If one, the matter cannot be re- also DOD Directive 5525.9, paragraph solved, and two, it appears that non- E.3.c. compliance with the request to return (c) If requests for military personnel the soldier, or to take other action involving a family member or DA or NAF cannot be resolved without return of employee is warranted by all the facts the individual, and denial of the re- and circumstances of the particular quest as outlined in this section is not case, and three, the court order does warranted, the individual will be or- not pertain to any felony or to a con- dered pursuant to section 721, Public tempt involving the unlawful or con- Law 100–456 and DODD 5525.9 to the ap- temptuous removal of a child from the propriate U.S. part of entry at govern- jurisdiction of the court or the custody ment expense, provided the federal, of a parent or another person awarded state, or local authority requesting the custody by court order, the matter will individual provides travel expenses in- be forwarded, for soldiers or their fam- cluding a prepaid transportation ticket ily members to the soldier’s general or equivalent and an escort, if appro- court-martial convening authority or, priate, from the port of entry to the for army civilian or NAF employees or appropriate jurisdiction. Absent un- their family members, to the fairest usual circumstances, requesting par- general officer or civilian equivalent in ties will be notified at least 10 days be- the employee’s chain of command, for fore the individual is due to return. a determination as to whether the re- Guidance concerning use of military quest should be complied with. In those law enforcement personnel to effect cases in which it is determined that the return of military personnel to noncompliance with the request is war- U.S. civil authorities may be obtained ranted, copies of that determination from the U.S. Army Military Policy will be forwarded directly to the appro- Operations Agency (MOMP-O). priate office noted in § 589.4(b)(3) and to (d) In accordance with DoD policy, HQDA, DAJA-CL, pursuant to chapter military personnel traveling pursuant 6, AR 190–9. to a contempt order or show cause (5) If one, the matter cannot be reorder, as described in this part and in solved, and two, it appears that non- AR 614–XX is entitled to full transpor- compliance with the request to return tation and per diem allowances. How- the soldier, or to take other action in- ever, this does not alleviate the re- volving a family member of DA or NAF questing parties’ requirement to pay employee, is warranted by all the facts travel expenses from the appropriate and circumstances of the particular U.S. port of entry. Any travel expenses case, and three, the court order per- received from the requesting party

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must be deducted from the soldier’s en- warded to HQDA, ATTN: DAPE-CPL, titlement to travel and per diem allow- or ATTL: CFSC-HR-P (for NAF em- ances. The soldier will be returned in a ployees). temporary duty (TDY) status, unless a (f) If the request is based upon a valid permanent change of station (PCS) is court order pertaining to a family appropriate. member of a soldier or Army civilian (e) If requests for Army civilian and or NAF employee, the family member NAF employees cannot be resolved and will be strongly encouraged to comply denial of the request as outlined in this with the court order if denial of the re- section is not warranted, the individual quest as outlined in this part is not will be strongly encouraged to comply warranted. Unless the family member with the court order. Failure to comply can show legitimate cause for non- with such orders by an Army civilian compliance with the order, considering or NAF employee, if all criteria are all of the facts and circumstances, fail- met, is a basis for withdrawal of com- ure to comply may be basis for with- mand sponsorship and adverse action drawal of command sponsorship. against the employee, to include re- (g) Failure of the requesting party to moval from federal service. Proposals provide travel expenses for military to take disciplinary/adverse actions personnel as specified in this section, is must be coordinated with the appro- grounds to be recommended denial of priate civilian personnel office (CPO) the request for assistance. The request and the servicing Judge Advocate or must still be forwarded through DAPE- legal advisor and forwarded for ap- MP and ASA(M&RA) to ASD(FM&P) proval to the first general officer or ci- for decision, copy furnished to General vilian equivalent in the employee’s Counsel, Department of Defense. chain of command. A copy of the final [55 FR 47042, Nov. 8, 1990, as amended at 56 action taken on the case must be for- FR 371, Jan. 4, 1991]

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CROSS REFERENCE: For Department of Defense Acquisition Regulations, see chapter 2 of title 48.

PART 619 [RESERVED]

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PART 621—LOAN AND SALE OF erty will be submitted to the appro- PROPERTY priate CONUS Army Commander of the area in which the convention will be Sec. held or the Commander, Military Dis- 621.1 Loan of Army/Defense Logistics Agen- trict of Washington (MDW) if within cy (DLA) owned property for use at na- his area. tional and State conventions. (2) The tenure of loan is limited to 15 621.2 Sales of ordnance property to individ- days from the date of delivery, except uals, non-Federal government agencies, under unusual circumstances. A nar- institutions, and organizations. rative explanation will be provided to 621.3 [Reserved] support loan requests for more than 15 621.4 Issues, loans, and donations for scouting. days duration. (3) Loan requests should be sub- AUTHORITY: Pub. L. 81–193; 10 U.S.C. secs. mitted by letter at least 45 days prior 2574, 4308, 4506, 4507, 4627, and 4655, and Pub. to required date, if practicable. L. 92–249. (4) Requests for loans will contain SOURCE: 44 FR 5651, Jan. 29, 1979, unless the following information: otherwise noted. (i) Name of veterans’ organization re- EDITORIAL NOTE: For figures referred to in questing the loan. this part, see 42 FR 43807, Aug. 31, 1977. (ii) Location where the convention will be held. § 621.1 Loan of Army/Defense Logistics (iii) Dates of duration of loan. Agency (DLA) owned property for (iv) Number of individuals to be ac- use at national and State conven- commodated. tions. (v) Type and quantity of equipment (a) General. This section— required. (1) Prescribes procedures for loan of (vi) Type of convention, (State or Na- Army-owned property to recognized tional). National Veterans’ Organizations for (vii) Complete instructions for deliv- National or State conventions as au- ery of equipment and address of re- thorized by Pub. L. 81–193. questing organizations. (2) Request for loans for National (viii) Other pertinent information Youth Athletic or recreation tour- necessary to insure prompt delivery. naments sponsored by veterans’ organi- (d) Responsibilities. The Army or MDW zations listed in the ‘‘Veterans Admin- Commander will: istration Bulletin 23 (ALPHA),’’ will be (1) When the availability of personal processed by parent veterans’ organiza- and real property is determined, notify tions. the requesting veterans’ organization (3) Loans are not authorized for other of the following: types of conventions or tournaments. (i) The items and quantities available (b) Items authorized for loan. If avail- for loan and the source of supply. able, the following items may be (ii) No compensation will be required loaned for authorized veterans’ organi- by the Government for the use of real zations requirements. property. (1) Unoccupied barracks. (iii) No expense will be incurred by (2) Cots. the United States Government in pro- (3) Mattresses. viding equipment and facilities on (4) Mattress covers. loan. (5) Blankets. (iv) Costs of packaging, packing, (6) Pillows. transportation and handling from (7) Chairs, folding. source of supply to destination and re- (8) Tentage, only when unoccupied turn will be borne by the requesting or- barracks are not available. ganization. (c) Requests for loan. (1) Requests by (v) All charges for utilities (gas, authorized veterans’ organizations for water, heat, and electricity) based on loan of authorized Government prop- meter readings or such other methods

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determined will be paid by the vet- (iii) Appoint a Property Book Officer erans’ organization. to maintain accountability for the (vi) Charges which may accrue from Government property furnished under loan of DLA/GSA material in accord- this regulation. ance with paragraph III, AR 700–49/ (3) Property Book Officer will: DSAR 4140.27, and GSA Order 4848.7 and (i) Assume accountability from the Federal Property Management Regula- document used in transferring property tions, subparagraph 101–27.5. to the custody of the veterans’ organi- (vii) The Army will be reimbursed for zation. any material not returned. (ii) Perform a joint inventory with (viii) Costs of renovation and repair the veterans’ organization representa- of items loaned will be borne by the re- tive. Survey any shortage or damages questing organization. Renovation and disclosed by the joint inventory in ac- repair will be accomplished in accord- cordance with AR 735–11. ance with agreement between the (iii) Maintain liaison with the vet- Army Commander and the loanee to as- erans’ organization during the period sure expeditious return of items. of the loan. (ix) Transportation costs in connec- (iv) Prepare, in cooperation with the tion with the repair and renovation of veterans’ organization representative, property will also be at the expense of an inventory of property being re- the using organization. turned. Certify all copies of the receipt (x) Assure that sufficient guards and document with the veterans’ organiza- such other personnel necessary to pro- tion representative. tect, maintain, and operate the equip- (v) Insure the return of all property ment will be provided by the loanee. at the expense of loanee to the supply (xi) The period of loan is limited to 15 source or to repair facilities. days from date of delivery, except as (vi) Obtain a copy of receipted ship- provided for in paragraph (c) of this ping document from the installation section. receiving the property. (xii) Any building or barracks loaned (vii) Determine cost and make de- will be utilized in place and will not be mand on the loanee for: moved. (A) Items lost, destroyed, or dam- (xiii) Upon termination of use, the aged. veterans’ organization will vacate the (B) Costs of repair or renovation. Es- premises, remove its own property timated costs will be obtained from the therefrom, and turn over all Govern- accountable activity. ment property. (C) Comply with instructions con- (2) Specify a bond in an amount to in- tained in AR 700–49/DSAR 4140.27 in the sure safe return of real and personal application of condition A and/or B, C, property in the same condition as when and T items utilized. borrowed. (In the case of personal prop- (D) Ascertain that items lost in tran- erty, this amount will be equal to the sit are reconciled prior to assessing total value of the items based on cur- charges. Where the loss is attributable rent acquisition costs.) to other than the loanee, charges (i) An agreement will be executed be- should not be borne by the borrower. tween the Army Commander and the (viii) Request payment from the Veterans’ Organization if the terms of loanee. Checks are to be made payable the loan are acceptable. A sample loan to the Treasurer of the United States. agreement is shown at figure 7–5 of this Upon receipt of payment, appropriate subchapter. fiscal accounts will be credited. The (ii) When the agreement has been ex- Property Transaction Record will be ecuted and the bond furnished, req- closed and the Stock Record Accounts uisitions will be submitted to the ap- audited. propriate source of supply. Req- (ix) Deposit collections in accordance uisitions will indicate shipping des- with instructions contained in AR 37– tination furnished by the veterans’ or- 103. In the event payment is not re- ganization. Transportation will be by ceived within a reasonable period, Re- commercial bills of lading on a collect port of Survey Action will be initiated basis. in accordance with AR 735–11.

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(x) Reimburse DLA/GSA for the cost pickup is authorized or purchase is of any repair, reconditioning and/or made in person. materiel not returned. (2) All financial transactions will be accomplished in accordance with appli- § 621.2 Sales of ordnance property to cable Department of the Army direc- individuals, non-Federal govern- tives and regulations. Moneys collected ment agencies, institutions, and or- for cost of items, as well as packing, ganizations. crating, and handling, will be deposited (a) General. This section— as an appropriate reimbursement as (1) Cites the statutory authority for, prescribed in applicable regulations. and prescribes the methods and condi- (3) Generally, all sales are final and, tions of sale of certain weapons, ammu- normally, the US Government assumes nition, and related items as specified no obligation or responsibility for re- herein. pair, replacement, or exchange, except (2) Applies to all sales of weapons and as provided in AR 920–20. Purchasers related material to individuals, organi- will be so advised prior to making the zations, and institutions, when author- sale. All weapons sold, however, will be ized by the US Army Armament Mate- safe for firing. riel Readiness Command (ARRCOM), (4) Weapons sold at standard price and overseas commanders. will be supplied with equipment. Weap- (3) Provides that sales under this sec- ons sold at less than standard price tion will be limited to quantities of an will be supplied less equipment. item which authorized purchasers can (5) Sales of specific items may be sus- put to their own use. It is not intended pended at any time by the direction of that property be sold under the provi- CDR, ARRCOM. sions of this section for the purpose or (d) Purchasing procedure. (1) Except as resale or other disposition. provided in paragraph (e) of this sec- (4) Does not apply to sales of prop- tion, all requests originating within erty determined to be surplus. (See AR CONUS for the purchase of small arms 755 series.) weapons, repair parts, cleaning, pre- (b) Price. Except as noted below, serving, and target material will be when sales of the Army property are submitted to the Commander, made and the title thereto passes from ARRCOM, Rock Island, IL 61201. the US Government, the prices charged (i) Upon approval, these items will be will be the standard list price con- shipped from Army depots stocking tained in the SC 1305/30 Management such material, based upon availability Data List series, plus cost of packing, of material. Customers will be fur- crating, and handling and administra- nished instructions for submission of tive charges. remittance. (c) Condition of sale. Provisions apply (ii) Upon receipt of proper remittance to sales under this section, as follows: from eligible customers ARRCOM will (1) Sales will be made without ex- issue the necessary documents direct- pense to the Government. ing shipment from an Army depot (i) All costs incident to sales (includ- where the items are available. ing packing, crating, handling, etc.) (2) In implementing the subchapter, will be paid in advance by the pur- oversea commands should designate in- chaser. stallations within the oversea com- (ii) All costs incident to shipment mand to which requests for purchase of (transportation, parcel post charges, ammunition and related material will etc.) will also be paid by the customer. be directed. (iii) Payment for items and charges (3) Depots shipping weapons to indi- incident to sale will be made only by viduals, Director of Civilian Marks- cashier’s check, certified check, bank manship (DCM) affiliated rifle and pis- money order, or postal money order tol ‘‘clubs’’, museums, veterans organi- made payable to the Treasurer of the zations, and other US Government United States. agencies will annotate shipping docu- (iv) For other than items of ammuni- ments with the serial number of all the tion and ammunition components, cash weapons they ship. Firearms shipped will be acceptable when consignee will be reported to Commander,

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ARRCOM, ATTN: DR SAR-MMD-D, (6) Requests for purchase of ammuni- Rock Island, IL 61202, using DA Form tion by marksmanship clubs and sum- 3535 (Weapons Sales Record), DA Form mer camp organizations will be sub- 3535 may be obtained from Commander, mitted to the DCM for approval. If he Letterkenny Army Depot, ATTN: approves, the application will be for- DRXLE-ATD, Chambersburg, PA 17201. warded to ARRCOM for processing. If it (i) The transportation officer will as- is disapproved, it is returned to appli- certain estimated transportation costs, cant with reason(s) stated for dis- to include DA transportation security approval. measures (costs) for shipment to des- (f) Eligibility of purchasers. In order to tination. Such information will be purchase a rifle under this program, an transmitted by letter to consignee with individual must: request for acknowledgement that (1) Be a member of a marksmanship shipment will be accepted based on club affiliated with the DCM (AR 920– costs submitted. 20). (ii) Shipment will not be made unless (2) Based upon regular competitive consignee agrees to accept shipments. shooting, have an established status as Refusal to accept shipment shall be re- a marksman as determined by the ported to ARRCOM. DCM. (4) CDR, ARRCOM is responsible for (g) Purchase procedure. (1) Individuals maintaining a record by serial number desiring to purchase National Match of all weapons reported by depot in ac- Grade M1 service rifles will submit re- cordance with paragraph (d)(3) of this section. He will establish procedures to quests to the Director of Civilian screen purchase requests to insure Marksmanship, Department of the compliance with any limitations estab- Army, Washington, DC 20314–0110. The lished by this section. request should contain the name and (e) Sales to individuals, organizations, address of the shooting club with which and institutions. (1) Sales of small arms the purchaser is affiliated and appro- weapons and ammunition are limited priate evidence of status as a competi- by statute (10 U.S.C. 4308). Such sales tive marksman. will be made in accordance with the (2) Upon receipt of a request, the Di- provisions of this paragraph and with rector of Civilian Marksmanship will other rules and regulations approved forward to the individual a Certificate by the Secretary of the Army. for Purchase of Firearms in the sug- (2) Sales will be limited to M1 service gested format at figure 5–1 to be com- rifles, either national match grade or pleted, notarized and returned. When service grade. Only one such rifle and returned with check or arrangements spare parts for it will be sold to an infor payment, the Certificate will be re- dividual. No ammunition will be sold ferred for appropriate verification in to individuals. the records of US Government agencies (3) Junior marksmanship clubs and and for other investigation as required. junior marksmanship division affili- This is done to insure that the sale of ated within the Director of Civilian a weapon to the applicant is not likely Marksmanship (DCM) pursuant to AR to result in a violation of law. The Pri- 920–20 may purchase limited quantities vacy Act Statement for Certificate of of .22 caliber ammunition. Purchase of Firearms (figure 5–2) will (4) The DCM will determine the max- be made available to the individual imum quantity of such ammunition supplying data on the Certificate for that clubs will be permitted to pur- Purchase of Firearms (suggested for- chase in each fiscal year. mat, figure 5–1). Prior to requesting (5) Approved, non-profit summer the individual to supply data on the camp organizations that are of a civic Certificate for Purchase of Firearms nature are allowed to purchase from (suggested format, figure 5–1) the Pri- the DCM at cost plus shipping and han- vacy Act Statement for Certificate will dling charges, 300 rounds of .22 caliber be made available to the individual ammunition for each junior who is par- concerned. (The Privacy Act State- ticipating in a summer camp marks- ment will be reproduced locally on manship program. 8×101⁄2 inch paper.)

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(i) A purchase application will be de- when available by the activities listed nied if the applicant fails to meet all in paragraph (g) of this section (10 the conditions required in the Certifi- U.S.C. 4627). Such purchases will be in cate. accordance with AR 145–2. (ii) If an application is denied, the (k) Manufacturers and designers. (1) applicant will be informed of the ac- Under the provisions of 10 U.S.C. 4506, tion and will be given an opportunity the Secretary of the Army is author- to submit additional information justi- ized to sell to contractors or potential fying approval of the application. contractors such samples, drawings, (iii) If the results of the investigation and manufacturing and other informa- are favorable, the application will be tion as he considers best for national forwarded to ARRCOM for processing. defense. Procedures for such sale are (h) Marksmanship clubs affiliated contained in APP 13–1502. with the DCM and individuals who are (2) Under the provisions of 10, U.S.C. members of those clubs are authorized 4507, the Secretary of the Army may to purchase from the Army targets of sell to designers who are nationals of types not otherwise available from the United States, serviceable ord- commercial sources. Request for such nance and ordnance stores necessary in purchases will be submitted to the Di- the development of designs for the rector of Civilian Marksmanship for Armed Forces. Designers will submit approval and processing. Individuals application to purchase to the appro- who have in the past purchased rifles priate Commodity Command. from the Army under the authority of (3) If any item normally requiring de- 10 U.S.C. 4308(a)(5), may purchase spare militarization pursuant to the Defense parts for those rifles if the parts are Disposal Manual (DoD 4160.21–M) and available. Requests for purchase of the AR 755-series is sold, a special con- spare parts will be submitted to the Di- dition of sale will prohibit further dis- rector of Civilian Marksmanship for position by the purchaser without prior approval. If he/she approves the appli- approval of the Deputy Chief of Staff cation, she/he will forward it to for Logistics, Department of the Army. ARRCOM for processing. If he/she dis- (l) Sales of individual pieces of U.S. ar- approves the application, she/he will mament for sentimental reasons. Under return it to the applicant stating the the provisions of 10 U.S.C. 2574, indi- reasons for disapproval. Current DA vidual pieces of U.S. armament, which transportation security measures for are not needed for their historical weapons will be applied under proce- value and can be advantageously re- dures contained in paragraphs (d)(1) (i) placed, may be sold at a price not less and (ii) of this section. than cost when there exists for such (i) Cadets, US Military Academy. (1) sale sentimental reasons adequate in When approved by the CDR DARCOM, the judgment of the Secretary of the the Superintendent, US Military Acad- Army. emy may sell to cadets upon gradua- (m) Method of sale. (1) Applications to tion from the Academy those sabers purchase under the provisions of this which no longer meet prescribed stand- act will be submitted to Deputy Chief ards of appearance and/or service- of Staff for Logistics, ATTN: DALO- ability. SMS, Department of the Army, with a (2) Application to purchase sabers complete identification including se- under these provisions will be made in rial number, and location of desired accordance with procedures established item, if known. by the Superintendent. (j) Reserve Officer’s Training Corps (2) Approved applications for major (ROTC) and National Defense Cadet items will be forwarded through Com- Corps (NDCC). Supplies required by mander, U.S. Army Materiel Develop- educational institution for the training ment and Readiness Command, ATTN: of units and individuals of the Reserve DRCMM-SP, to the Commander, U.S. Officer’s Training Corps and National Army Armament Materiel Readiness Defense Cadet Corps, in addition to au- Command. thorized items normally furnished to [44 FR 5651, Jan. 29, 1979, as amended at 54 ROTC and NDCC schools, may be sold FR 48097, Nov. 21, 1989]

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§ 621.3 [Reserved] tation and other services to the Boy Scouts of America in support of World § 621.4 Issues, loans, and donations for and National Jamborees. The Sec- scouting. retary of Defense has delegated his au- (a) General. This section provides in- thority and responsibility for the sup- formation relative to issue, loan or do- port of Jamborees to the Secretary of nation of Government property to the the Army. The Commander DARCOM Boy Scouts of America and the Girl ATTN: DRCMM-SP has been assigned Scouts of America. to monitor the program for the Sec- (b) Guidance. (1) Issues are made retary of the Army. under the provisions of the loan agree- (e) Group travel and visits. Many ment and reimbursement is made for Scouts and Leaders will travel in adjusted shortages and damages. groups and their itinerary will provide (2) Provisions for donations of sur- for visits to places of interest in plus property to Scout organizations, CONUS en route to and from Jam- including lists of classes of donable borees. Such group travel may begin in property, are contained in chapter III, June and extend into September and part 3, Defense Disposal Manual (DOD October of the Jamboree year. In keep- 4160.21M). ing with Department of the Army poli- (3) The loan of certain Army, Navy, cies, commanders of Army installa- Air Force and DLA equipment and the tions may extend an invitation to and provision of transportation and other honor requests from Scout groups services for Jamborees is initially pro- enroute to and from the Jamboree to vided for by Pub. L. 92–249. Implemen- visit and encamp at their installation. tation on a current basis is made in (f) Commissary and post privileges. In- DOD Directive 7420.1. Army implemen- stallation commanders are authorized tation is provided as follows: to provide commissary and post ex- (i) Army stock fund in paragraph 2– change privileges to Scout groups en 6b(4), AR 37–111, Working Capital Fund- route to and from the Jamboree for Army Stock Fund Uniform Policies, food items such as bread, meat, and Principles and Procedures Governing dairy products. These privileges will be Army Stock Fund Operations. extended only to Scout groups which (ii) Non-stock fund in paragraph 2–18, are en route to or from the Jamboree AR 310–34, Equipment Authorization and who are encamped or quartered at Policies and Criteria, and Common the installation or the Jamboree site. Table of Allowances. Commissary and post exchange privi- (c) Procedure. Loan agreements are leges extended to Scout groups while mutually developed preceding the ac- encamped at the Jamboree site for sup- tual lending of the equipment. Para- ply and food items will only be honored graph 1–16, AR 735–5, General Prin- upon-application by officials of the Boy ciples, Policies and Basic Procedures, Scouts of America to supplement sup- is used as the guide for preparation of plies and rations not considered ade- loan agreements. Authority for com- quate for American Scouts or Scouters. manders to participate in World and (g) Arrangements. Regional Scout Ex- National Jamborees is included in ecutives have been informed by the Na- paragraph (d) of this section; Procedure tional Headquarters of the contents of for Loan of Equipment and Providing this subchapter and that arrangements of Transportation and Other Services pursuant to this subchapter must be to the Boy Scouts of America for World made in advance directly with the in- and National Jamborees is included in stallation commanders. However, com- paragraph (j) of this section; and sam- manders will consider factors of ex- ple loan agreement to be executed by tenuation or emergency which may area commanders is included as figure preclude advance arrangements. 7–5. (h) Hospitalization. Boy Scouts and (d) World and National Boy Scout Jam- Scout Leaders attending Jamborees are borees. The Act of 10 March 1972 (Pub. considered designees of the Secretary L. 92–249; 86 Stat. 62) and (86 Stat. 63) of the Army for the purpose of receiv- authorized the Secretary of Defense to ing medical care at US Army Medical lend equipment and provide transpor- facilities. The reciprocal rate will not

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be charged. Subsistence charges will be mander, DARCOM, based on statute at the rate of $1.80 per day for hospital- taken by the Commander-in-Chief/ ized patients, but will not be collected Commander, Major Army Command locally. Each Boy Scout and Leader (MACOM), and held until termination participating in Jamborees and hos- of the encampment and final pitalized in Army medical treatment settelment is made for each Jamboree. facilities will be reported to The Sur- (2) The Commander-in-Chief/Com- geon General, ATTN: DASG-SGRE- mander, MACOM designated, on behalf SSC, Department of the Army, Wash- of the Commander, DARCOM, rep- ington, DC 20314, on DD Form 7 (Report resenting the Secretary of Defense will of Treatment Furnished Pay Patients; enter into legal arrangements with the Hospitalization Furnished (part A)). No Boy Scouts of America for the loan of local collections are authorized. equipment and the providing of trans- (i) Service coordination. (1) The De- portation and certain other services for partments of the Navy and the Air Boy Scouts World and National Jam- Force and the Defense Logistics Agen- cy will assist the Department of the borees. National Jamborees include Army in providing necessary equip- Jamborees conducted by and within ment, transportation, and services in the United States and also those con- support of the Boy Scouts of America ducted by and within foreign nations. attending Jamborees. The Secretary of (3) The Commander-in-Chief/Com- the Army or his designee will maintain mander, MACOM, will appoint a Prop- liaison, as appropriate, with such agen- erty Book Officer who will maintain cies to avoid duplication of effort. separate stock records in order to pro- (2) Other departments (agencies) of vide for a single final billing to the the Federal Government are authorized supported activity (Boy Scouts of under such regulations as may be pre- America) for items consumed, lost, scribed by the Secretary (Adminis- damaged or destroyed. The Department trator) thereof, to provide to the Boy of the Army will not be billed for items Scouts of America (BSA), equipment obtained from other than Army and other services, under the same con- sources, except medical supply losses. ditions and restrictions prescribed for Bills for medical supply losses will be the Secretary of Defense. submitted to the US Army Area Sur- (j) Procedure for loan of equipment and geon for payment. He will establish li- providing of transportation and other aison with the activity to be supported. services to the Boy Scouts of America for The property book account will be es- world and national jamborees. Prelimi- tablished in accordance with section II, nary actions. (1) In accordance with the chapter 2, AR 710–2. provisions of Pub. L. 92–249, H.R. 11738, (4) The Commander-in-Chief, 10 March 1972, and Secretary of Defense MACOM, will task the Army Area Sur- Memo of 17 May 1972, Subject: Loan of geon for Medical Supply Support to the Equipment and Providing of Transpor- Jamborees. Each Surgeon designated tation and Other Services to the Boy should appoint an accountable officer Scouts of America for Boy Scout Jam- borees; Memo of 23 January 1973, Sub- and furnish the name, location, and ject: Military Transportation Support routing identifier of a project office for Boy Scout Jamborees; and Memo of wherein medical supply problems can 19 August 1974, Subject: Military be resolved. Transportation Support for Boy Scout (5) The Property Book Officer is au- Jamborees, the DOD is authorized to thorized direct communication with lend certain items and provide trans- the source of supply, other military de- portation and certain other services to partment liaison personnel and such Jamborees. Prior to the loan of DARCOM ICP’s to resolve routine sup- property and providing transportation ply problems. and other services, an appropriate (k) Preparing bills of material. (1) The agreement will be executed between activity (BSA) will submit a list of the United States of America and the equipment and supplies desired to the activity to be supported. A bond (fig. 7– Commander-in-Chief/Commander, 6), in an amount specified by the Com- MACOM. This list will be edited during

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and subsequent to preliminary con- tion about each item loaned to the ac- ferences with representatives of the activity will be established and main- tivity and furnished to Commander, tained by the Property Book Officer DARCOM, ATTN: DRCMM-SP. (figure 7–2) and the respective com- (2) HQ, DARCOM will convert the in- modity command military department formal list to a tentative Bill of Mate- (figure 7–3). Suggested formats for the rial and will furnish the respective Property Transaction Records are Commodity Command that part of the found in figures 7–2, 7–3, and 7–4, Local Bill of Material for their items of reproduction is authorized. logistical responsibility. A suggested (2) The Property Book Officer will format for the Bill of Material is in- also establish and maintain separate cluded as figure 7–1. Local reproduction Property Transaction Records for is authorized. Copies of the entire ten- items obtained from supply sources tative Bill of Material will also be fur- other than Army commodity com- nished to each of the military depart- mands, i.e., other Army installations, ments authorized to participate in the Department of the Navy, Department support of the encampments. The Bill of the Air Force (figure 7–4). of Material forwarded to the Com- (3) Each entry on the Property Trans- mander-in-Chief/Commander, MACOM action Record will be supported by ap- will be screened to determine inhouse propriate documentation (commodity availability prior to placing req- command: copies of shipping docu- uisitions on CONUS supply points. ments, copies of return documents and (3) At such time as item availability copies of surveillance inspection re- information is on hand and the sources port—Property Book Officer: Requisi- to be used are determined (paragraph tion voucher files and hand receipt (m) of this section, a Bill of Material cards). This is particularly important (figure 7–1) will be prepared by HQ, for reconciliation purposes in order DARCOM, and forwarded to the Com- that all property received from each mander-in-chief/Commander, MACOM. source will be returned to that source (4) The Bill of Material will list, by upon termination of each encampment. commodity command (military depart- (m) Locating and obtaining equipment ment), all items desired, identified by and supplies. (1) The respective com- National Stock Number (NSN) descrip- modity commands (military depart- tion, quantity desired and required delivery date. The NSN will provide iden- ments) will screen the tentative Bill of tification of the items required. Items Material (paragraph (k)(2) of this sec- will be identified by the Property Book tion) and determine availability and Officer to the responsible commodity source of supply identified by Routing command or military department as Identifier Code. They will advise HQ, indicated below: DARCOM, ATTN: DRCMM—SP of availability, appropriate substitute (i) CERCOM 1 US Army Communications and Electronics items when the requested items are not Materiel Readiness Command. available in sufficient quantity, and (ii) 2 US Army Troop and Aviation Materiel TSARCOM. Readiness Command. the source of supply for requisitioning (iii) ARRCOM 3 US Army Armament Materiel Readiness purposes. Command. (2) Concurrently, the Bill of Material (iv) TARCOM 4 U.S. Army Tank-Automotive Materiel Read- iness Command. will be screened within the MACOM to (v) DLA ...... 5 Defense Logistics Agency. determine those items that can be ob- (vi) Navy ...... N Department of the Navy. tained from assets available in the (vii) Air Force F Department of the Air Force. (viii) Other In- A command. stallations. (3) The Property Book Officer will requisition equipment and supplies The Bill of Material will be screened to from the source of supply as indicated insure that radioactive items re- by Commander, DARCOM in accord- stricted for military use are not in- ance with AR 725–50 or other separately cluded. furnished instructions. The requisition (l) Establish property transaction number, quantity requisitioned, stock records. (1) A Property Transaction number and source of supply will be en- Record reflecting complete informa- tered in the Property Transaction

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Record. Requisitions will cite the ap- provided in chapter 8, AR 735–11. The propriate project code assigned and ap- Property Book Officer will enter on the propriate activity address code on all shipping document the quantity actu- requisitions submitted. Project codes ally received when it differs from quan- will be assigned by Commander, Logis- tity shown as shipped and will post the tic Systems Support Activity, ATTN: quantities received to the property DRXLS-LCC, Chambersburg, PA, 17201 book record. and distributed by message to all inter- (9) Discrepancies between the quan- ested addressees. tity shipped by the depot and that re- (4) Loan of General Services Admin- ceived by the Property Book Officer istration (GSA) General Supply Fund and variance in condition will be rec- Material—The Federal Property and onciled as rapidly as possible and ap- Administrative Services Act of 1949, as propriate records will be brought into amended, authorizes the Adminis- agreement. When shortage or damage trator, GSA to loan GSA General Sup- is not attributable to the carrier, the ply Fund Material to the Department Property Book Officer will imme- of Defense and other federal agencies. diately contact the responsible source Loan shall be made to the extent that of supply, furnishing the stock number items are readily available and that and document number involved, to- such loans will not jeopardize the GSA gether with an explanation of the dis- stock inventory. The loan of GSA Gen- crepancy. Reconciliation is particu- eral Supply Fund Material shall nor- larly important in order to ensure a mally be limited to 90 Calendar days. common point of departure in deter- Requisitions for GSA material should mining charges to be assessed upon ter- be submitted to the nearest GSA Re- mination of the activity. Replacement gional Office by the CINC/CDR shipments, when required, will be cov- MACOM. ered by appropriate shipping docu- (5) Formal accountability for all ments. items shipped to the site of the activ- (10) Special Instructions for Defense ity will be retained by the appropriate Logistics Agency, Clothing and Textile accountable activity. Property and fi- Items. (See DSAR 4140.27/AR 700–49). nancial accounting will be in accordance with respective military depart- (n) Transportation. (1) Transportation ment regulations governing loans. of equipment and supplies—The respon- (6) The shipping depot or other sibility of coordinating movement of source will furnish a copy of the ship- equipment and supplies placed on loan ping document to the respective com- to the Boy Scouts of America during modity command (military depart- National and World Jamborees is dele- ment) where the quantity charged, gated to the Commander, US Army Ma- date shipped, condition of the property teriel Development and Readiness and total value will be posted to the Command, ATTN: DRCMM-ST. Property Transaction Record. (2) All requisitions for items in ques- (7) Upon receipt of the advance copy tion, will cite the appropriate project of the shipping document, the com- code and will be shipped by commercial modity command (military depart- bill of lading on a collect basis to all ment) will post information to his National Jamborees and World Jam- Transaction Record, by source as in borees held in the United States. paragraph (l)(1) of this section. (3) Shipments to Boy Scout contin- (8) When the shipment is received, gents at World Jamborees in foreign the Property Book Officer will inspect countries will be by Government bills the property. A narrative statement of of lading, unless otherwise specified by condition will be prepared if condition the Boy Scouts of America. of the property is other than that indi- (4) All shipments directed to Boy cated on the shipping document and Scout Jamborees will be routed by the referenced to the condition entry on most feasible means as determined by the Property Transaction Record. The the shipper. Shipments will be consoli- source of supply, as appropriate, will be dated to the maximum extent possible immediately notified of overages or to assure the lowest charges available shortages and verified in condition, as to the Boy Scouts of America.

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(5) Separate shipping instructions to aerial ports within CONUS, or to will be provided for each Jamboree to other oversea locations and return. assure that correct consignee and rail- Such transportation will be provided head addresses are furnished. only to the extent that it does not (6) Movement of Boy Scouts, Scout- interfere with the requirements of ers, and officials living in the United military operations, and only to those States of America to a Jamboree with- Boy Scouts, Scouters, and officials re- in the United States of America or to a siding overseas and certified by the Jamboree in an oversea area shall be Boy Scouts of America (BSA) as rep- the responsibility of the Boy Scouts of resenting the BSA at the Jamboree. America or the individuals concerned. Certification by the BSA will be in the (7) No authority exists under Pub. L. form of a letter identifying each such 92–249 for the movement of Boy Scouts, individual as their authorized rep- Scouters, and officials via military ca- resentative at the Jamboree. This let- pabilities other than those of the Mili- ter of authorization must be presented tary Airlift Command or the Military to the sponsoring overseas command. Sealift Command. (2) Boy Scouts, Scouters, officials (o) Transportation by vessels of the and their equipment will be moved Military Sealift Command (MSC). (1) The after all space-required traffic, but be- MSC does not operate any ships suit- fore any space-available traffic. able for carriage of passengers on (3) Each passenger is authorized the transoceanic routes. Although perti- normal accompanying free baggage al- nent directives and Pub. L. 92–249 au- lowance of 66 pounds while traveling on thorize the movement of Boy Scouts on MAC aircraft. It is not contemplated Military Vessels, the MSC has no capa- that any excess baggage allowance will bility to provide such transportation. be authorized. (2) The MSC is an industrial-funded (4) Transportation of Boy Scouts, organization and charges the military Scouters, officials, and their equip- service for sealift services provided in ment provided by MAC controlled air- accordance with established rates. The craft will be reimbursed at the com- host command will be responsible to mon user tariff rates assessed U.S. compensate the MSC for any equip- Government Traffic, as contained in ment or material moved on MSC ships. AFR 76–11. The limitations inherent in Pub. L. 92– (5) On the basis of letters of author- 249 stipulate that transportation sup- ization issued by the BSA, the BSA port provided will be at no cost to the will monitor services provided by the Government. Under these directions, Department of Defense. One copy of Boy Scout equipment or materiel is each BSA letter of authorization will not authorized movement on a space be forwarded to the Commander, US available basis without prior approval Army Materiel Development and Read- of the Secretary of Defense. Such ap- iness Command, ATTN: DRCMM-SP, proval is not anticipated. 5001 Eisenhower Avenue, Alexandria, (3) All billings for transportation pro- VA 22333, for planning purposes. This vided by MSC will be forwarded to the letter of authorization should specify appropriate Commander-in-Chief/Com- whether one way or round trip trans- mander of the support major Army portation is requested. command (MACOM). Reimbursement (6) DACROM responsibilities include will be requested by the MACOM Com- the following: mander from the Boy Scouts of Amer- (i) Compiling a passenger forecast to ica. be submitted to MAC in accordance (p) Transportation of oversea based with AR 59–8/OPNAVINST 4630.18C/AFR scouts, scouters, and other authorized 76–38/MCO 4630.6B. personnel by military airlift to national or (ii) Providing Military Traffic Man- international jamborees. (1) Space re- agement Command (MTMC) an infor- quired reimbursable transportation by mation copy of the passenger forecast. Military Airlift Command (MAC) air- (iii) Submitting all passenger re- lift over established MAC channels is quirements for one way and round trip authorized from points outside the transportation originating overseas to Continental United States (OCONUS) the appropriate overseas command.

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(7) The responsibilities of the spon- to the Office of the Assistant Secretary soring overseas command include: of Defense (Public Affairs). However, (i) Verifying that Scout passengers DOD does not contemplate authoriza- are officially authorized representation for the use of MAC aircraft for tives of BSA in accordance with para- other than U.S. Scouts, Scouters, and graph (p)(1) of this section. Officials. (ii) Making all necessary passenger (iv) Use of military helicopters in reservations with MAC, for transpor- support of medical evacuation, VIP, tation originating overseas, in accord- press and photo-services—The Director ance with AR 55–6/AFR 76–5/ of Army Aviation, the Department of OPNAVINST 4630.23/MCO P4630.11. The the Army Staff Judge Advocate, and oversea command will submit CONUS the Comptroller of the Army have fur- outbound return passenger require- nished the general opinion that Pub. L. ments to Commander, Military Traffic 92–249 authorizes the use of Military Management Command, ATTN: MTMC- helicopters in support of the above de- PTO-P, Washington, DC 20315. scribed services to the extent they are (iii) Issuing each passenger a MAC reasonably available and permits the Transportation Authorization (DD use of appropriated funds. Form 1482) for transportation from the (q) Determination of charges and settle- overseas location and return, when ment. (1) All property on which repair round trip transportation has been re- cost is claimed will be held at the quested. The customer identification depot or post, camp or station until code, item (7) of the DD Form 1482, final charges are determined and a re- should be designated—JBWJ—which lease is given by CDR, DARCOM, De- was approved by MAC as the perma- partment of the Army. nent CIC for direct billing purposes to (2) The commodity command (mili- HQ, Boy Scouts of America, North tary department) will prepare the fol- Brunswick, New Jersey, 08902. lowing information and statement, and (iv) Ensuring that each Scout pas- forward them, to CDR, DARCOM, De- senger has a completed DD Form 1381, signed by a parent, guardian or other partment of the Army, for final review: legally responsible individual. (i) Complete Property Transaction (v) Evaluating the use and necessity Record and supporting documents. of military airlift within or between (ii) Proper accounts for which reim- overseas locations. This evaluation will bursement received for shortages and include such factors as reasonable trav- repairs are to be deposited. el time, number of connections re- (iii) The following statement: ‘‘The quired, and assurance of Scout group losses and/or damages indicated on the integrity. Surface transportation will Property Transaction Report in the normally be used for travel within an amount of $lll represent the total overseas area. claim by (appropriate commodity com- (8) The responsibilities of the MTMC mand or military department) relative include: to commodity command or military (i) Evaluating the return outbound department property loaned to (Boy passenger requirements and making Scouts of America). Upon settlement the necessary transportation arrange- and deposit to the proper account, the ments so as to maintain Scout group CDR of the commodity command or integrity at all times. military department releases the (Boy (ii) Assisting the BSA in completing Scouts of America) from further obli- required documentation and insuring gations.’’ that passengers are ready prior to the (iv) Statements as to the general return flight. type of repair (e.g., tentage, repair (iii) Pub. L. 92–249 does not provide tears, insert new panels, replace grom- authorization for the use of the Depart- mets) will be reported on separate ad- ment of Defense transportation by dendum to the Property Transaction Scouts, Scouters, and Officials of for- Record for items requiring repair. eign nations. All requests to transport (3) The CINC/CDR, MACOM, will pre- such persons should be forwarded pare the following information and through the unified command channels statement for property furnished for

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assets in the command and will for- PART 623—LOAN OF ARMY ward this to CDR, DARCOM: MATERIEL (i) Same as (q)(2)(i) of this section. (ii) Same as (q)(2)(ii) of this section. Sec. (iii) The following statement: The 623.1 General. losses and/or damages indicated on the 623.2 Loan policies. Property Transaction Record in the 623.3 Submission of requests for loan of amount of $lll represent the total Army materiel. claim by (appropriate Army) relative 623.4 Accounting procedures. to (appropriate Army) property loaned 623.5 Loan of arms and accouterments. 623.6 Reimbursement for loan of Army ma- to (Boy Scouts of America). Upon set- teriel. tlement and deposit to the proper ac- 623.7 Reports. count, the CINC/CDR, MACOM releases APPENDIX A TO PART 623—EXPLANATION OF the (Boy Scouts of America) from fur- TERMS ther obligations. APPENDIX B TO PART 623—APPROVING AU- (iv) Same as (q)(2)(iv) of this section. THORITY ADDRESSES/TELEPHONE NUMBERS (4) CDR, DARCOM, will review the APPENDIX C TO PART 623—AGREEMENT FOR charges, inspect property to be re- LOAN OF US ARMY MATERIEL (DA FORM paired, if necessary, reconcile any dis- 4881–R) crepancies and determine final charges APPENDIX D TO PART 623—CERTIFICATE FOR SIGNATURE BY AN ALTERNATE (DA FORM to be levied against the supported ac- 4881–1–R) tivity. Approved list of charges will be APPENDIX E TO PART 623—SURETY BOND (DA forwarded to the CINC/CDR, MACOM, FORM 4881–3–R) for collection, and property being held APPENDIX F TO PART 623—POWER OF ATTOR- for repair will be released. NEY (DA FORM 4881–4–R) (5) The CINC/CDR, MACOM, will pre- APPENDIX G TO PART 623—CONTINENTAL US pare and dispatch a letter to the sup- ARMY BOUNDARIES APPENDIX H TO PART 623—REFERENCES porting activity and request payment made payable to the Treasurer of the AUTHORITY: 10 U.S.C. 2571; 31 U.S.C. 686; 10 United States. Upon receipt of pay- U.S.C. 2667. ment, collection documents will be pre- SOURCE: AR 700–131, 45 FR 62038, Sept. 18, pared and appropriate fiscal accounts, 1980, unless otherwise noted. as furnished by the commodity command (military departments) ((q)(2) § 623.1 General. and (3) of this section) credited. The (a) Purpose. This part sets forth poli- MACOM Surgeon will take action to cies and procedures for loan of Army reimburse the DLA stock fund for ex- materiel. As used in this regulation, pendable medical supply losses re- the term ‘‘loan’’ includes a lease. ported. The CINC/CDR, MACOM, will (b) Applicability. (1) This regulation close the Property Transaction Record applies to all Department of the Army Account. (DA) agencies, commands, installa- (6) The CINC/CDR, MACOM, will ad- tions, and activities. vise the CDR, commodity command (2) This regulation applies to the (military departments and CDR, Army National Guard (ARNG) only DARCOM, DA) that settlement has when the procedure for the loan of been accomplished. Commodity com- equipment under the procedure of Na- mand (military department) Property tional Guard Regulation (NGR) 735–12 Transaction Records will be closed does not apply. upon receipt of the foregoing advice. (3) This regulation does not apply to (7) The CDR, DARCOM will advise loans governed by the DOD Military the CINC/CDR, MACOM, to return the Assistance and Sales Manual, DOD bond to Boy Scouts of America. 5105.38–M. (8) In the event of unsatisfactory set- (4) This regulation does not apply to tlement, the proceeds of the bond will loans governed by the Defense Acquisi- be used to satisy the claim. The Power tion Regulation (DAR). of Attorney executed in connection (c) Scope. This part outlines when with the agreement will be invoked and loans of Army materiel may be made. proceeds collected from the bond (fig. It gives general procedures for request- 7–7). ing and processing loans, and sets forth

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responsibilities, including require- loans in limited situations. Unless ments for reimbursement. there is a reason to use the specific (d) Explanation of terms. (1) The terms statute, one of the basic statutes will ‘‘loan,’’ ‘‘lease’’ and ‘‘bailment’’ are be used. contractual terms and are frequently (1) The following are the basic stat- used interchangeably. They have no utes: meaning by themselves. It is necessary (i) 10 U.S.C. 2571—Authority for loan to study the statute to see what is re- of property within DOD. quired. Usually, a ‘‘loan’’ is thought of (ii) 31 U.S.C. 686 (The Economy Act)— as a short-term transfer of property, Authority for loans to other Federal sometimes with reimbursement; a departments and agencies. ‘‘lease’’ is a more formal transfer, often (iii) 10 U.S.C. 2667 (The Leasing Stat- long-term and requiring a fair mone- ute)—Authority for loans/leases, in- tary rental; and a ‘‘bailment’’ is a cluding leases to activities outside the loosely-used term, generally reserved Federal Government. for a delivery of property to another in (2) Following are some of the specific trust for the purpose of doing some- authorizing statutes: thing to the property and then return- (i) 10 U.S.C. 331—Federal aid for ing the property to the owner. The State governments as result of insur- term ‘‘issue’’ is frequently used in the rection. sense of a transfer of property which (ii) 10 U.S.C. 332—Use of militia and will be consumed in use. The terms Armed Forces to enforce federal au- ‘‘gift,’’ meaning a permanent transfer thority. of property without reimbursement, (iii) 10 U.S.C. 333—Use of militia or and ‘‘sale,’’ meaning a permanent Armed Forces to suppress interference transfer with reimbursement, are out- with state and federal law. side the scope of this regulation. (iv) 10 U.S.C. 2541—Loan of equip- (2) For additional definitions, see ap- ment and barracks to national vet- pendix A. erans organizations. (3) The words ‘‘he, him, his’’ when (v) 10 U.S.C. 2542—Loan of equipment used in this publication represent both to the American National Red Cross for the masculine and feminine genders, instruction and practice. unless otherwise specifically stated. (vi) 10 U.S.C. 2543—Loan of equip- (e) Loan restrictions. (1) Army mate- ment to US Presidential Inaugural riel is not normally used for other than Committee. the Army’s primary mission; however, (vii) 10 U.S.C. 2544—Loan of equip- under conditions described herein mament and services to the Boy Scouts of teriel not immediately needed to sup- America, for national and world jam- port mission requirements may be borees. loaned to— (i) Army and other Department of (viii) 10 U.S.C. 2572—(See AR 870–20.) Defense (DOD) elements. Loan of books, manuscripts, works of (ii) Non-DOD Federal departments art, drawings, plans, models, and con- and agencies. demned or obsolete combat materiel (iii) Civil governments (State and not needed to— local). (A) A municipal corporation. (iv) Special activities, agencies, and (B) A soldiers monument association. others. (C) A state museum. (2) Table 2–1 lists various cir- (D) A nonprofit incorporated mu- cumstances where loan of Army mate- seum. riel might be requested. It identifies (E) Posts of Veterans of Foreign Wars the applicable Federal laws or other of the USA. authority which would authorize such (F) American Legion Posts. loans. (G) A local unit of any other recog- (f) Statutory authorities. There are nized war veterans association. three basic federal laws which author- (H) A post of the Sons of Veterans ize the loan of Army property. There Reserve. are also numerous specific statutes (ix) 10 U.S.C. 4308—Establishment which authorize particular types of and support of civilian rifle ranges.

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(x) 10 U.S.C. 4311—Issue of rifles and (iii) 18 U.S.C. 3056 (as amended by ammunition for conducting rifle in- Pub. L. 91–651)—Powers and duties of struction and practice. Secret Service. (xi) 10 U.S.C. 4651—Issue of arms, (g) Responsibilities. (1) The Com- tentage, and equipment to support edu- manding General (CG), US Army Mate- cational institutions that do not have riel Development and Readiness Com- ROTC but maintain a course in mili- mand (DARCOM), through the Materiel tary training prescribed by the Sec- Readiness Commands’ (MRC) com- retary of the Army. manders, is responsible for loans of ma- (xii) 10 U.S.C. 4652—Loan of rifles and teriel controlled by DARCOM whole- issue ammunition for target practice sale supply points. to educational institutions having (2) Major Army commands (MACOM) corps of cadets. CGs and commanders in chief (CINCs) of unified commands (UCOMs) are re- (xiii) 10 U.S.C. 4653—Issue of ord- sponsible for loans of materiel from nance and ordnance stores to District supporting units and installations. of Columbia high schools. (3) The Director of Military Support, (xiv) 10 U.S.C. 4654—Issue of quarter- Office of the Deputy Chief of Staff for master supplies at educational institu- Operations (ODCSOPS), is the DOD tions that maintain a camp for mili- point of contact for the Federal Dis- tary instruction of its students. aster Assistance Administration (xv) 10 U.S.C. 4655—Loan of arms and (FDAA), other Federal agencies, and issue ammunition to other agencies the National Red Cross in disaster as- and departments of the US Govern- sistance matters. ment. (xvi) 10 U.S.C. 4656—Loan of aircraft § 623.2 Loan policies. and ancillary equipment to accredited (a) Loan and approval policy—(1) Basic aviation schools at which DA or Air policies. (i) Materiel is not loaned to Force personnel pursue courses of in- non-DOD activities as a routine proce- struction. dure. However, materiel in the Army (xvii) 10 U.S.C. 4683—Loan of obsolete inventory is available for loan for spe- or condemned rifles and accouterments cial purposes if approved. Approving to local units of recognized national authorities are listed in table 2–1; their veterans organizations for certain cere- addresses are in appendix B. monial purposes. (ii) Loans will be approved or dis- (xviii) 10 U.S.C. 4685—Loan of obso- approved based on the purpose, dura- lete ordnance to educational institution of the loan, and consideration of tions and state soldiers and sailors or- the following factors which can take phans’ homes for purpose of drill and precedence over any loan. instruction. (A) Military requirements and prior- (xix) 32 U.S.C. 702—Issue of supplies ities. to State National Guard. (B) Continuity of military oper- (xx) 33 U.S.C. 701n (Pub. L. 84–99 as ations, troop survival, and the rehabili- amended)—Flood emergency prepara- tation of essential military bases. (C) Stocks and programed Army re- tion; emergency supplies of drinking quirements. This includes water. prepositioned mobilization reserve (xxi) 33 U.S.C. 1251 et seq. (Pub. L. 92– stocks. 500)—Federal Water Pollution Control (D) Type classification with pending Act. changes. (xxii) 42 U.S.C. 5121 et seq. (Pub. L. 93– (E) Minimum diversion of Army 288)—Disaster Relief Act. stocks. (3) Other statutory guidance: (F) The adequacy of the borrower’s (i) 10 U.S.C. 4307—Authorizes the es- resources. Requesters will be encour- tablishment of a Director of Civilian aged to use their own resources. Markmanship (DCM). (iii) Loan requests from civilian au- (ii) 18 U.S.C. 1385—Unlawful use of thorities or activities will normally Armed Forces in local law enforce- enter Army channels at the installa- ment. tion or MACOM levels. If on-post or off-

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post units receive loan requests, they (ix) There will be no procurement or will refer them to unit’s supporting in- redistribution of assets to offset the ef- stallation commander at once. Emer- fects of loans. Material will not be set gency loan requests will be relayed by aside, earmarked, assembled, or stock- telephone or electrically transmitted piled to be available for use related to message. loans. (iv) When routine handling of a loan (x) Army materiel may be recalled request would result in loss of human from the borrower at any time to meet life, grave bodily harm, or major de- Army requirements. struction of property, and when the (xi) Stock record accounting and fi- lack of communication facilities pre- nancial transactions for loans will con- vents use of normal procedures, loans form with existing regulations. otherwise permitted by this regulation (xii) Borrowers are responsible for can be made with local approval. How- the care, custody, and proper use of ever, normal policy should be followed materiel borrowed. Except as stated in to the extent possible. If procedural re- this regulation, reimbursement will be quirements cannot be fully complied required for damage, destruction, loss, with, they must be met as soon as pos- fair depreciation in value, and for any sible after the loan is made. Army repair, care, transportation, (v) Army materiel loaned under this preservation, and protection of loaned part will be delivered to borrower ‘‘as equipment. is, where is’’ available. (xiii) Care, renovation, and repair of (vi) Stocks of the least serviceable borrowed materiel will conform with condition which are still suitable for the loan agreement. the loan’s purpose will be used. Logis- (xiv) As indicated below, borrowers tic control code ‘‘C’’ materiel will be must provide signed loan agreements, loaned before logistic control code ‘‘B’’ provide surety bonds, and vehicular in- materiel. Logistic control code ‘‘B’’ surance prior to receipt of materiel. materiel will be loaned before logistic Loan agreements and bonds will be pre- control code ‘‘A’’ materiel. (Ref chap 9, pared in accordance with paragraphs AR 708–1.) (b) and (c) of this section. (vii) Commanders of medical treatment facilities (MTF) are subject to all Loan Surety Vehicular Borrower agreement bond re- insurance the requirements of this regulation, in- required quired required cluding the requirement for reimbursement. However, in accordance with AR Army or other DOD No 1 ...... No ...... No. 360–61 which implements DOD Instruc- activities. Non-DOD Federal Yes ...... No ...... No. tion 5410.19, departments and (A) Emergency loans of medical sup- Agencies. plies (drugs, vaccines, etc.) may not be Civil Authorities Yes ...... Yes 2 ...... Yes.2 (State and Local made without reimbursement, but the Governments). loan may not exceed 30 days and the Civilian Activities Yes ...... Yes ...... Yes. medical supplies must be replaced in (veterans’ organi- kind by the borrowing agency or activ- zations, youth ity; and groups, etc.). (B) Emergency loans of medical 1 A hand receipt or other document assigning responsibility will suffice. equipment not to exceed 15 days may 2 In emergency disaster relief cases, bonds and insurance be made without reimbursement if it is may be provided after receipt of the materiel. (See paragraph the practice in the community for (a)(4) of this section.) other hospitals to make such loans. (2) Loans to DOD organizations. Army Equipment loans which exceed 15 days materiel may be loaned to DOD activi- must be approved, in writing, by the ties for projects, programs, and mission MACOM commander and are subject to requirements that support basic func- all the requirements of 10 U.S.C. 2667, tions of the borrowing activity. Exam- including reimbursement. ples are field exercises, maneuvers, (viii) Army property loaned to non- training exercises, including annual DOD activities will not be further training (AT) of Reserve Components, loaned without approval of the original and research development, test, and approving authority. evaluation (RDTE).

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(i) Loans of major end items belong- pointed by the appropriate command to ing to MACOMs are approved by act as the DOD point of contact with MACOM or UCOM commanders. Loans the Housing and Urban Development of materiel other than major end items (HUD) Federal Coordinating Officer are approved at commander/installa- (FCO) when military assistance is re- tion level. quired during a Presidential declared (ii) Loans of materiel belonging to disaster or emergency. When a disaster DARCOM (wholesale level) are ap- or emergency is of such magnitude, the proved as follows: disaster area may be geographically (A) Materiels other than major end subdivided. A military representative items. By the director or deputy direc- will then be appointed for each FCO. tor of an MRC. All requests for military assistance (B) All other items. By HQ DARCOM or will be passed through the FCO to the commanders of MRCs unless loan DOD military representative at the dis- would interfere with issue against DA aster area. Master Priority List (DAMPL) prior- (C) The Director of Military Support ities, then by HQDA ODCSLOG (DALO- (ODCSOPS), HQDA, acts at the DOD SMD). point of contact for the Administrator, (3) Loans to federal departments/agen- FDAA, other Federal agencies, and the cies. Loans to Federal activities outside American National Red Cross in all dis- the DOD are usually provided under aster assistance matters. provisions of the Economy Act, 31 (ii) Foreign. (A) The Department of U.S.C. 686. Federal agencies borrowing State is responsible for deciding when DOD materiel using the provisions of emergency foreign disaster relief oper- this act are responsible for reimbursing ations will be undertaken. This author- the DOD for all DOD costs incident to ity is delegated to Chiefs of Diplomatic the delivery, return, and repair of the Missions for disaster relief operations materiel. The borrower is also respon- whose total costs will not exceed sible for reimbursing the DOD for de- $25,000. preciation if the depreciation cost is (B) Send queries on foreign disaster significant. relief to HQDA (DAMO-ODS) (para 4, (4) Disaster relief. app B). (i) CONUS/OCONUS. (5) Civil disturbances. The mainte- (A) In disaster situations local civil nance of law and order is primarily the authorities must provide relief from responsibility of local and state au- their own resources. If this is not suffi- thorities. In civil disturbance situa- cient, and the American National Red tions, a basic goal of the Federal Gov- Cross has a team at the disaster, re- ernment is to minimize the involve- quests for further assistance should be ment of active military forces. One of made to them. If the President has de- the most effective means of keeping clared a major disaster or emergency, Federal forces off the streets is to loan requests should be made to the re- US Army civil disturbance type equip- gional director of the Federal Disaster ment to Federal, State, and local law Assistance Administration (FDAA). enforcement agencies and also to the (See AR 500–60 for guidance.) National Guard. (For specific guidance (B) The commanding General, US see AR 500–50.) Army Forces Command (FORSCOM), (i) Requests for loan of Army mate- acting for the Secretary of the Army riel during or for expected civil dis- (SA), is responsible for Army materiel turbances are of three types with ap- support of disaster relief operations proval authority as follows: within the United States and the Dis- (A) Group one. Arms, ammunition, trict of Columbia. UCOMs are respon- tank-automotive equipment, and air- sible for disaster relief operations in craft. Loans will be approved by the SA US possessions and trust territories. or his designee. These commanders are authorized to (B) Group two. Riot control agents, task DOD agencies and commands, con- concertina wire, and similar military sistent with defense priorities, to pro- equipment which is not included in vide materiel in support of operations. group one. Loans will be approved by A military representative will be ap- the SA (or his designee), or by an Army

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task force commander employed at an 1. Specific limitations on such support objective are during a civil disturb- are covered in AR 500–1. ance. (8) Loan/lease to activities outside the (C) Group three. Protective equipment Federal Government. Title 10, U.S.C. such as masks and helmets; body 2667, authorizes the lease of Army ma- armor vests; other equipment not in- teriel to non-DOD departments, agen- cluded in group one or two such as cies, activities, or individuals when it clothing, communications equipment, is determined that the materiel is not, and searchlights; and the use of DOD for the period of the lease, needed for facilities. Such loans will be approved public use, is not excess property, and by the SA (or his designee); by that the loan will promote the national MACOMs; by the CGs of CONUS ar- defense or be in the public interest, mies, MDW, and by commanders of (See AR 360–61.) Such a lease must not UCOMs outside CONUS as applicable. be for more than 1 year (or be renewed/ (NOTE: Firefighting equipment will extended for a total period of more not be used for riot control). than 5 years); it must provide that the (ii) Queries concerning loans in sup- lessee will pay a fair monetary rental. port of civil disturbances will be for- The fair monetary rental will be deter- warded to the Director of Military Sup- mined on the basis of prevailing com- port, HQDA(DAMO-ODS), WASH DC mercial rates or computed according to 20310. (See app B.) sound commercial accounting practices (6) Terrorism. (i) The Department of for the fixing of rental on such prop- the Army is the DOD Executive Agent erty. This will include a return on cap- for support to the FBI in combating ital investment and administrative terrorism. Existing civil disturbance cost as well as depreciation. The dele- loan procedures, including categories gation of authority to lease is SAOSA– of equipment, apply to equipment loans 71–6, paragraph 1–5103, ADARS, the pre- to the FBI for combating terrorism. scribed lease agreement is at paragraph Military resources will be provided 16–553, ADARS. only upon request of the Director, FBI, (b) Loan agreements. (1) Upon ap- or the Senior FBI official present at proval of a loan request and before the scene of a terrorist incident. It shipment or issue of the materiel, the may be difficult in some situations to approving authority will complete a determine whether a practical incident written loan agreement, DA Form 4881– fits the definition of terrorism. In R. In all cases, the statutory basis for these cases, commanders are author- the loan will be cited. The approving ized to accept the judgment of the FBI authority is acting for the DOD on official making the request if it is sup- loans to other Federal agencies, and for ported by the available facts. (See para the United States on loans to civil au- 3, table 2–1.) thorities and special activities. The (ii) For requests from the FBI in con- agreement will be signed by the ap- nection with terrorist incidents, any proving authority and the borrowing commander in the chain of command activity. When emergency loans have down to and including commanders of been made as authorized by this AR, military installations are authorized to follow-up action will be taken at once approve loans of group two and group to formalize the loan by completing a three resources. (See paragraphs loan agreement. (a)(4)(1) (B) and (C) of this section.) Re- (2) Loan agreements are mutually de- quests for equipment which involve veloped by the approving authority and technical/operating personnel, exclud- the chief of the borrowing activity (or ing fire-fighting equipment and explo- their designees). The agreements iden- sive ordnance disposal, will be proc- tify the responsibilities of all parties. essed as a group one resource. For ex- They include terms and conditions of ample, approval authority is retained the loan. Appendix C illustrates a sam- by the DOD Executive Agent. ple loan agreement, DA Form 4881–R (7) Aircraft piracy. Assistance to other (Agreement for the Loan of US Army federal agencies in the protection of Materiel), and specifies what the loan airways is provided through loans agreements will stipulate and contain. under guidance in paragraph 3, table 2– Also illustrated at appendix C is DA

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Form 4881–2–R, which will be completed (4) Bond forfeitures or exceptions to and appended to the loan agreement as mandatory forfeitures can only be ‘‘Exhibit I.’’ made with the concurrence of the Sec- (3) Loan agreements will be held by retary of the Army. Forfeitures will be the approving authority until termi- based on actual expense incurred. For- nation and final settlement of each feitures do not release the borrowing loan. agency from returning borrowed mate- (4) If the loan agreement is signed by riel or affect ownership. Bonds are nor- someone other than the chief bor- mally forfeited under the following rowing official, than a Certificate for conditions: Signature by an Alternate will be com- (i) Materiel is not returned at the pleted. (See appendix D for DA Form termination of a loan period or when 4881–1–R.) It will be attached to the return has been directed by the Army. signed (by the borrower) copy of the (ii) The borrowing agent refuses to agreement that is retained by the ap- pay for damages or other Army ex- proving authority. DA Forms 4881–R, penses. 4881–1–R, and 4881–2–R are reproduced (5) Surety bonds will be held by the locally on 81⁄2 by 11-inch paper. approving authority until the loan is (c) Surety bonds. (1) Some borrowers terminated and final settlement is of Army materiel must post a surety made. At that time, the bond will be bond. (See table 2–1 and DA Form 4881– returned to the borrower. 3–R at app E.) Bonds ensure safe return (6) If US treasury bonds are posted as of the borrowed materiel or reimburse- surety bond, the borrower must exe- ment for any loss of or damage to the cute a power of attorney (DA Form materiel. The bond will consist of— 4481–4–R, app F). This will enable cash- (i) A properly executed surety bond ing of the treasury bonds if some for- with a certified bank check, cash, or feiture is required. DA Form 4881–3–R negotiable US Treasury bonds, or (Surety Bond) and DA Form 4881–4–R (ii) Notice of bond by a reputable (Power of Attorney) will be reproduced bonding company deposited with the locally on 81⁄2 by 11-inch paper. approving authority for the loan. (d) Loan duration. (1) Loan periods Bonds will equal the total price of the and extensions will be shown in table borrowed items as shown in exhibit I to 2–2. the loan agreement (app C, DA Form (2) Materiel will be loaned only for 4881–R). A ‘‘double’’ bond (bond equal the number of days needed for the spe- to twice the value of the borrowed cific purpose for which borrowed. Loan item(s)) will be required— extensions must be justified. The rea- (A) For Army materiel loaned to the son(s) why other means or other than Red Cross for instruction and practice Army materiel cannot be used must be to aid the Army, Navy, or Air Force in included. Approval of loan extensions time of war (10 U.S.C. 2542). will be based on the merit of the rea- (B) For ordnance and ordnance stores sons given. loaned to high schools in the District (3) Loan extensions authorized be- of Columbia (10 U.S.C. 4653). yond 1 year will not be approved unless (2) The bond need not be posted by the lender of the loaned materiel has the borrowing agency itself. The source inspected and inventoried the materiel or originating agency for the bond is to insure completeness and service- immaterial if the bond is valid. For ex- ability. ample, to secure a loan, a State may (e) Types of DA materiel available for post bond on behalf of a city, county, loan. Examples of types of items that or other governmental body or author- may be loaned, and examples of the ity within the State. types of organizations that may borrow (3) In an emergency, when posting a Army materiel, are listed in table 2–1. bond would delay approval of an urgent Most loans will be nonexpendable loan request and when the total price items or expendable items not forecast is less than $1,000, the approval author- to be consumed (durable items). Ex- ity may approve the request. The ap- pendable items (e.g., expendability proval is on the condition that the code X) will not be loaned unless ap- bond be posted within 5 days. proved as an exception.

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TABLE 2–1—LOAN AUTHORITY AND PURPOSE [See footnotes at end of table]

Examples of materiel au- Requester Authority and guidance Normal approving authority thorized

1. DOD Activities ...... 10 U.S.C. 2571 ...... Secretary of the Army (or Materiel, supplies, and designee). equipment. 2. Department of Agriculture (U.S. For- 31 U.S.C. 686; Memo of Secretary of the Army (or Communications, est Service) protection against wild- Understanding (MOU), designee). earthmoving, and vehic- fire 2 (see AR 500–60 for guidance) 3. Apr. 24, 1975; AR 500– ular equipment. 60. Avalanche Control 3 ...... 10 U.S.C. 4655; 31 U.S.C. Secretary of the Army (or Communications, howit- 686; AR 735–5; MOU designee). zers, etc. Nov. 29, 1973. 3. Department of Justice (FBI) ...... 10 U.S.C. 331; 10 U.S.C...... Transport aircraft,1 heli- 332; 10 U.S.C. 333. copters, flares, para- chutes, communications equipment, arms, vehicles, etc. Aircraft Piracy 1 (see AR 500–1 for 10 U.S.C. 4655; 18 U.S.C. DOD General Counsel 1 or guidance). 1385; 31 U.S.C. 686; designee; in urgent DODD 3025.12; AR cases, Deputy Director 500–1. for Operations, NMCC. Terrorism 2 ...... AR 500–50 ...... See item 7 below for 2 ap- See item 8 below for 2 proval authority by classification equipment. equipment classification. Drug Enforcement Agency 1 ...... 31 U.S.C. 686; AR 735–5, Asst SECDEF (or des- Same as above. par. 1–16; CSR 1–25. ignee). 4. Treasury Department (U.S. Custom 18 U.S.C. 3056; 31 U.S.C. Asst SECDEF (or des- Same as above. Service) (U.S. Secret Service) 1. 686; AR 735–5, par. 1– ignee); Mil Asst to the 16; DODD 3025.13; President; followed by DODI 5030.34; AR 1–4. the Spec Asst to the SECDEF; (overseas) CINC, UCOM’s. 5. National Guard Equipment (loan to AR 735–5; 10 U.S.C. 2571 Secretary of the Army Material, supplies, and NG). HQDA; CG FORSCOM; equipment. DARCOM. 6. Other Federal agencies emergency 31 U.S.C. 686; AR 735–5; Spec Asst SECDEF; Sec- Material, supplies, and support 1 to Federal agencies (see AR AR 1–35; AR 500–60; retary of the Army. equipment for flood 1–35 and AR 500–60 for guidance). DODD 4000.19. fighting, rescue operations, repair/restoration of flood control works, or hurricane flood protection works. Support to FPA/GSA Regional Field AR 15–17; DODD HQDA; CG FORSCOM; Transportation, emergency Boards 2 (see AR 15–17 for guid- 5100.74; OEP Civ CG CONUSA. power and fuel. ance). 8500.6. Support to Inaugural Committee ..... 10 U.S.C. 2543 ...... SECDEF ...... Tents, flags, litters, ambu- lances, drivers, hospital furniture, camp appliances. 7. Support for Search and Rescue ...... AR 500–2; FM 20–150; CG FORSCOM; GC Search craft and crews. AR 525–90. CONUSA. 8. Civil Authorities Civil Disturbance 2 42 U.S.C. 5121 et seq.; 10 Group One: DOD Execu- Group One: Arms, ammu- (see AR 500–50 for guidance). U.S.C. 331; DODD tive Agent or designee. nition, tank-automotive 3025.12; AR 500–50; equipment, and aircraft. AR 350–7; DACD Plan; Garden Plot.

...... Group Three: DOD Execu- Group Three: Firefighting tive Agent or designee; resources, equipment of CG MDW; CG a protective nature CONUSA; and CINC’s (masks, helmets, body UCOM’s, OCONUS. armor vests) and use of Army facilities. Disaster Relief 2 ...... 42 U.S.C. 5121 et seq.; CG FORSCOM; CG Same as 6 above. DODD 3025.1; AR 500– DARCOM for DARCOM 60 and AR 930–5; stocks; and CINC’s, DODD 5100.46. UCOM’s, OCONUS.

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TABLE 2–1—LOAN AUTHORITY AND PURPOSE—Continued [See footnotes at end of table]

Examples of materiel au- Requester Authority and guidance Normal approving authority thorized

Civil Defense ...... DODD 3025.10; AR 500– CG FORSCOM ...... Personnel, facilities, equip- 70. ment, supplies, and services. American National Red Cross for MOU between DOD and HQDA; The Adjutant Gen- Personnel, equipment, of- support of Army units in support ANRC, June 24, 1975. eral (DAAG-ASO-R). fice space, equipment, of local civil government disaster supplies; and custodial, relief. utility, maintenance, and communication services. 9. Environmental Protection Agency and 33 U.S.C. 1251 et seq.; Same as disaster relief ..... Personnel, facilities, sup- U.S. Coast Guard (oil and hazardous DODD 5030–41; AR plies, equipment, and substances pollution spills). 500–60. transportation. 10. Boy and Girl Scouts of America 10 U.S.C. 2544; AR 725– MACOM CG on behalf of Bedding, cots, chairs, vehi- (world or national jamborees) 3. 1, ch. 7. CG DARCOM. cles, buildings, etc. 11. Civilian Marksmanship Program 10 U.S.C. 4308, 4311, Secretary of the Army (or Arms and accouterments. (Clubs and Schools) 3. 4651, 4652, 4653, 4685; designee). AR 920–15; AR 920–20. 12. Community Relations and Domestic AR 28–19; AR 360–61; 42 Installation commanders ... Equipment or buildings Action Programs 1 (Youth Conserva- U.S.C. 2701. which may aid in instruction Corps). tion to the disadvan- taged. 13. Veterans Organizations (State and 10 U.S.C. 2541 ...... MACOM CG and CG Cots, bedding, chairs, National Conventions) 3. CONUSA. tents, mattresses, pillows, unoccupied barracks, etc. Burial Ceremonies ...... 10 U.S.C. 4683 ...... Secretary of the Army ...... Obsolete rifles. 14. Armies of the United Kingdom, Can- 10 U.S.C. 2667; AR 34–1 CG DARCOM (those for Equipment. ada, and Australia (Standardization equip valued over Program). $100,000 and those not favorably considered by DARCOM will be referred to the DCSRDA, HQDA, for approval). 15. Aid to District of Columbia Govern- DODD 5030.46; CSR 500– Secretary of the Army (or Communications, vehicles, ment in Combating Crime 2. 4. designee). aircraft, arms, etc. 16. Departments, agencies, municipali- 10 U.S.C. 2667; SAOSA– Heads of Procuring Activity Army property, not excess ties, organizations, activities, and indi- 71–6, par. 1–5103, requirements, but not viduals. ADARS. needed for period of lease. (See delegation of authority.) 17. Red Cross (Aid to DOD in time of 10 U.S.C. 2602; AR 930–5 DAAG ...... Office space, supplies and war). equipment; uniforms. 18. Army Flying Clubs ...... AR 230–1; DODD 1330.2 DAAG; CG FORSCOM ..... Army aircraft. 19. Civilian Activities ...... 10 U.S.C. 2572; AR 870– Chief, Military History ...... Historical properties and 15; AR 870–20. military art. 20. Civilian Educational Institutions ...... 10 U.S.C. 4654 ...... Secretary of the Army ...... Quartermaster supplies. 1 DA DCSOPS, Director of Military Support, has responsibility for these staff functions. 2 DA DCSOPS, Director of Military Support, has responsibility for these executive agent functions. (See app. A for definition of this term.) 3 DA DCSLOG, Director of Supply and Maintenance, has responsibility for these staff functions.

TABLE 2–2—LOAN PERIODS

Borrower/purpose Initial Loan periods 1 extension

1. DOD Activities ...... As needed for mission accomplishment ..... As needed for mission accomplishment. 2. Army National Guard (loan of equipment) ...... For minimum essential period as deter- For minimum essential period mined by requirements. as determined by requirements. 3. Department of Agriculture (U.S. Forest Service) 90 days ...... 90 days. (protection against wildfire). 4. Department of Justice (FBI) (Aircraft piracy) ..... For minimum essential period ...... For minimum essential period. (Drug Enforcement Agency) ...... 1 year or less as determined by require- 1 year or less. ments. 5. Treasury Department (U.S. Customs Service) .. 1 year or less as determined by require- 1 year or less. ments. (U.S. Secret Service)...... For minimum essential period as deter- For minimum essential period mined by requirements. as determined by requirements.

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TABLE 2–2—LOAN PERIODS—Continued

Borrower/purpose Initial Loan periods 1 extension

6. Environmental Protection Agency/U.S. Coast For duration of requirements. Guard. 7. Other Federal Agencies ...... For minimum essential period ...... 1 year. 8. Civil Agencies (Civil disturbances) Type I ...... 15 days during actual disorder ...... 15 days. Type II ...... 90 days in anticipation of a disorder ...... 90 days. (Disaster relief) ...... For minimum essential period, no extension for use during rehabilitation unless requested by the FDAA. 9. Boy and Girl Scouts of America (World or Na- For duration of ‘‘Jamboree’’ plus period en tional Jamborees). route to or return from Jamborees. 10. Civilian Marksmanship (Clubs and Schools) ... 1 year ...... 1 year. 11. Civilian Community (Relations and Domestic As justified by local requesters. Action Programs). 12. American National Red Cross for support of Same as above for duration of require- Same as above. Army units in support of local civil Government ments (office equipment). disaster relief. 13. Veterans’ Organizations ...... 15 days ...... 15 days. 14. To Armies of the United Kingdom, Canada, 1 year or less as determined by require- As negotiated. and Australia (Standardization Program). ments. 15. Civilian Organizations: a. Arms and accouterments ...... 1 year or less as determined by require- 1 year. ments. b. DLA stock fund items ...... 120 days ...... 30 days. c. Medical equipment ...... 15 days ...... As negotiated. d. Medical supplies (drugs, vaccines, etc. 30 days ...... As negotiated. must be replaced in kind). e. All other items ...... Requester justification ...... As negotiated. 16. DA materiel provided under 10 U.S.C. 2667 .. 1 year ...... 1 year. 1 All extensions or loan renewals which extends the overall loan period beyond 1 year must be approved by the Secretary of the Army (or designee).

§ 623.3 Submission of requests for loan made directly to the approving au- of Army materiel. thorities shown in table 2–1. (a) General. (1) Loan requests will be (b) The Army National Guard (ARNG). expedited according to the situation’s Loan requests for property belonging urgency. A situation may be so serious to ARNG will be made under National that waiting for instructions or ap- Guard Regulation 735–12. (See para 5, proval from a higher authority is un- table 2–1.) warranted. Commanders will then take (c) General procedures—(1) DOD activi- action as required to save human life, ties. DOD activities will borrow Army prevent human suffering, or reduce materiel as follows: property damage or destruction. (See (i) Requests will be made in writing § 623.2(b)(1).) Such emergency actions citing— will be reported at once to higher au- (A) Detailed justification for loan to thority according to § 623.7. include urgency of need. (2) Requests to the US Army for loan, (B) Duration of loan. or loan extension, will be promptly sent by the Army element that re- (C) Funds to defray transportation ceived the request through channels to and handling. the approving authority shown in table (D) Serviceability requirements. 2–1 or as specified in appropriate regu- (ii) Approving authority involved lations. will— (3) Loan requests will be made by the (A) Forward a loan agreement to re- head of the Federal agency, civil au- quester. Loan agreements within DOD thority, or civilian activity desiring will often consist of letter requests, ap- the materiel. An exception is that re- proving endorsements, and materiel quests from the Federal Disaster As- issue document (DD 1348–1) transfer- sistance Administration (FDAA) will ring temporary accountability. Be- normally be initiated by an FDAA re- tween units and activities, a hand regional director rather than by the ad- ceipt may be used as the loan agree- ministrator. The requests should be ment.

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(B) Furnish positive identification of (K) Statement that the agency has, item to be loaned. or will ensure capability to properly (C) Provide instructions for delivery operate, maintain, secure, and care for of equipment. the borrowed materiel. (iii) DOD recipient of loaned Army (L) If firearms are requested, a state- materiel will— ment that adequate facilities are avail- (A) Forward accepted loan agreement able to secure the arms. See to approving authority (all actions can § 623.5(a)(4). be accomplished by electrically trans- (M) A statement that the borrowing mitted messages). activity will assume all responsibil- (B) Provide geographic location of ities, liabilities, and costs related to equipment and specific activity that is the movement, use, care, security, loss, responsible for care and preservation of damage, and repair of the loaned mate- loaned equipment. riel. (C) Return equipment to Army in (N) Citation of funds to cover reim- condition received with normal allow- bursable costs. Also, a statement that ance for fair wear and tear. an adequate bond will be provided, if (2) Non-DOD activities. Non-DOD ac- required. tivities, including Federal agencies (O) A statement that the loan agree- will request loan of Army materiel as ment prepared by the Army will be follows: signed by the ‘‘responsible official’’ of (i) Non-DOD activities, and agencies, the borrowing activity (or designee). will send routine requests by letter 45 (P) Name, address, and telephone days before the materiel is required. number of the person who will serve as Federal agencies may use Standard the point of contact for the requesting Form 344 (Multiuse Standard Requisi- agency, authority, or activity. tioning/Issue System Document). Re- (Q) Complete instructions for deliv- quests will include the following: ery of the equipment to ensure that (A) The DA approving authority. See shipping instructions in the request are table 2–1. consistent with the urgency of the sit- (B) Date request is submitted. uation. State whether a small quantity (C) Title of requesting agency and/or shipped by air, express, or other fast person authorized to receive or pick up means will satisfy immediate needs the borrowed materiel. Be specific; e.g., until bulk shipments can arrive. Also Special Agent in Charge John Doe, state quantity immediately required. FBI, Anytown, USA, (telephone num- (R) If applicable, the number of per- ber with area code) 123–456–7890. sons to be accommodated. (D) Type of loan; e.g., Boy Scout Na- (ii) Urgent requests may be made to tional Jamboree, American Legion meet expected or actual emergencies. Convention, etc. (with a short sum- Such requests may be made by tele- mary of circumstances). phone or by electrically transmitted (E) Statement that none of the re- message. Include information required quested materiel is internally available in paragraphs (c)(2)(i) (A) through (R) to the requesting activity. of this section to the extent possible. (F) Statement that this support is The request will be presented to the ap- not reasonably available from local proving authority. The borrower will government or commercial sources. then send a complete written request (G) Authority for the loan (if known); to formalize the emergency request. e.g., public law, US code, executive (iii) If approval of the loan is grant- order, etc. See table 2–1. ed, approving authorities will contact (H) Positive identification of the accountable property officers at type and quantity of items required. If CONUS installations (equivalent level national stock numbers and nomen- overseas), or MRC item managers to clature are not available, identify the determine which items are available. items needed by type, model, size, ca- Installation requests to MRCs will pacity, caliber, etc. state that the installation resources (I) Geographic location where the could not meet the loan requirements. materiel will be located and used. Availability decisions will be based on (J) Proposed duration of the loan. normal management criteria including

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past and anticipated demand, asset bal- drug or narcotics interdiction activi- ances, order-ship time, repair rate and ties should send requests through their repair cycles, and procurement sched- headquarters to DOD, ATTN: Deputy ules. If requested items are available Assistant SECDEF (Program Manage- and approved for issue, the approving ment), WASH DC 20314. Concurrently, authority (or designee) will— information pertaining to the request (A) Negotiate and agreement; should be sent to HQDA (DAMO-ODS) (B) Obtain surety bond from the bor- (para 4, app B), or relayed by telephone rower when required; (AUTOVON 225–2003 or the Army Oper- (C) Provide reproduced copies of the ations Center 851–1800 during nonduty signed documents to the appropriate hours). The Deputy Assistant SECDEF accountable property office along with will pass approved request to HQDA authorization to make the loan. (DAMO-ODS), through the Office, (iv) Approving authorities will main- Under Secretary of the Army, for detain a system of numerical control for termination of availability and readi- all loans. The accountable property of- ness impact. If approved by the Under ficer will enter this number on all Secretary of the Army, ODCSOPS transaction documents related to each specific loan to include requisition, (DAMO-ODS) will task the proper issue, shipping, turn-in, and financial MACOM to provide support. Requests documents. for extension or changes to agreements (3) The US Secret Service (USSS). (i) will be processed as noted in tables 2– Army regulation 1–4 provides policies 1, 2–2 and paragraph (a)(2) of this sec- and procedures for Army support to the tion. Secret Service. Support will be pro- (5) The Federal Bureau of Investiga- vided only on the request of the Direc- tion. (i) Requests for aircraft piracy as- tor, United States Secret Service or his sistance, received from Federal au- authorized representative. It will be thorities by Army field commands or provided only to assist the United activities, will be forwarded through State Secret Service in performance of command channels by telephone (con- its statutory protective functions. firmed by electrically transmitted (ii) Routine requests are sent by the message) to the Military Support Divi- United States Secret Service direct to sion, ODCSOPS (DAMO-ODS), the Office of the Special Assistant to AUTOVON 255–3848/7433/2003 (WATS 202– the SECDEF for approval. Approved re- 695–2003). These requests will be ap- quests involving Army resources are proved by the DOD General Counsel (or tasked through HQDA (DAMO-ODS) to designee). the proper command. Approved re- (ii) The requests will then be sent to quests for resources of other Services the National Military Command Center are tasked direct to the proper Service. (NMCC). It will coordinate between the (iii) Approved requests for resources lending accountable property officer to be used in oversea areas (regardless and the borrower. of Service) will be passed from the Of- (iii) In urgent cases, the Deputy Di- fice of the Special Assistant to the SECDEF to the Joint Chiefs of Staff rector for Operations, NMCC, may ap- (JCS) for tasking of the proper unified prove requests upon his or her own re- command. sponsibility. This is subject to a later (iv) In urgent situations, the United report to the chairman of the Joint States Secret Service may request Chiefs of Staff and the DOD General military resources from the nearest Counsel. military commander who is authorized (iv) Approved requirements will be to take action consistent with the ur- passed to the Secretary of the Army by gency. As soon as possible, they will telephone and confirmed by elec- seek guidance/approval through com- trically transmitted message. The Sec- mand channels to the approval author- retary of the Army will then assign the ity (Spec Asst to the SECDEF). requirement to the proper command (4) Drug and narcotics interdiction ac- (or staff agency) which will contact the tivities. All non-DOD Federal agencies designated Federal civil official and requesting DOD resource in support of confirm the details of the request.

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Modification of the requirement to bet- at the disaster scene, requests may be ter perform the mission is authorized if received from the Red Cross. the Federal official agrees. (ii) HUD Regional Directors for (6) Enviromental Protection Agency FDAA, or FCOs, will send requests for (EPA), US Coast Guard (USCG), or Na- loan of materiel to the Commanding tional Response Team (NRT). Non-DOD General, FORSCOM, or to the proper Federal agency requests for loan of ma- CONUS Army commander. (Requests teriel to combat oil and hazardous sub- for Defense Civil Preparedness Agency stance pollution spills will be made di- (DCPA) resources will be sent to DCPA rectly to the Commanding General, regional offices.) FORSCOM. Requests will be made by (e) Civilian activities—(1) Veterans’ Or- an ‘‘On Scene Coordinator’’ (OSC) of ganizations. Loan requests by author- the EPA, or by the USCG acting for the ized veterans’ organizations (as listed Department of Transportation. The in VA Bulletin 23A) will be sent to the pollution spill NRT may also initiate commander of the CONUS Army area requests. Approval authority is shown (or Commander, MDW), for the area in table 2–1. where the materiel will be required. (d) Civil authorities. Loans of materiel (See appendix G.) to civil authorities for use during civil (2) Scouting loans. National and re- disturbances and disasters will be made gional scout executives will send re- as follows: quests (restricted to DOD support of national and world jamborees) accord- (1) Civil disturbances. Requests for ing to chapter 7, AR 725–1. (See § 621.4 of Army materiel in anticipation of (or this title.) during) civil disturbances will be (3) Loans/Leases under the provisions of promptly sent through command chan- Title 10 U.S.C. 2667. Requests for loans nels to the approving authority (UCOM from other civil activities and organi- commanders will coordinate requests zations may come into the DOD originating from areas outside CONUS) through various channels; e.g., tele- as follows: phone call to local installation com- (i) Requests for resources that re- mander, letter to Congressmen, or di- quire Secretary of the Army approval rectly to the Secretary of Defense or will be sent through channels to HQDA Army. Each request will be forwarded (DAMO-ODS) (para 4, app B). to the authority having the item and (ii) Requests for group three re- having the authority to approve the resources (§ 623.2(a)(5)) that are not avail- quest. (See appendix B and table 2–1.) able to commanders having the ap- In cases where approval is question- proval authority will be sent through able, the request may be submitted channels to HQDA (DAMO-ODS). Inter- through channels to HQDA (DALO- mediate commands may approve and SMD) WASH DC 20310 (para 2, app B) make available the requested re- recommending approval/disapproval ac- sources. tion. (iii) Requests received by other DOD (f) Loans to the United Kingdom (UK), agencies will be referred to local Army Canada, and Australia. All requests for installation commanders for proc- loans (restricted to materiel for use in essing. the ‘‘Standardization Program’’) to the (2) Disaster relief. Requests for loan of UK, Canada, or Australia will be sent materiel to support disaster relief will to Commander, DARCOM, ATTN DRC- be handled as follows: IRD for approval. AR 795–204 addresses (i) Valid requests for disaster relief loans to other allied governments. (See assistance (see § 623.2(a)(4) for decision- DOD Military Assistance and Sales making process) will be given to the Manual, DOD 5105.38–M.) DOD liaison (a military officer) as- (g) Special materiel requests—(1) Loan signed to the disaster; or forwarded to of Communications Security (COMSEC) the CONUS Army commander in which Equipment. Subject to provisions of this the disaster occurs. (See appendix G.) If regulation, requests for loan of no Federal Disaster Assistance Admin- COMSEC equipment will be sent to the istration (FDAA) official (HUD Federal Commander, US Army Communica- Coordinating Officer (FCO)) is present tions Security Logistics Agency (para

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24, app B) for approval, loan action, and Card col- Code or data establishment of loan records. All umns loans of Army COMSEC equipment to 1–3 ...... ‘‘AOE’’. civilian authorities or activities will be 4–6 ...... RIC of NICP (lender). according to Technical Bulletin 380–41. 7 ...... Media and status code. 8–22 ...... National stock number. Standard Form 153 will be annotated to 23–24 ...... Unit of issue. show purpose of the loan, expected date 25–29 ...... Quantity. of return, and authority for the loan. A 30–43 ...... Document number. (30–35) ...... DODAAC of the requisitioner, if applicable, copy will be sent to the Director, Na- otherwise DODAAC of accountable prop- tional Security Agency (NSA), ATTN: erty officer (lender). S3, Fort George G. Meade, MD 20755. (36–39) ...... Julian date. (40–43) ...... Serial number. (2) Loan of arms and accouterments. 44 ...... ‘‘N’’ for nonrecurring demand. Requests for loan of arms and 45–50 ...... Supplemental address (loanee DODAAC) for accouterments will be sent by request- DOD units. For non-DOD activities enter the shipping destination. ing agencies directly to the Secretary (45) ...... ‘‘Y’’. of the Army, Military Support Divi- (46–49) ...... Julian date of receipt of loan request. sion, HQDA (DAMO-ODS) (para 4, app (50) ...... Alphabetic (except I or O) indicating which loan of the day is first; e.g., A-first, B-sec- B). Requests received out of this chan- ond, etc. nel will be returned to the originator 51 ...... ‘‘M’’. for resubmission. The Secretary of the 52–53 ...... ‘‘G4’’ for loans to nonresearch and development activities. ‘‘G6’’ for loans to research Army (or designee) is the approval au- and development activities. thority. See § 623.5 for procedures. 54–56 ...... Blank. (3) War reserves and operational project 57–59 ...... Project code if applicable. Note: This will be the same for all loans. Project codes will be stocks. Regulatory guidance with reassigned by Chief, Logistic Systems Sup- spect to loan of war reserves and oper- port Activity, ATTN: DRXLS-LCC, Cham- ational project stocks to DOD organi- bersburg, PA 17201. It will be sent by message to all interested addresses. zations is found in chapter 8, AR 710–1. 60–61 ...... Priority. Loans of war reserves and operational 62–64 ...... RDD. project stocks to non-DOD activities 65–66 ...... Blank. 67–69 ...... Depot RIC. will be according to this regulation and 70 ...... Purpose code. must be approved by HQDA (DALO- 71 ...... Condition code. SMW) (para 3, app B). 72 ...... Management code. (4) Loan of historical property and art. 73–80 ...... Blank. Requests for loans of Army historical (2) Loaned property will be kept on property and military art will be sent the accountable records of the owning to the Commander, US Army Center of property account. The entry showing Military History (para 4, app B). Spe- the quantities loaned will be supported cific information on such loans is found by DD Form 1348–1 (receipt document), in AR 870–15 and AR 870–20. and copies of the loan agreement and surety bond (if required). The receipt § 623.4 Accounting procedures. document must be signed by the re- (a) Loan document format. (1) When sponsible official of the borrowing ac- the lending accountable property offi- tivity. It is then returned to the ac- cer receives copies of the loan request, countable property officer as a valid loan agreement, surety bond (if re- hand receipt for property accounting quired), and written loan authorization purposes. from the approving authority, the loan (3) Loans will be processed by ac- request will be converted to Military countable property officers according to normal supply procedures except as Standard Requisitioning and Issue Pro- modified by this regulation. cedures requisition formal (DD Form (4) Accountable property officers will 1348) as follows: (NOTE: In emer- keep loan files with enough docu- gencies, authorization may be made by mentation to provide an audit trail for telephone. The format request, agree- loan transactions and a single source of ment, bond, and authorization will fol- accounting and billing for reimburse- low. Informal records should be also ment. No separate property book ac- maintained.) counts will be set up for these loans.

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Items, with dates shipped, will be iden- Signature of responsible officer tified by use of ‘‘loan control numbers’’ llllllllllllllllllllllll in loan jacket files and in supporting Typed name of responsible officer documentation. The files will include llllllllllllllllllllllll Address of responsible officer copies of— llllllllllllllllllllllll (i) The loan request. If the request Date certificate was signed was made by telephone (urgent), a copy of the Memorandum for Record pre- Figure 1. Sample receipt certificate pared to summarize the call will be (3) One copy of each signed DD Form used. 1348–1 (for non-DOD activities, one (ii) The loan agreement. copy of the signed certificate) will be (iii) The surety bond (with cash, cer- returned to the accountable property tified check, US treasury bonds, or ade- officer. Also, one copy of each will be quate bond from a bonding company). kept in the borrower’s file. (iv) The approving authorization to (4) The installation or depot trans- make the loan. portation officer is responsible for co- (v) DD Form 1348–1 used for shipping ordinating movement of the items that the items. must be shipped. (vi) A master loan register with the (5) Shipments, including those to for- loan control number and shipping doc- eign countries, will be made on com- ument number. mercial bills of lading (CBL). Freight (b) Shipment of loaned materiel. (1) charges will be paid by the borrower. Loaned Army materiel will be shipped The CBL will cite proper project codes. only to the chief of the borrowing ac- NOTE: In emergencies where use of tivity or to a designee authorized to re- CBL would delay shipment, govern- ceive and sign for the materiel. To ment bills of lading (GBL) may be used keep the materiel out of unauthorized subject to later reimbursement. Ship- hands, consignees (receivers) will be ments to Boy Scout World Jamborees advised of the items and quantities to in foreign countries will be by GBL un- be loaned; the source of supply; wheth- less otherwise specified by the Boy er the items are to be picked up or Scouts. shipped; and of shipments made. (6) Shipments will be consolidated to (2) All shipments of loaned equip- the maximum to get the lowest charges ment will be documented on DOD sin- available. gle line item ‘‘release or receipt’’ docu- (7) Separate shipping instructions ment (DD Form 1348–1). These will be will be provided for each recipient, con- initiated by the lending accountable vention, jamboree, etc., to ensure cor- property officer. Packing, crating, han- rect consignee and railhead addresses. dling, estimated transportation costs, (8) Transportation will be at no ex- and serial numbers (if applicable) of pense to the government. The Defense items shipped will be shown on all cop- Transportation Services (Military Sea- ies. The consignee will be given ad- lift Command, Military Airlift Com- vance copies of the DD Form 1348–1 as mand, and Military Traffic Manage- notice of shipment, and a list of DD ment Command) will send all billings Form 1348–1 document numbers. For for such transportation costs to the US loans to non-DOD activities two copies Army Finance and Accounting Center of the certificate below will be pre- (USAFAC). The USAFAC will then bill pared by the accountable property offi- the fiscal station servicing the ac- cer (see fig. 1). It will accompany the countable property office that made DD Forms 1348–1. the loan. This fiscal station will then ‘‘I certify receipt of and assume re- bill the borrower for these transpor- sponsibility for the Army materiel list- tation costs. Army materiel loaned to ed on DD Form 1348–1. Control numbers non-DOD activities is not authorized on DD Form 1348–1 follow. The items for oversea movement on a space avail- were received in good condition except able basis by MSC or MAC without as noted on the DD Form 1348–1. Serial their prior approval. numbers have been verified (omit if not (c) Receipt of borrowed property. (1) applicable).’’ The person authorized to receive the llllllllllllllllllllllll materiel (whether shipped or picked

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up) will check the quantities received returned to the Army in the condition against the quantities shown on the DD received, less fair wear and tear, unless Form 1348–1. This person will also the terms of agreement specify other- verify the condition of the materiel. wise. Any variation in quantity or condition (ii) Property for which repair cost is must be resolved at once. If the short- claimed will be held at the Army depot age or damage is not due to a common or installation until final charges are carrier, the borrower will give the ac- determined and a release is given by re- countable property officer the National spective property officers. Stock Number, document number, and (iii) Return of materiel loaned to an explanation of the variation at rifle clubs and schools will conform once. This establishes a basis for as- with § 623.5. sessing charges on termination of the (2) Accountable property officer actions. loan. Replacement shipments, when re- (i) At the end of a loan period, recall, quired, will be covered by a DD Form or upon notice by the borrower that 1348–1. All variations will be noted on the loaned materiel is no longer need- the reverse side of the bill of lading. ed, the accountable property officer (2) When a DD Form 1348–1 has not will send a letter of instruction to the been received by the borrower and does borrower for return of the materiel. He not accompany the shipment, an infor- will verify or modify the turn-in in- mal report will be made to the ac- structions provided in the loan agree- countable property officer at once. It ment. will include the nomenclature, quan- (ii) These procedures will be used by tities, condition, and if applicable, the accountable property officers to termi- model numbers and serial number of all nate loans: material received. (A) For loans up to 30 days no spe- (3) When shipment has been verified, cific termination action is necessary the borrower (or designee) will enter except when materiel is not returned the quantity received on two copies of by the loan due date. Then, a written the DD Form 1348–1. Serial numbers loan termination notice will be sent to will also be entered for serial numbered the borrower. A follow-up notice will items. The completed copies of the DD be sent every 15 days until the materiel Form 1348–1 will be signed by the au- is returned or other settlement is thorized person. One copy of the DD made. Form 1348–1 and one copy of the signed certificate (receipt of the materiel) will (B) For all other loans 15 days before be returned to the accountable prop- the loan is due, a loan termination no- erty officer. tice will be sent by the lending activity (4) If shipments are received damaged to the borrower verifying (or modi- or short, take action described in fying) the turn-in instructions. § 623.4(g). (C) Follow-up of loan termination no- (d) Accounting by borrower. Non-DOD tice will be made every 15 days until borrowing activities should maintain a the materiel is returned or other set- system of jacket files. This should in- tlement is made. clude copies of all documents that au- (iii) After receiving inspection re- thorize the loan of materiel and relate ports (§ 623.4(e)(3)) and final shipment to loan transactions. Such files will in- receipts, the accountable property offi- sure return of materiel within the ap- cer will clear the loan records. proved loan period. Files should be re- (iv) The accountable property officer tained for audit or any other purpose will then advise the borrower of the as required. These files may be de- transaction completion by furnishing stroyed upon turn in of the borrowed receipted copies of the receiving docu- materiel, final completion of account- ment(s). ing, and reimbursement for Army costs (v) The accountable property officer related to the loan. DOD borrowers will will notify the servicing finance and conform to the requirements contained accounting office (FAO) of any reim- in existing regulations. bursement required. (e) Return of borrowed materiel—(1) (3) Actions by the receiving installation, General. (i) Borrowed materiel will be depot, or arsenal. (i) The installation,

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depot, or arsenal receiving activities voucher to the account. No approval of will inspect returned materiel. this voucher is needed. (A) If the quantity received differs (ii) For shortages, act to obtain reim- from the quantity shipped, the actual bursement for the value of the missing quantity received will be entered on property or to adjust the discrepancy the DD Form 1348–1. by report of survey. (B) If the condition of the property (g) Lost, damaged, and destroyed mate- differs from that noted on the DD riel. (1) When loss or damage occurs Form 1348–1, the variation will be stat- during shipment, DOD and Federal ed. agencies will refer to AR 55–38 for spe- (ii) Loaned materiel returned in an cific instructions. unserviceable condition will be in- (2) Damage or loss which is the fault spected by qualified technical inspec- of the carrier will be billed to the car- tors at installation level and by qual- rier after reconciliaton. ity assurance activities at depots to de- (3) Army materiel lost, damaged, or termine condition code. destroyed while in the possession of (A) If the condition of returned mate- rifle clubs or schools will be handled as riel is the same as noted on the receipt described in § 623.5. document or the prepositioned mate- (4) Any Army materiel loaned at the riel receipt card, the item will be proc- request of an FDAA Regional Director essed as a normal receipt. which is not returned according to in- (B) If there is a discrepancy in the ac- structions in this chapter will be re- tual condition of the item or in the as- ported to the borrower and to the signed code on the receipt document, FDAA Regional Director. The latter obtain an estimate of repair cost and will arrange for proper reconciliation continue normal receipt documenta- and reimbursement. tion processing. (C) The receiving depot or installa- § 623.5 Loan of arms and tion will prepare an Inspection and accouterments. Surveillance Report for each returned (a) General. (1) Loan of arms and item that needs repair. Cards will also accouterments requires special proc- be prepared for shortages. The cards essing and handling. Loans to DOD and will include the cost of equipment re- non-DOD activities will be handled as a pair or the value of shortage. A min- normal loan according to instructions imum of two copies of each report will in this section with the added require- be sent to the proper acountable prop- ment of maintaining serial number vis- erty officer. ibility. Loans of arms and (f) Loan inventories. (1) If a loan has accouterments as included herein are been approved or extended (by the SA) not applicable to Army National Guard for a period longer than 1 year, the ac- (ARNG). countable property officer will inspect (2) The Commanding General, Arma- and reconcile loan accounts with the ment Readiness Command (ARRCOM) borrower at the end of each 12-month (ATTN: DRSAR-MMS) has been des- period. ignated by Commanding General, Ma- (2) If no discrepancies are noted, the teriel Development and Readiness accountable property officer will file Command (DARCOM), as being respon- the signed annual inventory form in sible for keeping a centralized serial the borrower’s memorandum receipt number visibility record for all small jacket file. arms made for the Army. ARRCOM (3) If the inventory shows that maintains accountable property amounts and kinds of Army materiel records for loans to organizations such for which the borrower is responsible as the Director of Civilian Marksman- differ from that actually in his posses- ship (DCM); and for loans to non-DOD sion, the accountable property officer activities such as the Federal Bureau will— of Investigation (FBI), United States (i) For overages, assume account- Secret Service (USSS), United States ability for the overages noted on the Customer Service (USCS); or rifle annual inventory form. Use a copy of clubs, educational institutions, and the annual inventory form as a debit veterans’ organizations.

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(3) Requests for loan of arms which retary) will be sent to ARRCOM, (para are type classified standard (logistics 12 app B) Rock Island, IL 61299, for control code A or B) will be filled with completion of a formal loan agreement the lowest type classified items avail- and issue of items. able. (4) Requisitioning, accounting, and (4) Borrowers of Army arms will be reimbursement procedures are given in fully responsible for the care, custody, § 623.4. However, upon receipt of signed and proper use of loaned materiel. copies of DD Form 1348–1 with the list- Physical security measures must be ing of verified serial numbers from the equal to or greater than the minimum consignee, the ARRCOM Arms and requirements set forth in Army Regu- Accouterments Property Officer will lation 190–11 and Army Regulation 190– send the required transaction data to 49. the DOD Small Arms Serialization Pro- (5) If borrowed arms are lost, stolen, gram (DODSASP) at ARRCOM. These or unaccounted for, the borrower must data will indicate that the small arms inform the lender (accountable prop- on loan to other Government agencies erty officer), the local police, and the are accounted for under DOD Activity FBI within 24 hours after discovery. Address Code W52P41. (6) This regulation does not apply to (5) Shipment and returns are de- arms issued to Reserve Officers Train- scribed in § 623.4 except as follows: ing Corps units under the National De- (i) The responsible property officer fense Act. Army Regulation 710–2 is ap- for materiel or loan will request dis- plicable. position instructions from the account- (b) Loans to civilian activities (other able property officer when loaned ma- than rifle clubs and educational institu- teriel is no longer needed or at the end tions). (1) Arms and accouterments may of the loan period. Loaned materiel be loaned by the Army to civilian au- may be withdrawn from the borrowing thorities and to civilian activities as activity at any time to satisfy military follows: (§ 623.5(c) covers rifle clubs and requirements. institutions.) (ii) The accountable property officer (i) For use in protection of public will: money and property (10 U.S.C. 4655). (A) Issue shipping instructions for (ii) Obsolete or condemed rifles (not the return of property to a designated more than 10), slings, and cartridge installation. The letter of instruction belts may be loaned to local units of will contain a MILSTRIP document any national veteran’s organization for number (AR 725–50) for each line item use by that unit in ceremonies. (For scheduled for return to be used for the example, a funeral for a former mem- shipment. The shipper will be directed ber of the armed forces.) The organiza- to cite this document number on the tion must be recognized by the Vet- shipping document. erans’ Administration (VA) (10 U.S.C. (B) Prepare and submit to the receiv- 4683). ing installation a prepositioned mate- (iii) Arms and accouterments loaned riel receipt card (DOD Materiel Receipt to organizations listed in § 623.5(c)(1) Document (DD Form 1486)) (Document for a period of 1 year or less will be ac- Identifier DWC) as advance notice of counted for by ARRCOM. Loans of the shipment. items that exceed 1 year will be ac- (1) Exception data will be annotated counted for by the DCM under § 623.5(c). as follows: ‘‘Return of Loan from Other (2) Requests for loan (or extension of Government Agency—Report Receipt loan) of Army arms and accouterments of Arms and Accouterments Account- will be sent by requesting agencies able Property Officer, ATTN: DRSAR- through HQDA (DALO-SMD), (para 2, MMD.’’ app B) to the Secretary of the Army. (2) A copy of the letter of shipping in- Requests received outside of this chan- structions (paragraph (b)(5)(ii) of this nel will be returned to the originator section) will be inclosed with the for direct submission to the address prepositioned materiel receipt card for above. information. (3) Requests approved by the Sec- (iii) Upon receipt at the receiving in- retary of the Army (or Under Sec- stallation, property will be inspected

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immediately. Cost of repairing unserv- ficer of the Army or Marine Corps as iceable items and cost of replacement, Director of Civilian Marksmanship (10 if irreparable, will be determined at U.S.C. 4307). The DCM is responsible time of inspection. The MILSTRIP re- for— ceipt card will be mailed to the ac- (i) Control and accountability of countable property officer with esti- Army materiel issued to civilian rifle mated damage cost and detailed mate- clubs; riel condition as exception data. (ii) Policies and procedures for the (iv) Upon notification of materiel re- issue of arms and ammunition to civil- ceipt, the accountable property officer ian rifle clubs; and will: (iii) Ensuring proper bonding of clubs (A) Clear the loan record with a cred- before issue of Army materiel. The it entry and process the receipt to the Secretary of the Army has further inventory records as an increase on made the DCM similarly responsible hand to asset balance. for loans to institutions (schools). (B) Furnish receipted copies of the (3) Property transactions. US Army Ar- receiving document to the consignor mament Materiel Readiness Command and the responsible property officer (ARRCOM) will transfer accountability closing the transaction. for materiel shipped to civilian rifle (c) Loans to rifle clubs and educational clubs and institutions to the DCM. The institutions—(1) Authorization. Arms and DCM will keep a mission stock record accouterments may be loaned to rifle account for these items as shown in clubs and educational institutions for Army Regulation 710–2. In addition, the periods established in table 2–2 under account will note all property trans- the following conditions: actions between the DCM and civilian (i) Rifled arms may be loaned to ci- rifle clubs and institutions as follows: vilian rifle clubs for promotion of (i) Loan and return of arms and marksmanship training among able- accouterments to (from) civilian rifle bodied US citizens (10 U.S.C. 4308). clubs and institutions will not be post- (ii) Arms, tentage, and equipment, as ed to the accountable record as loss or the Secretary of the Army deems nec- gain vouchers. They will be posted as essary, may be loaned to an edu- ‘‘loan transactions’’ with the DCM re- cational institution to provide proper taining accountability. In addition to military training where there is no debit, credit, and adjustment voucher ROTC, but there is a course in military files, the DCM accountable property of- training prescribed by the Secretary of ficer will keep a ‘‘loan voucher’’ file in the Army and there are at least 100 two sections; e.g., ‘‘active’’ and ‘‘ter- physically fit males over 14 years of minated.’’ age (10 U.S.C. 4651). (A) The active section (suspense for (iii) Magazine rifles and appendages items on loan) will contain DD Form may be loaned to schools having a uni- 1348–1 or a letter acknowledging receipt formed corps of cadets of sufficient of the items. (The signature of the bor- number for target practice. Models rower will be according to paragraph loaned must not be in use at the time, (4) (v) or (vi) of this section.) This sec- or needed for a proper reserve supply tion will contain a folder for each ac- (10 U.S.C. 4652). tivity serviced by the DCM. The active (iv) Ordnance and ordnance stores loan vouchers will be filed in National may be loaned to Washington, DC, high Stock Number and voucher number se- schools for military instruction and quence. This section serves as the DCM practice (10 U.S.C. 4653). loan record. (v) Obsolete ordnance and ordnance (B) The terminated section (for items stores may be loaned to educational in- no longer on loan) will contain the stitutions and to State soldiers’, sail- original loan shipping document (loan ors’, and orphans’ homes for drill and voucher). The return receipt document instruction if recommended by the which terminates the loan will be at- Governor of the state or territory con- tached. The receipt document will concerned (10 U.S.C. 4685). tain the original shipping document (2) Director of Civilian Marksmanship number and the return advice code (DCM). The President may detail an of- ‘‘IQ.’’

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(ii) Shipments of expendable items items) of all property received. This (e.g., ammunition, targets, etc.) will be letter will be sent as soon as possible posted as a credit to the accountable after receipt of the property. The re- record. Accountability will be dropped ceipt letter will be used by the DCM as (These items are deemed to have been a loan voucher. One copy will be re- consumed at the time of issue). corded in the voucher register and (iii) Expendable items returned by placed in the voucher file. The loan ac- rifle clubs and institutions will be post- tion will be posted to the DCM stock ed to the accountable record as a debit record account. voucher. The DCM will determine dis- (5) Property returns. When property is position of these items. returned by civilian rifle clubs or insti- (4) Requisition procedures. (i) The tutions, the DCM will prepare seven DCM will prepare requisitions based on copies of the DD Form 1348–1. Five cop- information from the rifle clubs or in- ies will be mailed to the rifle club or stitutions. DA Form 1273 (Requisition institution; one will be kept in sus- for Articles Authorized for Issue to Ci- pense in the club’s or institution’s vilian Rifle Clubs) will be used. Two jacket file; and one will be sent to the completed copies of the requisition will US Army Management Systems Sup- be sent to the requester. port Agency (USAMSSA), Wash., DC (ii) The rifle club or institution will 20310, to update the ‘‘rifles intransit complete the form and return one program.’’ The rifle club or institution signed copy to the DCM, HQDA, Sec- will enter on the five copies the ship- retary Field Directorate Marksman- ment date, how shipped, the quantity ship (SFDM), (para 7, app B) and keep shipped, and other necessary data not one copy for file. entered by the DCM and distribute the (iii) On receipt of the signed copy of five copies as follows: DA Form 1273, the DCM will take prop- (i) Two copies to the consignee (re- er issue action. When more arms are ceiving depot, arsenal, or installation). required by the DCM, a DD Form 1348 One copy of the DD Form 1348–1 re- will be prepared and sent to the Sec- ceived by the consignee will be used to retary of the Army for approval (AR tally the shipment and to account for 725–50). property received. The other copy will (iv) The supply source responsible for be signed by the accountable property the loan will ship the materiel directly officer (or representative) and will be to the rifle club or school. sent to the DCM to terminate the open (v) DD Forms 1348–1 received with the receipt in the loan voucher file. shipment or by mail, will be annotated (ii) One copy with the shipment. and signed by the person authorized to (iii) One copy to the DCM, HQDA receive and sign for property for the (SFDM), accompanied by the bill of rifle club or school. The quantity and lading (where available). condition of the items received will be (iv) One copy retained by the rifle entered thereon. This entry will be club or institution. based on a physical check and inspec- (6) Lost, damaged, or destroyed prop- tion of the materiel. Serial numbers of erty. Loss, damage, or destruction of items received (if applicable and not property in the possession of a rifle noted) will also be entered. Two of the club or institution will be reported completed copies will be signed by the within 24 hours by telephone to the person authorized to sign for the club DCM (202–693–6460), the local police, or institution. They will be mailed to and the FBI. All public and local laws the DCM, HQDA Secretary Field Direc- must be complied with. Rifles and torate Marksmanship (SFDM). The other equipment (except ammunition) third completed copy will be kept in that becomes unserviceable will be re- the unit’s file. ported to the DCM by the club or insti- (vi) If a DD Form 1348–1 is not re- tution. The DCM will give instructions ceived with the shipment or is not re- for return of the equipment without ex- ceived by mail, a receipt letter will be pense to the government. Any equip- sent to the DCM. It will set forth the ment damage or loss that is the fault nomenclature, quantities, condition, of the club or institution will be deter- and serial numbers (of serial-numbered mined by a report of survey (AR 735–

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11). The club or institution must then bursement for all other support for reimburse the DCM. The DCM may re- USSS will be according to AR 37–27. place damaged equipment after reim- (vii) The cost of emergency support bursement. Government property lost will be billed directly to the recipient. or destroyed without fault or neglect (2) Procedures. (i) The Army account- on the club’s part will be replaced, if able property officer handling the loan replacements are available. The club of DLA stock fund items will coordi- will pay only shipping and handling nate DLA billings and borrower reim- charges. bursement. The borrower can make [AR 700–131, 45 FR 62038, Sept. 18, 1980; AR payment directly to the Defense Stock 700–131, 61 FR 45890, Aug. 30, 1996] Fund. (ii) Installation financial accounting § 623.6 Reimbursement for loan of for ‘‘accounts receivable’’ will conform Army materiel. with Army Regulation 37–108. (a) Reimbursement policies and proce- (iii) The finance and accounting of- dures—(1) Policies. (i) DA elements do fice (FAO) supporting the supplying ac- not program for costs related to loan of countable property officer will record Army materiel. all charges, including accounts receiv- (ii) Loans to non-DOD Federal activi- able of Army Stock Fund offices (or ties are made on the basis that there branch offices), in separate ledger ac- will be no extra cost to the Army. counts for each borrower. Costs that are in addition to normal (iv) Charges and collections recorded Army operating expenses will be reim- in each loan account will be reported bursed by the borrower. This provision per Army regulations and directives will be a part of the loan agreement. prescribing the reporting of the fund (iii) In cases of aircraft piracy, civil status in any current fiscal year. disturbance, disaster relief, or protection of the President or visiting dig- (v) Billing will be initiated on Stand- nitaries, emergency support will not be ard Form 1080, and sent to the borrower withheld for lack of a formal reim- within 30 days of turn-in of materiel bursement agreement. In these cases, and loan termination. For loans of the supporting Army element will ab- arms and accouterments and issue of sorb initial costs (within existing fund ammunition pursuant to 10 U.S.C. 4655, availability). Reimbursement will be the Standard Form 1080 will be anno- coordinated later. tated to show that collections are to (iv) Loans made under the provisions reimburse DA appropriations. of Title 10 U.S.C. 2667 will provide that (vi) Special appropriations estab- the borrower must pay a fair monetary lished to support disaster relief will be rental. The fair monetary rental will used promptly by Army commanders be determined on the basis of pre- concerned to ensure that all direct ex- vailing commercial rates or computed penses are charged to the special ap- by sound commercial accounting prac- propriation. Exclude those charges sub- tices including a return on capital in- ject to reimbursement by the American vestment and administrative cost as National Red Cross (ANRC). ANRC re- well as depreciation. Leases made imburses for supplies, materiel, and under this code section will include a services for which they are responsible provision establishing the rental cost in the disaster area. of the materiel and method of pay- (b) Reimbursable costs. Unless specifi- ment. cally stated, borrowing agencies, au- (v) The Army National Guard thorities, and activities will reimburse (ARNG) is responsible for reimburse- the Army for all costs related to loan ment of costs, over and above normal of Army materiel to include but not DA operating expenses, related to the limited to the following: borrowed Army materiel. (1) Any overtime pay and pay of addi- (vi) Support to the United States Se- tional civilian personnel required to cret Service (USSS) will be on a reim- accompany, operate, maintain, or safe- bursable basis except for costs directly guard borrowed equipment. related to protection of the President (2) Travel and per diem expenses of or Vice President. Requests for reim- Army personnel (military and civilian).

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(3) Packing, crating, handling, and (d) Funding records. (1) Records of all shipping from supply source to destina- costs (other than normal operating ex- tion and return. This includes port penses), related to loans of Army mate- loading and off loading. riel, will be kept at the accountable (4) All transportation including re- property officer level by the supporting turn for repair or renovation. finance and accounting office. This will (5) Hourly rate for the use of Army be done within existing Army financial aircraft. accounting systems. (6) Petroleum, oil, and lubricants (2) Separate subsidiary general ledger (POL) (including aviation fuel). accounts and/or files of documents (7) The cost of materiel lost, de- showing the total value of all issues stroyed, or damaged beyond economi- and materiel returned for credit, and cal repair except for Army aircraft, supporting documentation will be set motor vehicles, or motor craft used in up by the finance and accounting of- connection with aircraft piracy. fice. The accounts will be kept current (8) Utilities (gas, water, heat, and for each loan action so reports may be electricity). Charges will be based on made as prescribed; and so that ac- meter readings or other fair method. counts receivable can be processed for (9) Any modification or rehabilita- billing and collection action. tion of Army real property which af- (e) Determination of charges and settle- fects its future use by DA. In such ment. (1) Returned materiel will be cases the borrower will also bear the promptly classified by a qualified in- cost of restoring the facility to its spector with action as follows: original form. (i) Materiel classified as unserviceable, uneconomically reparable will be (10) Repair/overhaul of returned ma- billed at 100 percent of value. teriel. Renovation and repair will con- (ii) Materiel classified as unservice- form with agreement between the able, economically reparable will be Army and the borrower. (See paragraph billed for reduced utility (if appro- (e)(1) of this section.) priate) as well as for repair/overhaul (11) Repair parts used in maintenance costs. or renovation. (iii) The depreciation of borrowed (12) Price decline of borrowed stock materiel will be determined by tech- fund materiel at which returned prop- nical inspectors according to Army erty can be sold. Regulation 735–11. When qualified in- (c) Nonreimbursable costs. The fol- spectors are not available, returned lowing costs are normal operating ex- property will be received with ‘‘condi- penses of the Army for which no reim- tion’’ shown as ‘‘subject to final classi- bursement is required: fication by DA.’’ Accountable property (1) Regular pay and allowances of officers will complete classification Army personnel (except travel) and per promptly so charges and billing can be diem costs. made within 30 days of return of mate- (2) Administrative overhead costs. riel. (3) Annual and sick leave, retire- (2) All returned property which needs ment, and other military or civilian repair will be examined by a technical benefits except as provided in certain inspector to find cost of repair. Then cases; e.g., Army Industrial Fund regu- the accountable property officer will lations. prepare a property transaction record (4) Telephone, telegram, or other with supporting documents. These electrical means used to requisition records will be sent to the proper items, replenish depot stocks, or co- MACOM commander or CINC of UCOM ordinate the loan. for final review. They will include— (5) Charges for the use of Army (i) A statement on the transaction motor vehicles and watercraft except record identifying the financial ac- POL and per diem costs (paragraph (b) count to which the reimbursement of this section). money is to be deposited. (6) The use of real property (except as (ii) A statement on the transaction required for utilities, modification, record (if appropriate) as follows: ‘‘The etc.). losses and/or damages shown on the

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Property Transaction Record in the (B) Duplicate copies of all supporting amount of $lll represent the total documents. claim by the US Army for property (C) One copy of any correspondence loaned to llllllll. Upon settle- showing the reason(s) for nonpayment ment and deposit to the proper ac- of the account. count, lender releases the (ii) The CONUS Army Commanding llllllll from further obliga- General, CINC of UCOM, or Com- tions.’’ manding Generals of DARCOM Mate- (iii) A description of the type and de- riel Readiness Commands, will also try gree of repair (separate addendum). to collect for these delinquent ac- (3) After the final review, an ap- counts. If all efforts fail, these ac- proved list of charges will be sent to counts, (with any delinquent accounts the servicing finance office for collec- applicable to billings initiated within tion. The property will be released for their own headquarters) will be sent to repair and returned to stock. the Director of Comproller Systems, (4) The finance office will send a let- HQDA (DACA-BUS). (Para 1, app B). ter to the borrower requesting pay- The letter of transmittal will state ment (payable to the Treasurer of the that the accounts are transferred ac- United States). Upon payment, collec- cording to this regulation. A copy will tion documents will be prepared and be sent to the FAO handling the ac- fiscal accounts credited. The MACOM counts. The FAO will then transfer the or UCOM Surgeon will ensure the stock account to inactive status. A Standard fund is reimbursed for expendable med- Form 1017G (Journal Voucher) will be ical supply losses reported. prepared showing a debit to account 3052 (Transfer of Accounts Receivable) (5) The finance office will advise the and a credit to the proper accounts re- loaning accountable property officer ceivable. that settlement has been made. Prop- (iii) Appropriations available to the erty transaction records will be closed. accountable property officer or instal- (6) The approving authority will then lation will be used for reimbursing; return the bond to the borrower. e.g., the Army Stock Fund or Army In- (7) The value of supplies and equip- dustrial Fund accounts. Any later re- ment returned to the Army will be imbursements received will be credited credited to the account originally deb- to the Army appropriation from which ited at the time of issue. FDAA Re- payment was made. gional Directors may find that it is not (3) Upon receipt of the accounts in- in the public interest to return bor- cluded in paragraph (f)(2) of this sec- rowed materiel that has not been con- tion, the Comptroller, HQDA (DACA- sumed, lost, or damaged. They will ne- BUS), will take further collection ac- gotiate with the CONUS Army con- tion under normal operating proce- cerned for proper reimbursement for dures. All later collection action is the the borrowed materiel not returned. responsibility of the Comptroller. Ac- (f) Delinquent and uncoolectible accounting records and reports will con- counts. (1) In cases of unsatisfactory form with normal procedures. When settlement, bond proceeds will be used further collection effort by the Comp- to satisfy the claim. troller fails, these accounts will be (2) If this does not settle the account, dropped from receivable balances of the then 6 months after the final report Army. They will be referred to the and after all collection efforts have General Accounting Office (GAO). failed— (i) Servicing finance offices will send § 623.7 Reports. delinquent ‘‘accounts receivable’’ re- (a) General. Reports of Army materiel ports to commanders of CONUS Armies loaned to non-DOD activities must be and DARCOM readiness commands, and forwarded as described below. to CINCs of UCOMs, by forwarding— (b) Aircraft piracy. (1) Commands and (A) Duplicate copies of Standard agencies providing aircraft piracy sup- Form 1080 billing documents showing port will initially report through com- complete accounting classification to mand channels by telephone to the which reimbursement is to be credited. HQDA, (DAMO-ODS). (Para 4, app B.)

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Confirmation will be made by elec- (4) The Secretary of the Army will trically transmitted message to HQDA, send information copies of civil dis- ATTN: DAMO-ODS. These reports are order reports to the DOD General exempt from reports control under Counsel and the US Deputy Attorney Army Regulation 335–15. Initial reports General. will include all available details. Fol- (5) Reports of civil disturbance oper- lowing is a guide for content of reports. ation costs (RCS DD-A(AR)1112) also (i) Supporting unit. will be prepared as shown in Army Reg- (ii) Home station of supporting unit. ulation 500–60. (iii) Support provided and duration of (e) Disaster assistance. When Army requirement. materiel is loaned in support of dis- (iv) Changes, if any, in support re- aster assistance, CONUS Army Com- quested or duration of requirement as manding Generals and UCOM CINCs made by the Federal civil official in will send reports as follows: charge. (1) Initial reports. Initial reports will (v) Additional remarks. be made by telephone to the Com- (2) A final report noting termination manding General, FORSCOM of support will be made. (AUTOVON 588–3912), who will, in turn, (c) Civilian rifle clubs and schools. (1) telephone the report to the Military Each affiliated club and institution Support Division, ODCSOPS, (schools) must file an annual report AUTOVON 225–2003 or 7045). This will (DA Form 1277, Annual Statistical Re- be followed within 12 hours by a Tem- port of Civilian Rifle Club) on the anni- pest Rapid Materiel Report in message versary date of the loan with the DCM. form and sent electrically. The mes- (2) A roster of club members will list sage report will be prepared according each member required to fire annually. to Army Regulation 500–60. It will include the full name, address, (2) Daily message reports. Tempest and age; the DCM course; score; and Rapid Daily Materiel Reports of Army the date the member fired for record. materiel loaned to support disaster re- (3) A description of the club’s proce- lief will also be sent by electrically dures and facilities for safekeeping transmitted message. The reports will arms and ammunition will be appended cover the 24-hour period from 0601Z to to the roster of club members. 0600Z. The reports must arrive at the (d) Civil disturbances. (1) Requests to HQDA (DAMO-ODS), no later than meet civil disturbances are of two 1100Z the same day. Daily reports will types: be sent according to the format in (i) Type I—Requests to meet an ur- Army Regulation 500–60 except that gent need during an actual disorder. part III will not be included. Also, ‘‘no (ii) Type II—Requests in anticipation change reports’’ may be made by tele- of an imminent civil disorder. phone. On the day of the last daily (2) Approving authorities, other than message report include the words the Secretary of the Army, will prepare FINAL DAILY REPORT in the subject reports (RCS DD-A(AR)1112) on all re- line. quests for loan of Army materiel to (3) Final reports. In addition to the support civil disturbances. The reports final Tempest Rapid Daily Materiel Re- will be sent within 2 working days port, a final report on military assist- after receipt of the request. They will ance provided will be sent within 45 be prepared in the format shown in working days of termination of dis- Army Regulation 500–60. They will also aster assistance. The CONUS Army serve as ‘‘the request’’ when no other Commanding General will send the re- written request is available. port by 1st Class Mail through the (3) The reports will be sent to the Commanding General, FORSCOM, to (HQDA (DAMO-ODS)). When reports the HQDA (DAMO-ODS). The final re- are received from unified or specified port will include— commands, ODCSOPS will send an in- (i) An historic account of the dis- formation copy to the Joint Chiefs of aster. Staff (JCS) National Military Com- (ii) Cumulative totals of support mand Center (NMCC). given.

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(iii) A statement of accomplish- the approved request at once. Reports ments. will be telephoned through command (iv) Actual or estimated expenses ex- channels. cluding costs incurred by the Corps of (h) Other reports. Active Army ac- Engineers under Pub. L. 84–99. Costs countable property officers will make will be reported by Service by appro- semiannual reports on open loans. The priation, using three columns to iden- reports will be prepared as of the last tify normal costs, incremental costs, day of July and December. They will be and total costs. sent by the 15th day of the following (v) The status of reimbursements re- month. These reports will include the quested from borrowing Federal agen- items on loan, quantity, dollar value, cies, and civilian authorities and ac- and duration of the loans. The reports tivities. If reimbursement has not been will be sent to the approving authority. completed by the date of the final report, a separate cost report will be sent APPENDIX A TO PART 623—EXPLANATION upon final reimbursement payment. OF TERMS (vi) Lessons learned. As used in this regulation, the following ex- (4) Information copies. Information planation of terms apply: copies of all reports will be sent to the ACCOUTERMENTS. Equipment that is associ- proper HUD Regional Directors for ated with small arms characterized as per- FDAA and DCPA Regional Offices. sonal and individual that is available from (5) Additional information. Additional Army stocks. information may be needed by Federal APPROVING AUTHORITY. The person (or des- officials. Normally, such requests will ignee) authorized to approve specific types be telephoned by ODC SOPS Military of loans of Army materiel. (See table 2–1 Support Division to the Commanding and app B.) General, FORSCOM. ARMS. Weapons for use in war. CIVIL AUTHORITIES. Those elected and ap- (6) Pollution spills. The Commanding pointed public officials and employees who General, FORSCOM, will report com- govern the 50 States, District of Columbia, mittal of Army resources to the HQDA Commonwealth of Puerto Rico, US posses- (DAMO-ODS), by the fastest means. sions and territories, and governmental Daily and final Tempest Rapid Mate- subdivisions thereof. riel Reports will be sent with ‘‘not ap- CIVIL DEFENSE. All those activities and meas- plicable’’ shown in paragraphs 8, 9, and ures designed or undertaken to: 10 of the report. a. Minimize the effects upon the civilian (f) Drugs and Narcotics Interdiction population caused, or which would be caused, by an enemy attack upon the United States. Program. (1) Army staff agencies will b. Deal with immediate emergency condi- submit monthly status reports of actions which would be created by any such at- tions that support this program. The tack. reports will be as of the last day of c. Effect emergency repairs to, or the June and December, respectively. Re- emergency restoration of, vital utilities and ports will be sent to HQDA (DAMO- facilities destroyed or damaged by any such ODS), 4 working days after the end of attack (JCS Pub 1). the designated months. Reports will COMMUNITY RELATIONS PROGRAM. A program summarize all support during the pe- of action, to earn public understanding and riod to include pending or terminated acceptance, conducted at all levels of military command wherever stationed. The support plus estimated cost of items. program includes participation in public (2) Based on information received in events, humane acts, and cooperation with these reports, ODCSOPS will prepare a public officials and civil leaders (AR 360– report of the drug and narcotics inter- 61). diction assistance given by the Army. DEFENSE CIVIL PREPAREDNESS AGENCY This report will be sent through the (DCPA). A defense department agency re- Army Chief of Staff to the Secretary of sponsible for plans and preparations for the Army. civil defense and assistance to local governments in disaster relief planning. (g) United States Secret Service (USSS). DEPARTMENT OF HOUSING AND URBAN DEVEL- Army commands and agencies pro- OPMENT (HUD). The Federal department re- viding materiel support (routine or ur- sponsible for directing and coordinating gent) to the USSS will report any sig- Federal assistance for major disasters on nificant problems or deviation from behalf of the President.

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DOMESTIC ACTION PROGRAM. A program of as- ens to be off sufficient severity and mag- sistance to local, State, and Federal agen- nitude to warrant disaster assistance by cies for the continued improvement and de- the Federal Government. This assistance velopment of society (AR 28–19 and para 4– supplements the efforts and available re- 10, AR 360–61). sources of States, local governments, and EMERGENCY. Any catastrophe in any of the relief organization in alleviating the dam- United States which in the determination age, loss, hardship, or suffering caused of the President requires Federal supple- thereby. mentary emergency assistance. OBJECTIVE AREA. A specific geographical lo- EMERGENCY MEDICAL TREATMENT. The immediate application of medical procedures to cation where a civil disturbance or disaster wounded, injured, or sick, by trained pro- is occurring or is anticipated. fessional medical personnel. ROUTINE REQUESTS. Requests resulting from EXECUTIVE AGENT. That individual or his des- situations which are reasonably predict- ignee authorized to act as the US Govern- able or do not require immediate action to ment’s agent in making certain loans of prevent or reduce loss of life, property, or government materiel. The President of the essential services. Reduced efficiency of United States has delegated to the Sec- the requester’s operation is not in itself retary of the Army (or to his designee, the grounds for classifying a request higher Under Secretary of the Army) authority, than routine. as Executive Agent, to approve certain SMALL ARMS. Hand and shoulder weapons for loans of DOD materiel to non-DOD activi- use in war. ties. (See table 2–1.) Other ‘‘approving authorities’’ act as ‘‘Executive Agents’’ for SURETY BOND. A bond, including dollar de- the US Government, but do not have that posit, guaranteeing performance of a con- title. tract or obligations. FEDERAL AGENCY. Any department, inde- TERRORIST INCIDENT. A form of civil disturb- pendent establishment, government cor- ance which is a distinct criminal act com- poration, or other agency of the executive mitted or threatened to be committed by a branch of the Federal Government, except group or single individual in order to ad- the ANRC. vance a political or other objective, thus FEDERAL COORDINATING OFFICER (FCO). The endangering safety of individuals or prop- person appointed by the President to oper- erty. This definition does not include air- ate under the HUD Regional Director for craft piracy emergencies. Federal Disaster Assistance Administra- THREATENED MAJOR DISASTER. Any hurricane, tion to coordinate Federal assistance in tornado, storm, flood, high water, wind- Presidentially declared emergency or driven water, tidal wave, earthquake, major disaster. drought, fire, or other catastrophe which, FEDERAL DISASTER ASSISTANCE ADMINISTRA- in the determination of the Administrator, TION (FDAA). The agency within HUD delegated the disaster relief responsibilities FDAA, threatens to be of severity and previously assigned to the Office of Emer- magnitude sufficient to warrant disaster gency Preparedness. assistance by the Federal Government. FEDERAL FUNCTION. Any function, operation, This assistance will be used to avert or or action carried out under the laws of the lessen the effects of such disaster before its United States by any department, agency, actual occurrence. or instrumentality of the United States or URGENT REQUESTS. Those resulting from un- by an officer or employee thereof. foreseeable circumstances, civil disturb- FEDERAL PROPERTY. That property which is ances, civil defense needs, aircraft piracy, owned, leased, possessed, or occupied by secret service requirements, and disasters the Federal Government. when immediate action is necessary to pre- IMMINENT SERIOUS CONDITION. Any disaster or vent loss of life, physical injury, destruc- civil disturbance which is of such severity tion of property, or disruption of essential that immediate assistance is required to functions. save human life, prevent immediate human YOUTH GROUPS. Youth groups are groups such suffering, or reduce destruction or damage to property. as the Boy Scouts of America; Girl Scouts LOCAL GOVERNMENT. Any county, parish, of the United States of America; Civil Air city, village, town, district, Indian tribe or Patrol; Camp Fire Girls, Incorporated; The authorized tribal organization, Alaska na- Boy’s Club of America; Young Men’s Chris- tive village or organization, or other polit- tian Association; Young Women’s Chris- ical subdivision of any State. tian Association; Four H Clubs; and simi- MAJOR DISASTER. Any hurricane, tornado, lar groups. storm, flood, high water, wind-driven water, tidal wave, earth-quake, drought, fire, or other catastrophe which, in the determination of the President, is or threat-

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APPENDIX B TO PART 623—APPROVING B–14. Commander, US Army Aviation Re- AUTHORITY ADDRESSES/TELEPHONE search and Development Command, PO NUMBERS * Box 209, St. Louis, MO 63177; B–15. Commander, US Army Communica- B–1. HQDA (DACA-BUS), WASH DC 20310, tions and Electronics Materiel Readiness Telephone: AUTOVON 225–6336, WATS 202– Command, Fort Monmouth, NJ 07703; 695–6336; B–16. Commander, US Army Communica- B–2. HQDA (DALO-SMD), WASH DC 20310, tions Research and Development Com- Telephone: AUTOVON 227–5960, WATS 202– mand, Fort Monmouth, NJ 07703; 697–5960; B–17. Commander, US Army Communica- B–3. HQDA (DALO-SMW), WASH DC 20310, tions Security, Logistics Agency, ATTN: Telephone: AUTOVON 227–3159, WATS 202– SELCL-NICP-IM, Fort Huachuca, AZ 86513; 697–3159; B–18. Commander, US Army Forces Com- B–4. HQDA (DAMO-ODS), WASH DC 20310, mand, Fort McPherson, GA 30330, Tele- Telephone: AUTOVON 225–2003, WATS 202– phone: AUTOVON 588–2694, WATS 404–752– 695–2003; 2694; B–5. HQDA (NGB-ZA), WASH DC 20310, Tele- B–19. Commander, US Army Health Services phone: AUTOVON 227–2430, WATS 202–697– Command, Fort Sam Houston, TX 78234; 2430; B–20. HQDA (DAMH-HS), WASH DC 20314; B–6. HQDA (DASG-HCL), WASH DC 20310, B–21. Commander, US Army Military Dis- Telephone: AUTOVON 227–8286, WATS 202– trict of Washington, Fort Leslie J. McNair, 697–8286; Washington, DC 20319; B–7. Director, Civilian Marksmanship B–22. Commander, US Army Missile Materiel (SFNB) Room 1E-OM3, West Forrestal Readiness Command, Redstone Arsenal, Building, 1000 Independence Avenue, SW., AL 35809; Telephone: AUTOVON 223–6460, WATS 202– B–23. Commander, US Army Missile Re- 693–6460; search and Development Command, Red- B–8. Commander in Chief, US Army, Europe stone Arsenal, AL 35809; and Seventh Army, APO New York 09403; B–24. Commander, US Army Security Assist- B–9. Commander, First US Army, Fort ance Center, ATTN: DRSAC, 5001 Eisen- George G. Meade, MD 20755, Telephone: hower Avenue, Alexandria, VA 22333, Tele- AUTOVON 923–7500, WATS 301–677–7500; phone: AUTOVON 284–9638, WATS 202–274– B–10. Commander, Fifth US Army, Fort Sam 9638; Houston, TX 78234, Telephone: AUTOVON B–25. Commander, US Army Tank-Auto- 471–4707, WATS 512–221–4707; motive Materiel Readiness Command, War- B–11. Commander, Sixth US Army, Presidio ren, MI 48090; of San Francisco, CA 94129, Telephone: B–26. Commander, US Army Tank-Auto- AUTOVON 486–4110, WATS 415–561–4110; motive Research and Development Com- B–12. Commander, US Army Armament Ma- mand, Warren, MI 48090; teriel Readiness Command, ATTN: B–27. Commander, US Army Test and Eval- DRSAR-MMS, Rock Island, IL 61229; uation Command, Aberdeen Proving B–13. Commander, US Army Armament Re- Ground, MD 21005; search and Development Command, Dover, B–28. Commander, US Army Training and NJ 07801; Doctrine Command, Fort Monroe, VA 23651, Telephone: AUTOVON 680–3112, WATS 804–727–3112; * Telephone numbers are provided for prin- B–29. Commander, US Army Troop Support cipal loan approving authorities and agen- and Aviation, Materiel Readiness Com- cies responsible for specific loans IAW table mand, 4300 Goodfellow Boulevard, St. 2–1. Louis, MO 63120.

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APPENDIX C TO PART 623—AGREEMENT FOR LOAN OF US ARMY MATERIEL (DA FORM 4881–R)

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APPENDIX D TO PART 623—CERTIFICATE FOR SIGNATURE BY AN ALTERNATE (DA FORM 4881–1–R)

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APPENDIX E TO PART 623—SURETY BOND (DA FORM 4881–3–R)

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APPENDIX F TO PART 623—POWER OF ATTORNEY (DA FORM 4881–4–R)

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APPENDIX G TO PART 623—CONTINENTAL US ARMY BOUNDARIES

APPENDIX H TO PART 623—REFERENCES AR 34–1 United States Army Participation in International Military Rationalization/ AR 1–4 Deployment of DA Resources in Standardization/Interoperability (RSI) Support of the US Secret Service. Programs. AR 15–17 Army Representation on Office of AR 37–27 Accounting Policy and Procedures Preparedness; General Service Administra- for Intragovernment, Intradefense; and tion (OP/GSA) Regional Field Boards in Intra-Army Transactions. Crisis Management Operations. AR 37–44 Accounting Procedures for Guar- AR 28–19 Department of the Army Domestic anteed Loans. Action Program.

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AR 37–48 Accounting and Reporting for Ma- AR 920–15 National Board for the Promotion teriel, Services, and Facilities Furnished of Rifle Practice and Office of Director of Allied Governments and International Or- Civilian Marksmanship. ganizations Under Emergency or Combat AR 920–20 Civilian Marksmanship—Pro- Conditions. motion of Practice with Rifled Arms. AR 37–60 Pricing for Materiel and Services. AR 920–25 Rifles M14M and M14N for Civil- AR 37–111 Working Capital Funds—Army ian Marksmanship Use. Stock Fund; Uniform Policies, Principles, AR 930–5 Service Organizations—American and Procedures Governing Army Stock National Red Cross Service Program and Fund Operations. Army Utilization. AR 58–1 Management acquisition and use of FM 20–150 Combatives. administration use motor vehicles. MOU, 25 Apr 75, between DOD and Depart- AR 130–44 Logistical Policies for Support. ment of Agriculture and the Interior. AR 190–11 Physical Security of Weapons, Ammunition, and Explosives. MOU, 24 Jun 75, between DOD and the Amer- AR 190–49 Physical Security of Arms, Am- ican National Red Cross for Military Sup- munition, and Explosives In-Transit. port. AR 210–55 Funding Support for Morale, Wel- fare and Recreational Programs, and Fa- PART 625—SURFACE TRANSPOR- cilities. TATION—ADMINISTRATIVE VEHI- AR 230–1 The Nonappropriated Fund Sys- tem. CLE MANAGEMENT AR 350–7 Training and Evaluation of Forces for Civil Disturbances. Sec. AR 360–61 Army Information—Community 625.1 Purpose. Relations. 625.2 Applicability. AR 500–1 Aircraft Piracy Emergencies. 625.3 References. AR 500–2 Search and Rescue (SAR) Oper- 625.4 OCE policy. ations. 625.5 General. AR 500–50 Civil Disturbances. AR 500–60 Disaster Relief. APPENDIX A TO PART 625—DEPENDENT TRAV- AR 500–70 Military Support of Civil Defense. EL WAIVER OF LIABILITY AR 525–90 Wartime Search and Rescue AUTHORITY: Comptroller General Decision, (SAR) Procedures. B–190440, 20 January 1978. AR 700–32 Logistic Support of US Non- governmental, Nonmilitary Agencies, and SOURCE: 44 FR 63099, Nov. 2, 1979, unless Individuals in Oversea Military Com- otherwise noted. mands. AR 700–49 Loan of DSA Stock Fund Mate- § 625.1 Purpose. riel. This regulation provides guidance, AR 700–83 Army Support of United Sea- and authorizes dependents to accom- men’s Service. AR 710–1 Centralized Inventory Manage- pany a Corps employee on Temporary ment of the Army Supply System. Duty (TDY) in a Government-owned or AR 710–2 Materiel Management for Using leased motor vehicle. Units, Support Units, and Installations. AR 725–1 Requisition and Issue of Supplies § 625.2 Applicability. and Equipment—Special Authorization and Procedures for Issues, Sales, and Loans. This regulation is applicable to all AR 725–50 Requisitioning, Receipt, and field operating agencies authorized to Issue System. operate or lease Administrative Use AR 735–5 Property Accountability—General Motor Vehicles. Principles, Policies, and Basic Procedures. AR 735–11 Accounting for Lost, Damaged, § 625.3 References. and Destroyed Property. AR 795–25 Policies, Responsibilities, and (a) Title 31, U.S. Code, section 638. Principles for Supply Support Arrange- (b) Comptroller General Decision, 25 ments. Comp. Gen. 844(1946) B–57732. AR 795–204 Policies and Procedures for Fur- (c) Comptroller General Decision, 54 nishing Defense Articles and Services on a Comp. Gen. 855(1975) B–178342. Sale or Loan Basis. (d) Comptroller General Decision, B– AR 870–15 Historical Activities, Army Art Collection. 190440, 20 January 1978. AR 870–20 Historical Activities, Historical (e) DOD Regulation 4500.36–R June Properties and Museums. 1977.

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§ 625.4 OCE policy. cle consigned to the employee for official travel. Pursuant to the authorities, pen- (e) Neither the seating capacity nor alties and interpretations cited in the the size of the motor vehicle will be preceding references, Commanders/Di- changed or increased to accommodate rectors of field operating agencies may dependent travel. authorize dependents to accompany a (f) Motor vehicles as used in this reg- Corps of Engineers employee during of- ulation applies to all types of motor ficial travel when using a Government- vehicles, owned, consigned to or leased owned or leased motor vehicle, pro- by the Corps of Engineers. viding the following procedures and restrictions are adhered to: § 625.5 General. (a) The Commanders/Directors of (a) In view of the potential liability field operating agencies must make a the Government could incur by allow- Determination that transportation of ing dependents to accompany an em- the dependent is in ‘‘the interest of the ployee in a government-owned, con- Government’’. signed or leased motor vehicle, a De- (b) A determination of ‘‘the interest pendent Travel Waiver of Liability will of the Government’’ is a matter of ad- be obtained prior to each and every ministrative discretion, taking into trip. Suggested language for such waiv- consideration the following limita- er is set forth in appendix A. tions: (b) When dependents are to be trans- (1) The use of motor vehicles shall be ported in a GSA rented vehicle, an restricted to the ‘‘official use’’ of the extra signed copy of the Dependent vehicles, and any questions concerning Travel Waiver will be furnished the ‘‘official use’’ shall be resolved in favor GSA Interagency Motor Pool from of strict compliance with statutory which the vehicle is acquired. provisions and policies of this and other pertinent regulations. APPENDIX A TO PART 625—DEPENDENT (2) When the travel of the dependent TRAVEL WAIVER OF LIABILITY is in ‘‘the interest of the Government’’ and incidentally provides a conven- ‘‘I lllllllllllllllllllll (Name of dependent) ience to the employee, then there can will be accompanying lllll, be no objection to the employee’s enjoyment of that convenience. However, (Name of employee) the convenience of itself, provides no who is my lllllllllllllllll (Relationship) justification to authorize dependent and who is an employee of lllll, travel. (3) Dependent travel will not be pro- (Agency, division) vided or authorized when justification on official Government business in or while is based on reasons of rank or prestige. using a Government vehicle. Dates of travel are from lllll to lllll 19ll. I do (4) Transportation to, from and be- hereby knowingly, freely and voluntarily tween locations for the purpose of con- waive any right or cause of action of any ducting personal business or engaging kind whatsoever, against the United States, in other activities of a personal nature arising as a result of such activity from by military personnel, civilian officials which any liability may or could accrue and employees, members of their fami- while accompanying the above employee in lies or others is prohibited. or while using said Government vehicle.’’ (c) Increased travel time (rest stops) Signature of dependent and operational inefficiency (added Notary Public weight) occasioned by the number of dependents to be transported will also Date be considered. Date (d) Dependents must understand and agree never to operate the motor vehi- PARTS 626–629 [RESERVED]

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A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabetical list of agencies publishing in the CFR are included in the CFR Index and Finding Aids volume to the Code of Federal Regulations which is published separately and revised annually. Table of CFR Titles and Chapters Alphabetical List of Agencies Appearing in the CFR List of CFR Sections Affected

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Title 1—General Provisions

I Administrative Committee of the Federal Register (Parts 1—49) II Office of the Federal Register (Parts 50—299) III Administrative Conference of the United States (Parts 300—399) IV Miscellaneous Agencies (Parts 400—500)

Title 2—Grants and Agreements

SUBTITLE A—OFFICE OF MANAGEMENT AND BUDGET GUIDANCE FOR GRANTS AND AGREEMENTS I Office of Management and Budget Governmentwide Guidance for Grants and Agreements (Parts 2—199) II Office of Management and Budget Guidance (Parts 200—299) SUBTITLE B—FEDERAL AGENCY REGULATIONS FOR GRANTS AND AGREEMENTS III Department of Health and Human Services (Parts 300—399) IV Department of Agriculture (Parts 400—499) VI Department of State (Parts 600—699) VII Agency for International Development (Parts 700—799) VIII Department of Veterans Affairs (Parts 800—899) IX Department of Energy (Parts 900—999) XI Department of Defense (Parts 1100—1199) XII Department of Transportation (Parts 1200—1299) XIII Department of Commerce (Parts 1300—1399) XIV Department of the Interior (Parts 1400—1499) XV Environmental Protection Agency (Parts 1500—1599) XVIII National Aeronautics and Space Administration (Parts 1800— 1899) XX United States Nuclear Regulatory Commission (Parts 2000—2099) XXII Corporation for National and Community Service (Parts 2200— 2299) XXIII Social Security Administration (Parts 2300—2399) XXIV Housing and Urban Development (Parts 2400—2499) XXV National Science Foundation (Parts 2500—2599) XXVI National Archives and Records Administration (Parts 2600—2699) XXVII Small Business Administration (Parts 2700—2799) XXVIII Department of Justice (Parts 2800—2899)

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XXX Department of Homeland Security (Parts 3000—3099) XXXI Institute of Museum and Library Services (Parts 3100—3199) XXXII National Endowment for the Arts (Parts 3200—3299) XXXIII National Endowment for the Humanities (Parts 3300—3399) XXXIV Department of Education (Parts 3400—3499) XXXV Export-Import Bank of the United States (Parts 3500—3599) XXXVII Peace Corps (Parts 3700—3799) LVIII Election Assistance Commission (Parts 5800—5899)

Title 3—The President

I Executive Office of the President (Parts 100—199)

Title 4—Accounts

I Government Accountability Office (Parts 1—199) II Recovery Accountability and Transparency Board (Parts 200— 299)

Title 5—Administrative Personnel

I Office of Personnel Management (Parts 1—1199) II Merit Systems Protection Board (Parts 1200—1299) III Office of Management and Budget (Parts 1300—1399) V The International Organizations Employees Loyalty Board (Parts 1500—1599) VI Federal Retirement Thrift Investment Board (Parts 1600—1699) VIII Office of Special Counsel (Parts 1800—1899) IX Appalachian Regional Commission (Parts 1900—1999) XI Armed Forces Retirement Home (Parts 2100—2199) XIV Federal Labor Relations Authority, General Counsel of the Fed- eral Labor Relations Authority and Federal Service Impasses Panel (Parts 2400—2499) XV Office of Administration, Executive Office of the President (Parts 2500—2599) XVI Office of Government Ethics (Parts 2600—2699) XXI Department of the Treasury (Parts 3100—3199) XXII Federal Deposit Insurance Corporation (Parts 3200—3299) XXIII Department of Energy (Parts 3300—3399) XXIV Federal Energy Regulatory Commission (Parts 3400—3499) XXV Department of the Interior (Parts 3500—3599) XXVI Department of Defense (Parts 3600—3699) XXVIII Department of Justice (Parts 3800—3899) XXIX Federal Communications Commission (Parts 3900—3999) XXX Farm Credit System Insurance Corporation (Parts 4000—4099) XXXI Farm Credit Administration (Parts 4100—4199)

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XXXIII Overseas Private Investment Corporation (Parts 4300—4399) XXXIV Securities and Exchange Commission (Parts 4400—4499) XXXV Office of Personnel Management (Parts 4500—4599) XXXVII Federal Election Commission (Parts 4700—4799) XL Interstate Commerce Commission (Parts 5000—5099) XLI Commodity Futures Trading Commission (Parts 5100—5199) XLII Department of Labor (Parts 5200—5299) XLIII National Science Foundation (Parts 5300—5399) XLV Department of Health and Human Services (Parts 5500—5599) XLVI Postal Rate Commission (Parts 5600—5699) XLVII Federal Trade Commission (Parts 5700—5799) XLVIII Nuclear Regulatory Commission (Parts 5800—5899) XLIX Federal Labor Relations Authority (Parts 5900—5999) L Department of Transportation (Parts 6000—6099) LII Export-Import Bank of the United States (Parts 6200—6299) LIII Department of Education (Parts 6300—6399) LIV Environmental Protection Agency (Parts 6400—6499) LV National Endowment for the Arts (Parts 6500—6599) LVI National Endowment for the Humanities (Parts 6600—6699) LVII General Services Administration (Parts 6700—6799) LVIII Board of Governors of the Federal Reserve System (Parts 6800— 6899) LIX National Aeronautics and Space Administration (Parts 6900— 6999) LX United States Postal Service (Parts 7000—7099) LXI National Labor Relations Board (Parts 7100—7199) LXII Equal Employment Opportunity Commission (Parts 7200—7299) LXIII Inter-American Foundation (Parts 7300—7399) LXIV Merit Systems Protection Board (Parts 7400—7499) LXV Department of Housing and Urban Development (Parts 7500— 7599) LXVI National Archives and Records Administration (Parts 7600—7699) LXVII Institute of Museum and Library Services (Parts 7700—7799) LXVIII Commission on Civil Rights (Parts 7800—7899) LXIX Tennessee Valley Authority (Parts 7900—7999) LXX Court Services and Offender Supervision Agency for the District of Columbia (Parts 8000—8099) LXXI Consumer Product Safety Commission (Parts 8100—8199) LXXIII Department of Agriculture (Parts 8300—8399) LXXIV Federal Mine Safety and Health Review Commission (Parts 8400—8499) LXXVI Federal Retirement Thrift Investment Board (Parts 8600—8699) LXXVII Office of Management and Budget (Parts 8700—8799) LXXX Federal Housing Finance Agency (Parts 9000—9099) LXXXIII Special Inspector General for Afghanistan Reconstruction (Parts 9300—9399)

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LXXXIV Bureau of Consumer Financial Protection (Parts 9400—9499) LXXXVI National Credit Union Administration (Parts 9600—9699) XCVII Department of Homeland Security Human Resources Manage- ment System (Department of Homeland Security—Office of Personnel Management) (Parts 9700—9799) XCVII Council of the Inspectors General on Integrity and Efficiency (Parts 9800—9899)

Title 6—Domestic Security

I Department of Homeland Security, Office of the Secretary (Parts 1—99) X Privacy and Civil Liberties Oversight Board (Parts 1000—1099)

Title 7—Agriculture

SUBTITLE A—OFFICE OF THE SECRETARY OF AGRICULTURE (PARTS 0—26) SUBTITLE B—REGULATIONS OF THE DEPARTMENT OF AGRICULTURE I Agricultural Marketing Service (Standards, Inspections, Mar- keting Practices), Department of Agriculture (Parts 27—209) II Food and Nutrition Service, Department of Agriculture (Parts 210—299) III Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 300—399) IV Federal Crop Insurance Corporation, Department of Agriculture (Parts 400—499) V Agricultural Research Service, Department of Agriculture (Parts 500—599) VI Natural Resources Conservation Service, Department of Agri- culture (Parts 600—699) VII Farm Service Agency, Department of Agriculture (Parts 700— 799) VIII Grain Inspection, Packers and Stockyards Administration (Fed- eral Grain Inspection Service), Department of Agriculture (Parts 800—899) IX Agricultural Marketing Service (Marketing Agreements and Or- ders; Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900—999) X Agricultural Marketing Service (Marketing Agreements and Or- ders; Milk), Department of Agriculture (Parts 1000—1199) XI Agricultural Marketing Service (Marketing Agreements and Or- ders; Miscellaneous Commodities), Department of Agriculture (Parts 1200—1299) XIV Commodity Credit Corporation, Department of Agriculture (Parts 1400—1499) XV Foreign Agricultural Service, Department of Agriculture (Parts 1500—1599) XVI Rural Telephone Bank, Department of Agriculture (Parts 1600— 1699)

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XVII Rural Utilities Service, Department of Agriculture (Parts 1700— 1799) XVIII Rural Housing Service, Rural Business-Cooperative Service, Rural Utilities Service, and Farm Service Agency, Depart- ment of Agriculture (Parts 1800—2099) XX Local Television Loan Guarantee Board (Parts 2200—2299) XXV Office of Advocacy and Outreach, Department of Agriculture (Parts 2500—2599) XXVI Office of Inspector General, Department of Agriculture (Parts 2600—2699) XXVII Office of Information Resources Management, Department of Agriculture (Parts 2700—2799) XXVIII Office of Operations, Department of Agriculture (Parts 2800— 2899) XXIX Office of Energy Policy and New Uses, Department of Agri- culture (Parts 2900—2999) XXX Office of the Chief Financial Officer, Department of Agriculture (Parts 3000—3099) XXXI Office of Environmental Quality, Department of Agriculture (Parts 3100—3199) XXXII Office of Procurement and Property Management, Department of Agriculture (Parts 3200—3299) XXXIII Office of Transportation, Department of Agriculture (Parts 3300—3399) XXXIV National Institute of Food and Agriculture (Parts 3400—3499) XXXV Rural Housing Service, Department of Agriculture (Parts 3500— 3599) XXXVI National Agricultural Statistics Service, Department of Agri- culture (Parts 3600—3699) XXXVII Economic Research Service, Department of Agriculture (Parts 3700—3799) XXXVIII World Agricultural Outlook Board, Department of Agriculture (Parts 3800—3899) XLI [Reserved] XLII Rural Business-Cooperative Service and Rural Utilities Service, Department of Agriculture (Parts 4200—4299)

Title 8—Aliens and Nationality

I Department of Homeland Security (Immigration and Naturaliza- tion) (Parts 1—499) V Executive Office for Immigration Review, Department of Justice (Parts 1000—1399)

Title 9—Animals and Animal Products

I Animal and Plant Health Inspection Service, Department of Ag- riculture (Parts 1—199)

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II Grain Inspection, Packers and Stockyards Administration (Packers and Stockyards Programs), Department of Agri- culture (Parts 200—299) III Food Safety and Inspection Service, Department of Agriculture (Parts 300—599)

Title 10—Energy

I Nuclear Regulatory Commission (Parts 0—199) II Department of Energy (Parts 200—699) III Department of Energy (Parts 700—999) X Department of Energy (General Provisions) (Parts 1000—1099) XIII Nuclear Waste Technical Review Board (Parts 1300—1399) XVII Defense Nuclear Facilities Safety Board (Parts 1700—1799) XVIII Northeast Interstate Low-Level Radioactive Waste Commission (Parts 1800—1899)

Title 11—Federal Elections

I Federal Election Commission (Parts 1—9099) II Election Assistance Commission (Parts 9400—9499)

Title 12—Banks and Banking

I Comptroller of the Currency, Department of the Treasury (Parts 1—199) II Federal Reserve System (Parts 200—299) III Federal Deposit Insurance Corporation (Parts 300—399) IV Export-Import Bank of the United States (Parts 400—499) V Office of Thrift Supervision, Department of the Treasury (Parts 500—599) VI Farm Credit Administration (Parts 600—699) VII National Credit Union Administration (Parts 700—799) VIII Federal Financing Bank (Parts 800—899) IX Federal Housing Finance Board (Parts 900—999) X Bureau of Consumer Financial Protection (Parts 1000—1099) XI Federal Financial Institutions Examination Council (Parts 1100—1199) XII Federal Housing Finance Agency (Parts 1200—1299) XIII Financial Stability Oversight Council (Parts 1300—1399) XIV Farm Credit System Insurance Corporation (Parts 1400—1499) XV Department of the Treasury (Parts 1500—1599) XVI Office of Financial Research (Parts 1600—1699) XVII Office of Federal Housing Enterprise Oversight, Department of Housing and Urban Development (Parts 1700—1799) XVIII Community Development Financial Institutions Fund, Depart- ment of the Treasury (Parts 1800—1899)

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I Small Business Administration (Parts 1—199) III Economic Development Administration, Department of Com- merce (Parts 300—399) IV Emergency Steel Guarantee Loan Board (Parts 400—499) V Emergency Oil and Gas Guaranteed Loan Board (Parts 500—599)

Title 14—Aeronautics and Space

I Federal Aviation Administration, Department of Transportation (Parts 1—199) II Office of the Secretary, Department of Transportation (Aviation Proceedings) (Parts 200—399) III Commercial Space Transportation, Federal Aviation Adminis- tration, Department of Transportation (Parts 400—1199) V National Aeronautics and Space Administration (Parts 1200— 1299) VI Air Transportation System Stabilization (Parts 1300—1399)

Title 15—Commerce and Foreign Trade

SUBTITLE A—OFFICE OF THE SECRETARY OF COMMERCE (PARTS 0— 29) SUBTITLE B—REGULATIONS RELATING TO COMMERCE AND FOREIGN TRADE I Bureau of the Census, Department of Commerce (Parts 30—199) II National Institute of Standards and Technology, Department of Commerce (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV Foreign-Trade Zones Board, Department of Commerce (Parts 400—499) VII Bureau of Industry and Security, Department of Commerce (Parts 700—799) VIII Bureau of Economic Analysis, Department of Commerce (Parts 800—899) IX National Oceanic and Atmospheric Administration, Department of Commerce (Parts 900—999) XI Technology Administration, Department of Commerce (Parts 1100—1199) XIII East-West Foreign Trade Board (Parts 1300—1399) XIV Minority Business Development Agency (Parts 1400—1499) SUBTITLE C—REGULATIONS RELATING TO FOREIGN TRADE AGREE- MENTS XX Office of the United States Trade Representative (Parts 2000— 2099) SUBTITLE D—REGULATIONS RELATING TO TELECOMMUNICATIONS AND INFORMATION XXIII National Telecommunications and Information Administration, Department of Commerce (Parts 2300—2399)

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I Federal Trade Commission (Parts 0—999) II Consumer Product Safety Commission (Parts 1000—1799)

Title 17—Commodity and Securities Exchanges

I Commodity Futures Trading Commission (Parts 1—199) II Securities and Exchange Commission (Parts 200—399) IV Department of the Treasury (Parts 400—499)

Title 18—Conservation of Power and Water Resources

I Federal Energy Regulatory Commission, Department of Energy (Parts 1—399) III Delaware River Basin Commission (Parts 400—499) VI Water Resources Council (Parts 700—799) VIII Susquehanna River Basin Commission (Parts 800—899) XIII Tennessee Valley Authority (Parts 1300—1399)

Title 19—Customs Duties

I U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury (Parts 0—199) II United States International Trade Commission (Parts 200—299) III International Trade Administration, Department of Commerce (Parts 300—399) IV U.S. Immigration and Customs Enforcement, Department of Homeland Security (Parts 400—599)

Title 20—Employees’ Benefits

I Office of Workers’ Compensation Programs, Department of Labor (Parts 1—199) II Railroad Retirement Board (Parts 200—399) III Social Security Administration (Parts 400—499) IV Employees’ Compensation Appeals Board, Department of Labor (Parts 500—599) V Employment and Training Administration, Department of Labor (Parts 600—699) VI Office of Workers’ Compensation Programs, Department of Labor (Parts 700—799) VII Benefits Review Board, Department of Labor (Parts 800—899) VIII Joint Board for the Enrollment of Actuaries (Parts 900—999) IX Office of the Assistant Secretary for Veterans’ Employment and Training Service, Department of Labor (Parts 1000—1099)

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I Food and Drug Administration, Department of Health and Human Services (Parts 1—1299) II Drug Enforcement Administration, Department of Justice (Parts 1300—1399) III Office of National Drug Control Policy (Parts 1400—1499)

Title 22—Foreign Relations

I Department of State (Parts 1—199) II Agency for International Development (Parts 200—299) III Peace Corps (Parts 300—399) IV International Joint Commission, United States and Canada (Parts 400—499) V Broadcasting Board of Governors (Parts 500—599) VII Overseas Private Investment Corporation (Parts 700—799) IX Foreign Service Grievance Board (Parts 900—999) X Inter-American Foundation (Parts 1000—1099) XI International Boundary and Water Commission, United States and Mexico, United States Section (Parts 1100—1199) XII United States International Development Cooperation Agency (Parts 1200—1299) XIII Millennium Challenge Corporation (Parts 1300—1399) XIV Foreign Service Labor Relations Board; Federal Labor Relations Authority; General Counsel of the Federal Labor Relations Authority; and the Foreign Service Impasse Disputes Panel (Parts 1400—1499) XV African Development Foundation (Parts 1500—1599) XVI Japan-United States Friendship Commission (Parts 1600—1699) XVII United States Institute of Peace (Parts 1700—1799)

Title 23—Highways

I Federal Highway Administration, Department of Transportation (Parts 1—999) II National Highway Traffic Safety Administration and Federal Highway Administration, Department of Transportation (Parts 1200—1299) III National Highway Traffic Safety Administration, Department of Transportation (Parts 1300—1399)

Title 24—Housing and Urban Development

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO HOUSING AND URBAN DE- VELOPMENT I Office of Assistant Secretary for Equal Opportunity, Department of Housing and Urban Development (Parts 100—199)

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II Office of Assistant Secretary for Housing-Federal Housing Com- missioner, Department of Housing and Urban Development (Parts 200—299) III Government National Mortgage Association, Department of Housing and Urban Development (Parts 300—399) IV Office of Housing and Office of Multifamily Housing Assistance Restructuring, Department of Housing and Urban Develop- ment (Parts 400—499) V Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 500—599) VI Office of Assistant Secretary for Community Planning and De- velopment, Department of Housing and Urban Development (Parts 600—699) [Reserved] VII Office of the Secretary, Department of Housing and Urban Devel- opment (Housing Assistance Programs and Public and Indian Housing Programs) (Parts 700—799) VIII Office of the Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Section 8 Housing Assistance Programs, Section 202 Di- rect Loan Program, Section 202 Supportive Housing for the El- derly Program and Section 811 Supportive Housing for Persons With Disabilities Program) (Parts 800—899) IX Office of Assistant Secretary for Public and Indian Housing, De- partment of Housing and Urban Development (Parts 900—1699) X Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Interstate Land Sales Registration Program) (Parts 1700—1799) XII Office of Inspector General, Department of Housing and Urban Development (Parts 2000—2099) XV Emergency Mortgage Insurance and Loan Programs, Depart- ment of Housing and Urban Development (Parts 2700—2799) XX Office of Assistant Secretary for Housing—Federal Housing Commissioner, Department of Housing and Urban Develop- ment (Parts 3200—3899) XXIV Board of Directors of the HOPE for Homeowners Program (Parts 4000—4099) XXV Neighborhood Reinvestment Corporation (Parts 4100—4199)

Title 25—Indians

I Bureau of Indian Affairs, Department of the Interior (Parts 1— 299) II Indian Arts and Crafts Board, Department of the Interior (Parts 300—399) III National Indian Gaming Commission, Department of the Inte- rior (Parts 500—599) IV Office of Navajo and Hopi Indian Relocation (Parts 700—799) V Bureau of Indian Affairs, Department of the Interior, and Indian Health Service, Department of Health and Human Services (Part 900)

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VI Office of the Assistant Secretary-Indian Affairs, Department of the Interior (Parts 1000—1199) VII Office of the Special Trustee for American Indians, Department of the Interior (Parts 1200—1299)

Title 26—Internal Revenue

I Internal Revenue Service, Department of the Treasury (Parts 1— End)

Title 27—Alcohol, Tobacco Products and Firearms

I Alcohol and Tobacco Tax and Trade Bureau, Department of the Treasury (Parts 1—399) II Bureau of Alcohol, Tobacco, Firearms, and Explosives, Depart- ment of Justice (Parts 400—699)

Title 28—Judicial Administration

I Department of Justice (Parts 0—299) III Federal Prison Industries, Inc., Department of Justice (Parts 300—399) V Bureau of Prisons, Department of Justice (Parts 500—599) VI Offices of Independent Counsel, Department of Justice (Parts 600—699) VII Office of Independent Counsel (Parts 700—799) VIII Court Services and Offender Supervision Agency for the District of Columbia (Parts 800—899) IX National Crime Prevention and Privacy Compact Council (Parts 900—999) XI Department of Justice and Department of State (Parts 1100— 1199)

Title 29—Labor

SUBTITLE A—OFFICE OF THE SECRETARY OF LABOR (PARTS 0—99) SUBTITLE B—REGULATIONS RELATING TO LABOR I National Labor Relations Board (Parts 100—199) II Office of Labor-Management Standards, Department of Labor (Parts 200—299) III National Railroad Adjustment Board (Parts 300—399) IV Office of Labor-Management Standards, Department of Labor (Parts 400—499) V Wage and Hour Division, Department of Labor (Parts 500—899) IX Construction Industry Collective Bargaining Commission (Parts 900—999) X National Mediation Board (Parts 1200—1299) XII Federal Mediation and Conciliation Service (Parts 1400—1499) XIV Equal Employment Opportunity Commission (Parts 1600—1699)

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XVII Occupational Safety and Health Administration, Department of Labor (Parts 1900—1999) XX Occupational Safety and Health Review Commission (Parts 2200—2499) XXV Employee Benefits Security Administration, Department of Labor (Parts 2500—2599) XXVII Federal Mine Safety and Health Review Commission (Parts 2700—2799) XL Pension Benefit Guaranty Corporation (Parts 4000—4999)

Title 30—Mineral Resources

I Mine Safety and Health Administration, Department of Labor (Parts 1—199) II Bureau of Safety and Environmental Enforcement, Department of the Interior (Parts 200—299) IV Geological Survey, Department of the Interior (Parts 400—499) V Bureau of Ocean Energy Management, Department of the Inte- rior (Parts 500—599) VII Office of Surface Mining Reclamation and Enforcement, Depart- ment of the Interior (Parts 700—999) XII Office of Natural Resources Revenue, Department of the Interior (Parts 1200—1299)

Title 31—Money and Finance: Treasury

SUBTITLE A—OFFICE OF THE SECRETARY OF THE TREASURY (PARTS 0—50) SUBTITLE B—REGULATIONS RELATING TO MONEY AND FINANCE I Monetary Offices, Department of the Treasury (Parts 51—199) II Fiscal Service, Department of the Treasury (Parts 200—399) IV Secret Service, Department of the Treasury (Parts 400—499) V Office of Foreign Assets Control, Department of the Treasury (Parts 500—599) VI Bureau of Engraving and Printing, Department of the Treasury (Parts 600—699) VII Federal Law Enforcement Training Center, Department of the Treasury (Parts 700—799) VIII Office of International Investment, Department of the Treasury (Parts 800—899) IX Federal Claims Collection Standards (Department of the Treas- ury—Department of Justice) (Parts 900—999) X Financial Crimes Enforcement Network, Department of the Treasury (Parts 1000—1099)

Title 32—National Defense

SUBTITLE A—DEPARTMENT OF DEFENSE I Office of the Secretary of Defense (Parts 1—399)

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V Department of the Army (Parts 400—699) VI Department of the Navy (Parts 700—799) VII Department of the Air Force (Parts 800—1099) SUBTITLE B—OTHER REGULATIONS RELATING TO NATIONAL DE- FENSE XII Defense Logistics Agency (Parts 1200—1299) XVI Selective Service System (Parts 1600—1699) XVII Office of the Director of National Intelligence (Parts 1700—1799) XVIII National Counterintelligence Center (Parts 1800—1899) XIX Central Intelligence Agency (Parts 1900—1999) XX Information Security Oversight Office, National Archives and Records Administration (Parts 2000—2099) XXI National Security Council (Parts 2100—2199) XXIV Office of Science and Technology Policy (Parts 2400—2499) XXVII Office for Micronesian Status Negotiations (Parts 2700—2799) XXVIII Office of the Vice President of the United States (Parts 2800— 2899)

Title 33—Navigation and Navigable Waters

I Coast Guard, Department of Homeland Security (Parts 1—199) II Corps of Engineers, Department of the Army (Parts 200—399) IV Saint Lawrence Seaway Development Corporation, Department of Transportation (Parts 400—499)

Title 34—Education

SUBTITLE A—OFFICE OF THE SECRETARY, DEPARTMENT OF EDU- CATION (PARTS 1—99) SUBTITLE B—REGULATIONS OF THE OFFICES OF THE DEPARTMENT OF EDUCATION I Office for Civil Rights, Department of Education (Parts 100—199) II Office of Elementary and Secondary Education, Department of Education (Parts 200—299) III Office of Special Education and Rehabilitative Services, Depart- ment of Education (Parts 300—399) IV Office of Vocational and Adult Education, Department of Edu- cation (Parts 400—499) V Office of Bilingual Education and Minority Languages Affairs, Department of Education (Parts 500—599) VI Office of Postsecondary Education, Department of Education (Parts 600—699) VII Office of Educational Research and Improvement, Department of Education (Parts 700—799) [Reserved] SUBTITLE C—REGULATIONS RELATING TO EDUCATION XI National Institute for Literacy (Parts 1100—1199) XII National Council on Disability (Parts 1200—1299)

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Title 36—Parks, Forests, and Public Property

I National Park Service, Department of the Interior (Parts 1—199) II Forest Service, Department of Agriculture (Parts 200—299) III Corps of Engineers, Department of the Army (Parts 300—399) IV American Battle Monuments Commission (Parts 400—499) V Smithsonian Institution (Parts 500—599) VI [Reserved] VII Library of Congress (Parts 700—799) VIII Advisory Council on Historic Preservation (Parts 800—899) IX Pennsylvania Avenue Development Corporation (Parts 900—999) X Presidio Trust (Parts 1000—1099) XI Architectural and Transportation Barriers Compliance Board (Parts 1100—1199) XII National Archives and Records Administration (Parts 1200—1299) XV Oklahoma City National Memorial Trust (Parts 1500—1599) XVI Morris K. Udall Scholarship and Excellence in National Environ- mental Policy Foundation (Parts 1600—1699)

Title 37—Patents, Trademarks, and Copyrights

I United States Patent and Trademark Office, Department of Commerce (Parts 1—199) II U.S. Copyright Office, Library of Congress (Parts 200—299) III Copyright Royalty Board, Library of Congress (Parts 300—399) IV Assistant Secretary for Technology Policy, Department of Com- merce (Parts 400—599)

Title 38—Pensions, Bonuses, and Veterans’ Relief

I Department of Veterans Affairs (Parts 0—199) II Armed Forces Retirement Home (Parts 200—299)

Title 39—Postal Service

I United States Postal Service (Parts 1—999) III Postal Regulatory Commission (Parts 3000—3099)

Title 40—Protection of Environment

I Environmental Protection Agency (Parts 1—1099) IV Environmental Protection Agency and Department of Justice (Parts 1400—1499) V Council on Environmental Quality (Parts 1500—1599) VI Chemical Safety and Hazard Investigation Board (Parts 1600— 1699)

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VII Environmental Protection Agency and Department of Defense; Uniform National Discharge Standards for Vessels of the Armed Forces (Parts 1700—1799)

Title 41—Public Contracts and Property Management

SUBTITLE A—FEDERAL PROCUREMENT REGULATIONS SYSTEM [NOTE] SUBTITLE B—OTHER PROVISIONS RELATING TO PUBLIC CONTRACTS 50 Public Contracts, Department of Labor (Parts 50–1—50–999) 51 Committee for Purchase From People Who Are Blind or Severely Disabled (Parts 51–1—51–99) 60 Office of Federal Contract Compliance Programs, Equal Employ- ment Opportunity, Department of Labor (Parts 60–1—60–999) 61 Office of the Assistant Secretary for Veterans’ Employment and Training Service, Department of Labor (Parts 61–1—61–999) 62—100 [Reserved] SUBTITLE C—FEDERAL PROPERTY MANAGEMENT REGULATIONS SYSTEM 101 Federal Property Management Regulations (Parts 101–1—101–99) 102 Federal Management Regulation (Parts 102–1—102–299) 103—104 [Reserved] 105 General Services Administration (Parts 105–1—105–999) 109 Department of Energy Property Management Regulations (Parts 109–1—109–99) 114 Department of the Interior (Parts 114–1—114–99) 115 Environmental Protection Agency (Parts 115–1—115–99) 128 Department of Justice (Parts 128–1—128–99) 129—200 [Reserved] SUBTITLE D—OTHER PROVISIONS RELATING TO PROPERTY MANAGE- MENT [RESERVED] SUBTITLE E—FEDERAL INFORMATION RESOURCES MANAGEMENT REGULATIONS SYSTEM [RESERVED] SUBTITLE F—FEDERAL TRAVEL REGULATION SYSTEM 300 General (Parts 300–1—300–99) 301 Temporary Duty (TDY) Travel Allowances (Parts 301–1—301–99) 302 Relocation Allowances (Parts 302–1—302–99) 303 Payment of Expenses Connected with the Death of Certain Em- ployees (Part 303–1—303–99) 304 Payment of Travel Expenses from a Non-Federal Source (Parts 304–1—304–99)

Title 42—Public Health

I Public Health Service, Department of Health and Human Serv- ices (Parts 1—199) IV Centers for Medicare & Medicaid Services, Department of Health and Human Services (Parts 400—599)

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V Office of Inspector General-Health Care, Department of Health and Human Services (Parts 1000—1999)

Title 43—Public Lands: Interior

SUBTITLE A—OFFICE OF THE SECRETARY OF THE INTERIOR (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC LANDS I Bureau of Reclamation, Department of the Interior (Parts 400— 999) II Bureau of Land Management, Department of the Interior (Parts 1000—9999) III Utah Reclamation Mitigation and Conservation Commission (Parts 10000—10099)

Title 44—Emergency Management and Assistance

I Federal Emergency Management Agency, Department of Home- land Security (Parts 0—399) IV Department of Commerce and Department of Transportation (Parts 400—499)

Title 45—Public Welfare

SUBTITLE A—DEPARTMENT OF HEALTH AND HUMAN SERVICES (PARTS 1—199) SUBTITLE B—REGULATIONS RELATING TO PUBLIC WELFARE II Office of Family Assistance (Assistance Programs), Administra- tion for Children and Families, Department of Health and Human Services (Parts 200—299) III Office of Child Support Enforcement (Child Support Enforce- ment Program), Administration for Children and Families, Department of Health and Human Services (Parts 300—399) IV Office of Refugee Resettlement, Administration for Children and Families, Department of Health and Human Services (Parts 400—499) V Foreign Claims Settlement Commission of the United States, Department of Justice (Parts 500—599) VI National Science Foundation (Parts 600—699) VII Commission on Civil Rights (Parts 700—799) VIII Office of Personnel Management (Parts 800—899) X Office of Community Services, Administration for Children and Families, Department of Health and Human Services (Parts 1000—1099) XI National Foundation on the Arts and the Humanities (Parts 1100—1199) XII Corporation for National and Community Service (Parts 1200— 1299) XIII Office of Human Development Services, Department of Health and Human Services (Parts 1300—1399)

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XVI Legal Services Corporation (Parts 1600—1699) XVII National Commission on Libraries and Information Science (Parts 1700—1799) XVIII Harry S. Truman Scholarship Foundation (Parts 1800—1899) XXI Commission on Fine Arts (Parts 2100—2199) XXIII Arctic Research Commission (Part 2301) XXIV James Madison Memorial Fellowship Foundation (Parts 2400— 2499) XXV Corporation for National and Community Service (Parts 2500— 2599)

Title 46—Shipping

I Coast Guard, Department of Homeland Security (Parts 1—199) II Maritime Administration, Department of Transportation (Parts 200—399) III Coast Guard (Great Lakes Pilotage), Department of Homeland Security (Parts 400—499) IV Federal Maritime Commission (Parts 500—599)

Title 47—Telecommunication

I Federal Communications Commission (Parts 0—199) II Office of Science and Technology Policy and National Security Council (Parts 200—299) III National Telecommunications and Information Administration, Department of Commerce (Parts 300—399) IV National Telecommunications and Information Administration, Department of Commerce, and National Highway Traffic Safe- ty Administration, Department of Transportation (Parts 400— 499)

Title 48—Federal Acquisition Regulations System

1 Federal Acquisition Regulation (Parts 1—99) 2 Defense Acquisition Regulations System, Department of Defense (Parts 200—299) 3 Health and Human Services (Parts 300—399) 4 Department of Agriculture (Parts 400—499) 5 General Services Administration (Parts 500—599) 6 Department of State (Parts 600—699) 7 Agency for International Development (Parts 700—799) 8 Department of Veterans Affairs (Parts 800—899) 9 Department of Energy (Parts 900—999) 10 Department of the Treasury (Parts 1000—1099) 12 Department of Transportation (Parts 1200—1299) 13 Department of Commerce (Parts 1300—1399) 14 Department of the Interior (Parts 1400—1499)

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15 Environmental Protection Agency (Parts 1500—1599) 16 Office of Personnel Management, Federal Employees Health Benefits Acquisition Regulation (Parts 1600—1699) 17 Office of Personnel Management (Parts 1700—1799) 18 National Aeronautics and Space Administration (Parts 1800— 1899) 19 Broadcasting Board of Governors (Parts 1900—1999) 20 Nuclear Regulatory Commission (Parts 2000—2099) 21 Office of Personnel Management, Federal Employees Group Life Insurance Federal Acquisition Regulation (Parts 2100—2199) 23 Social Security Administration (Parts 2300—2399) 24 Department of Housing and Urban Development (Parts 2400— 2499) 25 National Science Foundation (Parts 2500—2599) 28 Department of Justice (Parts 2800—2899) 29 Department of Labor (Parts 2900—2999) 30 Department of Homeland Security, Homeland Security Acquisi- tion Regulation (HSAR) (Parts 3000—3099) 34 Department of Education Acquisition Regulation (Parts 3400— 3499) 51 Department of the Army Acquisition Regulations (Parts 5100— 5199) 52 Department of the Navy Acquisition Regulations (Parts 5200— 5299) 53 Department of the Air Force Federal Acquisition Regulation Supplement (Parts 5300—5399) [Reserved] 54 Defense Logistics Agency, Department of Defense (Parts 5400— 5499) 57 African Development Foundation (Parts 5700—5799) 61 Civilian Board of Contract Appeals, General Services Adminis- tration (Parts 6100—6199) 63 Department of Transportation Board of Contract Appeals (Parts 6300—6399) 99 Cost Accounting Standards Board, Office of Federal Procure- ment Policy, Office of Management and Budget (Parts 9900— 9999)

Title 49—Transportation

SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPORTATION (PARTS 1—99) SUBTITLE B—OTHER REGULATIONS RELATING TO TRANSPORTATION I Pipeline and Hazardous Materials Safety Administration, De- partment of Transportation (Parts 100—199) II Federal Railroad Administration, Department of Transportation (Parts 200—299) III Federal Motor Carrier Safety Administration, Department of Transportation (Parts 300—399) IV Coast Guard, Department of Homeland Security (Parts 400—499)

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V National Highway Traffic Safety Administration, Department of Transportation (Parts 500—599) VI Federal Transit Administration, Department of Transportation (Parts 600—699) VII National Railroad Passenger Corporation (AMTRAK) (Parts 700—799) VIII National Transportation Safety Board (Parts 800—999) X Surface Transportation Board, Department of Transportation (Parts 1000—1399) XI Research and Innovative Technology Administration, Depart- ment of Transportation (Parts 1400—1499) [Reserved] XII Transportation Security Administration, Department of Home- land Security (Parts 1500—1699)

Title 50—Wildlife and Fisheries

I United States Fish and Wildlife Service, Department of the Inte- rior (Parts 1—199) II National Marine Fisheries Service, National Oceanic and Atmos- pheric Administration, Department of Commerce (Parts 200— 299) III International Fishing and Related Activities (Parts 300—399) IV Joint Regulations (United States Fish and Wildlife Service, De- partment of the Interior and National Marine Fisheries Serv- ice, National Oceanic and Atmospheric Administration, De- partment of Commerce); Endangered Species Committee Reg- ulations (Parts 400—499) V Marine Mammal Commission (Parts 500—599) VI Fishery Conservation and Management, National Oceanic and Atmospheric Administration, Department of Commerce (Parts 600—699)

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CFR Title, Subtitle or Agency Chapter Administrative Committee of the Federal Register 1, I Administrative Conference of the United States 1, III Advisory Council on Historic Preservation 36, VIII Advocacy and Outreach, Office of 7, XXV Afghanistan Reconstruction, Special Inspector General for 22, LXXXIII African Development Foundation 22, XV Federal Acquisition Regulation 48, 57 Agency for International Development 2, VII; 22, II Federal Acquisition Regulation 48, 7 Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Agriculture Department 2, IV; 5, LXXIII Advocacy and Outreach, Office of 7, XXV Agricultural Marketing Service 7, I, IX, X, XI Agricultural Research Service 7, V Animal and Plant Health Inspection Service 7, III; 9, I Chief Financial Officer, Office of 7, XXX Commodity Credit Corporation 7, XIV Economic Research Service 7, XXXVII Energy Policy and New Uses, Office of 2, IX; 7, XXIX Environmental Quality, Office of 7, XXXI Farm Service Agency 7, VII, XVIII Federal Acquisition Regulation 48, 4 Federal Crop Insurance Corporation 7, IV Food and Nutrition Service 7, II Food Safety and Inspection Service 9, III Foreign Agricultural Service 7, XV Forest Service 36, II Grain Inspection, Packers and Stockyards Administration 7, VIII; 9, II Information Resources Management, Office of 7, XXVII Inspector General, Office of 7, XXVI National Agricultural Library 7, XLI National Agricultural Statistics Service 7, XXXVI National Institute of Food and Agriculture 7, XXXIV Natural Resources Conservation Service 7, VI Operations, Office of 7, XXVIII Procurement and Property Management, Office of 7, XXXII Rural Business-Cooperative Service 7, XVIII, XLII, L Rural Development Administration 7, XLII Rural Housing Service 7, XVIII, XXXV, L Rural Telephone Bank 7, XVI Rural Utilities Service 7, XVII, XVIII, XLII, L Secretary of Agriculture, Office of 7, Subtitle A Transportation, Office of 7, XXXIII World Agricultural Outlook Board 7, XXXVIII Air Force Department 32, VII Federal Acquisition Regulation Supplement 48, 53 Air Transportation Stabilization Board 14, VI Alcohol and Tobacco Tax and Trade Bureau 27, I Alcohol, Tobacco, Firearms, and Explosives, Bureau of 27, II AMTRAK 49, VII American Battle Monuments Commission 36, IV American Indians, Office of the Special Trustee 25, VII

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2009–2012 32 CFR—Continued 78 FR Page (No regulations published) Chapter V—Continued 518.15 (b)(5)(i) and (iii) revised ...... 18474 2013 518.18 (f)(2) revised ...... 18474 32 CFR 78 FR Page 2014 Chapter V 505.12 (b)(1) revised ...... 18473 (No regulations published from 513 Removed...... 43796 January 1, 2014, through July 1, 2014) Æ

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