32 CFR Ch. VI (7-1-97 Edition)

§ 706.2 32 CFR Ch. VI (7-1-97 Edition)

TABLE FIVEÐContinued

Masthead After mast- lights not Forward head light masthead less than 1¤2 over all light not in ship's length Percentage Vessel No. other lights forward aft of for- horizontal and ob- quarter of ward mast- separation structions. ship. annex head light. attained annex I, I, sec. 3(a) annex I, sec. sec. 2(f) 3(a)

USS BENFOLD ...... DDG 65 XXX 20.4 USS GONZALES ...... DDG 66 XXX 20.4 USS COLE ...... DDG 67 XXX 20.4 USS THE SULLIVANS ...... DDG 68 XXX 20.5 USS MILIUS ...... DDG 69 XXX 20.4 USS HOPPER ...... DDG 70 XXX 20.4 USS ROSS ...... DDG 71 XXX 20.6 USS MAHAN ...... DDG 72 XXX 13.9 USS CALLAGHAN ...... DDG 994 XXX 44.6 USS SCOTT ...... DDG 995 XXX 44.6 USS CHANDLER ...... DDG 996 XXX 44.6 USS ELK RIVER ...... IX 501 ...... X 18.4 USS BLUE RIDGE ...... LCC 19 ...... X 70 USS MOUNT WHITNEY ...... LCC 20 ...... X 84 USS TARAWA ...... LHA 1 ...... X X 13 USS SAIPAN ...... LHA 2 ...... X X 10.2 USS BELLEAU WOOD ...... LHA 3 ...... X X 13 USS NASSAU ...... LHA 4 ...... X X 13 USS PELELIU ...... LHA 5 ...... X X 13 USS WASP ...... LHD 1 ...... X X 41 USS ESSEX ...... LHD 2 ...... X X 39 USS KEARSARGE ...... LHD 3 ...... X X 39.5 USS BOXER ...... LHD 4 ...... X X 39.3 USS BATAAN ...... LHD 5 ...... X X 39.7 USS AUSTIN ...... LPD 4 ...... X 37 USS OGDEN ...... LPD 5 ...... X 51 USS DULUTH ...... LPD 6 ...... X 50 USS CLEVELAND ...... LPD 7 ...... X 49 USS DUBUQUE ...... LPD 8 ...... X 57 USS DENVER ...... LPD 9 ...... X 48 USS JUNEAU ...... LPD 10 ...... X 49 USS SHREVEPORT ...... LPD 12 ...... X 49 USS NASHVILLE ...... LPD 13 ...... X 48 USS TRENTON ...... LPD 14 ...... X 41 USS PONCE ...... LPD 15 ...... X 55 USS GUADALCANAL ...... LPH 7 ...... X X 11 USS GUAM ...... LPH 9 ...... X X 11 USS TRIPOLI ...... LPH 10 ...... X X 12 USS NEW ORLEANS ...... LPH 11 ...... X X 10 USS INCHON ...... LPH 12 ...... X X 11 USS ALAMO ...... LSD 33 ...... X 47 USS HERMITAGE ...... LSD 34 ...... X 55 USS ANCHORAGE ...... LSD 36 ...... X 46 USS PORTLAND ...... LSD 37 ...... X 46 USS PENSACOLA ...... LSD 38 ...... X 46 USS MOUNT VERNON ...... LSD 39 ...... X 46 USS FORT FISHER ...... LSD 40 ...... X 46 USS WHIDBEY ISLAND ...... LSD 41 ...... X 65 USS GERMANTOWN ...... LSD 42 ...... X 65 USS FORT McHENRY ...... LSD 43 ...... X 64 USS GUNSTON HALL ...... LSD 44 ...... X 64 USS COMSTOCK ...... LSD 46 ...... X 64 USS TORTUGA ...... LSD 46 ...... X 64 USS RUSHMORE ...... LSD 47 ...... X 64 USS ASHLAND ...... LSD 48 ...... X 64.1 USS HARPERS FERRY ...... LSD 49 ...... X 63.9 USS CARTER HALL ...... LSD 50 ...... X 63.9 USS OAK HILL ...... LSD 51 ...... X 63.9 USS FREDERICK ...... LST 1184 ...... X 90 USS CAYUGA ...... LST 1186 ...... X 89 USS SAGINAW ...... LST 1188 ...... X 86 USS SAN BERNARDINO ...... LST 1189 ...... X 89 USS SPARTANBURG COUNTY ...... LST 1192 ...... X 88 USS FAIRFAX COUNTY ...... LST 1193 ...... X 90 USS LA MOURE COUNTY ...... LST 1194 ...... X 88

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TABLE FIVEÐContinued

USS HARLAN COUNTY ...... LST 1196 ...... X 89 USS BARNSTABLE COUNTY ...... LST 1197 ...... X 88 USS BRISTOL COUNTY ...... LST 1198 ...... X 90 USS AVENGER ...... MCM 1 ...... X 63 USS DEFENDER ...... MCM 2 ...... X 62 USS SENTRY ...... MCM 3 ...... X 62 USS CHAMPION ...... MCM 4 ...... X 64 USS GUARDIAN ...... MCM 5 ...... X 63 USS DEVASTATOR ...... MCM 6 ...... X 64 USS PATRIOT ...... MCM 7 ...... X 64 USS SCOUT ...... MCM 8 ...... X 64 USS PIONEER ...... MCM 9 ...... 64 USS WARRIOR ...... MCM 10 ...... X 64 USS GLADIATOR ...... MCM 11 ...... X 64 USS ARDENT ...... MCM 12 ...... X 64 USS DEXTROUS ...... MCM 13 ...... X 64 USS CHIEF ...... MCM 14 ...... X 64 USNS KILAUEA ...... T-AE 26 ...... X 94.1

[42 FR 36434, July 14, 1977] EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 706.2, see the List of CFR Sections Affected in the Finding Aids section of this volume.

§ 706.3 Exemptions by the Secretary of TABLE ONEÐContinued the Navy under Executive Order [The following vessels and classes of vessels, less than 150 11964. meters in length, are permanently exempted pursuant to rule 38(d)(i) from repositioning of masthead lights resulting The Secretary of the Navy hereby ex- from the prescriptions of Annex I, section 3(a)] empts, in accordance with Rule 38 of Vessel or class the International Regulations for Pre- venting Collisions at Sea, 1972, the ves- T±AGS 33 Class sels and classes of vessels listed in this T±AOG 77 Class section, from full compliance with the USNS ALBERT J. MYER (T±ARC 6) T±ATF 166 Class Regulations, where an exemption is al- ARS 6 Class lowed by, and for the periods specified ARS 38 Class in, Rule 38. The Secretary of the Navy ASR 7 Class further finds that the vessels and class- ASR 21 Class es of vessels listed have had their keels ATF 148 Class ATS 1 Class laid or are in corresponding stages of DDG 2 Class construction before July 15, 1977, and FF 1037 Class that such vessels and classes of vessels FF 1040 Class comply with the requirements of the FF 1052 Class International Regulations for Prevent- USS GLOVER (FF 1098) ing Collisions at Sea, 1960. FFG 1 Class FFG 7 Class LCU 1610 Class TABLE ONE LCU 1648 Class [The following vessels and classes of vessels, less than 150 MSO 422 Class meters in length, are permanently exempted pursuant to MSO 508 Class rule 38(d)(i) from repositioning of masthead lights resulting from the prescriptions of Annex I, section 3(a)] PG 92 Class USS DOLPHIN (AGSS 555) Vessel or class SSN 594 Class SSN 637 Class USNS HAYES (T±AG±195) SSN 688 Class USNS RANGE SENTINEL (T±AGM±22) SSBN 616 Class T±AGOR 3 Class SSBN 627 Class T±AGS 26 Class SSBN 640 Class

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TABLE ONEÐContinued [The following vessels and classes of vessels, less than 150 meters in length, are permanently exempted pursuant to rule 38(d)(i) from repositioning of masthead lights resulting from the prescriptions of Annex I, section 3(a)]

Vessel or class

SSBN 726 Class YFU (Ex-LCU 1466 Class)

[42 FR 36434, July 14, 1977, as amended at 55 FR 27818, July 9, 1990; 60 FR 22506, May 8, 1995]

PART 707—SPECIAL RULES WITH RE- § 707.2 Man overboard lights. SPECT TO ADDITIONAL STATION Naval vessels may display, as a AND SIGNAL LIGHTS means of indicating man overboard, two pulsating, all round red lights in Sec. the vertical line located on a mast 707.1 Purpose of regulations. from where they can best be seen. 707.2 Man overboard lights. 707.3 Yard arm signaling lights. § 707.3 Yard arm signaling lights. 707.4 Aircraft warning lights. Naval vessels may display, as a 707.5 Underway replenishment contour means of visual signaling, white all lights. round lights at the ends of the yard 707.6 Minesweeping station keeping lights. arms. These lights will flash in varying 707.7 Submarine identification light. sequences to convey the intended sig- 707.8 Special operations lights. nal. 707.9 Convoy operations stern light. 707.10 Wake illumination light. § 707.4 Aircraft warning lights. 707.11 Flight operations lights. 707.12 Amphibious operations lights. Naval vessels may display, as a means of indicating the presence of an AUTHORITY: 33 U.S.C. 182 and 1606, E.O. obstruction to low flying aircraft, one 11964. all round red light on each obstruction. SOURCE: 42 FR 61596, Dec. 6, 1977, unless otherwise noted. § 707.5 Underway replenishment contour lights. § 707.1 Purpose of regulations. Naval vessels may display, as a All ships are warned that when U.S. means of outlining the contour of the naval vessels are met in international delivery ship during nighttime under- and inland waters, some of the naviga- way replenishment operations, either red or blue lights at delivery-ship- tional lights displayed by them may be deck-edge extremities. special lights for naval purposes. When used, they may be displayed simulta- [42 FR 61596, Dec. 6, 1977, as amended at 44 neously with the ordinary navigational FR 27991, May 14, 1979] lights required by the International § 707.6 Minesweeping station keeping Regulations for Preventing Collisions lights. at Sea, 1972, or the Inland Navigational Rules. The lights are located and char- Naval vessels engaged in minesweep- acterized in such a fashion that, as far ing operations may display, as an aid as possible, they cannot be mistaken in maintaining prescribed intervals and bearings, two white lights in a vertical for any light authorized by either set line visible from 070° through 290° rel- of rules. This part publishes the special ative. rules with respect to these additional station and signal lights promulgated § 707.7 Submarine identification light. by the Secretary of the Navy for ves- Submarines may display, as a dis- sels of the Navy. tinctive means of identification, an

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intermittent flashing amber beacon § 707.11 Flight operations lights. with a sequence of operation of one flash per second for three (3) seconds Naval vessels engaged in night flight followed by a three (3) second off-pe- operations may display various ar- riod. The light will be located where it rangements of light systems contain- can best be seen, as near as practicable, ing combinations of different colored all around the horizon. It shall not be lights as a means of assisting in the located less than two (2) feet above or launch and recovery of aircraft and en- below the masthead lights. hancing flight safety. These light systems will be located at various points [48 FR 4284, Jan. 31, 1983] on the vessels, depending on the vessel § 707.8 Special operations lights. type and the nature of the flight operations being conducted. Naval vessels may dispay, as a means of coordinating certain special oper- § 707.12 Amphibious operations lights. ations, a revolving beam colored red, green, or amber, located on either yard Naval vessels engaged in night am- arm or the mast platform from where phibious operations may display var- it can best be seen all around the hori- ious arrangements of light systems zon. containing combinations of different colored lights as a means of assisting § 707.9 Convoy operations stern light. in the launch and recovery of assault Naval vessels may display, during pe- craft and enhancing the safety of the riods of convoy operations, a blue light amphibious operation. These light sys- located near the stern with the same tems will be located at various points characteristics as, but in lieu of, the on the vessel, depending on the vessel normal white stern light. type and the nature of the amphibious operations being conducted. § 707.10 Wake illumination light. Naval vessels may display a white spot light located near the stern to il- luminate the wake.

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PART 716—DEATH GRATUITY § 716.2 Definitions. For the purposes of this part, terms Subpart A—Provisions Applicable to the are defined as follows: Navy and the Marine Corps (a) Member of the naval service. This Sec. term includes: 716.1 Principal rule. (1) A person appointed, enlisted, or 716.2 Definitions. inducted into the Regular Navy, Regu- 716.3 Special situations. lar Marine Corps, Naval Reserve or Ma- 716.4 Eligible survivors. rine Corps Reserve, and includes a mid- 716.5 Delegation of authority. shipman at the United States Naval 716.6 Death occurring after active service. Academy; 716.7 Payment of the death gratuity. (2) Enlisted members of the Fleet Re- 716.8 Payments excluded. serve and Fleet Marine Corps Reserve 716.9 Erroneous payment. and retired members; (3) A member of the Naval Reserve Subpart B—Provisions Applicable to the Navy Officers Training Corps when ordered to annual training duty for 14 days or 716.10 Procedures. more, and while performing authorized travel to and from that duty; and Subpart C—Provisions Applicable to the (4) Any person while en route to or Marine Corps from, or at a place for final acceptance 716.11 Procedures. for entry upon active duty in the naval service who has been ordered or di- AUTHORITY: Sec. 301, 80 Stat. 379, 1(32)(A), rected to go to that place, and who has 72 Stat. 1452; 5 U.S.C. 301, 10 U.S.C. 1475–1480, been provisionally accepted for such Pub. L. 89–554. duty. SOURCE: 24 FR 7523, Sept. 18, 1959, unless (b) Active duty. This term is defined otherwise noted. as (1) full-time duty performed by a member of the naval service, other Subpart A—Provisions Applicable than active duty for training, or (2) as to the Navy and the Marine Corps a midshipman at the United States Naval Academy, and (3) authorized § 716.1 Principal rule. travel to or from such duty or service. Under title 10 U.S.C., section 1475, the (c) Active duty for training. Such term Secretary of the Navy shall have a means: death gratuity paid immediately upon (1) Full-time duty performed by a official notification of the death of a member of a Reserve component of the member of the naval service who dies naval service for training purposes; while on active duty, active duty for (2) Annual training duty performed training, or inactive duty training. The for a period of 14 days or more by a death gratuity shall equal six months’ member of the Naval Reserve Officers basic pay (plus special, incentive, and Training Corps; and proficiency pay) at the rate to which (3) Authorized travel to or from such the deceased member was entitled on duty. the date of his death but shall not be (d) Inactive-duty training. Such term less than $800 nor more than $3,000. A is defined as any of the training, in- kind of special pay included is the 25% struction, appropriate duties, or equiv- increase in pay to which a member alent training, instruction, duty, ap- serving on a naval vessel in foreign wa- propriate duties, or hazardous duty ters is entitled under 10 U.S.C. 5540 performed with or without compensa- when retained beyond expiration of en- tion by a member of a Reserve compo- listment because such retention was nent prescribed by the Secretary of the essential to the public interest. Navy pursuant to sections 206, 309, and

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1002 of title 37 U.S.C. or any other pro- his home by the most direct route. vision of law. The term does not in- That period may not end before mid- clude: night of the day on which the member (1) Work or study performed by a is discharged or released. member of a Reserve component in connection with correspondence [24 FR 7523, Sept. 18, 1959, as amended at 25 FR 7792, Aug. 16, 1960] courses in which he is enrolled, or (2) Attendance at an educational in- § 716.4 Eligible survivors. stitution in an inactive status under the sponsorship of the Navy or Marine (a) The death gratuity shall be paid Corps. to or for the living survivor or survivors of the deceased member first list- [24 FR 7523, Sept. 16, 1959, as amended at 37 ed below: FR 6471, Mar. 30, 1972; 44 FR 25647, May 2, 1979] (1) The lawful spouse. (For purpose of this part, a man or woman shall be § 716.3 Special situations. considered to be the spouse if legally married to the member at the time of (a) Service without pay. Any member of a Reserve component who performs the member’s death.) active duty, active duty for training, (2) His children (without regard to or inactive-duty training without pay their age or marital status) in equal shall, for purposes of a death gratuity shares. payment, be considered as being enti- (3) Parent(s), brother(s) or sister(s) or tled to basic pay, including special pay any combination of them, when des- and incentive pay if appropriate, while ignated by the deceased member. performing such duties. (4) Undesignated parents in equal (b) Death occurring while traveling to shares. and from active duty for training and in- (5) Undesignated brothers and sisters active-duty training. Any member of a in equal shares. In paragraphs (a)(2), (3) Reserve component who, when author- and (4), respectively, of this section, ized or required by competent author- the terms ‘‘child’’ and ‘‘parent’’ have ity, assumes an obligation to perform the meanings assigned to them by title active duty for training or inactive- 10 U.S.C. section 1477 and the term duty training and who dies from an in- ‘‘parents’’ includes persons in loco jury incurred on or after January 1, parentis as indicated by that section. 1957 while proceeding directly to or di- The terms ‘‘brother’’ and ‘‘sister’’ in rectly from such active duty for train- paragraphs (a) (3) and (5) of this section ing or inactive-duty training, shall be include brothers and sisters of the half deemed to have been on active duty for blood and those through adoption. training or inactive-duty training as (b) Designation of payee by service the case may be. member. Where the service member has (c) Hospitalization. A member of a Re- designated a beneficiary and is not sur- serve component who suffers disability vived by a spouse, child, or children, while on active duty, active duty for the payment will be made to the spe- training, or inactive-duty training, and cific person designated by him provided who is placed in a new status while he the designee falls within the class of is receiving hospitalization or medical beneficiaries permitted as set forth in care (including out-patient care) for paragraph (a)(3) of this section. If more such disability, shall be deemed, for than one person is so designated on the purposes of death gratuity payment to Record of Emergency, payment will be have continued on active duty, active made in equal shares unless the mem- duty for training, or inactive-duty ber designated a proportionate share to training, as the case may be, in the each beneficiary. Frivolous designa- event of his death in such status. tions, such as one per centum to a par- (d) Discharge or release from a period of ticular beneficiary, should not be active duty. A person who is discharged made. or released from active duty (other (c) Death of survivor prior to receipt of than for training) is considered to con- gratuity. (1) If a survivor dies before re- tinue on that duty during the period of ceiving payment, or if a designated time required for that person to go to beneficiary predeceases the member

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(and there is no other designated bene- (1) Cases in which a doubt may exist ficiary) such amount shall be paid to as to the identity of the legal bene- the then living survivor or survivors ficiary; and listed first under paragraph (a) of this (2) Cases in which the widow or des- section. ignated beneficiary(ies) of the deceased (2) In case one of the beneficiaries service member was not residing with (parents or brothers or sisters) des- him at or near his place of duty at the ignated by a member, pursuant to time of his death. paragraph (a)(3) of this section, to re- [24 FR 7523, Sept. 18, 1959, as amended at 44 ceive death gratuity payment dies FR 25647, May 2, 1979] prior to the member’s death, or after his death but prior to the time pay- § 716.6 Death occurring after active ment is made, the share which would service. have been paid to the deceased des- (a) Under title 10 U.S.C., section 1476, ignee may be paid to the other person the death gratuity will be paid in any or persons designated. case where a member or former member dies on or after January 1, 1957, [24 FR 7523, Sept. 18, 1959, as amended at 37 during the 120-day period which begins FR 6471, Mar. 30, 1972] on the day following the date of his dis- § 716.5 Delegation of authority. charge or release from active duty, active duty for training, on inactive duty (a) Pursuant to the authority con- training, if the Administrator of Veter- tained in title 10 U.S.C., section 1479, as ans’ Affairs determines that: to deaths described in section 1475 (1) The decedent was discharged or thereof, the Secretary of the Navy has released, as the case may be, from the delegated to commanding officers of service under conditions other than naval commands, installations, or dis- dishonorable from the last period of tricts, with respect to naval personnel, the duty or training performed; and and to Marine Corps commanding gen- (2) Death resulted from disease or in- erals and officers in command of regi- jury incurred or aggravated while on ments, battalions or equivalent units such active duty or active duty for and of separate or detached commands training; or while performing author- who have custody of service records, ized travel to or from such duty; or with respect to Marine Corps person- (3) Death resulted from injury in- nel, authority to certify for the pay- curred or aggravated while on such in- ment of death gratuity the lawful active-duty training or while traveling spouse or designated beneficiary(ies) of directly to or from such duty or train- the deceased service member who was ing. residing with him at or near his place (b) For purposes of computing the of duty at the time of his death, except amount of the death gratuity in such in cases in which a doubt may exist as instances, the deceased person shall be to the identity of the legal beneficiary. deemed to be entitled on the date of his Disbursing officers are authorized to death to basic pay (plus any special, in- make payment of the death gratuity centive and proficiency pay) at the rate upon receipt of certification from the to which he was entitled on the last Commanding Officer. day he performed such active duty, ac- (b) The Secretary of the Navy has tive duty for training, or inactive duty delegated authority to the Chief of training. A kind of special pay included Naval Personnel as to naval personnel, is a pay increase under 10 U.S.C. 5540; and to the Commandant of the Marine see § 716.1. Corps (Code MSPA–1) as to Marine (c) The Department of the Navy is Corps personnel, the authority to cer- precluded from making payment of the tify the beneficiary(ies) for receipt of death gratuity pending receipt of the payment of death gratuity in all appro- determinations described in paragraph priate cases of payment of death gratu- (a) of this section. In view of this, com- ity under the Servicemen’s and Veter- mands should insure that the medical ans’ Survivor Benefits Act (now reen- records and reports of investigations acted in 10 U.S.C. 1475–1480), including, by fact-finding bodies be submitted to but not limited to: the Navy Department at the earliest

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possible date. The Veterans’ Adminis- the check is delivered. Under no cir- tration is promptly notified of all cumstances will the check be delivered deaths of this category reported, and to the payee until this action has been upon the request of that agency all per- accomplished. The payee will retain tinent data is forwarded. the copy of the voucher, DD Form 397, and the signed original voucher will be § 716.7 Payment of the death gratuity. returned by hand to the disbursing offi- (a) Claim certification and voucher for cer by the person designated to deliver the death gratuity payment. The Comp- the check. troller General of the United States [24 FR 7523, Sept. 18, 1959, as amended at 44 has approved DD Form 397 as the form FR 25647, May 2, 1979] to be used hereafter for claim certification and voucher for the death gratu- § 716.8 Payments excluded. ity payment. (a) No payment shall be made if the (b) Active duty deaths (Navy). To ef- deceased member suffered death as a fect immediate payment of death gra- result of lawful punishment for a crime tuity the following actions will be or for a military or naval offense, ex- taken: cept when death was so inflicted by (1) The commanding officer will as- any hostile force with which the Armed certain that the deceased member died Forces of the United States have en- while on active duty, active duty for gaged in armed conflict. training, or inactive-duty training, and will obtain the name, relationship, and (b) No payment will be made to a sur- address of the eligible survivor from vivor implicated in the homicide of the the Service Record of the deceased. deceased in the absence of evidence The Dependency Application/Record of clearly absolving such survivor of any Emergency Data (NAVPERS 1070/602) felonious intent. or Record of Emergency Data (DD (c) Unless the laws of the place where Form 93), will normally contain this a minor beneficiary resides provide information. In addition, in the case of that such a payment would grant a enlisted personnel, the Application for valid acquittance of the Government’s Dependents Allowance (BAQ [Basic Al- obligation to make a payment of death lowance for Quarters]), NAVPERS gratuity to or for a minor, a death gra- Form 668, may serve as a source of cor- tuity of more than $1,000 may not be roboration. He will, with the coopera- paid in whole or in part to a parent as tion of the disbursing officer, initiate natural guardian of a minor or to any preparation of a Claim Certification other person who is not a legal guard- and Voucher for Death Gratuity Pay- ian appointed by the civil court to ment, DD Form 397, in original and five manage the minor’s financial affairs. copies, completing blocks 5 through 14 [24 FR 7523, Sept. 18, 1959, as amended at 37 inclusive, and the administrative state- FR 6471, Mar. 30, 1972; 44 FR 25647, May 2, ment in block 18. The administrative 1979] statement in block 18 will be signed by the commanding officer or acting com- § 716.9 Erroneous payment. manding officer. Where through administrative mis- (2) The disbursing officer will, upon take of fact or law, payment of the receipt of the DD Form 397, draw a death gratuity is made to a person check to the order of the eligible survi- clearly not entitled thereto, and it is vor named in block 5, complete blocks equally clear that another person is en- 2, 3, 4, and the check payment data por- titled to the death gratuity, the Chief tion of block 18. of Naval Personnel (Pers–732) or the (3) Under arrangements made by the Commandant of the Marine Corps commanding officer, the check and the (Code MSPA–1), as appropriate, will original and one copy of the voucher, certify payment to the proper payee, DD Form 397, will be delivered to the irrespective of recovery of the erro- payee. The payee will be required to neous payment. On the other hand, complete block 15, sign in block 17a, where a payment of the death gratuity and have two witnesses complete block has been made to an individual on the 17 on the original voucher at the time basis of representations of record made

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by the deceased member as to his mari- guardianship must be provided for the tal and dependency status, and the protection of the decedent’s children, Government otherwise has no informa- or wherein a technicality exists which tion which would give rise to doubt makes immediate certification legally that such status is as represented, the unsound, will be considered question- payment is not to be regarded as ‘‘erro- able. neous.’’ The Government has a good ac- (3) Exception. Where the entitlement quittance in such cases even though it of the survivor who is living with the may subsequently develop that the deceased at the time of his death is payee is not the proper statutory payee questionable and such survivor is in of the gratuity and no second payment dire financial circumstances, the Chief is authorized. of Naval Personnel (Pers–G23) shall be requested by message to make an adju- [24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25647, May 2, 1979] dication of entitlement. If it is determined that the survivor is entitled to the payment, the commanding officer Subpart B—Provisions Applicable will be authorized by message to exe- to the Navy cute DD Form 397. (b) Action by Casualty Assistance Calls § 716.10 Procedures. Program (CACP) officers; Potential bene- (a) Action by commanding officers. See ficiary not residing with member—(1) § 716.7(b)—(1) Immediate payment—Eligi- Widow(er). The CACP officer, on his or ble beneficiary residing with deceased her initial visit to a widow(er), deter- member. Commanding officers, in order mines, propriety permitting, whether to expedite the payment of the death there is an urgent need for financial as- gratuity, will, upon official notifica- sistance. If there is an urgent need for tion of death, ascertain the duty status financial assistance, the CACP officer of the deceased, and determine the eli- should obtain DD Form 397 from any gibility of the spouse or designated military disbursing office and, on his beneficiary who was residing with the or her second visit to the widow(er), deceased member on or near his duty have him or her sign it and obtain the station at the time of his death. The signatures of two witnesses on the services of a staff or district legal offi- form. It should be noted that the fol- cer will be utilized as required. Every lowing procedure is confined to cases in effort should be made to effect prompt which the decedent’s eligible survivor payment (within 24 hours, if possible). for the death gratuity is a widow(er), It is the intent that determinations of and efforts to effect immediate pay- entitlement by commands in the field ment in accordance with the intent of will be confined largely to spouses and the governing statute are appropriate. parents designated by the service mem- In such cases, the CACP officer, upon ber who were living with him at the learning that a widow(er), not residing time of his death. with his or her spouse at or near the (2) Questionable cases. If entitlement spouse’s duty station, is in urgent need to the death gratuity payment is ques- of financial assistance, shall advise the tionable after seeking advice of the Chief of Naval Personnel (Pers-732) of staff or district legal officer, such case the need by message. The CACP officer will be forwarded promptly to the Chief shall send a copy of this message to the of Naval Personnel (Pers–732) with a decedent’s duty station, if known. brief statement relative to the facts Upon receipt, the disbursing officer which raised the issue of doubt. Every will furnish the Navy Finance Center, effort will be made to expedite action Cleveland, Ohio 44199, with the dece- by a review of the official records of dent’s basic monthly pay [plus any spe- the decedent in the Bureau of Naval cial (see § 716.1), incentive, and pro- Personnel and the Family Allowance ficiency pay] in the event the pay ac- Activity at Cleveland, Ohio. Those count has not been forwarded pre- cases wherein the service member was viously to that center sufficiently in a deserter status, absent without early to have reached there. The CACP leave, or in the custody of civil au- officer shall also send a copy of his thorities at the time of death, wherein message to the Navy Finance Center

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with the request that payment of the cates the beneficiary eligible to receive death gratuity be made upon receipt of payment on the proper voucher (DD the certification of beneficiary entitle- Form 397). Otherwise the pay record ment from the Chief of Naval Person- will be sent to the Army Finance Cen- nel (Pers-732). ter, Air Force Finance Center, Com- (2) Navy Relief. In cases where there mandant of the Marine Corps (Code is immediate need prior to receipt of CDB), the Navy Finance Center, of the the death gratuity, the Navy Relief So- Commandant, U.S. Coast Guard, as ap- ciety will be contacted by the Casualty propriate. Assistance Calls Program officer. (c) Action by the Chief of Naval Person- [24 FR 7523, Sept. 18, 1959, as amended at 44 nel. (1) In all cases where death gratu- FR 25647, May 2, 1979; 45 FR 43165, June 26, 1980] ity is not authorized to be paid locally and in cases where authority exists to pay locally but entitlement is ques- Subpart C—Provisions Applicable tionable (see paragraph (a)(2) of this to the Marine Corps section), the Chief of Naval Personnel (Pers–732) will expedite adjudication of § 716.11 Procedures. claims. As indicated in paragraph (b)(1) (a) Action. Commanding officers will of this section CACP officers will refer direct immediate payment of the gra- cases of urgent financial need to the tuity where the deceased member’s Chief of Naval Personnel (Pers–732) by spouse was, in fact, residing with the message for action. member on or near the station of duty (2) If a minor is entitled to a death at the time of the member’s death gratuity under 10 U.S.C. 1477 not ex- while on active duty, active duty for ceeding $1,000, such death gratuity may training, or inactive-duty training. be paid to the father or mother as nat- Every effort should be made to effect ural guardian on behalf of the minor, such payment promptly (within 24 provided a legally appointed guardian hours, if possible). In cases where the has not been appointed, upon substan- eligible survivor residing with the tiation by a sworn (notarized) state- member on or near the duty station is ment of the natural guardian: other than a spouse, commanding offi- (i) That no legal guardian has been cers may direct the payment of death appointed and that such an appoint- gratuity when the case can be properly ment is not contemplated; determined, and an urgent need exists (ii) The relationship of the natural for immediate payment. Proper deter- guardian to the minor; mination is imperative. (iii) That the minor is in the actual (b) Qualifications. (1) Where any doubt custody of the natural guardian; exists as to the legal recipient of the (iv) That an amount paid to the natu- gratuity, the case will be referred to ral guardian will be held for, or applied the Commandant of the Marine Corps to, the use and benefit of the minor. (Code MSPA–1) for determination. If the death gratuity to which a minor is entitled exceeds $1,000, the appoint- [24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25648, May 2, 1979] ment of a legal guardian on behalf of the minor is requested. Certification of the minor eligible to receive the death PART 718—MISSING PERSONS ACT gratuity is made by the Chief of Naval Personnel (Pers–732) and payment is ef- Sec. fected by the Navy Finance Center, 718.1 General provisions. Cleveland, OH 44199; 718.2 Allotments. (d) Cross-servicing procedure. Payment 718.3 Transportation of dependents. of the death gratuity may be made by 718.4 Delegations. a disbursing officer who is maintaining the pay record of a member of another § 718.1 General provisions. service, provided the command to (a) Under the provisions of the Miss- which the member is attached and ing Persons Act, as amended, a finding which maintains his service record is of presumptive death is made by the in the immediate vicinity and certifi- Secretary of the Navy when a survey of

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all available sources of information in- establish conclusively the fact of death dicates beyond doubt that the pre- and settlement of accounts is made to sumption of continuance of life has the date established as the date of re- been overcome. When a finding of pre- ceipt of evidence on which the fact of sumptive death is made, a man’s pay death is established. accounts are closed as of the day fol- (Sec. 301, 80 Stat. 379; 5 U.S.C. 301. Interpret lowing the expiration of the 12 months’ or apply 80 Stat. 112–117, 248–254; 5 U.S.C. absence or a longer period when justi- 5561–5568, 37 U.S.C. 551–558) fied, and the various benefits, such as [17 FR 5390, June 14, 1952] the six months’ gratuity, become payable. A finding of presumptive death § 718.2 Allotments. concerning an officer or enlisted man During such period as a person is in a of the Navy means simply that as of status of missing, missing in action, in- the date thereof he is for the purposes terned in a foreign country, captured of Naval administration no longer by a hostile force, beleaguered by a alive. It does not mean that death oc- hostile force, or besieged by a hostile curred on that or on any other certain force, allotments from his pay and al- date. lowances may be initiated, continued, (b) Findings of presumptive death are discontinued, increased, decreased, sus- never made when the ‘‘missing’’ status pended or resumed in behalf of his de- has not continued for at least 12 pendents and for such other purposes months. Whenever, subsequent to the as are justified by the circumstances expiration of the 12th month, cumu- and are in the interests of the person lative or other evidence establishes by or of the Government. its preponderance that a ‘‘missing’’ person is no longer alive, a prompt (R.S. 161, sec. 5031, 70A Stat. 278, as amended; finding of presumptive death will be 5 U.S.C. 22, 10 U.S.C. 5031, 50 U.S.C. App. 1013– made. Also, such a finding will be made 1015) whenever justified by the lapse of time [26 FR 12658, Dec. 29, 1961] beyond the 12 months’ absence without specific information being received. § 718.3 Transportation of dependents. (c) The Secretary of the Navy, or (a) Whenever a person in active serv- such subordinate as he may designate, ice is officially reported as dead, in- has authority to make all determina- jured, (Only when the anticipated pe- tions necessary in the administration riod of hospitalization or treatment is of the act, and for the purposes of the expected to be of prolonged duration as act determinations so made shall be shown by a statement of the command- conclusive as to death or finding or ing officer at the receiving hospital), death, as to any other status dealt with missing for a period of 29 days or more, by the act, and as to any essential date interned in a foreign country, or cap- including that upon which evidence or tured by a hostile force, his depend- information is received in the Depart- ents, household and personal effects in- ment. The determination of the Sec- cluding one privately owned motor ve- retary of the Navy, or of such subordi- hicle may be moved (including pack- nate as he may designate, is conclusive ing, crating, drayage, temporary stor- as to whether information received age, and unpacking of household and concerning any person is to be con- personal effects) to the official resi- strued and acted upon as an official re- dence of record for any such person or port of death. When any information to the residence of his dependent, next deemed to establish conclusively the of kin, or other person entitled to re- death of any person is received in the ceive custody of the effects in accord- department, action shall be taken ance with the provisions of paragraph thereon as an official report of death, (d) of this section; or, upon application notwithstanding any prior action relat- by such dependent, next of kin, heir or ing to death or other status of such legal representative, or other person person. Under the foregoing provisions determined in accordance with para- a determination of death is made prior graph (d) of this section, or upon the to the expiration of 12 months when person’s application if injured, to such the evidence received is considered to location as may have been determined

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in advance or as may be subsequently (1) If no duly appointed legal rep- approved, except that a reasonable re- resentative of the owner of the per- lationship must exist between the con- sonal effects makes demand upon the dition and circumstances of the de- Department of the Navy for the effects, pendents and the destination to which the determination by naval authorities transportation is requested. In the case as to the next of kin or heirs of the of a person in an injured status, trans- owner of the personal effects may be portation of his dependents or house- made on the basis of the following: hold and personal effects may be au- (i) Personnel records; or thorized only when the hospitalization (ii) Other documents applicable to or treatment of the injured person will the case; or be of prolonged duration. Payment in (iii) Title 10 U.S.C., section 2771, to money of amounts equal to such com- the extent that it prescribes an order mercial transportation costs or a mon- of precedence among next of kin or etary allowance in lieu of transpor- heirs, namely, the widow or widower of tation as authorized by law for the the owner; if no widow or widower, whole or such part of the travel for then the child or children of the owner which transportation in kind is not and descendants of deceased children, furnished, may be authorized, when by representation; if none of the above, such travel has been completed. the parents of the owner or the survi- (b) When the Secretary of the Navy vor of them; or if none of the above, or his designee determines that an other persons determined to be eligible emergency exists and that such sale under the laws of the domicile of the would be in the best interests of the owner. Government, he may provide for the (2) Such determination should be re- disposition of the motor vehicles and garded as administrative rather than other bulky items of such household legal, as the determination does not and personal effects of the person by vest title to effects or proceeds in the public or private sale. Prior to any next of kin, heirs, or legal representa- such sale, and if practicable, a reason- tive to whom the effects are delivered. able effort shall be made to determine Therefore, delivery of the personal ef- the desires of the interested persons. fects to other than the owner will be The net proceeds received from such made subject to the following advisory sale shall be transmitted to the owner, note which should be written on a copy next of kin, heir or legal representa- of the inventory or in a letter: tive, or other person determined in accordance with paragraph (d) of this sec- Delivery of the personal effects into the tion; but if there be no such persons or custody of other than the owner thereof, by the Department of the Navy, does not in any if such persons or their addresses are way vest title to the effects in the recipient. not ascertainable within one year from Delivery of the effects to the recipient is the date of sale, the net proceeds may made so that distribution may be made in be covered into the Treasury as mis- accordance with the laws of the state in cellaneous receipts. which the owner of the effects was legally (c) The Secretary of the Navy or his domiciled or to restore the effects to the designee is authorized to store the owner in the event of his return from a miss- household and personal effects of the ing status. person until such time as proper dis- (3) When it is impracticable to divide position can be made. The cost of such the personal effects of a person into storage and transportation, including equal shares, and two or more persons packing, crating, drayage, temporary within a class, as provided in 10 U.S.C. storage, and unpacking of household section 2771, are entitled to receive the and personal effects, will be charged effects but cannot agree among them- against appropriations currently avail- selves as to which one of them shall re- able. ceive the effects, then all of the effects (d) The following provisions apply to will be retained by either the Personal the determination of the ‘‘other per- Effects Distribution Center at Norfolk, son’’ or persons referred to in para- VA, or the Personal Effects Distribu- graphs (a) and (b) of this section who tion Center at Oakland, CA, for a pe- may receive the effects or proceeds. riod of two years from the date of

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death of the member. At the expiration AUTHORITY: 3 U.S.C. 301; 5 U.S.C. 301; 10 of the two-year period such effects will U.S.C. 815, 5013, 5148; 32 CFR 700.206 and be sold. 700.1202. (R.S. 161, sec. 5031, 70A Stat. 278, as amended; 5 U.S.C. 22, 10 U.S.C. 5031, 50 U.S.C. App. 1013– Subparts A–B [Reserved] 1015; Pub. L. 89–554, 80 Stat. 379 (5 U.S.C. 301) [26 FR 12659, Dec. 29, 1961, as amended at 37 Subpart C—Trial Matters FR 6472, Mar. 30, 1972; 44 FR 22456, Apr. 16, 1979] § 719.112 Authority to grant immunity from prosecution. § 718.4 Delegations. (a) General. In certain cases involving The Secretary of the Navy has dele- more than one participant, the inter- gated to the Director, Personal Serv- ests of justice may make it advisable ices Division, Bureau of Naval Person- to grant immunity, either trans- nel with respect to personnel in the actional or testimonial, to one or more Navy, and to the Head, Personal Af- of the participants in the offense in fairs Branch Manpower Department consideration for their testifying for (Code MSPA), United States Marine the Government or the defense in the Corps, with respect to personnel in the investigation and/or the trial of the Marine Corps, authority to make all principal offender. Transactional im- determinations to administer the act. munity, as that term is used in this (Pub. L. 89–554, 80 stat. 379 (5 U.S.C. 301)) section, shall mean immunity from [17 FR 5391, June 14, 1952, as amended at 19 prosecution for any offense or offenses FR 7959, Dec. 2, 1954; 44 FR 22456, Apr. 16, to which the compelled testimony re- 1979] lates. Testimonial immunity, as that term is used in this section, shall mean PART 719—REGULATIONS immunity from the use, in aid of future SUPPLEMENTING THE MANUAL prosecution, of testimony or other in- FOR COURTS-MARTIAL formation compelled under an order to testify (or any information directly or Subparts A–B [Reserved] indirectly derived from such testimony or other information). The authority to Subpart C—Trial Matters grant either transactional or testi- Sec. monial immunity to a witness is re- 719.112 Authority to grant immunity from served to officers exercising general prosecution. court-martial jurisdiction. This au- 719.113—719.114 [Reserved] thority may be exercised in any case 719.115 Release of information pertaining to whether or not formal charges have accused persons; spectators at judicial been preferred and whether or not the sessions. matter has been referred for trial. The Subpart D—[Reserved] approval of the Attorney General of the United States on certain orders to Subpart E—Miscellaneous Matters testify may be required, as outlined below. 719.138 Fees of civilian witnesses. (b) Procedure. The written rec- 719.139—719.141 [Reserved] ommendation that a certain witness be 719.142 Suspension of counsel. 719.143 Petition for new trial under 10 U.S.C. granted either transactional or testi- 873. monial immunity in consideration for 719.144 Application for relief under 10 U.S.C. testimony deemed essential to the Gov- 869, in cases which have been finally re- ernment or to the defense shall be for- viewed. warded to an officer competent to con- 719.145—719.150 [Reserved] vene a general court-martial for the 719.151 Furnishing of advice and counsel to witness for whom immunity is re- accused placed in pretrial confinement. 719.155 Application under 10 U.S.C. 874(b) for quested, i.e., any officer exercising gen- the substitution of an administrative eral court-martial jurisdiction. Such form of discharge for a punitive dis- recommendation will be forwarded by charge or dismissal. the trial counsel or defense counsel in

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cases referred for trial, the pretrial in- eral regarding relations between the vestigating officer conducting an in- Departments of Defense and Justice. vestigation upon preferred charges, the The cognizant officer exercising gen- counsel or recorder of any other fact- eral court-martial jurisdiction may ob- finding body, or the investigator when tain approval by the Attorney General no charges have yet been preferred. of a proposed grant of immunity by di- The recommendation shall state in de- recting a letter requesting the assist- tail why the testimony of the witness ance of the Judge Advocate General is deemed so essential or material that (Code 20) in the form prescribed in the interests of justice cannot be paragraph (e) of this section. served without the grant of immunity. (e) Content of immunity requests. In all The officer exercising general court- cases in which approval of the Attor- martial jurisdiction shall act upon ney General of the United States is re- such request after referring it to his quired prior to the issuance of a grant staff judge advocate for consideration of immunity, whether under paragraph and advice. If approved, a copy of the (c) or (d) of this section, the cognizant written grant of immunity must be officer exercising general court-martial served upon the accused or his defense jurisdiction shall forward by message counsel within a reasonable time be- or letter the proposed order to testify fore the witness testifies. Additionally, and grant of immunity to the Judge if any witness is expected to testify in Advocate General (Code 20). The order response to a promise of leniency, the to testify should be substantially in terms of the promise of leniency must the form set forth in appendix A-1-i(3) be reduced to writing and served upon of the Manual of the Judge Advocate the accused or his defense counsel in General. Requests for assistance shall the same manner as a grant of immu- be in writing, should allow at least nity. three weeks for consideration, and (c) Civilian witnesses. Pursuant to 18 must contain the following informa- U.S.C. 6002 and 6004, if the testimony or tion: other information of a civilian witness (1) Name, citation, or other identify- at a court-martial may be necessary in ing information of the proceeding in the public interest, and if the civilian which the order is to be used. witness has refused or is likely to (2) Name of the witness for whom the refuse to testify or provide other infor- immunity is requested. mation on the basis of a privilege (3) Name of the employer or company against self-incrimination, then the ap- with which a witness is associated or proval of the Attorney General of the the military unit or organization to United States, or his designee, must be which a witness is assigned. obtained prior to the execution or issu- (4) Date and place of birth, if known, ance of an order to testify to such ci- of the witness. vilian witness. The cognizant officer (5) FBI or local police file number, if exercising general court-martial juris- any, and if known. diction may obtain the approval of the (6) Whether any State or Federal Attorney General in such a cir- charges are pending against the wit- cumstance by directing a message or ness and the nature of the charges. letter requesting the assistance of the Judge Advocate General (Code 20) in (7) Whether the witness is currently the form prescribed in paragraph (e) of incarcerated, under what conditions, this section. and for what length of time. (d) Cases involving national security. In (8) A brief resume of the background all cases involving national security or of the investigation or proceeding be- foreign relations of the United States, fore the agency or department. the cognizant officer exercising general (9) A concise statement of the rea- court-martial jurisdiction shall for- sons for the request, including: ward any proposed grant of immunity (i) What testimony the witness is ex- to the Judge Advocate General for the pected to give; purpose of consultation with the De- (ii) How this testimony will serve the partment of Justice. See section 0126 of public interest; the Manual of the Judge Advocate Gen- (iii) Whether the witness:

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(A) Has invoked the privilege against be so disqualified under those cir- self-incrimination; or cumstances. (B) Is likely to invoke the privilege; (h) Form of grant. In any case in (iv) If paragraph (e)(9)(iii)(B) of this which a military witness is granted section is applicable, then why it is an- transactional immunity, the general ticipated that the prospective witness court-martial convening authority will invoke the privilege. should execute a written grant, sub- (10) An estimate as to whether the stantially in the form set forth in ap- witness is likely to testify in the event pendix section A-1-i(1) of the Manual of immunity is granted. the Judge Advocate General. In any (f) Post-testimony procedure. After a case in which a military witness is witness immunized in accordance with granted testimonial immunity, the paragraphs (c) and (d) of this section general court-martial convening au- has testified, the following information thority should execute a written grant should be provided to the United States substantially in the form set forth in Department of Justice, Criminal Divi- appendix section A-1-i(2) of the Manual sion, Immunity Unit, Washington, DC of the Judge Advocate General. 20530, via the Judge Advocate General [56 FR 57803, Nov. 14, 1991] (Code 20). (1) Name, citation, or other identify- §§ 719.113—719.114 [Reserved] ing information, of the proceeding in which the order was requested. § 719.115 Release of information per- (2) Date of the examination of the taining to accused persons; spec- witness. tators at judicial sessions. (3) Name and residence address of the (a) Release of information—(1) General. witness. There are valid reasons for making in- (4) Whether the witness invoked the formation available to the public con- privilege. cerning the administration of military (5) Whether the immunity order was justice. The task of striking a fair bal- used. ance among the protection of individ- (6) Whether the witness testified pur- uals accused of offenses, improper or suant to the order. unwarranted publicity pertaining to (7) If the witness refused to comply their cases, public understanding of the with the order, whether contempt pro- problems of controlling misconduct in ceedings were instituted, or are con- the military service, and the workings templated, and the result of the con- of military justice requires the exer- tempt proceeding, if concluded. A ver- cise of sound judgment by those re- batim transcript of the witness’ testi- sponsible for administering military mony, authenticated by the military justice and by representatives of the judge, should be provided to the Judge press and other news media. At the Advocate General at the conclusion of heart of all guidelines pertaining to the the trial. No testimony or other infor- furnishing of information concerning mation given by a civilian witness pur- an accused or the allegations against suant to such an order to testify (or him is the mandate that no statements any information directly or indirectly or other information shall be furnished derived from such testimony or other to news media for the purpose of influ- information) may be used against him encing the outcome of an accused’s in any criminal case, except a prosecu- trial, or which could reasonably be ex- tion for perjury, giving a false state- pected to have such an effect. ment, or otherwise failing to comply (2) Applicability of regulations. These with the order. regulations apply to all persons who (g) Review. Under some cir- may obtain information as the result cumstances, the officer granting im- of duties performed in connection with munity to a witness may be disquali- the processing of accused persons, the fied from taking reviewing action on investigation of suspected offenses, the the record of the trial before which the imposition of nonjudicial punishment, witness granted immunity testified. A or the trial of persons by court-mar- successor in command not participat- tial. These regulations are applicable ing in the grant of immunity would not from the time of apprehension, the

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preferral of charges, or the commence- place of apprehension, resistance, pur- ment of an investigation directed to suit, and use of weapons. make recommendations concerning (vi) The type and place of custody, if disciplinary action, until the imposi- any. tion of nonjudicial punishment, com- (vii) Information which has become a pletion of trial (court-martial sessions) part of the record of proceedings of the or disposition of the case without trial. court-martial in open session. These regulations also prescribe guide- (viii) The scheduling of any stage in lines for the release or dissemination the judicial process. of information to public news agencies, (ix) The denial by the accused of any to other public news media, or to other offense or offenses of which he may be persons or agencies for unofficial pur- accused or suspected (when release of poses. such information is approved by the (3) Release of information. (i) As a gen- counsel of the accused). eral matter, release of information per- (5) Prohibited information. The follow- taining to accused persons should not ing information concerning a person be initiated by persons in the naval accused or suspected of an offense or service. Information of this nature offenses generally may not be released, should be released only upon specific except as provided in paragraph (a)(6) request therefor, and, subject to the of this section. following guidelines, should not exceed (i) Subjective opinions, observations, the scope of the inquiry concerned. or comments concerning the accused’s (ii) Except in unusual circumstances, character, demeanor at any time (ex- information which is subject to release cept as authorized in paragraph (4)(v) under the regulation should be released of this section), or guilt of the offense by the cognizant public affairs officer; or offenses involved. requests for information received from (ii) The prior criminal record (includ- representatives of news media should ing other apprehensions, charges or be referred to the public affairs office trials) or the character or reputation of for action. When an individual is sus- the accused. pected or accused of an offense, care should be taken to indicate that the in- (iii) The existence or contents of any dividual is alleged to have committed confession, admission, statement, or or is suspected or accused of having alibi given by the accused, or the re- committed an offense, as distinguished fusal or failure of the accused to make from stating or implying that the ac- any statement. cused has committed the offense or of- (iv) The performance of any examina- fenses. tion or test, such as polygraph exami- (4) Information subject to release. On nations, chemical tests, ballistics inquiry, the following information con- tests, etc., or the refusal or the failure cerning a person accused or suspected of the accused to submit to an exam- of an offense or offenses may generally ination or test. be released except as provided in para- (v) The identity, testimony, or credi- graph (6) of this section: bility of possible witnesses, except as (i) The accused’s name, grade, age, authorized in paragraph (4)(iii), of this unit, regularly assigned duties, duty section. station, and sex. (vi) The possibility of a plea of guilty (ii) The substance of the offenses of to any offense charged or to a lesser of- which the individual is accused or sus- fense and any negotiation or any offer pected. to negotiate respecting a plea of guilty. (iii) The identity of the victim of any (vii) References to confidential alleged or suspected offense, except the sources or investigative techniques or victim of a sexual offense. procedures. (iv) The identity of the apprehending (viii) Any other matter when there is and investigative agency, and the iden- a reasonable likelihood that the dis- tity of accused’s counsel, if any. semination of such matter will affect (v) The factual circumstances imme- the deliberations of an investigative diately surrounding the apprehension body or the findings or sentence of a of the accused, including the time and court-martial or otherwise prejudice

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the due administration of military jus- Judge Advocate General, the presiding tice either before, during, or after trial. officer, upon motion of the Govern- (6) Exceptional cases. The provisions ment or the defense or upon his mo- of this section are not intended to re- tion, may direct that all or part of the strict the release of information de- hearing be held in closed session and signed to enlist public assistance in ap- that all persons not connected with the prehending an accused or suspect who hearing be excluded therefrom. The de- is a fugitive from justice or to warn the cision to exclude spectators shall be public of any danger that a fugitive ac- based on the ground that dissemination cused or suspect may present. Further, of evidence, information, or argument since the purpose of this section is to presented at the hearing may disclose prescribe generally applicable guide- matters that will be inadmissible in lines, there may be exceptional cir- evidence at a subsequent trial by cumstances which warrant the release court-martial and is therefore likely to of information prohibited under para- interfere with the right of the accused graph (a)(5) of this section or the non- to a fair trial by an impartial tribunal. release of information permitted under [38 FR 5997, Mar. 6, 1973, as amended at 47 FR paragraph (a)(4) of this section. Atten- 49644, Nov. 2, 1982; 50 FR 23800, June 6, 1985] tion should be given to the Secretary of the Navy instructions implementing the Freedom of Information Act Subpart D—[Reserved] (5720.42 series) and the Privacy Act (5211.5C series). Consultation with the Subpart E—Miscellaneous Matters command judge advocate, if one is assigned, or with the cognizant Naval § 719.138 Fees of civilian witnesses. Legal Service Office concerning inter- (a)Method of Payment. The fees and pretation and application of these in- mileage of a civilian witness shall be structions is encouraged. paid by the disbursing officer of the (b) Spectators. (1) The sessions of command of a convening authority or courts-martial shall be open to the appointing authority or by the disburs- public, which includes members of both ing officer at or near the place where the military and civilian communities. the tribunal sits or where a deposition In order to maintain the dignity and is taken when such disbursing officer is decorum of the proceedings or for other presented a properly completed public good cause, the military judge may voucher for such fees and mileage, reasonably limit the number of spec- signed by the witness and certified by tators in, and the means of access to, one of the following: the courtroom, exclude specific persons (1) Trial counsel or assistant trial from the courtroom, and close a ses- counsel of the court-martial; sion. Video and audio recording and (2) Summary court officer; taking of photographs, except for the (3) Counsel for the court in a court of purpose of preparing the record of trial, inquiry; in the courtroom during the proceed- (4) Recorder or junior member of a ings and radio or television broadcast- board to redress injuries to property, ing of proceedings from the courtroom or shall not be permitted. The military (5) Military or civil officer before judge may, as a matter of discretion, whom a deposition is taken. permit contemporaneous closed–circuit The public voucher must be accom- video or audio transmission to permit panied by a subpoena or invitational viewing or hearing by an accused re- orders (Joint Travel Regulations, vol. moved from the courtroom or by spec- 2, chap. 6), and by a certified copy of tators when courtroom facilities are the order appointing the court-martial, inadequate to accommodate a reason- court of inquiry, or investigation. If, able number of spectators. however, a deposition is taken before (2) At pretrial hearings. In any pre- charges are referred for trial, the fees liminary hearing, including a hearing and mileage of the witness concerned conducted pursuant to 10 U.S.C. 832 or shall be paid by the disbursing officer a court of inquiry or investigation con- at or near the place where the deposi- ducted pursuant to the Manual of the tion is taken upon presentation of a

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public voucher, properly completed as quest at any time during the period of hereinbefore prescribed, and accom- attendance. The disbursing officer will panied by an order from the officer who make such interim payment(s) upon re- authorized the taking of the deposi- ceipt of properly executed certifi- tion, subscribed by him and directing cate(s). Upon his discharge from at- the disbursing officer to pay to the wit- tendance, the witness will be paid, ness the fees and mileage supported by upon the execution of a certificate, a the public voucher. When the civilian final amount covering unpaid fees and witness testifies outside the United travel, including an amount for return States, its territories and possessions, travel. Payment for return travel will the public voucher must be accom- be made upon the basis of the actual panied by a certified copy of the order fees and mileage allowed for travel to appointing the court-martial, court of the court, or place designated for tak- inquiry, or investigation, and by an ing a deposition. order from the convening authority or (f) Computation. Travel expenses shall appointing authority, subscribed by be determined on the basis of the him and directing the disbursing offi- shortest usually traveled route in ac- cer to pay to the witness the fees and cordance with official schedules. Rea- mileage supported by the public vouch- sonable allowance will be made for un- er. avoidable detention. (b)Obtaining money for advance tender (g) Nontransferability of accounts. Ac- or payment. Upon written request by counts of civilian witnesses may not be one of the officers listed in paragraph transferred or assigned. (a) of this section, the disbursing offi- (h) Signatures. Signatures of wit- cer under the command of the conven- nesses signed by mark must be wit- ing or appointing authority, or the dis- nessed by two persons. bursing officer nearest the place where (i) Rates for civilian witnesses pre- the witness is found, will, at once, pro- scribed by law—(1) Civilian witnesses not vide any of the persons listed in para- in Government employ. A civilian not in graph (a) of this section, or any other Government employ, who is compelled officer or person designated for the or required to testify as a witness be- purpose, the required amount of money fore a Naval tribunal at a specified to be tendered or paid to the witness place or to appear at a place where his for mileage and fees for one day of at- deposition is to be taken for use before tendance. The person so receiving the a court or fact-finding body, will re- money for the purpose named shall fur- ceive fees, subsistence, and mileage as nish the disbursing officer concerned provided in 28 U.S.C. 1821. Witness and with a proper receipt. subsistence fees are not prorated. In- (c) Reimbursement. If an officer stead any fractional part of a calendar charged with serving a subpoena pays day expended in attendance or qualify- from his personal funds the necessary ing for subsistence entitles the witness fees and mileage to a witness, taking a to payment for a full day. Further, receipt therefor, he is entitled to reim- nothing in this paragraph shall be con- bursement upon submitting to the dis- strued as authorizing the payment of bursing officer such receipt, together attendance fees to witnesses for: with a certificate of the appropriate (i) Attendance or travel which is not person named in paragraph (a) of this performed either as a direct result of section, to the effect that the payment being compelled to testify pursuant to was necessary. a subpoena or as a direct result of invi- (d) Certificate of person before whom tational orders; or deposition is taken. The certificate of (ii) For travel which is performed the person named in paragraph (a) of prior to being duly summoned as a wit- this section, before whom the witness ness; or gave his deposition, will be evidence of (iii) For travel returning to their the fact and period of attendance of the places of residence if the travel from witness and the place from which sum- their places of residence does not qual- moned. ify for payment under this paragraph. (e) Payment of accrued fees. The wit- (2) Civilian witnesses in Government ness may be paid accrued fees at his re- employ. When summoned as a witness, a

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civilian in the employ of the Govern- certified copy of the authorization of ment shall be paid as authorized by the convening authority. Joint Travel Regulations. (l) Payment of witness fees to foreign (j) Supplemental construction of sec- nationals: Officers exercising general tion. Nothing in this paragraph shall be court-martial jurisdiction in areas construed as permitting or requiring other than a State of the United States the payment of fees to those witnesses shall establish rates of compensation not requested or whose testimony is for payment of foreign nationals who determined not to meet the standards testify as witnesses, including expert of relevancy and materiality set forth witnesses, at courts-martial convened in accordance with MCM, 1984, R.C.M. in such areas. 703. [38 FR 5997, Mar 6, 1973, as amended at 47 FR (k)Expert witnesses (1) The convening 49644, Nov. 2, 1982; 50 FR 23801, June 6, 1985] authority will authorize the employment of an expert witness and will fix §§ 719.139—719.141 [Reserved] the limit of compensation to be paid such expert on the basis of the normal § 719.142 Suspension of counsel. compensation paid by United States at- (a) Report of Allegations of Misconduct torneys for attendance of a witness of or Disability. When information comes such standing in United States courts to the attention of a member of a in the area involved. Information con- court-martial, a military judge, trial cerning such normal compensation or defense counsel, staff judge advo- may be obtained from the nearest offi- cate, member of the Navy-Marine cer exercising general court–martial Corps Court of Military Review or jurisdiction having a judge advocate other directly interested or concerned assigned in other than an additional party that a judge advocate or civilian duty, temporary duty, or temporary who is acting or is about to act as additional duty capacity. Convening counsel before a proceeding conducted authorities at overseas commands will under the UCMJ or MCM is or has been adhere to fees paid such witnesses in unable to discharge properly all the du- the Hawaiian area and may obtain in- ties of his or her position by reason of formation as to the limit of such fees mental or physical disability or has from the Commander, Naval Base, been engaged in professional or per- Pearl Harbor. See paragraph (l) of this sonal misconduct of such a serious na- section for fees payable to foreign nature as to demonstrate that he or she is tionals. lacking in integrity or is failing to (2) The provisions of paragraph (i) of meet the ethical standards of the pro- this section are applicable to expert fession or is otherwise unworthy or un- witnesses. However, the expert witness qualified to perform the duties of a fee prescribed by the convening author- judge advocate or attorney, such infor- ity will be paid in lieu of ordinary at- mation should be reported to the com- tendance fees on those days the witness manding officer of that judge advocate is required to attend the court. or, in the case of civilian counsel, to (3) An expert witness employed in the officer exercising general court- strict accordance with MCM, 1984, martial jurisdiction over the command R.C.M. 703(d), may be paid compensa- convening the proceedings or to the tion at the rate prescribed in advance Judge Advocate General. by the official empowered to authorize (b) Form of Report. The report shall: his employment (11 Comp. Gen. 504). In (1) Be in writing, under oath or affir- the absence of such authorization, no mation, and made and signed by the in- fees other than ordinary witness fees dividual reporting the information. may be paid for the employment of an (2) State that the individual report- individual as an expert witness. After ing the information has personal an expert witness has testified pursu- knowledge or belief or has otherwise ant to such employment, the certifi- received reliable information indicat- cate of one of the officers listed in sub- ing that: section a above, when presented to the (i) The counsel is, or has been, unable disbursing officer, shall also enclose a to discharge properly all the duties of

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his or her office by reason of mental or the officer exercising general court- physical disability; or martial convening authority: (ii) The counsel is or has been en- (A) May take the action authorized gaged in professional or personal mis- by subsections (c)(1)(i), (ii) or (iii); or conduct of such a serious nature as to (B) Shall, if he or she considers that demonstrate that he or she is lacking evidence of disability or professional or in integrity or is failing to meet the personal misconduct exists and that ethical standards of the profession; or other remedial measures short of sus- (iii) The counsel is unworthy or un- pension or decertification are not ap- qualified to perform his or her duties; propriate or will not be effective, ap- (3) Set forth the grounds of the alle- point a board of officers to investigate gation together with all relevant facts; the matter and to report its findings and and its recommendations. This board (4) Be forwarded to the appropriate authority as set forth in paragraph (a). shall be comprised of at least three of- (c) Consideration of the Report—(1) Ac- ficers, each an Article 27(b), Uniform tion by the Commanding Officer of a Code of Military Justice, certified judge advocate. Upon receipt of the re- judge advocate. If practicable, each of port, the commanding officer: the officers of the board should be sen- (i) Shall dismiss any report relating ior to the judge advocate under inves- to the performance of a judge advocate tigation. If the counsel is a member of more properly appealed under law or the Marine Corps, a majority of the any report that is frivolous, unfounded, members of the board should be Marine or vague and return it to the reporting Corps judge advocates. The senior offi- individual; cer of the board shall cause notice to (ii) May make further inquiry into be given to the counsel, judge advocate the report at his or her discretion to or civilian (respondent), informing him determine the merits of the report. The or her of the misconduct or other dis- commanding officer may appoint an of- qualification alleged and affording him ficer to investigate informally the alle- or her the opportunity to appear before gations of the report to determine the board for a hearing. The respondent whether further action is warranted. shall be permitted at least ten (10) Any officer so appointed should be a days’ notice prior to the hearing. Fail- judge advocate senior in rank to the ure to appear on a set date after notice judge advocate being investigated; shall constitute waiver of appearance, (iii) May take appropriate action to absent good cause shown. The respond- address and dispose of the matter being ent shall be generally afforded the mindful of such measures as warning, rights of a party as set out in section counseling, caution, instruction, pro- 0304 of this Manual, except that, in the ceedings in contempt, therapy, and event the judge advocate respondent other punitive or administrative ac- wishes to have military counsel ap- tion; or pointed, he or she shall not have the (iv) Shall, if the commanding officer right to select or identify a particular is of the opinion that evidence of dis- military counsel. A civilian respondent ability or professional or personal misconduct exists, and that remedial may not be represented by military measures short of suspension or decer- counsel, but may be represented by ci- tification are not appropriate or will vilian counsel at no expense to the not be effective, forward the original Government. Upon ascertaining the complaint, a written report of the in- relevant facts after notice and hearing, quiry or investigation, all other rel- a written report of the findings and evant information, and his or her com- recommendations of the board shall be ments and recommendations to the of- made to the officer who convened the ficer in the chain of command exercis- board. In all cases, a written copy of ing general court-martial authority. the board’s findings and recommenda- (2) Action by Officer Exercising General tions shall be provided to the respond- Court-Martial Authority. (i) Upon re- ent. The respondent shall be given an ceipt of a report of an allegation of opportunity to comment on the report misconduct or disability of a counsel, in writing.

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(ii) Upon receipt of the report of the fice by reason of mental or physical board of investigation, the officer exer- disability or has been engaged in pro- cising general court-martial authority fessional or personal misconduct of shall: such a serious nature as to dem- (A) Return the report to the board for onstrate that he or she is lacking in in- further investigation, if the investiga- tegrity or is failing to meet the ethical tion is determined to be incomplete; or standards of the profession or is other- (B) Forward the report of the board wise unworthy or unqualified to per- of investigation to the Judge Advocate form the duties of a counsel Action to General together with comments and suspend or decertify should not be ini- recommendations concerning suspen- tiated because of personal prejudice or sion of the counsel involved. hostility toward counsel, nor should (3) Action by the Judge Advocate Gen- such action be initiated because coun- eral. (i) Upon receipt of a report of an sel has initiated an aggressive, zealous allegation of misconduct or disability or novel defense, or the apparent mis- of a counsel, the Judge Advocate Gen- conduct stems from inexperience or eral: lack of instruction. (A) May take the action authorized (2) Specific grounds for suspension or by subsections (c)(1)(i), (ii), or (iii); decertification include, but are not (B) May appoint a board of officers limited to, the following: for investigation and hearing in ac- (i) Demonstrated incompetence while cordance with subsections (c)(2)(i)(B) acting as counsel before, during or or after a court-martial. (C) May request the officer exercising (ii) Preventing or obstructing justice, general court-martial jurisdiction over including the deliberate use of frivo- the command of the respondent (if lous or unwarranted dilatory tactics. judge advocate counsel) or over the (iii) Fabricating papers or other evi- proceedings (if civilian counsel) to take dence. the matter for investigation and hear- (iv) Tampering with a witness. ing in accordance with subsection (v) Abusive conduct toward the (c)(2)(i)(B). court-martial, the Navy-Marine Corps (ii) Upon receipt of the report of the Court of Military Review, the military investigating board, the Judge Advo- judge, or opposing counsel. cate General: (vi) Flagrant or repeated violations (A) May determine whether the re- of any specific rules of conduct pre- spondent is to be suspended or decerti- scribed for counsel in the Manual for fied and, if so, whether for a stated Courts-Martial. term or indefinitely; (vii) Conviction of an offense involv- (B) May determine that the findings ing moral turpitude or conviction for of the board do not warrant further ac- violation of article 48, UCMJ. tion; or (viii) Disbarment by a State Bar, (C) May return the report to the Federal Court, or the United States sending officer with appropriate in- Court of Military Appeals. structions for further inquiry or ac- (ix) Suspension as counsel by the tion. The Judge Advocate General may, Judge Advocate General of the Navy, sua sponte, or upon petition of the re- Army, or Air Force or the General spondent, modify or revoke any prior Counsel of the Department of Trans- order of suspension or dismissal of a re- portation. port. Further, if the Judge Advocate (x) Flagrant or repeated violations of General suspends counsel, the Judge the Uniform Rules of Practice Before Advocates General of the other armed Navy-Marine Corps Courts-Martial as forces will be notified. outlined in Appendix A–1-p(1) of the (d) Grounds justifying suspension of Manual of the Judge Advocate General. counsel or suspension or decertification of (xi) Flagrant or repeated violations a Judge Advocate. (1) Suspension or de- of the provisions of section 0134 of this certification is to be employed only Manual of the Judge Advocate General after it has been established that a dealing with the Release of Information counsel has been unable to discharge Pertaining to Accused Persons; Spectators properly all the duties of his or her of- at Judicial Sessions.

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(xii) Failure to meet the rules set or affirmation by the accused, by a per- forth in the ABA Code of Professional son possessing the power of attorney of Responsibility and the ABA Standards the accused for that purpose, or by a on Fair Trial and Free Press and The person with the authorization of an ap- Prosecution Function and the Defense propriate court to sign the petition as Function. In view of the unique mission the representative of the accused. The and personal requirements of the mili- petition shall contain the following in- tary, many of the rules and principles formation, or an explanation why such of the ABA Code or Standards are not matters are not included: applicable to the military lawyer. Ac- (1) The name, service number, and cordingly, the rules are to be used as a current address of the accused; guide only, and a failure to comply (2) The date and location of the trial; with the specific wording of a rule is (3) The type of court-martial and the not to be construed as a violation of title or position of the convening au- the rule where common sense would in- thority; dicate to a reasonable person that (4) The request for the new trial; there is a distinction between the civil- (5) The sentence or a description ian context, which the codes were thereof as approved or affirmed, with drafted to embrace, and the unique any later reduction thereof by clem- concerns of the military setting, where the codes serve as a general guide. ency or otherwise, (6) A brief description of any finding [50 FR 23801, June 6, 1985] or sentence believed to be unjust; (7) A full statement of the newly dis- § 719.143 Petition for new trial under 10 U.S.C. 873. covered evidence or fraud on the court- martial which is relied upon for the (a) Statutory provisions. 10 U.S.C. 873, remedy sought; provides, ‘‘At any time within 2 years (8) Affidavits pertinent to the mat- after approval by the convening au- ters in subsection (6)i; and thority of a court-martial sentence, (9) Affidavit of each person whom the the accused may petition the Judge accused expects to present as a witness Advocate General for a new trial on the in the event of a new trial. Each affida- grounds of newly discovered evidence vit should set forth briefly the relevant or fraud on the court. If the accused’s facts within the personal knowledge of case is pending before a Court of Mili- tary Review or before the Court of the witness. Military Appeals, that Judge Advocate (d) Who may act on petition. If the General shall refer the petition to the accused’s case is pending before a appropriate court for action. Otherwise Court of Military Review or the Court the Judge Advocate General shall act of Military Appeals, the Judge Advo- upon the petition.’’ cate General shall refer the petition to (b) Submission Procedures: At any the appropriate court for action. Other- time within 2 years after approval by wise, the Judge Advocate shall act on the convening authority of a court- the petition. martial sentence, the accused may pe- (e) Ground for New Trial. A new trial tition the Judge Advocate General for may be granted only on grounds of a new trial on the ground of newly dis- newly discovered evidence or fraud on covered evidence or fraud on the court- the court-martial. martial. The petition for new trial may (1) A new trial shall not be granted be submitted by the accused person- on the grounds of newly discovered evi- ally, or by accused’s counsel, regard- dence unless the petition shows that; less of whether the accused has been (i) The evidence was discovered after separated from the service. A petition the trial, may not be submitted after the death (ii) The evidence is not such that it of the accused. would have been discovered by the peti- (c) Contents of petitions: The form and tioner at the time of trial in the exer- contents of petitions for new trial are cise of due diligence; and specified in MCM, 1984, R.C.M. 1210(c). (iii) The newly discovered evidence, if The petition for a new trial shall be considered by a court-martial in the written and shall be signed under oath light of all other pertinent evidence,

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