Subtitle A—Department of Defense (Continued)
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SUBCHAPTER A—UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDS
Part Page 700 United States Navy regulations and official records ...... 9 701 Availability of Department of the Navy records and publication of Department of the Navy docu- ments affecting the public ...... 45 705 Public affairs regulations ...... 132
SUBCHAPTER B—NAVIGATION 706 Certifications and exemptions under the Inter- national Regulations for Preventing Collisions at Sea, 1972 ...... 171 707 Special rules with respect to additional station and signal lights ...... 185
SUBCHAPTER C—PERSONNEL 716 Death gratuity ...... 187 718 Missing Persons Act ...... 192 719 Regulations supplementing the manual for courts- martial ...... 195 720 Delivery of personnel; service of process and sub- poenas; production of official records ...... 208 721–722 [Reserved] 723 Board for Correction of Naval Records ...... 225 724 Naval Discharge Review Board ...... 232 725 Release of official information for litigation pur- poses and testimony by Department of the Navy personnel ...... 265 726 Payments of amounts due mentally incompetent members of the Naval service ...... 279 727 Legal assistance ...... 281 728 Medical and dental care for eligible persons at Navy medical department facilities ...... 286 732 Nonnaval medical and dental care ...... 350
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733 Assistance to and support of dependents; paternity complaints ...... 364 734 Garnishment of pay of Naval military and civilian personnel for collection of child support and ali- mony ...... 369 735 Reporting births and deaths in cooperation with other agencies ...... 371
SUBCHAPTER D—PROCUREMENT, PROPERTY, PATENTS, AND CONTRACTS 736 Disposition of property ...... 373 744 Policies and procedures for the protection of pro- prietary rights in technical information proposed for release to foreign governments ...... 377 746 Licensing of government inventions in the custody of the Department of the Navy ...... 378
SUBCHAPTER E—CLAIMS 750 General claims regulations ...... 384 751 Personnel claims regulations ...... 408 752 Admiralty claims ...... 437 755 Claims for injuries to property under Article 139 of the Uniform Code of Military Justice ...... 440 756 Nonappropriated-fund claims regulations ...... 443 757 Affirmative claims regulations ...... 445
SUBCHAPTER F—ISLANDS UNDER NAVY JURISDICTION 761 Naval Defensive Sea Areas; Naval Airspace Res- ervations, areas under Navy administration, and the Trust Territory of the Pacific Islands ...... 454 762 Midway Islands Code ...... 466 763 Rules governing public access ...... 483
SUBCHAPTER G—MISCELLANEOUS RULES 765 Rules applicable to the public ...... 486 766 Use of Department of the Navy aviation facilities by civil aircraft ...... 490 767 Application guidelines for archeological research permits on ship and aircraft wrecks under the ju- risdiction of the Department of the Navy ...... 500 768–769 [Reserved] 770 Rules limiting public access to particular installa- tions ...... 504 771–774 [Reserved] 775 Procedures for implementing the National Envi- ronmental Policy Act ...... 516
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776 Professional conduct of attorneys practicing under the cognizance and supervision of the Judge Ad- vocate General ...... 523 777–799 [Reserved]
CROSS REFERENCES: Panama Canal: See 35 CFR chapter I. National Oceanic and Atmospheric Administration, Department of Commerce: See 15 CFR chapter IX. Coast Guard, Department of Transportation: See 33 CFR chapter I; 46 CFR chapter I. Office of the Secretary of Defense: See 32 CFR chapter I. Department of the Army: See 32 CFR chapter V. Navigation and Navigable Waters (Anchorage Bridge, Danger Zone, Navigation, and Oil Pol- lution Regulations, etc.): See 33 CFR chapters I and II. Selective Service System: See 32 CFR chapter XVI. Department of Veterans Affairs: See 38 CFR chapter I.
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PART 700—UNITED STATES NAVY 700.324 The Assistant Secretary of the Navy (Manpower and Reserve Affairs). REGULATIONS AND OFFICIAL 700.325 The Assistant Secretary of the Navy RECORDS (Installations and Environment). 700.326 The Assistant Secretary of the Navy Subpart A—Navy Regulations (Research, Development and Acquisi- tion). Sec. 700.327 The General Counsel of the Navy. 700.101 Origin and history of United States Navy Regulations. THE OFFICE THE SECRETARY OF THE NAVY/THE 700.102 Statutory authority for issuance of STAFF ASSISTANTS United States Navy Regulations. 700.103 Purpose and effect of United States 700.330 The Staff Assistants. Navy Regulations. 700.331 The Judge Advocate General. 700.104 Statutory authority for prescription 700.332 The Naval Inspector General. of other regulations. 700.333 The Chief of Naval Research. 700.105 Issuance of directives by other offi- 700.334 The Chief of Information. cers and officials. 700.335 The Chief of Legislative Affairs. 700.106 Control of administrative require- 700.336 The Director, Office of Program Ap- ments. praisal. 700.107 Maintenance of Navy Regulations. 700.337 The Auditor General. Subpart B—The Department of the Navy Subpart D—The Chief of Naval Operations 700.201 Origin and authority of the Depart- ment of the Navy. 700.401 Precedence. 700.202 Mission of the Department of the 700.402 Succession. Navy. 700.403 Statutory authority and responsi- 700.203 Composition. bility of the Chief of Naval Operations. 700.204 The principal elements of the De- 700.404 Statutory authority and responsi- partment of the Navy. bility of the Office of the Chief of Naval Operations. Subpart C—The Secretary of the Navy 700.405 Delegated authority and responsi- bility. THE SECRETARY OF THE NAVY 700.406 Naval Vessel Register, classification 700.301 Responsibilities of the Secretary of of naval craft, and status of ships and the Navy. service craft. 700.302 Responsibilities within the Depart- ment of the Navy. Subpart E—The Commandant of the 700.303 Succession. Marine Corps 700.304 Recommendations to Congress. 700.305 Assignment of functions. 700.501 Precedence. 700.306 Assignment of duty and titles. 700.502 Succession. 700.307 Powers with respect to the Coast 700.503 Statutory authority and responsi- Guard. bility of the Commandant of the Marine Corps. THE OFFICE OF THE SECRETARY OF THE NAVY 700.504 Statutory authority and responsi- 700.310 Composition. bility of the Headquarters, Marine Corps. 700.311 Sole responsibilities. 700.505 Delegated authority and responsi- 700.312 Authority over organizational mat- bility. ters. Subpart F—The United States Coast Guard THE OFFICE OF THE SECRETARY OF THE NAVY/ (When Operating as a Service of the THE CIVILIAN EXECUTIVE ASSISTANTS Navy) 700.320 The Civilian Executive Assistants. 700.321 The Under Secretary of the Navy. 700.601 Relationship and operation as a 700.322 Assistant Secretaries of the Navy; service in the Navy. statutory authorization. 700.602 The Commandant of the Coast 700.323 The Assistant Secretary of the Navy Guard. (Financial Management). 700.603 Duties and responsibilities.
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Subpart G—Commanders in Chief and 700.846 Status of logs. Other Commanders 700.847 Responsibility of a master of an in- service ship of the Military Sealift Com- TITLES AND DUTIES OF COMMANDERS mand. 700.848 Relations with merchant seamen. 700.701 Titles of commanders. 700.855 Status of boats. 700.702 Responsibility and authority of com- 700.856 Pilotage. manders. 700.857 Safe navigation and regulations gov- 700.703 To announce assumption of com- erning operation of ships and aircraft. mand. 700.859 Quarantine. 700.704 Readiness. 700.860 Customs and immigration inspec- 700.705 Observance of international law. tions. 700.706 Keeping immediate superiors in- formed. SPECIAL CIRCUMSTANCES/SHIPS IN NAVAL STATIONS AND SHIPYARDS STAFFS OF COMMANDERS 700.871 Responsibility for safety of ships and 700.710 Organization of a staff. craft at a naval station or shipyard. 700.711 Authority and responsibilities of of- 700.872 Ships and craft in drydock. ficers of a staff. 700.873 Inspection incident to commis- ADMINISTRATION AND DISCIPLINE sioning of ships. 700.720 Administration and discipline: Staff SPECIAL CIRCUMSTANCES/PROSPECTIVE embarked. COMMANDING OFFICERS 700.721 Administration and discipline: Staff 700.880 Duties of the prospective com- based ashore. manding officer of a ship. 700.722 Administration and discipline: Staff unassigned to an administrative com- Subpart I—The Senior Officer Present mand. 700.723 Administration and discipline: Sepa- CONTENTS rate and detached command. 700.901 The senior officer present. Subpart H—The Commanding Officer 700.902 Eligibility for command at sea. 700.903 Authority and responsibility. COMMANDING OFFICERS IN GENERAL 700.904 Authority of senior officer of the Marine Corps present. 700.801 Applicability. 700.922 Shore patrol. 700.802 Responsibility. 700.923 Precautions for health. 700.804 Organization of commands. 700.924 Medical or dental aid to persons not 700.809 Persons found under incriminating in the naval service. circumstances. 700.934 Exercise of power of consul. 700.810 Rules for visits. 700.939 Granting of asylum and temporary 700.811 Dealers, tradesmen, and agents. refuge. 700.812 Postal matters. 700.815 Deaths. Subpart J—Precedence, Authority and 700.816 The American National Red Cross. Command 700.819 Records. 700.822 Delivery of personnel to civil au- AUTHORITY thorities and service of subpoena or other process. 700.1020 Exercise of authority. 700.826 Physical security. 700.1026 Authority of an officer who suc- 700.827 Effectiveness for service. ceeds to command. 700.828 Search by foreign authorities. 700.1038 Authority of a sentry. 700.832 Environment pollution. DETAIL TO DUTY 700.834 Care of ships, aircraft, vehicles and their equipment. 700.1052 Orders to active service. 700.835 Work, facilities, supplies, or services 700.1053 Commander of a task force. for other Government departments, 700.1054 Command of a naval base. State or local governments, foreign gov- 700.1055 Command of a naval shipyard. ernments, private parties and morale, 700.1056 Command of a ship. welfare, and recreational activities. 700.1057 Command of an air activity. 700.1058 Command of a submarine. COMMANDING OFFICERS AFLOAT 700.1059 Command of a staff corps activity. 700.840 Unauthorized persons on board. 700.841 Control of passengers. Subpart K—General Regulations 700.842 Authority over passengers. STANDARDS OF CONDUCT 700.844 Marriages on board. 700.845 Maintenance of logs. 700.1101 Demand for court-martial.
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700.1113 Endorsement of commercial prod- Navy may adopt, with the approbation uct or process. of the President of the United States.’’ 700.1120 Personal privacy and rights of indi- viduals regarding their personal records. (c) Thirteen editions of Navy Regula- tions were published in accordance OFFICIAL RECORDS with this authority (later codified as 700.1121 Disclosure, publication and security Section 1547, Revised Statutes) be- of official information. tween 1865 and 1948. The 1973 edition of 700.1126 Correction of naval records. Navy Regulations was published under 700.1127 Control of official records. authority of 10 United States Code 700.1128 Official records in civil courts. (U.S.C.) 6011, which provided that DUTIES OF INDIVIDUALS ‘‘United States Navy Regulations shall 700.1138 Responsibilities concerning mari- be issued by the Secretary of the Navy juana, narcotics, and other controlled with the approval of the President.’’ In substances. 1981, this provision was amended to 700.1139 Rules for preventing collisions, eliminate the requirement for presi- afloat and in the air. dential approval. RIGHTS AND RESTRICTIONS (d) While leaving this provision unaf- 700.1162 Alcoholic beverages. fected, Congress enacted the Gold- 700.1165 Fraternization prohibited. water-Nichols Department of Defense 700.1166 Sexual harassment. Reorganization Act of 1986 (Pub. L. 99– 700.1167 Supremacist activity. 443), which granted each of the service AUTHORITY: 10 U.S.C. 6011. secretaries the authority to prescribe regulations to carry out his or her stat- SOURCE: 64 FR 56062, Oct. 15, 1999, unless otherwise noted. utory functions, powers and duties. § 700.102 Statutory authority for Subpart A—Navy Regulations issuance of United States Navy Reg- ulations. § 700.101 Origin and history of United States Navy Regulations. Title 10, United States Code, section (a) United States Navy Regulations 6011, provides that United States Navy began with the enactment by the Con- Regulations shall be issued by the Sec- tinental Congress of the ‘‘Rules for the retary of the Navy. Regulations issued Regulation of the Navy of the United under this authority are permanent Colonies’’ on November 28, 1775. The regulations of general applicability, as first issuance by the United States opposed to regulations issued by the Government which covered this subject Secretary under § 700.104. matter was ‘‘An Act for the Govern- ment of the Navy of the United § 700.103 Purpose and effect of United States,’’ enacted on March 2, 1799. This States Navy Regulations. was followed the next year by ‘‘An Act United States Navy Regulation is the for the Better Government of the Navy principle regulatory document of the of the United States.’’ Department of the Navy, endowed with (b) In the years preceding the Civil the sanction of law, as to duty, respon- War, twelve successor publications sibility, authority, distinctions and re- were promulgated under a number of lationships of various commands, offi- titles by the President, the Navy De- partment and the Secretary of the cials and individuals. Other directives Navy. A decision by the Attorney Gen- issued within the Department of the eral that the last of the pre-Civil War Navy shall not conflict with, alter or issuances was invalid led to the inclu- amend any provision of Navy Regula- sion in the 1862 naval appropriations tions. bill of a provision that ‘‘the orders, regulations, and instructions here- § 700.104 Statutory authority for pre- tofore issued by the Secretary of the scription of other regulations. Navy be, and they are hereby, recog- The Secretary of the Navy may pre- nized as the regulations of the Navy scribe regulations to carry out his or Department, subject, however, to such her functions, powers and duties under alterations as the Secretary of the Title 10, United States Code.
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§ 700.105 Issuance of directives by made to Navy Regulations, he or she other officers and officials. shall forward a draft of the proposed Responsible officers and officials of addition, change or deletion, with a the Department of the Navy may issue, statement of the reasons therefor, to or cause to be issued, directives con- the Chief of Naval Operations via the cerning matters over which they exer- chain of command. The Chief of Naval cise command, control or supervision, Operations shall endeavor to obtain the which do not conflict with, alter or concurrence of the Commandant of the amend these regulations. Marine Corps, the Judge Advocate Gen- eral and appropriate offices and com- § 700.106 Control of administrative re- mands. Unresolved issues concerning quirements. such additions, changes or deletions (a) Directives will be issued with due shall be forwarded to the Secretary of regard for the imposition of workload the Navy for appropriate action. Any resulting therefrom and benefits or ad- additions, changes or deletions to the vantages to be gained. Issuance of new U.S. Navy Regulations must be ap- directives will be in accordance with proved by the Secretary of the Navy. the following: (b) Changes to Navy Regulations will (1) Directives which implement or be numbered consecutively and issued amplify directives from higher author- as page changes. Advance changes may ity will not be issued unless absolutely be used when required; these will be essential. numbered consecutively and incor- (2) Administrative reporting require- porated in page changes at frequent in- ments will not be imposed unless the tervals. expected value of the information to be gained is significantly greater than the cumulative burden imposed. Subpart B—The Department of the (b) Each officer or official issuing a Navy directive or imposing a reporting re- § 700.201 Origin and authority of the quirement will periodically, in accord- Department of the Navy. ance with instructions to be issued by appropriate authority, review such di- (a) The naval affairs of the country rective or report with a view toward began with the war for independence, the following: the American Revolution. On 13 Octo- (1) Reduction of directives by can- ber 1775, Congress passed legislation for cellation or consolidation; or ships. This, in effect, created the conti- (2) Reduction of reporting require- nental Navy. Two battalions of Ma- ments by elimination of the report, re- rines were authorized on 10 November duction in the frequency of the report, 1775. Under the Constitution, the First or combination with other reports. Congress on 7 August 1789 assigned re- (c) When issuance of a directive or a sponsibility for the conduct of naval af- tasking will result in imposition of ad- fairs to the War Department. On 30 ditional administrative requirements April 1798, the Congress established a on commands not within the chain of separate Department of the Navy with command or the issuing authority, the the Secretary of the Navy as its chief first common superior of the com- officer. On 11 July 1798, the United mands affected by the requirement States Marine Corps was established as must concur in the issuance. a separate service, and in 1834 was made a part of the Department of the § 700.107 Maintenance of Navy Regula- Navy. tions. (b) The National Security Act of 1947, (a) The Chief of Naval Operations is as amended, is the fundamental law responsible for maintaining Navy Reg- governing the position of the Depart- ulations, and for ensuring that Navy ment of the Navy in the organization Regulations conforms to the current for national defense. In 1949, the Act needs of the Department of the Navy. was amended to establish the Depart- When any person in the Department of ment of Defense as an Executive De- the Navy deems it advisable that addi- partment, and to establish the Depart- tions, changes or deletions should be ments of the Army, Navy and Air
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Force (formerly established as Execu- seizure or defense of advanced naval tive Departments by the 1947 Act) as bases and for the conduct of such land military departments within the De- operations as may be essential to the partment of Defense. prosecution of a naval campaign. In ad- (c) The Goldwater-Nichols Depart- dition, the Marine Corps shall provide ment of Defense Reorganization Act of detachments and organizations for 1986 further defined the roles of the service on armed vessels of the Navy, military departments within the De- shall provide security detachments for partment of Defense. In addition to es- the protection of naval property at tablishing the office of Vice Chairman naval stations and bases, and shall per- of the Joint Chiefs of Staff, and further form such other duties as the President emphasizing the operational chain of may direct. However, these additional command, the Act provided detailed duties may not detract from or inter- statements of the roles of the Sec- fere with the operations for which the retary of the Navy, the Chief of Naval Marine Corps is primarily organized. Operations, the Commandant of the (d) The Marine Corps shall develop, Marine Corps, and their respective in coordination with the Army and the principal assistants. Air Force, those phases of amphibious (d) The responsibilities and authority operations that pertain to the tactics, of the Department of the Navy are technique and equipment used by land- vested in the Secretary of the Navy, ing forces. and are subject to reassignment and (e) The Marine Corps is responsible, delegation by the Secretary. The Sec- in accordance with integrated joint retary is bound by the provisions of mobilization plans, for the expansion of law, the direction of the President and peacetime components of the Marine the Secretary of Defense and, along Corps to meet the needs of war. with all persons in charge of Govern- ment agencies, the regulations of cer- § 700.203 Composition. tain non-defense agencies addressing (a) The Department of the Navy is their respective areas of functional re- separately organized under the Sec- sponsibility. retary of the Navy. It operates under the authority, direction and control of § 700.202 Mission of the Department of the Secretary of Defense. the Navy. (b) The Department of the Navy is (a) The Navy, within the Department composed of the following: of the Navy, shall be organized, (1) The Office of the Secretary of the trained, and equipped primarily for Navy; prompt and sustained combat incident (2) The Office of the Chief of Naval to operations at sea. It is responsible Operations; for the preparation of naval forces nec- (3) The Headquarters, Marine Corps; essary for the effective prosecution of (4) The entire operating forces, in- war except as otherwise assigned, and, cluding naval aviation, of the Navy and in accordance with integrated joint of the Marine Corps, and the reserve mobilization plans, for the expansion of components of those operating forces; the peacetime components of the Navy (5) All field activities, headquarters, to meet the needs of war. forces, bases, installations, activities (b) The Navy shall develop aircraft, and functions under the control or su- weapons, tactics, technique, organiza- pervision of the Secretary of the Navy; tion and equipment of naval combat and and service elements. Matters of joint (6) The Coast Guard when it is oper- concern as to these functions shall be ating as a service in the Navy. coordinated between the Army, the Air Force and the Navy. § 700.204 The principal elements of the (c) The Marine Corps, within the De- Department of the Navy. partment of the Navy, shall be orga- (a) The Department of the Navy con- nized, trained, and equipped to provide sists of three elements; the Navy De- fleet marine forces of combined arms, partment, the Operating Forces of the together with supporting air compo- Navy and the Marine Corps, and the nents, for service with the fleet in the Shore Establishment.
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(b) The Navy Department refers to of Defense to provide for more effec- the central executive offices of the De- tive, efficient and economical adminis- partment of the Navy located at the tration and eliminate duplication; seat of Government. The Navy Depart- (f) The presentation and justification ment is organizationally comprised of of the position of the Department of the Office of the Secretary of the Navy, the Navy on the plans, programs and the Office of the Chief of Naval Oper- policies of the Department of Defense; ations, and the Headquarters, Marine (g) The effective supervision and con- Corps. In addition, the Headquarters, trol of the intelligence activities of the Coast Guard, is included when the Department of the Navy; and Coast Guard is operating as a service in (h) Such other activities as may be the Navy. prescribed by law or by the president (c) The operating forces of the Navy or Secretary of Defense. and the Marine Corps comprise the sev- eral fleets, seagoing forces, Fleet Ma- § 700.302 Responsibilities within the rine Forces, other assigned Marine Department of the Navy. Corps Forces, the Military Sealift The Secretary is the head of the De- Command and other forces and activi- partment of the Navy. The Secretary is ties that may be assigned thereto by responsible for, and has the authority the President or the Secretary of the necessary to conduct, all affairs of the Navy. Department of the Navy, including the (d) The shore establishment is com- following functions: prised of shore activities with defined (a) Recruiting; missions approved for establishment by (b) Organizing; the Secretary of the Navy. (c) Supplying; (d) Equipping (including research and Subpart C—The Secretary of the development); Navy (e) Training; (f) Servicing; THE SECRETARY OF THE NAVY (g) Mobilizing; § 700.301 Responsibilities of the Sec- (h) Demobilizing; retary of the Navy. (i) Administering (including the mo- The Secretary of the Navy is respon- rale and welfare of personnel); sible to the Secretary of Defense for: (j) Maintaining; (a) The functioning and efficiency of (k) The construction, outfitting and the Department of the Navy; repair of military equipment; and (b) The formulation of policies and (l) The construction, maintenance programs by the Department of the and repair of buildings, and interests in Navy that are fully consistent with na- real property necessary to carry out tional security objectives and policies the responsibilities specified in this ar- established by the President or the ticle. Secretary of Defense; (c) The effective and timely imple- § 700.303 Succession. mentation of policy, program and If the Secretary of the Navy dies, re- budget decisions and instructions of signs, is removed from office, is absent the President or the Secretary of De- or is disabled, the person who is high- fense relating to the functions of the est on the following list, and who is not Department of the Navy; absent or disabled, shall perform the (d) Carrying out the functions of the duties of the Secretary until the Presi- Department of the Navy so as to fulfill dent directs another person to perform (to the maximum extent practicable) those duties or until the absence or dis- the current and future operational re- ability ceases: quirement of the unified and specified (a) The Under Secretary of the Navy; combatant commands; (b) The Assistant Secretaries of the (e) Effective cooperation and coordi- Navy, in the order prescribed by the nation between the Department of the Secretary of the Navy and approved by Navy and the other military depart- the Secretary of Defense; ments and agencies of the Department (c) The Chief of Naval Operations;
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(d) The Commandant of the Marine (2) The Assistant Secretary of the Corps. Navy (Financial Management); (3) The Assistant Secretary of the § 700.304 Recommendations to Con- Navy (Manpower and Reserve Affairs); gress. (4) The Assistant Secretary of the After first informing the Secretary of Navy (Research, Development and Ac- Defense, the Secretary of the Navy quisition); may make such recommendations to (5) The Assistant Secretary of the Congress relating to the Department of Navy (Installations and Environment); Defense as he or she considers appro- and priate. (6) The General Counsel of the De- partment of the Navy. § 700.305 Assignment of functions. (b) The Staff Assistants: The Secretary of the Navy may as- (1) The Judge Advocate General of sign such functions, powers, and duties the Navy; as he or she considers appropriate to (2) The Naval Inspector General; the Under Secretary of the Navy and to (3) The Chief of Naval Research; the Assistant Secretaries of the Navy. (4) The Chief of Information; Officers of the Navy and the Marine (5) The Chief of Legislative Affairs; Corps shall, as directed by the Sec- (6) The Auditor General of the Navy; retary, report on any matter to the (7) The Director, Office of Program Secretary, the Under Secretary or any Appraisal; and Assistant Secretary. (8) Such other officers and officials as may be established by law or as the § 700.306 Assignment of duty and ti- Secretary of the Navy may establish or tles. designate. The Secretary of the Navy may: (a) Assign, detail and prescribe the § 700.311 Sole responsibilities. duties of members of the Navy and Ma- (a) The Office of the Secretary of the rine Corps and civilian personnel of the Navy shall have sole responsibility Department of the Navy; and within the Office of the Secretary of (b) Change the title of any officer or the Navy, the Office of the Chief of activity of the Department of the Navy Naval Operations and the Head- not prescribed by law. quarters, Marine Corps, for the fol- lowing functions: § 700.307 Powers with respect to the (1) Acquisition; Coast Guard. (2) Auditing; Whenever the Coast Guard operates (3) Comptroller (including financial as a service in the Navy under Section management); 3 of Title 14, United States Code, the (4) Information management; Secretary of the Navy has the same (5) Inspector general; powers and duties with respect to the (6) Legislative affairs; Coast Guard as the Secretary of Trans- (7) Public affairs; portation has when the Coast Guard is (8) Research and development, except not so operating. for military requirements and oper- ational test and evaluation, which are THE OFFICE OF THE SECRETARY OF THE the responsibilities of the Office of the NAVY Chief of Naval Operations and the Headquarters Marine Corps. § 700.310 Composition. (b) The following offices within the The function of the Office of the Sec- Office of the Secretary of the Navy are retary of the Navy is to assist the Sec- designated to conduct the functions retary in carrying out his or her re- specified in paragraph (a) of this sec- sponsibilities. The Office of the Sec- tion. No office or other entity may be retary of the Navy is composed of the established or designated within the following: Office of the Chief of Naval Operations (a) The Civilian Executive Assist- or the Headquarters, Marine Corps, to ants: conduct any of the functions specified (1) The Under Secretary of the Navy; in paragraph (a) of this section, except
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as noted in paragraph (a)(8) of this sec- Marine Corps such staff support as the tion. Chief of Naval Operations and the Com- (1) The Assistant Secretary of the mandant of the Marine Corps consider Navy (Research, Development and Ac- necessary to perform their respective quisition) is the Acquisition Executive duties and responsibilities. for the Department of the Navy. The (d) The vesting in the Office of the Assistant Secretary of the Navy (Re- Secretary of the Navy of the responsi- search, Development and Acquisition) bility for the conduct of a function (ASN(RD&A)) is responsible for re- specified in paragraph (a) of this sec- search, development and acquisition, tion does not preclude other elements except for military requirements and of the Department of the Navy (includ- operational test and evaluation, which ing the Office of the Chief of Naval Op- remain functions of the Office of the erations and the Headquarters, Marine Chief of Naval Operations and Head- Corps) from providing advice or assist- quarters Marine Corps. In addition to ance to the Chief of Naval Operations Acquisition Executive, ASN(RD&A) is and the Commandant of the Marine also the Navy Senior Procurement Ex- Corps, or otherwise participating in ecutive and Senior Department of the that function within the executive part Navy Information Resource Manage- of the Department under the direction ment Official. Responsibilities include of the office assigned responsibility for developing acquisition policy and pro- that function in the Office of the Sec- cedures for all Department of the Navy retary of the Navy. research, development, production, shipbuilding and production/logistics § 700.312 Authority over organiza- support programs; and Department of tional matters. the Navy international technology Subject to the approval or guidance transfer. of the Secretary of the Navy, the Civil- (2) The Auditor General is respon- ian Executive Assistants, the Chief of sible for the internal auditing function Naval Operations, the Commandant of within the Department of the Navy. the Marine Corps and the Staff Assist- (3) The Assistant Secretary of the ants are individually authorized to or- Navy (Financial Management) is re- ganize, assign and reassign responsibil- sponsible for comptrollership, includ- ities within their respective commands ing financial management, within the or offices, including the establishment Department of the Navy. and disestablishment of such compo- (4) The Naval Inspector General is re- nent organizations as may be nec- sponsible for the inspector general essary, subject to the following: function within the Department of the (a) The authority to disestablish may Navy. not be exercised with respect to any or- (5) The Chief of Legislative Affairs is ganizational component of the Depart- responsible for legislative affairs with- ment established by law. in the Department of the Navy. (b) The Secretary retains the author- (6) The Chief of Information is re- ity to approve the establishment and sponsible for public affairs within the disestablishment of shore activities. Department of the Navy. (c) The Secretary shall: THE OFFICE OF THE SECRETARY OF THE (1) Prescribe the relationship of each NAVY/THE CIVILIAN EXECUTIVE AS- office or other entity established or SISTANTS designated under paragraph (b) of this section: § 700.320 The Civilian Executive As- (i) To the Chief of Naval Operations sistants. and the Office of the Chief of Naval Op- (a) The Civilian Executive Assist- erations: and ants, as identified in § 700.310, are as- (ii) To the Commandant of the Ma- signed department-wide responsibil- rine Corps and the Headquarters, Ma- ities essential to the efficient adminis- rine Corps; and tration of the Department of the Navy. (2) Ensure that each such office or (b) Each Civilian Executive Assist- entity provides the Chief of Naval Op- ants, within his or her assigned area of erations and the Commandant of the responsibility, is the principal civilian
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advisor and assistant to the Secretary § 700.324 The Assistant Secretary of on the administration of the affairs of the Navy (Manpower and Reserve the Department of the Navy. The Civil- Affairs). ian Executive Assistants carry out The Assistant Secretary of the Navy their duties with the professional as- (Manpower and Reserve Affairs) is re- sistance of the Office of the Chief of sponsible for: Naval Operations and Headquarters, (a) The overall supervision of man- Marine Corps, as presided over by the power and reserve component affairs of Chief of Naval Operations and Com- the Department of the Navy, including mandant of the Marine Corps, respec- policy and administration of affairs re- tively. lated to military (active and inactive) (c) The Civilian Executive Assistants and civilian personnel; and are authorized and directed to act for (b) Supervision of offices and organi- the Secretary within their assigned zations as assigned by the Secretary, areas of responsibility. specifically the Naval Council of Per- sonnel Boards and the Board for Cor- § 700.321 The Under Secretary of the rection of Naval Records. Navy. (a) The Under Secretary of the Navy § 700.325 The Assistant Secretary of shall perform such duties and exercise the Navy (Installations and Envi- such powers as the Secretary of the ronment). Navy shall prescribe. The Assistant Secretary of the Navy (b) The Under Secretary of the Navy (Installations and Environment) is re- is designated as the deputy and prin- sponsible for: cipal assistant to the Secretary of the (a) Policy relating to Navy installa- Navy. The Under Secretary of the Navy tions, facilities, environment, safety, acts with full authority of the Sec- shore resources management and qual- retary in the general management of ity improvement; the Department of the Navy and super- (b) Development, implementation vision of offices, organizations and and evaluation of military construc- functions as assigned by the Secretary. tion, facilities management and engi- neering, strategic homeporting, hous- § 700.322 Assistant Secretaries of the ing, utilities, and base utilization Navy; statutory authorization. issues; There are four Assistant Secretaries (c) Environmental policy, safety, oc- of the Navy. The Assistant Secretaries cupational health, and Marine Corps shall perform such duties and exercise and Navy environmental affairs, in- such powers as the Secretary of the cluding environmental protection, res- Navy may prescribe in accordance with toration, compliance and legislation, law. natural resource programs, hazardous material/waste minimization, plastics § 700.323 The Assistant Secretary of reduction and control, afloat environ- the Navy (Financial Management). mental issues, state and federal agency The Assistant Secretary of the Navy and environmental organization co- (Financial Management) is the Comp- ordination, and the National Environ- troller of the Navy, and is responsible mental Policy Act; and for all matters related to the financial (d) Advising on fiscal resources re- management of the Department of the lated to shore appropriations. Navy, including: (a) Budgeting; § 700.326 The Assistant Secretary of (b) Accounting; the Navy (Research, Development (c) Disbursing; and Acquisition). (d) Financing; The Assistant Secretary of the Navy (e) Internal review; (Research, Development and Acquisi- (f) Progress and statistical reporting; tion) is responsible for: and (a) Research, development and acqui- (g) Supervision of offices and organi- sition, except for military require- zations as assigned by the Secretary of ments and operational test and evalua- the Navy. tion;
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(b) Direct management of acquisition § 700.331 The Judge Advocate General. programs; (a) The Judge Advocate General of (c) All aspects of the acquisition the Navy commands the Office of the process within the Department of the Judge Advocate General and is the Navy; Chief of the Judge Advocate General’s (d) All acquisition policy, including Corps. The Judge Advocate General: technology base and advanced tech- (1) Provides or supervises the provi- nology development, procurement, sion of all legal advice and related competition, contracts and business services throughout the Department of management, logistics, product integ- the Navy, except for the advice and rity, and education and training of the services provided by the General Coun- acquisition workforce. sel; (2) Performs the functions required § 700.327 The General Counsel of the or authorized by law; Navy. (3) Provides legal and policy advice (a) The General Counsel is head of to the Secretary of the Navy on mili- the Office of the General Counsel and is tary justice, administrative law, responsible for providing legal advice, claims, operational and international counsel, and guidance within the De- law, and litigation involving these partment of the Navy on the following issues; and matters: (4) Acts on other matters as directed (1) Business and commercial law, en- by the Secretary. vironmental law, civilian personnel (b) The Judge Advocate General law, real and personal property law and maintains a close working relationship patent law; with the General Counsel on all mat- (2) Procurement of services, includ- ters of common interest. ing the fiscal, budgetary and account- ing aspects, for the Navy and Marine § 700.332 The Naval Inspector General. Corps; (a) Under the direction of the Sec- (3) Litigation involving the issues retary of the Navy, the Naval Inspector enumerated above; and General: (4) Other matters as directed by the (1) Inspects, investigates or inquires Secretary of the Navy. into any and all matters of importance (b) The General Counsel maintains a to the Department of the Navy with close working relationship with the particular emphasis on readiness, in- Judge Advocate General on all matters cluding, but not limited to effective- of common interest. ness, efficiency, economy and integ- rity; THE OFFICE OF THE SECRETARY OF THE (2) Exercises broad supervision, gen- NAVY/THE STAFF ASSISTANTS eral guidance and coordination for all Department of the Navy inspection, § 700.330 The Staff Assistants. evaluation and appraisal organizations The Staff Assistants, as identified in to minimize duplication of efforts and § 700.310, assist the Secretary of the the number of necessary inspections; Navy, or one or more of the Civilian (3) Through analysis of available in- Executive Assistants, in the adminis- formation, identifies areas of weakness tration of the Navy. They supervise all in the Department of the Navy as they functions and activities internal to relate to matters of integrity and effi- their offices and assigned field activi- ciency and provides appropriate rec- ties, if any, and are responsible to the ommendations for improvement. To ac- Secretary or to one of the Civilian Ex- complish these functions, the Inspector ecutive Assistants for the utilization of General shall have unrestricted access, resources by, and the operating effi- by any means, to any information ciency of, all activities under their su- maintained by any naval activity pervision or command. Their duties are deemed necessary, unless specifically as provided by law or as assigned by restricted by the Secretary of the the Secretary. Navy;
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(4) Receives allegations of ineffi- the Department of the Navy relating to ciency, misconduct, impropriety, mis- patents, inventions, trademarks, copy- management or violations of law, and rights and royalty payments, and mat- investigates or refers such matters for ters connected therewith. investigation, as is appropriate; and (5) Serves as principal advisor to the § 700.334 The Chief of Information. Secretary of the Navy, the Chief of (a) The Chief of Information is the di- Naval Operations and the Commandant rect representative of the Secretary of of the Marine Corps on all inspection the Navy in all public affairs and inter- and investigation matters. nal relations matters. The Chief of In- (b) In addition, the Naval Inspector formation is authorized to implement General has various functions, includ- Navy public affairs and internal rela- ing (but not limited to): tions policies and to coordinate those (1) Providing of an alternative to the Navy and Marine Corps activities of normal chain of command channel for mutual interest. receipt of complaints of personnel; (b) The Chief of Naval Operations and (2) Serving as the official to whom the Commandant of the Marine Corps employees may complain without fear are delegated responsibilities for: of reprisal; (1) Conduct of their respective serv- (3) Cooperating with the Inspector ices’ internal information programs; General, Department of Defense; (2) Conduct of their respective serv- (4) Providing oversight of intel- ices’ community relations programs; ligence and special activities; and (5) Serving as the Department of the (3) Implementing the Secretary of Navy coordinator for fraud, waste and the Navy’s public affairs policy and di- efficiency matters; rectives. (6) Serving as Navy Program Man- (c) The Chief of Information will re- ager and focal point for the Depart- port to the Chief of Naval Operations ment of the Navy and Navy Hotline for support of the responsibilities out- programs; and lined in paragraph (b) of this section, (7) Designation as the centralized or- and will provide such staff support as ganization within the Department of the Chief of Naval Operations considers Defense to monitor and ensure the co- necessary to perform those duties and ordination of criminal, civil, adminis- responsibilities. trative and contractual remedies for (d) The Deputy Chief of Information all significant cases, including inves- for Marine Corps Matters may report tigation of fraud or corruption related directly to the Secretary regarding to procurement activities affecting the public information matters related Department of the Navy. solely to the Marine Corps. The Deputy Chief will promptly inform the Chief of § 700.333 The Chief of Naval Research. Information regarding the substance of (a) The Chief of Naval Research shall all independent contacts with the Sec- command the Office of the Chief of retary pertaining to Marine Corps mat- Naval Research, the Office of Naval Re- ters. The Deputy Chief of Information search, the Office of Naval Technology for Marine Corps Matters will report to and assigned shore activities. the Commandant of the Marine Corps (b) The Office of Naval Research shall for support of the responsibilities out- perform such duties as the Secretary of lined in paragraph (b) of this section, the Navy prescribes relating to: and will provide such staff support as (1) The encouragement, promotion, the Commandant considers necessary planning, initiation and coordination to perform those duties and respon- of naval research; sibilities. (2) The conduct of naval research in augmentation of and in conjunction § 700.335 The Chief of Legislative Af- with the research and development fairs. conducted by other agencies and offices The mission of the Chief of Legisla- of the Department of the Navy; and tive Affairs is to: (3) The supervision, administration (a) Plan, develop and coordinate rela- and control of activities within or for tionships between representatives of
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the Department of the Navy and mem- service, except an officer of the naval bers of committees of the United service who is serving as Chairman or States Congress and their staffs which Vice Chairman of the Joint Chiefs of are necessary in the transaction of offi- Staff. cial Government business (except ap- propriations matters) affecting the De- § 700.402 Succession. partment of the Navy; and When there is a vacancy in the posi- (b) Furnish staff support, advice and tion of Chief of Naval Operations, or assistance to the Secretary of the during the absence or disability of the Navy, the Chief of Naval Operations, Chief of Naval Operations: the Commandant of the Marine Corps (a) The Vice Chief of Naval Oper- and all other principal civilian and ations shall perform the duties of the military officials of the Department of Chief of Naval Operations until a suc- the Navy concerning congressional as- cessor is appointed or the absence or pects of the Department of the Navy disability ceases. policies, plans and programs (except (b) If there is a vacancy in the posi- appropriations matters). tion of Vice Chief of Naval Operations or the Vice Chief of Naval Operations is § 700.336 The Director, Office of Pro- gram Appraisal. absent or disabled, unless the President directs otherwise, the most senior offi- (a) The Director, Office of Program cer of the Navy in the Office of the Appraisal, directs, under the imme- Chief of Naval Operations who is not diate supervision of the Secretary of absent or disabled and who is not re- the Navy, the Office of Program Ap- stricted in the performance of duty praisal. shall perform the duties of the Chief of (b) The Office of Program Appraisal Naval Operations until a successor to will assist the Secretary in assuring the Chief of Naval Operations or the that existing and proposed Navy and Vice Chief of Naval Operations is ap- Marine Corps programs provide the op- pointed or until the absence or dis- timum means of achieving the objec- ability of the Chief of Naval Operations tives of the Department of the Navy. or Vice Chief of Naval Operations § 700.337 The Auditor General. ceases, whichever occurs first. (a) The Auditor General of the Navy § 700.403 Statutory authority and re- is responsible for: sponsibility of the Chief of Naval (1) Serving as Director of the Naval Operations. Audit Service; and (a) Except as otherwise prescribed by (2) Developing and implementing law, and subject to the statutory au- Navy internal audit policies, programs thority of the Secretary of the Navy to and procedures within the framework assign functions, powers and duties, of Government auditing standards. the Chief of Naval Operations performs (b) The Auditor General can provide duties under the authority, direction information and may provide assist- and control of the Secretary of the ance and support to the Chief of Naval Navy and is directly responsible to the Operations and the Commandant of the Secretary. Marine Corps to enable them to dis- (b) Subject to the authority, direc- charge their duties and responsibil- tion and control of the Secretary of the ities. Navy, the Chief of Naval Operations shall: Subpart D—The Chief of Naval (1) Preside over the Office of the Operations Chief of Naval Operations; (2) Transmit the plans and rec- § 700.401 Precedence. ommendations of the Office of the The Chief of Naval Operations, while Chief of Naval Operations to the Sec- so serving, has the grade of admiral. In retary and advise the Secretary with the performance of duties within the regard to such plans and recommenda- Department of the Navy, the Chief of tions; Naval Operations takes precedence (3) After approval of the plans or rec- above all other officers of the naval ommendations of the Office of the
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Chief of Naval Operations by the Sec- the Secretary of the Navy), training, retary, act as the agent of the Sec- servicing, mobilizing, demobilizing, ad- retary in carrying them into effect; ministering, and maintaining of the (4) Exercise supervision, consistent Navy, as will assist in the execution of with the statutory authority assigned any power, duty or function of the Sec- to commanders of unified or specified retary or the Chief of Naval Oper- combatant commands, over such of the ations; members and organizations of the Navy (2) Investigate and report upon the and the Marine Corps as the Secretary efficiency of the Navy and its prepara- determines; tion to support military operations by (5) Perform the duties prescribed for combatant commands; a member of the Armed Forces Policy (3) Prepare detailed instructions for Council and other statutory duties; and the execution of approved plans and su- (6) Perform such other military du- pervise the execution of those plans ties, not otherwise assigned by law, as and instructions; are assigned to the Chief of Naval Oper- (4) As directed by the Secretary or ations by the President, the Secretary of Defense or the Secretary of the the Chief of Naval Operations, coordi- Navy. nate the action of organizations of the (c) The Chief of Naval Operations Navy; and shall also perform the statutory duties (5) Perform such other duties, not prescribed for a member of the Joint otherwise assigned by law, as may be Chiefs of Staff. prescribed by the Secretary. (1) To the extent that such action (b) Except as otherwise specifically does not impair the independence of prescribed by law, the Office of the the Chief of Naval Operations in the Chief of Naval Operations shall be or- performance of duties as a member of ganized in such manner, and its mem- the Joint Chiefs of Staff, the Chief of bers shall perform such duties and have Naval Operations shall inform the Sec- such titles as the Secretary may pre- retary of the Navy regarding military scribe. advice rendered by members of the Joint Chiefs of Staff on matters affect- § 700.405 Delegated authority and re- ing the Department of the Navy. sponsibility. (2) Subject to the authority, direc- (a) The Chief of Naval Operations is tion and control of the Secretary of De- the principal naval advisor and naval fense, the Chief of Naval Operations executive to the Secretary of the Navy shall keep the Secretary of the Navy on the conduct of the naval activities fully informed of significant military of the Department of the Navy. operations affecting the duties and re- (b)(1) Internal to the administration sponsibilities of the Secretary of the of the Department of the Navy, the Navy. Chief of Naval Operations, consistent with the statutory authority assigned § 700.404 Statutory authority and re- sponsibility of the Office of the to commanders of unified or specified Chief of Naval Operations. combatant commands, under the direc- tion of the Secretary of the Navy, shall (a) The Office of the Chief of Naval command: Operations shall furnish professional assistance to the Secretary, the Under (i) The operating forces of the Navy; Secretary and the Assistant Secre- and taries of the Navy, and to the Chief of (ii) Such shore activities as may be Naval Operations. Under the authority, assigned by the Secretary. direction and control of the Secretary (2) The Chief of Naval Operations of the Navy, the Office of the Chief of shall be responsible to the Secretary of Naval Operations shall: the Navy for the Utilization of re- (1) Subject to § 700.311(a), prepare for sources by, and the operating effi- such employment of the Navy, and for ciency of, the Office of the Chief of such recruiting, organizing, supplying, Naval Operations, the Operating Forces equipping (including those aspects of of the Navy and assigned shore activi- research and development assigned by ties.
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(c) In addition, the Chief of Naval Op- tegic plans and policies and related erations has the following specific re- command relationships; and sponsibilities: (9) Subject to guidance from the As- (1) To organize, train, equip, prepare sistant Secretary of the Navy (Finan- and maintain the readiness of Navy cial Management), to formulate budget forces, including those for assignment proposals for the Office of the Chief of to unified or specified commands, for Naval Operations, the Operating Forces the performance of military missions of the Navy and assigned shore activi- as directed by the President, the Sec- ties, and other activities and programs retary of Defense or the Chairman of as assigned. the Joint Chiefs of Staff; (d) The Chief of Naval Operations, (2) To determine current and future under the direction of the Secretary of requirements of the Navy (less Fleet the Navy, shall exercise overall author- Marine Forces and other assigned Ma- ity throughout the Department of the rine Corps forces) for manpower, mate- Navy in matters related to: rial, weapons, facilities and services, (1) The effectiveness of the support of including the determination of quan- the Operating Forces of the Navy and tities, military performance require- assigned shore activities; ments and times, places and priorities (2) The coordination and direction of of need; assigned Navy wide programs and func- (3) To exercise leadership in main- tions, including those assigned by high- taining a high degree of competence er authority; among Navy officer, enlisted and civil- (3) Matters essential to naval mili- ian personnel in necessary fields of spe- tary administration, such as: cialization, through education training (i) Security; and equal opportunities for personal (ii) Intelligence; advancement, and maintaining the mo- rale and motivation of Navy personnel (iii) Discipline; and the prestige of a Navy career; (iv) Communications; and (4) To plan and provide health care (v) Matters related to the customs for personnel of the naval service, their and traditions of the naval service; dependents and eligible beneficiaries; (4) Except for those areas wherein (5) To direct the organization, admin- such responsibility rests with the Com- istration, training and support of the mandant of the Marine Corps, the co- Naval Reserve; ordination of activities of the Depart- (6) To inspect and investigate compo- ment of the Navy in matters con- nents of the Department of the Navy to cerning effectiveness, efficiency and determine and maintain efficiency, dis- economy. cipline, readiness, effectiveness and economy, except in those areas where § 700.406 Naval Vessel Register, classi- such responsibility rests with the Com- fication of naval craft, and status of ships and service craft. mandant of the Marine Corps; (7) To determine the requirements of (a) The Chief of Naval Operations naval forces and activities, to include shall be responsible for the Naval Ves- requirements for research, develop- sel Register (except the Secretary of ment, test, and evaluation to plan and the Navy shall strike vessels from the provide for the conduct of test and Register) and the assignment of classi- evaluation which are adequate and re- fication for administrative purposes to sponsive to long range objectives, im- water borne craft and the designation mediate requirements, and fiscal limi- of status for each ship and service tations; and to provide assistance to craft. the Assistant Secretary of the Navy (b) Commissioned vessels and craft (Research, Development and Acquisi- shall be called ‘‘United States Ship’’ or tion) in the review and appraisal of the ‘‘U.S.S.’’ overall Navy program to ensure fulfill- (c) Civilian manned ships, of the ment of stated requirements; Military Sealift Command or other (8) To formulate Navy strategic plans commands, designated ‘‘active status, and policies and participate in the for- in service’’ shall be called ‘‘United mulation of Joint and combined stra- States Naval Ship’’ or ‘‘U.S.N.S.’’
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(d) Ships and service craft designated sence or disability of the Commandant ‘‘active status, in service,’’ except or the Assistant Commandant ceases, those described by paragraph (c) of this whichever occurs first. section, shall be referred to by name, when assigned, classification, and hull § 700.503 Statutory authority and re- number (e.g., ‘‘HIGHPOINT PCH–1’’ or sponsibility of the Commandant of ‘‘YOGN–8’’). the Marine Corps. (e) The Chief of Naval Operations (a) Except as otherwise prescribed by shall designate hospital ships and med- law and subject to the statutory au- ical aircraft as he or she deems nec- thority of the Secretary of the Navy to essary. Such designation shall be in assign functions, powers and duties, compliance with the Geneva Conven- the Commandant of the Marine Corps tion for the Amelioration of the Condi- performs duties under the authority, tions of Wounded, Sick and Ship direction and control of the Secretary wrecked Members of the Armed Forces of the Navy and is directly responsible at Sea of 12 August 1949. The Chief of to the Secretary. Naval Operations shall ensure compli- (b) Subject to the authority, direc- ance with the notice shall ensure com- tion and control of the Secretary of the pliance with the notice provisions of Navy, the Commandant of the Marine that Convention. Corps shall: (1) Preside over the Headquarters, Subpart E—The Commandant of Marine Corps; the Marine Corps (2) Transmit the plans and rec- § 700.501 Precedence. ommendations of the Headquarters, Marine Corps, to the Secretary and ad- The Commandant of the Marine vise the Secretary with regard to such Corps, while so serving, has the grade plans and recommendations; of general. In the performance of duties (3) After approval of the plans or rec- within the Department of the Navy, ommendations of the Headquarters, the Commandant of the Marine Corps Marine Corps, by the Secretary, act as takes precedence above all other offi- the agent of the Secretary in carrying cers of the Marine Corps, except an of- them into effect; ficer of the Marine Corps who is serv- ing as Chairman or Vice Chairman of (4) Exercise supervision, consistent the Joint Chiefs of Staff. with the statutory authority assigned to commanders of unified or specified § 700.502 Succession. combatant commands, over such of the members and organizations of the Navy When there is a vacancy in the office and the Marine Corps as the Secretary of Commandant of the Marine Corps, or during the absence or disability of the determines; Commandant: (5) Perform the duties prescribed for (a) The Assistant Commandant of the a member of the Armed Forces Policy Marine Corps shall perform the duties Council and other statutory duties; and of the Commandant until a successor is (6) Perform such other military du- appointed or the absence or disability ties, not otherwise assigned by law, as ceases; or are assigned to the Commandant of the (b) If there is a vacancy in the office Marine Corps by the President, the of the Assistant Commandant of the Secretary of Defense or the Secretary Marine Corps or the Assistant Com- of the Navy. mandant is absent or disabled, unless (c) The Commandant of the Marine the President directs otherwise, the Corps shall also perform the statutory most senior officer of the Marine Corps duties prescribed for a member of the in the Headquarters, Marine Corps, Joint Chiefs of Staff. who is not absent or disabled and who (1) To the extent that such action is not restricted in the performance of does not impair the independence of duty shall perform the duties of the the Commandant of the Marine Corps Commandant until a successor to the in the performance of duties as a mem- Commandant or the Assistant Com- ber of the Joint Chiefs of Staff, the mandant is appointed or until the ab- Commandant of the Marine Corps shall
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inform the Secretary of the Navy re- perform such duties and have such ti- garding military advice rendered by tles, as the Secretary may prescribe. members of the Joint Chiefs of Staff on matters affecting the Department of § 700.505 Delegated authority and re- the Navy. sponsibility. (2) Subject to the authority, direc- (a)(1) Internal to the administration tion and control of the Secretary of De- of the Department of the Navy, the fense, the Commandant of the Marine Commandant of the Marine Corps, con- Corps shall keep the Secretary of the sistent with the statutory authority Navy fully informed of significant mili- assigned to commanders of unified or tary operations affecting the duties specified combatant commands, under and responsibilities of the Secretary of the direction of the Secretary of the the Navy. Navy, shall command: § 700.504 Statutory authority and re- (i) The operating forces of the Marine sponsibility of the Headquarters, Corps; and Marine Corps. (ii) Such shore activities as may be (a) The Headquarters, Marine Corps, assigned by the Secretary. shall furnish professional assistance to (2) The Commandant shall be respon- the Secretary, the Under Secretary and sible to the Secretary of the Navy for the Assistant Secretaries of the Navy, the utilization of resources by, and the and to the Commandant of the Marine operating efficiency of, all commands Corps. and activities under such command. (1) Under the authority, direction (b) In addition, the Commandant has and control of the Secretary of the the following specific responsibilities: Navy, the Headquarters, Marine Corps (1) To plan for and determine the shall: needs of the Marine Corps for equip- (i) Subject to § 700.311(a), prepare for ment, weapons or weapons systems, such employment of the Marine Corps, materials, supplies, facilities, mainte- and for such recruiting, organizing, nance, and supporting services. This re- supplying, equipping (including those sponsibility includes the determination aspects of research and development of Marine Corps characteristics of assigned by the Secretary of the Navy), equipment and material to be procured training, servicing, mobilizing, demobi- or developed, and the training required lizing, administering, and maintaining to prepare Marine Corps personnel for of the Marine Corps, as will assist in combat. It also includes the operation the execution of any power, duty or of the Marine Corps Material Support function of the Secretary or the Com- System. mandant; (2) Subject to guidance from the As- (ii) Investigate and report upon the sistant Secretary of the Navy (Finan- efficiency of the Marine Corps and its cial Management), to formulate budget preparation to support military oper- proposals for the Headquarters, Marine ations by combatant commands; Corps, the Operating Forces of the Ma- (iii) Prepare detailed instructions for rine Corps, and other activities and the execution of approved plans and su- programs as assigned. pervise the execution of those plans and instructions; (3) To develop, in coordination with (iv) As directed by the Secretary or other military services, the doctrines, the Commandant, coordinate the ac- tactics and equipment employed by tion of organizations of the Marine landing forces in amphibious oper- Corps; and ations. (v) Perform such other duties, not (4) To formulate Marine Corps stra- otherwise assigned by law, as may be tegic plans and policies and participate prescribed by the Secretary. in the formulation of joint and com- (2) [Reserved] bined strategic plans and policies and (b) Except as otherwise specifically related command relationships. prescribed by law, the Headquarters, (5) To plan for and determine the Marine Corps, shall be organized in present and future needs, both quan- such manner, and its members shall titative and qualitative, for manpower,
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including reserve personnel and civil- (c) The Chief of Naval Operations ian personnel, of the United States Ma- shall represent the Coast Guard before rine Corps. This includes responsibility the Joint Chiefs of Staff. for leadership in maintaining a high degree of competence among Marine § 700.603 Duties and responsibilities. Corps officer and enlisted personnel In exercising command over the and Marine Corps civilian personnel in Coast Guard while operating as a serv- necessary fields of specialization ice of the Navy, the Commandant shall: through education, training and equal (a) Organize, train, prepare and main- opportunities for personal advance- ment; and for leadership in maintain- tain the readiness of the Coast Guard ing the morale and motivation of Ma- to function as a specialized service in rine Corps personnel and the prestige the Navy for the performance of na- of a career in the Marine Corps. tional defense missions, as directed; (b) Plan for and determine the Subpart F—The United States present and future needs of the Coast Coast Guard (When Oper- Guard, both quantitative and quali- tative, for personnel, including reserve ating as a Service in the personnel; Navy) (c) Budget for the Coast Guard, ex- § 700.601 Relationship and operation cept as may be otherwise directed by as a service in the Navy. the Secretary of the Navy; (a) Upon the declaration of war or (d) Plan for and determine the sup- when the President directs, the Coast port needs of the Coast Guard for Guard shall operate as a service in the equipment, materials, weapons or com- Navy, and shall be subject to the orders bat systems, supplies, facilities, main- of the Secretary of the Navy. While so tenance and supporting services; operating as a service in the Navy, and (e) Exercise essential military ad- to the extent practicable, Coast Guard ministration of the Coast Guard. This operations shall be integrated and uni- includes, but is not limited to, such form with Navy operation. matters as discipline, communications, (b) Whenever the Coast Guard oper- personnel records and accounting, con- ates as a service in the Navy: forming, as practicable, to Navy proce- (1) Applicable appropriations of the dures; Coast Guard to cover expenses shall be (f) In conjunction with the Director available for transfer to the Depart- of Naval Intelligence, and the National ment of the Navy and supplemented, as Intelligence Community, where appro- required, from applicable appropria- priate, establish and maintain an intel- tions of the Department of the Navy; ligence and security capability to pro- (2) Personnel of the Coast Guard vide support for the maritime defense shall be eligible to receive gratuities, zones, port security, narcotics interdic- medals and other insignia of honor on tion, anti-terrorist activity, fishery ac- the same basis as personnel in the tivity, pollution monitoring and other naval service or serving in any capac- Coast Guard missions; ity with the Navy; and (g) Enforce or assist in enforcing Fed- (3) To the extent practicable, Coast eral laws on and under the high seas Guard personnel, ships, aircraft and fa- cilities will be utilized as organized and waters subject to the jurisdiction Coast Guard units. of the United States; (h) Administer, promulgate and en- § 700.602 The Commandant of the force regulations for the promotion of Coast Guard. safety of life and property on and under (a) The Commandant of the Coast the high seas and waters subject to the Guard is the senior officer of the jurisdiction of the United States. This United States Coast Guard. applies to those matters not specifi- (b) When reporting to the Secretary cally delegated by law to some other of the Navy, the Commandant will re- executive department; port to the Chief of Naval Operations.
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(i) Develop, establish, maintain and exercise authority through their imme- operate, with due regard to the require- diate subordinate commanders, but ments of national defense, aids to mar- they may communicate directly with itime navigation, ice breaking facili- any of their subordinates. ties, for the promotion of safety on, (b) Commanders shall ensure that under and over the high seas and wa- subordinate commands are fully aware ters subject to the jurisdiction of the of the importance of strong, dynamic United States; leadership and its relationship to the (j) Engage in oceanographic surveys overall efficiency and readiness of in conjunction with the Office of the naval forces. Commanders shall exer- Oceanographer of the Navy; and cise positive leadership and actively (k) Continue in effect under the Sec- develop the highest qualities of leader- retary of the Navy those other func- ship in persons with positions of au- tions, powers and duties vested in the thority and responsibility throughout Commandant by appropriate orders and their commands. regulations of the Secretary of Trans- (c) Subject to orders of higher au- portation on the day prior to the effec- thority, and subject to the provisions tive date of transfer of the Coast Guard of § 700.106 of these regulations, com- to the Department of the Navy until manders shall issue such regulations specifically modified or terminated by and instructions as may be necessary the Secretary of the Navy. for the proper administration of their commands. Subpart G—Commanders In Chief (d) Commanders shall hold the same and Other Commanders relationship to their flagships, or to shore activities of the command in TITLES AND DUTIES OF COMMANDERS which their headquarters may be lo- cated, in regard to internal administra- § 700.701 Titles of commanders. tion and discipline, as to any other (a) The commander of a principal or- ship or shore activity of their com- ganization of the operating forces of mands. the Navy, as determined by the chief of Naval Operations, or the officer who § 700.703 To announce assumption of has succeeded to such command as pro- command. vided elsewhere in these regulations, (a) Upon assuming command, com- shall have the title ‘‘Commander in manders shall so advise appropriate su- Chief.’’ The name of the organization periors, and the units of their com- under the command of such an officer mands. shall be added to form his or her offi- (b) When appropriate, commanders cial title. shall also advise the following officers (b) The commander of each other or- and officials located within the area ganization of units of the operating encompassed by the command con- forces of the Navy or marine corps, or cerning their assumption of command. organization of units of shore activi- (1) Senior commanders of other ties, shall have the title ‘‘Com- United States armed services; mander,’’ ‘‘Commandant,’’ ‘‘Com- (2) Officials of other federal agencies; manding General’’ or other appropriate and title. The name of the organization (3) Officials of foreign governments. under the command of such an officer shall be added to form his or her offi- § 700.704 Readiness. cial title. Commanders shall take all prac- ticable steps to maintain their com- § 700.702 Responsibility and authority mands in a state of readiness to per- of commanders. form their missions. In conformity (a) Commanders shall be responsible with the orders and policies of higher for the satisfactory accomplishment of authority, they shall: the mission and duties assigned to (a) Organize the forces and resources their commands. Their authority shall under their command and assign duties be commensurate with their respon- to their principal subordinate com- sibilities. Normally, commanders shall manders;
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(b) Prepare plans for the employment STAFFS OF COMMANDERS of their forces to meet existing and foreseeable situations; § 700.710 Organization of a staff. (c) Collaborate with the commanders (a) The term ‘‘staff’’ means those of- of other United States armed services ficers and other designated persons as- and with appropriate officials of other signed to a commander to assist him or federal agencies and foreign govern- her in the administration and oper- ments located within the area encom- ation of his or her command. passed by their commands; (b) The officer detailed as chief of (d) Maintain effective intelligence staff and aide to a fleet admiral or ad- and keep themselves informed of the political and military aspects of the miral normally shall be a vice admiral national and international situation; or a rear admiral. The officer detailed (e) Make, or cause to be made, nec- as chief of staff and aide to a vice ad- essary inspections to ensure the readi- miral or rear admiral shall normally be ness, effectiveness and efficiency of the a rear admiral or a captain. The detail- components of their commands; and ing of a vice commander or a deputy to (f) Develop, in accordance with direc- a commander shall be reserved for se- tives issued by higher authority, train- lected commanders. An officer detailed ing strategies and plans for their com- as chief staff officer to another officer mands. shall normally not be of the same grade as that officer. § 700.705 Observance of international (c) The staff shall be organized into law. such divisions as may be prescribed by At all times, commanders shall ob- the commander concerned or by higher serve, and require their commands to authority. These divisions shall con- observe, the principles of international form in nature and designation, as law. Where necessary to fulfill this re- practicable and as appropriate, to sponsibility, a departure from other those of the staffs of superiors. provisions of Navy Regulations is au- (d) The staff of a flag or general offi- thorized. cer may include one or more personal aides. § 700.706 Keeping immediate superiors informed. § 700.711 Authority and responsibil- Commanders shall keep their imme- ities of officers of a staff. diate superiors appropriately informed (a) The chief of staff and aide or chief of: staff officer, under the commander, (a) The organization of their com- shall be responsible for supervising and mands, the prospective and actual coordinating the work of the staff and movements of the units of their com- shall be kept informed of all matters mands, and the location of their head- pertaining to that work. All persons quarters; (b) Plans for employment of their attached to the staff, except a vice forces; commander or deputy responsible di- (c) The condition of their commands rectly to the commander shall be sub- and of any required action pertaining ordinate to the chief of staff and aide thereto which is beyond their capacity or chief staff officer while he or she is or authority; executing the duties of that office. (d) Intelligence information which (b) The officers of a staff shall be re- may be of value; sponsible for the performance of those (e) Any battle, engagement or other duties assigned to them by the com- significant action involving units of mander and shall advise the com- their commands; mander on all matters pertaining (f) Any important service or duty thereto. In the performance of their performed by persons or units of their staff duties they shall have no com- commands; and mand authority of their own. In car- (g) Unexecuted orders and matters of rying out such duties, they shall act interest upon being relieved of com- for, and in the name of, the com- mand. mander.
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ADMINISTRATION AND DISCIPLINE § 700.723 Administration and dis- cipline: Separate and detached § 700.720 Administration and dis- command. cipline: Staff embarked. Any flag or general officer in com- In matters of general discipline, the mand, any officer authorized to con- staff of a commander embarked and all vene general courts-martial, or the enlisted persons serving with the staff senior officer present may designate shall be subject to the internal regula- organizations which are separate or de- tions and routine of the ship. They tached commands. Such officer shall shall be assigned regular stations for state in writing that it is a separate or battle and emergencies. Enlisted per- detached command and shall inform sons serving with the staff shall be as- the Judge Advocate General of the ac- signed to the ship for administration tion taken. If authority to convene and discipline, except in the case of a courts-martial is desired for the com- staff embarked for passage only, and manding officer or officer in charge of provided in that case that an organiza- such separate or detached command, tion exists and is authorized to act for the officer designating the organiza- such purposes. tion as separate or detached shall re- quest the Judge Advocate general to § 700.721 Administration and dis- obtain authorization from the Sec- cipline: Staff based ashore. retary of the Navy. When a staff is based ashore, the en- listed persons serving with the staff Subpart H—The Commanding shall, when practicable, be assigned to Officer an appropriated activity for purposes of administration and discipline. The COMMANDING OFFICERS IN GENERAL staff officers may be similarly as- signed. Members of a staff assigned for § 700.801 Applicability. any purpose to a command or activity In addition to commanding officers, shall conform in matters of general dis- the provisions of this chapter shall cipline to the internal regulations and apply, where pertinent, to aircraft routine of that command or activity. commanders, officers in charge (includ- ing warrant officers and petty officers § 700.722 Administration and dis- when so detailed) and those persons cipline: Staff unassigned to an ad- standing the command duty. ministrative command. (a) When it is not practicable to as- § 700.802 Responsibility. sign enlisted persons serving with the (a) The responsibility of the com- staff of a commander to an established manding officer for his or her com- activity for administration and dis- mand is absolute, except when, and to cipline, the commander may designate the extent, relieved therefrom by com- an officer of the staff to act as the petent authority, or as provided other- commanding officer of such persons wise in these regulations. The author- and shall notify the Judge Advocate ity of the commanding officer is com- General and the Commandant of the mensurate with his or her responsi- Marine Corps, or the Chief of Naval bility. While the commanding officer Personnel, as appropriate, of such ac- may, at his or her discretion, and when tion. not contrary to law or regulations, del- (b) If the designating commander de- egate authority to subordinates for the sires the commanding officer of staff execution of details, such delegation of enlisted personnel to possess authority authority shall in no way relieve the to convene courts-martial, the com- commanding officer of his or her con- mander should request the Judge Advo- tinued responsibility for the safety, cate General to obtain such authoriza- well-being, and efficiency of the entire tion from the Secretary of the Navy. command.
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(b) A commanding officer who de- be released at the earliest opportunity, parts from his or her orders or instruc- except: tions, or takes official action which is (1) If not a citizen of the United not in accordance with such orders or States, and the place of release is instructions, does so upon his or her under the jurisdiction of the United own responsibility and shall report im- States, the nearest federal immigra- mediately the circumstances to the of- tion authorities shall be notified as to ficer from whom the prior orders or in- the time and place of release suffi- structions were received. Of particular ciently in advance to permit them to importance is the commanding offi- take such steps as they deem appro- cer’s duty to take all necessary and ap- priate. propriate action in self-defense of the (2) Such persons shall not be released command. in territory not under the jurisdiction (c) The commanding officer shall be of the United States without first ob- responsible for economy within his or taining the consent of the proper for- her command. To this end the com- eign authorities, except where the in- manding officer shall require from his vestigation shows that he entered the or her subordinates a rigid compliance command from territory of the foreign with the regulations governing the re- state, or that he is a citizen or subject ceipt, accounting, and expenditure of of that state. public money and materials, and the (c) If the investigation indicates that implementation of improved manage- such person has committed or at- ment techniques and procedures. tempted to commit an offense punish- (d) The commanding officer and his able under the authority of the com- or her subordinates shall exercise lead- manding officer, the latter shall take ership through personal example, such action as he deems necessary. moral responsibility, and judicious at- (d) If the investigation indicates that tention to the welfare of persons under such a person is a fugitive from justice, their control or supervision. Such lead- or has committed or attempted to com- ership shall be exercised in order to mit an offense which requires actions achieve a positive, dominant influence beyond the authority of the com- on the performance of persons in the manding officer, the latter shall, at the Department of the Navy. first opportunity, deliver such person, together with a statement of the cir- § 700.804 Organization of commands. cumstances, to the proper civil au- All commands and other activities of thorities. the Department of the Navy shall be (e) In all cases under paragraph (d) of organized and administered in accord- this section, a report shall be made ance with law, United States Navy promptly to the Chief of Naval Oper- Regulations, and the orders of com- ations or the Commandant of the Ma- petent authority. All orders and in- rine Corps, as appropriate. structions of the commanding officer shall be in accordance therewith. § 700.810 Rules for visits. (a) Commanding officers are respon- § 700.809 Persons found under incrimi- sible for the control of visitors to their nating circumstances. commands and shall comply with the (a) The commanding officer shall relevant provisions of Department of keep under restraint or surveillance, as the Navy concerning classified infor- necessary, any person not in the armed mation and physical security. services of the United States who is (b) Commanding officers shall take found under incriminating or irregular such measures and impose such restric- circumstances within the command, tions on visitors as are necessary to and shall immediately initiate an in- safeguard the classified material under vestigation. their jurisdiction. Arrangements for (b) Should an investigation indicate general visiting shall always be made that such person is not a fugitive from with due regard for physical security justice or has not committed or at- and based on the assumption that for- tempted to commit an offense, he shall eign agents will be among the visitors.
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(c) Commanding officers and others issue, the American National Red Cross officially concerned shall exercise rea- is authorized to conduct a program of sonable care to safeguard the persons welfare, including social, financial, and property of visitors to naval activi- medical and dental aid, for naval per- ties as well as taking those necessary sonnel; to assist in matters pertaining precautions to safeguard the persons to prisoners of war; and to provide such and property within the command. other services as are appropriate func- tions for the Red Cross. The American § 700.811 Dealers, tradesmen, and National Red Cross is the only volun- agents. teer society authorized by the Govern- (a) In general, dealers or tradesmen ment to render medical and dental aid or their agents shall not be admitted to the armed forces of the United within a command, except as author- States. Other organizations desiring to ized by the commanding officer: render medical and dental aid may do (1) To conduct public business; so only through the Red Cross. (2) To transact specific private busi- (b) Requests for Red Cross services ness with individuals at the request of shall be made to the Chief of Naval the latter; or (3) To furnish services and supplies Personnel or the Commandant of the which are necessary and are not other- Marine Corps or, in the case of medical wise, or are insufficiently, available to services, to the Commander, Naval the personnel of the command. Medical Command. (b) Personal commercial solicitation (c) Activities and personnel of the and the conduct of commercial trans- American National Red Cross in areas actions are governed by policies of the subject to naval jurisdiction shall con- Department of Defense. form to such administrative regula- tions as may be prescribed by appro- § 700.812 Postal matters. priate naval authority. Commanding officers shall ensure (d) Red Cross personnel shall be con- that mail and postal funds are adminis- sidered to have the status of commis- tered in accordance with instructions sioned officers, subject to such restric- issued by the Postmaster General and tions as may be imposed by the Chief of approved for the naval service by the Naval Personnel or the Commandant of Chief of Naval Operations, and instruc- the Marine Corps. tions issued by the Chief of Naval Oper- ations, the Chief of Naval Personnel, or § 700.819 Records. the Commandant of the Marine Corps, The commanding officer shall require as appropriate; and that postal clerks that records relative to personnel, ma- or other persons authorized to handle terial and operations, as required by mail perform their duties strictly in current instructions, are maintained accordance with those instructions. properly by those responsible therefor. § 700.815 Deaths. § 700.822 Delivery of personnel to civil The commanding officer, in the event authorities and service of subpoena of the death of any person within his or or other process. her command, shall ensure that the (a) Commanding officers or other per- cause of death and the circumstances sons in authority shall not deliver any under which death occurred are estab- person in the naval service to civil au- lished, that the provisions of the Man- thorities except as provided by the ual of the Judge Advocate General are Manual of the Judge Advocate General. adhered to in documenting the cause and circumstances, and that the appro- (b) Commanding officers are author- priate casualty report is submitted. ized to permit the service of subpoenas or other process as provided by the § 700.816 The American National Red Manual of the Judge Advocate General. Cross. (a) Pursuant to the request of the § 700.826 Physical security. Secretary of the Navy, and subject to (a) The commanding officer shall such instructions as the Secretary may take appropriate action to safeguard
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personnel, to prevent unauthorized ac- § 700.832 Environmental pollution. cess to installations, equipment, mate- The commanding officer shall cooper- rials and documents, and to safeguard ate with Federal, state and local gov- them against acts of sabotage, damage, ernmental authorities in the preven- theft, or terrorism. tion, control and abatement of environ- (b) The commanding officer shall mental pollution. If the requirements take action to protect and maintain of any environmental law cannot be the security of the command against achieved because of operational consid- dangers from fire, windstorms, or other erations, insufficient resources or acts of nature. other reason, the commanding officer shall report to the immediate superior § 700.827 Effectiveness for service. in the chain of command. The com- The commanding officer shall: manding officer shall be aware of exist- (a) Exert every effort to maintain the ing policies regarding pollution con- command in a state of maximum effec- trol, and should recommend remedial tiveness for war or other service con- measures when appropriate. sistent with the degree of readiness as may be prescribed by proper authority. § 700.834 Care of ships, aircraft, vehi- Effectiveness for service is directly re- cles and their equipment. lated to the state of personnel and ma- The commanding officer shall cause terial readiness; and such inspections and tests to be made (b) Make him or herself aware of the and procedures carried out as are pre- progress of any repairs, the status of scribed by competent authority, to- spares, repair parts and other compo- gether with such others as he or she nents, personnel readiness and other deems necessary, to ensure the proper factors or conditions that could lessen preservation, repair, maintenance and the effectiveness of his or her com- operation of any ship, aircraft, vehicle, mand. When the effectiveness is less- and their equipment assigned to his or ened appreciably, that fact shall be re- her command. ported to appropriate superiors. § 700.835 Work, facilities, supplies, or § 700.828 Search by foreign authori- services for other Government de- ties. partments, State or local govern- ments, foreign governments, private (a) The commanding officer shall not parties and morale, welfare, and permit a ship under his or her com- recreational activities. mand to be searched on any pretense (a) Work may be done for or on facili- whatsoever by any person representing ties, supplies, or services furnished to a foreign state, nor permit any of the departments and agencies of the Fed- personnel within the confines of his or eral and State governments, local gov- her command to be removed from the ernments, foreign governments, private command by such person, so long as he parties, and morale, welfare, and rec- has the capacity to repel such act. If reational activities with the approval force should be exerted to compel sub- of a commanding officer provided: mission, the commanding officer is to (1) The cost does not exceed limita- resist that force to the utmost of his or tions the Secretary of the Navy may her power. approve or specify; and (b) Except as may be provided by (2) In the case of private parties, it is international agreement, the com- in the interest of the government to do manding officer of a shore activity so and there is no issue of competition shall not permit his or her command to with private industry; and be searched by any person representing (3) In the case of foreign govern- a foreign state, nor permit any of the ments, a disqualification of a govern- personnel within the confines of his or ment has not been issued for the bene- her command to be removed from the fits of this article. command by such person, so long as he (b) Work shall not be started nor fa- or she has the power to resist. cilities, supplies, or services furnished
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morale, welfare, and recreational ac- naval service without direct cost to the tivities not classified as instrumental- Department of the Navy. ities of the United States, or state or (f) In cases of emergency involving local governments or private parties, possible loss of life or valuable prop- until funds to cover the estimated cost erty, work may be started or facilities have been deposited with the com- furnished prior to authorization, or manding officer or unless otherwise provision for payment, but in all such provided by law. cases a detailed report of the facts and (c) Work shall not be started, nor fa- circumstances shall be made promptly cilities, supplies, or services furnished to the Secretary of the Navy or the ap- other Federal Government depart- propriate authority. ments and agencies, or expenses (g) Charges and accounting for any charged to non-appropriated funds of work, supplies, or services shall be as morale, welfare and recreational ac- prescribed in the Navy Comptroller tivities classified as instrumentalities Manual. of the United States, until reimburs- able funding arrangements have been COMMANDING OFFICERS AFLOAT made. (d) Work, facilities, supplies, or serv- § 700.840 Unauthorized persons on ices furnished non-appropriated fund board. activities classified as instrumental- The commanding officer shall satisfy ities of the United States in the Navy him or herself that there is no unau- Comptroller Manual shall be funded in thorized person on board before pro- accordance with regulations of the ceeding to sea or commencing a flight. Comptroller of the Navy. (e) Supplies or services may be fur- § 700.841 Control of passengers. nished to naval vessels and military (a) Control of passage in and pro- aircraft of friendly foreign govern- tracted visits to aircraft and ships of ments (unless otherwise provided by the Navy by all persons, within or law or international treaty or agree- without the Department of the Navy, ment): shall be exercised by the Chief of Naval (1) On a reimbursable basis without Operations. an advancement of funds, when in the (b) Nothing in this section shall be best interest of the United States: interpreted as prohibiting the senior (i) Routine port services (including officer present from authorizing the pilotage, tugs, garbage removal, passage in ships and aircraft of the linehandling and utilities) in terri- Navy by such persons as he or she torial waters or waters under United judges necessary in the public interest States control. or in the interest of humanity. The (ii) Routine airport services (includ- senior officer present shall report the ing air traffic control, parking, serv- circumstances to the Chief of Naval icing and use of runways). Operations when he or she gives such (iii) Miscellaneous supplies (includ- authorization. ing fuel, provisions, spare parts, and general stores) but not ammunition. § 700.842 Authority over passengers. Supplies are subject to approval of the Except as otherwise provided in these cognizant fleet or force commanders regulations or in orders from com- when provided overseas. petent authority, all passengers in a (iv) With approval of Chief of Naval ship or aircraft of the naval service are Operations in each instance, overhauls, subject to the authority of the com- repairs, and alterations together with manding officer and shall conform to necessary equipment and its installa- the internal regulations and routine of tion required in connection therewith, the ship or aircraft. The commanding to vessels and military aircraft. officer of such ship or aircraft shall (2) Routine port and airport services take no disciplinary action against a may be furnished at no cost to the for- passenger not in the naval service, eign government concerned where such other than that authorized by law. The services are provided by persons of the commanding officer may, when he or
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she deems such an action to be nec- § 700.847 Responsibility of a master of essary for the safety of the ship or air- an in-service ship of the Military craft or of any persons embarked, sub- Sealift Command. ject a passenger not in the naval serv- (a) In an in-service ship of the Mili- ice to such restraint as the cir- tary Sealift Command, the master’s re- cumstances require until such time as sponsibility is absolute, except when, delivery to the proper authorities is and to the extent, relieved therefrom possible. A report of the matter shall by competent authority. The authority be made to an appropriate superior of of the master is commensurate with the passenger. the master’s responsibility. The master § 700.844 Marriages on board. is responsible for the safety of the ship and all persons on board. He or she is The commanding officer shall not responsible for the safe navigation and perform a marriage ceremony on board technical operation of the ship and has his or her ship or aircraft. He or she paramount authority over all persons shall not permit a marriage ceremony on board. He or she is responsible for to be performed on board when the ship the preparation of the abandon ship or aircraft is outside the territory of bill and has exclusive authority to the United States, except: order the ship abandoned. The master (a) In accordance with local laws and the laws of the state, territory, or dis- may, using discretion, and when not trict in which the parties are domi- contrary to law or regulation, delegate ciled, and authority for operation of shipboard (b) In the presence of a diplomatic or functions to competent subordinates. consular official of the United States, However, such delegation of authority who has consented to issue the certifi- shall in no way relieve the master of cates and make the returns required by continued responsibility for the safety, the consular regulations. well-being, and efficiency of the ship. (b) All orders and instructions of the § 700.845 Maintenance of logs. master shall be in accordance with ap- (a) A deck log and an engineering log propriate laws of the United States, shall be maintained by each ship in and all applicable orders and regula- commission, and by such other ships tions of the Navy, Military Sealift and craft as may be designated by the Command, and the Office of Personnel Chief of Naval Operations. Management. A master who departs (b) A compass record shall be main- from the orders or instructions of com- tained as an adjunct to the deck log. petent authority or takes official ac- An engineer’s bell book shall be main- tion contrary to such orders or instruc- tained as an adjunct to the engineering tions, shall report immediately the cir- log. cumstances to the authority from (c) The Chief of Naval Operations whom the prior orders or instructions shall prescribe regulations governing were received. the contents and preparation of the deck and engineering logs and adjunct § 700.848 Relations with merchant sea- men. records. (d) In the case of a ship or craft When in foreign waters, the com- equipped with automated data logging manding officer, with the approval of equipment, the records generated by the senior officer present, may receive such equipment satisfy the require- on board as supernumeraries for ra- ments of this section. tions and passage: (a) Distressed seamen of the United § 700.846 Status of logs. States for passage to the United The deck log, the engineering log, States, provided they bind themselves the compass record, the bearing hooks, to be amenable in all respects to Navy the engineer’s bell book, and any Regulations. records generated by automated data (b) As prisoners, seamen from mer- logging equipment shall each con- chant vessels of the United States, pro- stitute an official record of the com- vided that the witnesses necessary to mand. substantiate the charges against them
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are received, or adequate means adopt- § 700.857 Safe navigation and regula- ed to ensure the presence of such wit- tions governing operation of ships nesses on arrival of the prisoners at the and aircraft. place where they are to be delivered to (a) The commanding officer is re- the civil authorities. sponsible for the safe navigation of his or her ship or aircraft, except as pre- § 700.855 Status of boats. scribed otherwise in these regulations (a) Boats shall be regarded in all for ships at a naval shipyard or station, matters concerning the rights, privi- in drydock, or in the Panama Canal. leges and comity of nations as part of During an armed conflict, an exercise the ship or aircraft to which they be- simulating armed conflict, or an au- long. thorized law enforcement activity, (b) In ports where war, insurrection competent authority may modify the or armed conflict exists or threatens, use of lights or other safeguards the commanding officer shall: against collision. Except in time of ac- (1) Require that boats away from the tual armed conflict, such modifications ship or aircraft have some appropriate will be authorized only when ships or and competent person in charge; and aircraft clearly will not be hazarded. (2) See that steps are taken to make (b) Professional standards and regu- their nationality evident at all times. lations governing shiphandling, safe navigation, safe anchoring and related § 700.856 Pilotage. operational matters shall be promul- gated by the Chief of Naval Operations. (a) The commanding officer shall: (c) Professional standards and regula- (1) Pilot the ship under all ordinary tions governing the operation of naval circumstances, but he may employ pi- aircraft and related matters shall be lots whenever, in his or her judgment promulgated by the Chief of Naval Op- such employment is prudent; erations or the Commandant of the Ma- (2) Not call a pilot on board until the rine Corps, as appropriate. ship is ready to proceed; (d) The Commanding Officer is re- (3) Not retain a pilot on board after sponsible for ensuring that weather the ship has reached her destination or and oceanic effects are considered in a point where the pilot is no longer re- the effective and safe operation of his quired; or her ship or aircraft. (4) Give preference to licensed pilots; and § 700.859 Quarantine. (5) Pay pilots no more than the local (a) The commanding officer or air- rates. craft commander of a ship or aircraft (b) A pilot is merely an adviser to the shall comply with all quarantine regu- commanding officer. The presence on lations and restrictions, United States board of a pilot shall not relieve the or foreign, for the port or area within commanding officer or any subordinate which the ship or aircraft is located. from his or her responsibility for the (b) The commanding officer shall proper performance of the duties with give all information required by au- which he or she may be charged con- thorized foreign officials, insofar as cerning the navigation and handling of permitted by military security, and the ship. For an exception to the provi- will meet the quarantine requirements sions of this paragraph, see ‘‘Rules and promulgated by proper authority for Regulations Covering Navigation of the United States or foreign ports. How- Panama Canal and Adjacent Waters,’’ ever, nothing in this section shall be (35 CFR Chapter I, subchapter C) which interpreted as authorizing commanding directs that the pilot assigned to a ves- officers to permit on board inspections sel in those waters shall have control by foreign officials, or to modify in any of the navigation and movement of the manner the provisions of § 700.828 of vessel. Also see the provisions of these these regulations. regulations concerning the navigation (c) The commanding officer shall of ships at a naval shipyard or station, allow no intercourse with a port or or in entering or leaving drydock. area or with other ships or aircraft
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until after consultation with local not landed nor intended to be landed health authorities when: nor in any manner trafficked in, are, (1) Doubt exists as to the sanitary by the established precedent of inter- regulations or health conditions of the national courtesy, exempt from cus- port or area; toms duties, but a declaration of such (2) A quarantine condition exists stores or cargo, when required by local aboard the ship or aircraft; customs regulations, shall be made. (3) Coming from a suspected port or Commanding officers shall prevent, as area, or one actually under quarantine. far as possible, disputes with the local (d) No concealment shall be made of authorities in such cases, but shall pro- any circumstance that may subject a tect the ship or aircraft and the Gov- ship or aircraft of the Navy to quar- ernment-owned stores and cargo from antine. any search or seizure. (e) Should there appear at any time on board a ship or aircraft conditions (c) Upon arrival from a foreign coun- which present a hazard of introduction try, at the first port of entry in United of a communicable disease outside the States territory, the commanding offi- ship or aircraft, the commanding offi- cer, or the senior officer of ships or air- cer or aircraft commander shall at craft in company, shall notify the col- once report the fact to the senior offi- lector of the port. Each individual cer present, to other appropriate high- aboard shall, in accordance with cus- er authorities and, if in port, to the toms regulations, submit a list of arti- health authorities having quarantine cles purchased or otherwise acquired jurisdiction. The commanding officer by him abroad. Dutiable articles shall or aircraft commander shall prevent not be landed until the customs officer all contracts likely to spread disease has completed his inspection. until pratique is received. The com- (d) Commanding officers of naval ves- manding officer of a ship in port shall sels and aircraft transporting United hoist the appropriate signal. States civilian and foreign military and civilian passengers shall satisfy § 700.860 Customs and immigration in- spections. themselves that the passenger clear- ance requirements of the Immigration (a) The commanding officer or air- and Naturalization Service are com- craft commander shall facilitate any plied with upon arrival at points with- proper examination which it may be in the jurisdiction of the United the duty of a customs officer or immi- gration officer of the United States to States. Clearance for such passengers make on board the ship or aircraft. The by an immigration officer is necessary commanding officer or air craft com- upon arrival from foreign ports and at mander shall not permit a foreign cus- the completion of movements between toms officer or an immigration officer any of the following: Continental to make any examination whatsoever, United States (including Alaska and except as hereinafter provided, on Hawaii), the Canal Zone, Puerto Rico, board the ship, aircraft or boats under Virgin Islands, Guam, American his or her command. Samoa, or other outlying places sub- (b) When a ship or aircraft of the ject to United States jurisdiction. Navy or a public vessel manned by Commanding officers, prior to arriving, naval personnel and operating under shall advise the cognizant naval or ci- the direction of the Department of the vilian port authority of the aforemen- Navy is carrying cargo for private com- tioned passengers aboard and shall de- mercial account, such cargo shall be tain them for clearance as required by subject to the local customs regula- the Immigration and Naturalization tions of the port, domestic or foreign, Service. in which the ship or aircraft may be, (e) The provisions of this section and in all matters relating to such shall not be construed to require delay- cargo, the procedure prescribed for pri- ing the movements of any ship or air- vate merchant vessels and aircraft craft of the Navy in the performance of shall be followed. Government-owned stores or cargo in such ship or aircraft her assigned duty.
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SPECIAL CIRCUMSTANCES/SHIPS IN until the extremity of the ship last to NAVAL STATIONS AND SHIPYARDS leave the dock clears the sill, and the ship is pointed fair for leaving the dry- § 700.871 Responsibility for safety of dock, when the ship’s commanding offi- ships and craft at a naval station or cer shall assume responsibility for the shipyard. safety and control of the ship. (a) The commanding officer of a (e) When a naval ship is to be naval station or shipyard shall be re- drydocked in a private shipyard under sponsible for the care and safety of all a contract being administered by a su- ships and craft at such station or ship- pervisor of shipbuilding, the respon- yard not under a commanding officer sibilities of the commanding officer are or assigned to another authority, and the same as in the case of drydocking for any damage that may be done by or in a naval shipyard. The responsibil- to them. In addition, the commanding ities for the safety of the actual officer of a naval station or shipyard drydocking, normally assigned to the shall be responsible for the safe execu- commanding officer of a naval shipyard tion of work performed by that activ- through the docking officer, will be as- ity upon any ship located at the activ- signed by contract to the contractor. ity. The supervisor of shipbuilding is re- (b) It shall be the responsibility of sponsible, however, for ensuring that the commanding officer of a ship in the contractor facilities, methods, op- commission which is undergoing over- erations, and qualifications meet the haul, or which is otherwise immo- standards of efficiency and safety pre- bilized at a naval station or shipyard, scribed by Navy directives. to request such services as are nec- (f) If the ship is elsewhere than at a essary to ensure the safety of the ship. naval station or shipyard, the relation- The commanding officer of the naval ship between the commanding officer station or shipyard shall be responsible and the supervisor of shipbuilding, or for providing requested services in a other appropriate official, shall be the timely and adequate manner. same as that between the commanding (c) When a ship or craft not under her officer and the commanding officer of a own power is being moved by direction naval station or naval shipyard as of the commanding officer of a naval specified in this article. station or shipyard, that officer shall be responsible for any damage that § 700.872 Ships and craft in drydock. may result therefrom. The pilot or (a) The commanding officer of a ship other person designated for the purpose in drydock shall be responsible for ef- shall be in direct charge of such move- fecting adequate closure, during such ment, and all persons on board shall periods as they will be unattended, of cooperate with and assist the pilot as all openings in the ship’s bottom upon necessary. Responsibility for such ac- which no work is being undertaken by tions in a private shipyard will be as- the docking activity. The commanding signed by contract to the contractor. officer of the docking activity shall be (d) When a ship operating under her responsible for the closing, at the end own power is being drydocked, the of working hours, of all valves and commanding officer shall be fully re- other openings in the ship’s bottom sponsible for the safety of his ship upon which work is being undertaken until the extremity of the ship first to by the docking activity, when such enter the drydock reaches the dock sill closing is practicable. and the ship is pointed fair for entering (b) Prior to undocking, the com- the drydock. The docking officer shall manding officer of a ship shall report then take charge and complete the to the docking officer any material docking, remaining in charge until the changes in the amount and location of ship has been properly landed, bilge weights on board which have been blocks hauled, and the dock pumped made by the ship’s force while in dock, down. In undocking, the docking offi- and shall ensure, and so report, that all cer shall assume charge when flooding sea valves and other openings in the the dock preparatory to undocking is ship’s bottom are properly closed. The started, and shall remain in charge level of water in the dock shall not be
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permitted to rise above the keel blocks (2) Inspect the ship as soon after re- prior to receipt of this report. The porting for duty as practicable, and fre- above valves and openings shall be quently thereafter, in order to keep tended during flooding of the dock. him or herself informed of the state of (c) When a ship or craft, not in com- her preparation for service. If, during mission, is in a naval drydock, the pro- the course of these inspections he or visions of this article shall apply, ex- she notes an unsafe or potentially un- cept that the commanding officer of safe condition, he or she shall report the docking activity or his representa- such fact to the commander of the tive shall act in the capacity of the naval shipyard or the supervisor of commanding officer of the ship or shipbuilding and to his or her superior craft. for resolution; (d) When a naval ship or craft is in (3) Keep him or herself informed as to drydock in a private shipyard, respon- the progress of the work being done, in- sibility for actions normally assigned cluding tests of equipment, and make by the commanding officer of the dock- such recommendations to the com- ing activity will be assigned by con- mander of the naval shipyard or the su- tract to the contractor. pervisor of shipbuilding as he or her she deems appropriate; § 700.873 Inspection incident to com- (4) Ensure that requisitions are sub- missioning of ships. mitted for articles to outfit the ship which are not otherwise being pro- When a ship is to be commissioned, vided; the authority designated to place such (5) Prepare the organization of the ship in commission shall, just prior to ship; commissioning, cause an inspection to (6) Train the nucleus crew to effec- be made to determine the cleanliness tively and efficiently take charge of and readiness of the ship to receive its and operate the ship upon commis- crew and outfit. In the case of the de- sioning; and livery of a ship by a contractor, the (7) Make such reports as may be re- above inspection shall precede accept- quired by higher authority, and include ance of the ship. A copy of the report of therein a statement of any deficiency this inspection shall be furnished the in material or personnel. officer detailed to command the ship (b) If the prospective commanding of- and to appropriate commands. ficer does not consider the ship in prop- er condition to be commissioned at the SPECIAL CIRCUMSTANCES/PROSPECTIVE time the commander of the naval ship- COMMANDING OFFICERS yard or the supervisor of shipbuilding signifies his intention of transferring § 700.880 Duties of the prospective commanding officer of a ship. the ship to the prospective com- manding officer, he or she shall report (a) Except as may be prescribed by that conclusion with his reasons there- the Chief of Naval Operations, the pro- for, in writing, to the commander of spective commanding officer of a ship the naval shipyard or the supervisor of not yet commissioned shall have no shipbuilding and to the appropriate independent authority over the prepa- higher authority. ration of the ship for service by virtue (c) If the ship is elsewhere than at a of his assignment to such duty, until naval shipyard, the relationship be- the ship is commissioned and placed tween the prospective commanding of- under his or her command. The pro- ficer and the supervisor of ship- spective commanding officer shall: building, or other appropriate official, (1) Procure from the commander of shall be the same as that between the the naval shipyard or the supervisor of prospective commanding officer and shipbuilding the general arrangement the commander of a naval shipyard as plans of the ship, and all pertinent in- specified in this article. formation relative to the general con- (d) The Chief of Naval Operations dition of the ship and the work being shall be responsible for providing the undertaken on the hull, machinery and commanding officer or prospective equipment, upon reporting for duty; commanding officer of a naval nuclear
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powered ship with the authority and § 700.904 Authority of senior officer of direction necessary to carry out his or the Marine Corps present. her responsibilities. The authority and responsibility of the senior officer present are also con- Subpart I—The Senior Officer ferred upon the senior commanding of- Present ficer of the Marine Corps present with respect to those units of the Marine CONTENTS Corps, including Navy personnel at- tached, which are in the locality and § 700.901 The senior officer present. not under the authority of the senior officer present. Unless some other officer has been so designated by competent authority, § 700.922 Shore patrol. the ‘‘senior officer present’’ is the sen- (a) When liberty is granted to any ior line officer of the Navy on active considerable number of persons, except duty, eligible for command at sea, who in an area that can absorb them with- is present and in command of any part out danger of disturbance or disorder, of the Department of the Navy in the the senior officer present shall cause to locality or within an area prescribed by be established, temporarily or perma- competent authority, except where per- nently, in charge of an officer, a suffi- sonnel of both the Navy and the Marine cient patrol of officers, petty officers, Corps are present on shore and the offi- and noncommissioned officers to main- cer of the Marine Corps who is in com- tain order and suppress any unseemly mand is senior to the senior line officer conduct on the part of any person on of the Navy. In such cases, the officer liberty. The senior patrol officer shall of the Marine Corps shall be the senior communicate with the chief of police officer present on shore. or other local officials and make such arrangements as may be practicable to § 700.902 Eligibility for command at aid the patrol in carrying out its duties sea. properly. Such duties may include pro- viding assistance to military personnel All officers of the line of the Navy, in relations with civil courts and po- including Naval Reserve, on active lice, arranging for release of service duty, except those designated for the personnel from civil authorities to the performance of engineering, aero- parent command, and providing other nautical engineering or special duties, services that favorably influence dis- and except those limited duty officers cipline and morale. who are not authorized to perform all (b) A patrol shall not be landed in deck duties afloat, are eligible for com- any foreign port without first obtain- mand at sea. ing the consent of the proper local offi- cials. Tact must be used in requesting § 700.903 Authority and responsibility. permission; and, unless it is given will- At all times and places not excluded ingly and cordially, the patrol shall in these regulations, or in orders from not be landed. If consent cannot be ob- competent authority, the senior officer tained, the size of liberty parties shall be held to such limits as may be nec- present shall assume command and di- essary to render disturbances unlikely. rect the movements and efforts of all (c) Officers and enlisted personnel on persons in the Department of the Navy patrol duty in a foreign country nor- present, when, in his or her judgment, mally should not be armed. In the the exercise of authority for the pur- United States, officers and men may be pose of cooperation or otherwise is nec- armed as prescribed by the senior offi- essary. The senior officer present shall cer present. exercise this authority in a manner (d) No officer or enlisted person who consistent with the operational com- is a member of the shore patrol or mand responsibility vested in the com- beach guard, or is assigned in support manders of unified or specified com- thereof, shall partake of or indulge in mands. any form of intoxicating beverage or
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other form of intoxicant while on duty, (i) At his or her request, an applicant on post, or at other times prescribed by for asylum will be received on board the senior patrol officer. The senior pa- any naval aircraft or waterborne craft, trol officer shall ensure that the provi- Navy or Marine Corps activity or sta- sions of this paragraph are strictly ob- tion. served and shall report promptly in (ii) Under no circumstances shall the writing to the senior officer present all person seeking asylum be surrendered violations of these provisions that may to foreign jurisdiction or control, un- come to his or her notice. All officers less at the personal direction of the and enlisted personnel of the patrol Secretary of the Navy or higher au- shall report to the senior patrol officer thority. Persons seeking political asy- all violations of the provisions of this lum should be afforded every reason- paragraph on the part of those under able care and protection permitted by them. the circumstances. (2) In territories under foreign juris- § 700.923 Precautions for health. diction (including foreign territorial The senior officer present shall take seas, territories, and possessions): precautions to preserve the health of (i) Temporary refuge shall be granted the persons under his or her authority. for humanitarian reasons on board a He or she shall obtain information re- naval aircraft or waterborne craft, garding the healthfulness of the area Navy or Marine Corps activity or sta- and medical facilities available therein tion, only in extreme or exceptional and shall adopt such measures as are circumstances wherein life or safety of required by the situation. a person is put in imminent danger, such as pursuit by a mob. When tem- § 700.924 Medical or dental aid to per- porary refuge is granted, such protec- sons not in the naval service. tion shall be terminated only when di- rected by the Secretary of the Navy or The senior officer present may re- higher authority. quire the officers of the Medical Corps (ii) A request by foreign authorities and Dental Corps under his or her au- for return of custody of a person under thority to render emergency profes- the protection of temporary refuge will sional aid to persons not in the naval be reported to the CNO or Commandant service when such aid is necessary and of the Marine Corps. The requesting demanded by the laws of humanity or foreign authorities will be informed the principles of international cour- that the case has been referred to high- tesy. er authorities for instructions. § 700.934 Exercise of power of consul. (iii) Persons whose temporary refuge is terminated will be released to the When upon the high seas or in any protection of the authorities des- foreign port where there is no resident ignated in the message authorizing re- consul of the United States, the senior lease. officer present afloat has the authority (iv) While temporary refuge can be to exercise all powers of a consul in re- granted in the circumstances set forth lation to mariners of the United above, permanent asylum will not be States. granted. (v) Foreign nationals who request as- § 700.939 Granting of asylum and tem- sistance in forwarding requests for po- porary refuge. litical asylum in the United States will (a) If an official of the Department of not be received on board, but will be the Navy is requested to provide asy- advised to apply in person at the near- lum or temporary refuge, the following est American Embassy or Consulate. If procedures shall apply: a foreign national is already on board, (1) On the high seas or in territories however, such person will not be sur- under exclusive United States jurisdic- rendered to foreign jurisdiction or con- tion (including territorial seas, the trol unless at the personal direction of Commonwealth of Puerto Rico, terri- the Secretary of the Navy. tories under United States administra- (3) The Chief of Naval Operations or tion, and possessions): Commandant of the Marine Corps, as
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appropriate, will be informed by the the commanding officer of naval per- most expeditious means of all action sonnel embarked, or when placed on taken pursuant to paragraphs (a)(1)(i) duty by such officer. and (a)(1)(ii) of this section, as well as (3) When senior officer at the scene of the attendant circumstances. Tele- a riot or other emergency, or when phone or voice communications will be placed on duty by such officer. used where possible, but must be con- firmed as soon as possible with an im- § 700.1026 Authority of an officer who mediate precedence message, informa- succeeds to command. tion to the Secretary of State (for ac- (a) An officer who succeeds to com- tions taken pursuant to paragraphs mand due to incapacity, death, depar- (a)(2)(i) and (a)(2)(v) of this section, ture on leave, detachment without re- also make the appropriate American lief or absence due to orders from com- Embassy or Consular Office an infor- petent authority of the officer detailed mation addressee). If communication to command, has the same authority by telephone or voice is not possible, and responsibility as the officer whom notification will be effected by an im- he or she succeeds. mediate precedence message, as de- (b) An officer who succeeds to com- scribed above. The Chief of Naval Oper- mand during the temporary absence of ations or Commandant of the Marine the commanding officer shall make no Corps will cause the Secretary of the changes in the existing organization, Navy and the Deputy Director for Op- and shall endeavor to have the routine erations of the National Military Com- and other affairs of the command car- mand Center to be notified without ried on in the usual manner. delay. (c) When an officer temporarily suc- (b) Personnel of the Department of ceeding to command signs official cor- the Navy shall neither directly nor in- respondence, the word ‘‘Acting’’ shall directly invite persons to seek asylum appear below his or her signature. or temporary refuge. § 700.1038 Authority of a sentry. Subpart J—Precedence, Authority A sentry, within the limits stated in and Command his or her orders, has authority over all persons on his or her post. AUTHORITY DETAIL TO DUTY § 700.1020 Exercise of authority. (a) All persons in the naval service on § 700.1052 Orders to active service. active service, and those on the retired (a) No person who is on leave of ab- list with pay, and transferred members sence or not on active service shall be of the Fleet Reserve and the Fleet Ma- ordered into active service or on duty rine Corps Reserve, are at all times without permission of the Com- subject to naval authority. While on mandant of the Marine Corps, or the active service they may, if not on leave Chief of Naval Personnel, as appro- of absence except as noted below, on priate, except: the sick list, taken into custody, under (1) In the case of a person on leave of arrest, suspended from duty, in con- absence, by the officer who granted the finement or otherwise incapable of dis- leave or a superior, or charging their duties, exercise author- (2) By the senior officer present on a ity over all persons who are subordi- foreign station. nated to them. (b) In the event that the senior offi- (b) A person in the naval service, al- cer present of a foreign station issues though on leave, may exercise author- any orders as contemplated by this ar- ity: ticle, he or she shall report the facts, (1) When in a naval ship or aircraft including the reasons for issuing such and placed on duty by the commanding orders, to the Commandant of the Ma- officer or aircraft commander. rine Corps or the Chief of Naval Per- (2) When in a ship or aircraft of the sonnel, without delay. armed services of the United States, (c) Retired officers of the Navy and other than a naval ship or aircraft, as Marine Corps may be ordered to active
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service, with their consent, in time of § 700.1057 Command of an air activity. peace. In time of war or a national (a) The officer detailed to command a emergency, such retired officers may, naval aviation school, a naval air sta- at the discretion of the Secretary of tion, or a naval air unit organized for the Navy, be ordered to active service. flight tactical purposes shall be an offi- § 700.1053 Commander of a task force. cer of the line in the navy, designated as a naval aviator or naval flight offi- (a) A commander in chief, and any cer, eligible for command at sea. other naval commander, may detail in (b) For the purposes of Title 10 U.S.C. command of a task force, or other task § 5942, a naval air training squadron is command, any eligible officer within not considered to be a naval aviation his or her command whom he or she de- school or a naval air unit organized for sires. All other officers ordered to the flight tactical purposes. The officer de- task force or the task command shall tailed to command a naval air training be considered subordinate to the des- squadron or an air unit organized for ignated commander. administrative purposes shall be a line (b) All orders issued under the au- officer of the naval service, designated thority of this article shall continue in as a naval aviator or naval flight offi- effect after the death or disability of cer, eligible for command. If a naval the officer issuing them until they are air training squadron has been des- revoked by his or her successor in com- ignated a multi-service training squad- mand or higher authority. ron, the officer detailed to command (c) The powers delegated to a com- that squadron may be a line officer mander by this article are not con- from any armed service designated as ferred on any other officer by virtue of the equivalent of a naval aviator naval the fact that he or she is the senior of- flight officer and otherwise eligible to ficer present. command an aviation squadron or unit under that officer’s pertinent service § 700.1054 Command of a naval base. regulations. The officer detailed to command a (c) The officer detailed to command a naval base shall be an officer of the naval air activity of a technical nature line in the Navy, eligible for command on shore may be an officer of the line at sea. in the navy not eligible for command at sea, but designated as a naval avi- § 700.1055 Command of a naval ship- ator or a naval flight officer or des- yard. ignated for aeronautical engineering duty. The officer detailed to command a (d) The officer detailed to command a naval shipyard shall be trained in the Marine Corps air unit organized for technical aspects of building and repair flight tactical purpose shall be an offi- of ships and shall have had substantial cer of the Marine Corps, designated as previous experience in the technical a naval aviator or naval flight officer. and management phases of such work. (e) Other than an air training squad- Such officer may have been designated ron, an officer of the Navy shall not for engineering duty. normally be detailed to command an § 700.1056 Command of a ship. aviation unit of the Marine Corps nor shall an officer of the Marine Corps (a) The officer detailed to command a normally be detailed to command an commissioned ship shall be an officer aviation unit of the Navy. Aircraft of the line in the Navy eligible for com- units of the Marine Corps may, how- mand at sea. ever, be assigned to ships or to naval (b) The officer detailed to command air activities in the same manner as an aircraft carrier, an aircraft tender, aircraft units of the navy and, con- or a ship with a primary task of oper- versely, aircraft units of the navy may ating or supporting aircraft shall be an be so assigned to Marine Corps air ac- officer of the line in the navy, eligible tivities. A group composed of aircraft for command at sea, designated as a units of the Navy and aircraft units of naval aviator or naval flight officer. the Marine Corps may be commanded
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either by an officer of the Navy or an OFFICIAL RECORDS officer of the Marine Corps. § 700.1121 Disclosure, publication and § 700.1058 Command of a submarine. security of official information. The officer detailed to command a (a) No person in the Department of submarine shall be an officer of the the Navy shall convey or disclose by line in the Navy, eligible for command oral or written communications, publi- cation, graphic (including photo- at sea and qualified for command of graphic) or other means, any classified submarines. information except as provided in di- § 700.1059 Command of a staff corps rectives governing the release of such activity. information. Additionally, no person in the Department of the Navy shall com- Officers in a staff corps shall be de- municate or otherwise deal with for- tailed to command only such activities eign entities, even on an unclassified as are appropriate to their corps. basis, when this would commit the De- partment of the Navy to disclose clas- Subpart K—General Regulations sified military information except as may be required in that person’s offi- STANDARDS OF CONDUCT cial duties and only after coordination with and approval by a release author- § 700.1101 Demand for court-martial. ity designated by competent authority. Except as otherwise provided in the (b) No person in the Department of Uniform Code of Military Justice, no the Navy shall convey or disclose by person in the naval service may de- oral or written communication, publi- mand a court martial either on him or cation or other means except as may be required by his or her official duties, herself or on any other person in the any information concerning the De- naval service. partment of Defense or forces, or any § 700.1113 Endorsement of commercial person, thing, plan or measure per- product or process. taining thereto, where such informa- tion might be of possible assistance to Except as necessary during contract a foreign power; nor shall any person in administration to determine specifica- the Department of the Navy make any tion or other compliance, no person in public speech or permit publication of the Department of the Navy, in his or an article written by or for that person her official capacity, shall endorse or which is prejudicial to the interests of express an opinion of approval or dis- the United States. The regulations con- approval of any commercial product or cerned with the release of information process. to the public through any media will be as prescribed by the Secretary of the § 700.1120 Personal privacy and rights Navy. of individuals regarding their per- (c) No person in the Department of sonal records. the Navy shall disclose any informa- (a) Except as specifically provided in tion whatever, whether classified or this section, maintenance of personal unclassified, or whether obtained from records of individuals, and the release official records or within the knowl- of those records, shall be in accordance edge of the relator, which might aid or with the provisions of the Privacy Act be of assistance in the prosecution or and directives issued by the Secretary support of any claim against the United States. The prohibitions pre- of the Navy. scribed by the first sentence of this (b) Except as specifically provided in paragraph are not applicable to an offi- this section, the release of depart- cer or employee of the United States mental records to private parties shall who is acting in the proper course of, be in accordance with the provisions of and within the scope of, his or her offi- the Freedom of Information Act and di- cial duties, provided that the disclo- rectives issued by the Secretary of the sure of such information is otherwise Navy. authorized by stature, Executive Order
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of the President or departmental regu- stroy them, or withhold them from lation. those persons authorized to have access (d) Any person in the Department of to them. the Navy receiving a request from the (b) Except as specifically provided in public for Department of the Navy this section, maintenance of personal records shall be governed by the provi- records of individuals, and the release sions of the Freedom of Information of those records, shall be in accordance Act and implementing directives issued with the provisions of the Privacy Act by the Secretary of the Navy. and directives issued by the Secretary (e) Persons in the Department of the of the Navy. Navy desiring to submit manuscripts (c) Except as specifically provided in to commercial publishers on profes- this section, the release of depart- sional, political or international sub- mental records to private parties shall jects shall comply with regulations be in accordance with the provisions of promulgated by the Secretary of the the Freedom of Information Act and di- Navy. rectives issued by the Secretary of the (f) No persons in the naval service on Navy. active duty or civilian employee of the Department of the Navy shall act as § 700.1128 Official records in civil correspondent of a news service or peri- courts. odical, or as a television or radio news (a) Department of the Navy personnel commentator or analyst, unless as- shall not provide official information, signed to such duty in connection with testimony, or documents, submit to the public affairs activities of the De- interview, or permit a view or visit, for partment of the Navy, or authorized by litigation purposes, without special the Secretary of the Navy. Except as written authorization. authorized by the Secretary of the (b) Department of the Navy personnel Navy, no person assigned to duty in shall not provide, with or without com- connection with public affairs activi- pensation, opinion or expert testimony ties of the Department of the Navy concerning official Department of De- shall receive any compensation for act- fense information, subjects, personnel ing as such correspondent, commen- or activities, except on behalf of the tator or analyst. United States or a party represented by the Department of Justice, or with § 700.1126 Correction of naval records. special written authorization.
(a) Any military record in the De- DUTIES OF INDIVIDUALS partment of the Navy may be corrected by the Secretary of the Navy, acting § 700.1138 Responsibilities concerning through the Board for Correction of marijuana, narcotics, and other Naval Records, when the Secretary controlled substances. considers that such action should be (a) All personnel shall endeavor to taken in order to correct an error or to prevent and eliminate the unauthor- remove an injustice. ized use of marijuana, narcotics and (b) Applications for corrections under other controlled substances within the this article may be made only after ex- naval service. haustion of all other administrative (b) The wrongful possession, use, in- remedies afforded by law or regulation. troduction, manufacture, distribution (c) Applications for such corrections and possession, or introduction with should be submitted to the Secretary intent to distribute, of a controlled of the Navy (Board for Correction of substance by persons in the naval serv- Naval Records) in accordance with pro- ice are offenses under Article 112a, Uni- cedural regulations established by the form Code of Military Justice. Except Secretary of the Navy and approved by for authorized medicinal or other au- the Secretary of Defense. thorized purposes, the possession, use, introduction, sale, or other transfer of § 700.1127 Control of official records. marijuana, narcotics or other con- (a) No person, without proper author- trolled substances on board any ship or ity, shall withdraw official records or aircraft of the Department of the Navy correspondence from the files, or de- or within any naval base, station or
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other place under the jurisdiction of craft, or in any vehicle of the Depart- the Department of the Navy by all per- ment of the Navy is prohibited. The sons is prohibited. transportation of alcoholic beverages (c) The term ‘‘controlled substance’’ for personal use ashore is authorized, means: a drug or other substance in- subject to the discretion of the officer cluded in Schedule I, II, III, IV, or V es- in command or officer in charge, or tablished by section 202 of the Com- higher authority, when the beverages prehensive Drug Abuse Prevention and are delivered to the custody of the offi- Control Act of 1970 (84 Stat. 1236), as cer in command or officer in charge of updated and republished under the pro- the ship, craft, or aircraft in sealed visions of that Act (21 U.S.C. 812). packages, securely packed, properly marked and in compliance with cus- § 700.1139 Rules for preventing colli- toms laws and regulations, and stored sions, afloat and in the air. in securely locked compartments, and (a) All persons in the naval service the transportation can be performed responsible for the operation of naval without undue interference with the ships, craft and aircraft shall diligently work or duties of the ship, craft, or air- observe the International Rules for craft. Whenever an alcoholic beverage Preventing Collisions at Sea (com- is brought on board any ship, craft, or monly called the COLREGS) (33 CFR aircraft for transportation for personal chapter I), Inland Navigation Rules (33 use ashore, the person who brings it on CFR chapter I), domestic and inter- board shall at that time file with the national air traffic regulations (14 CFR officer in command or officer in charge chapter I), and such other rules and of the ship, craft or aircraft, a state- regulations as may be established by ment of the quantity and kind of alco- the Secretary of Transportation or holic beverage brought on board, to- other competent authority for regu- gether with a certification that its im- lating traffic and preventing collisions portation will be in compliance with on the high seas, in inland waters or in customs and internal revenue laws and the air, where such laws, rules and reg- regulations and applicable State or ulations are applicable to naval ships local laws at the place of debarkation. and aircraft. In those situations where (b) The introduction, possession and such law, rule or regulation is not ap- use of alcoholic beverages for personal plicable to naval ships, craft or air- consumption or sale is authorized with- craft, they shall be operated with due in naval activities and other places regard for the safety of others. ashore under naval jurisdiction to the (b) Any significant infraction of the extent and in such manner as the Sec- laws, rules and regulations governing retary of the Navy may prescribe. traffic or designed to prevent collisions on the high seas, in inland waters, or in § 700.1165 Fraternization prohibited. the air which may be observed by per- (a) Personal relationships between of- sons in the naval service shall be ficer and enlisted members which are promptly reported to their superiors, unduly familiar and which do not re- including the Chief of Naval Operations spect differences in rank are inappro- or Commandant of the Marine Corps priate and violate long-standing tradi- when appropriate. tions of the naval service. (c) Reports need not be made under (b) When prejudicial to good order this article if the facts are otherwise and discipline or of a nature to bring reported in accordance with other di- discredit on the naval service, personal rectives, including duly authorized relationships are prohibited: safety programs. (1) Between an officer and an enlisted member which are unduly familiar and RIGHTS AND RESTRICTIONS do not respect differences in rank and grade; § 700.1162 Alcoholic beverages. (2) Between officer members which (a) Except as may be authorized by are unduly familiar and do not respect the Secretary of the Navy, the intro- differences in rank and grade where a duction, possession or use of alcoholic direct senior-subordinate supervisory beverages on board any ship, craft, air- relationship exists; and
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(3) Between enlisted members which PART 701—AVAILABILITY OF DE- are unduly familiar and do not respect PARTMENT OF THE NAVY differences in rank and grade where a RECORDS AND PUBLICATION OF direct senior-subordinate supervisory relationship exists. DEPARTMENT OF THE NAVY (c) Violation of this article may re- DOCUMENTS AFFECTING THE sult in administrative or punitive ac- PUBLIC tion. This article applies in its entirety to all regular and reserve personnel. Subpart A—Department of the Navy Free- dom of Information Act (FOIA) Pro- § 700.1166 Sexual harassment. gram (a) Sexual harassment will not be Sec. condoned or tolerated in the Depart- 701.1 Purpose. ment of the Navy. It is a form of arbi- 701.2 Navy FOIA website/FOIA handbook. 701.3 Applicability. trary discrimination which is unpro- 701.4 Responsibility and authority. fessional, unmilitary, and which ad- 701.5 Policy. versely affects morale and discipline 701.6 Reading rooms. and ultimately the mission effective- 701.7 Relationship between the FOIA and ness of the command involved. PA. 701.8 Processing FOIA requests. (b) Personnel who use implicit or ex- 701.9 Referrals. plicit sexual behavior to control, influ- 701.10 Processing requests received from ence or affect the career, promotion governmental officials. opportunities, duty assignments or pay 701.11 Processing specific kinds of records. of any other person are engaging in 701.12 FOIA appeals/litigation. sexual harassment. Naval personnel who make deliberate or repeated offen- Subpart B—FOIA Definitions and Terms sive verbal comments, gestures or 701.13 5 U.S.C. 552(a)(1) materials. physical contact of a sexual nature in 701.14 5 U.S.C. 552(a)(2) materials. the work environment are also engag- 701.15 5 U.S.C. 552(a)(3) materials. ing in sexual harassment. 701.16 Administrative appeal. 701.17 Affirmative information disclosure. 701.18 Agency record. § 700.1167 Supremacist activity. 701.19 Appellate authority. No person in the naval service shall 701.20 Discretionary disclosure. participate in any organization that es- 701.21 Electronic record. pouses supremacist causes; attempts to 701.22 Exclusions. 701.23 Executive Order 12958. create illegal discrimination based on 701.24 Federal agency. race, creed, color, sex, religion, or na- 701.25 5 U.S.C. 552, Freedom of Information tional origin; advocates the use of force Act (FOIA). or violence against the Government of 701.26 FOIA exemptions. the United States or the Government 701.27 FOIA fee terms location. of any state, territory, district, or pos- 701.28 FOIA request. session thereof, or the Government of 701.29 Glomar response. 701.30 Initial Denial Authority (IDA). any subdivision therein; or otherwise 701.31 Mosaic or compilation response. engages in efforts to deprive individ- 701.32 Perfected request. uals of their civil rights. The term 701.33 Public domain. ‘‘participate’’, as used in this article, 701.34 Public interest. includes acts or conduct, performed 701.35 Reading room. alone or in concert with another, such 701.36 Release authorities. as demonstrating, rallying, fund- 701.37 Reverse FOIA. raising, recruiting, training, or orga- 701.38 Technical data. 701.39 Vaughn index. nizing or leading such organizations. The term ‘‘participate’’ also includes Subpart C—FOIA Fees engaging in any other activities in re- lation to such organizations or in fur- 701.40 Background. therance of the objectives of such orga- 701.41 FOIA fee terms. 701.42 Categories of requesters—applicable nizations when such activities are det- fees. rimental to good order, discipline, or 701.43 Fee declarations. mission accomplishment. 701.44 Restrictions. 701.45 Fee assessment. 45
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701.46 Aggregating requests. Subpart G—Privacy Act Exemptions 701.47 FOIA fees must be addressed in re- sponse letters. 701.116 Purpose. 701.48 Fee waivers. 701.117 Exemption for classified records. 701.49 Payment of fees. 701.118 Exemptions for specific Navy record 701.50 Effect of the Debt Collection Act of systems. 1982. 701.119 Exemptions for specific Marine 701.51 Refunds. Corps record systems. 701.52 Computation of fees. 701.53 FOIA fee schedule. AUTHORITY: 5 U.S.C. 552. 701.54 Collection of fees and fee rates for SOURCE: 64 FR 49850, Sept. 14, 1999, unless technical data. otherwise noted. 701.55 Processing FOIA fee remittances.
Subpart D—FOIA Exemptions Subpart A—Department of the Navy Freedom of Information 701.56 Background. Act (FOIA) Program 701.57 Ground rules. 701.58 In-depth analysis of FOIA exemp- § 701.1 Purpose. tions. 701.59 A brief explanation of the meaning Subparts A, B, C, and D of this part and scope of the nine FOIA exemptions. issue policies and procedures for imple- menting the Freedom of Information Subpart E—Indexing, Public Inspection, Act (5 U.S.C. 552), and Department of and Federal Register Publication of Defense Directives 5400.7 and 5400.7–R Department of the Navy Directives series 1 ,Department of Defense Free- and Other Documents Affecting the dom of Information Act Program, (See Public 32 CFR part 286) and promote uni- 701.61 Purpose. formity in the Department of the Navy 701.62 Scope and applicability. Freedom of Information Act (FOIA) 701.63 Policy. Program. 701.64 Publication of adopted regulatory documents for the guidance of the public. § 701.2 Navy FOIA website/FOIA hand- 701.65 Availability, public inspection, and book. indexing of other documents affecting the public. (a) The Navy FOIA website (http:// 701.66 Publication of proposed regulations www.ogc.secnav.hq.navy. mil/foia/ for public comment. index.html) is an excellent resource for 701.67 Petitions for issuance, revision, or requesters and FOIA coordinators. It cancellation of regulations affecting the provides connectivity to the Navy’s of- public. ficial website, to other FOIA and non/ FOIA websites, and to the Navy’s elec- Subpart F—Department of the Navy tronic reading rooms. Privacy Act Program (b) FOIA requesters are encouraged 701.100 Purpose. to visit the Navy FOIA website prior to 701.101 Applicability. filing a request. It features a FOIA 701.102 Definitions. Handbook which provides: guidance on 701.103 Policy. how and where to submit requests; 701.104 Responsibility and authority. what’s releasable/what’s not; addresses 701.105 Systems of records. 701.106 Safeguarding records in systems of for frequently requested information; records. time limits and addresses for filing ap- 701.107 Criteria for creating, altering, peals, etc. FOIA requesters may also amending and deleting Privacy Act sys- use the electronic FOIA request form tems of records. on the website to seek access to 701.108 Collecting information about indi- records originated by the Secretary of viduals. the Navy (SECNAV) or the Chief of 701.109 Access to records. Naval Operations (CNO). 701.110 Amendment of records. 701.111 Privacy Act appeals. 701.112 Disclosure of records. 1 Copies may be obtained if needed from the 701.113 Exemptions. Navy FOIA Website at http:// 701.114 Enforcement actions. www.ogc.secnav.hq.navy.mil/foia/index.html 701.115 Computer matching program. 46
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§ 701.3 Applicability. of Defense Freedom of Information Act Program (see 32 CFR part 286). (a) Subparts A, B, C, and D of this (1) As principal DON FOIA policy of- part apply throughout the Department ficial, CNO (N09B30) issues SECNAV In- of the Navy (DON) and take precedence struction 5720.42; oversees the adminis- over other DON instructions, which tration of the DON FOIA program; may serve to supplement it [i.e., Public issues and disseminates FOIA policy; Affairs Regulations, Security Classi- oversees the Navy FOIA website; rep- fication Regulations, Navy Regula- resents the DON at all meetings, sym- tions, Marine Corps Orders, etc.]. Fur- posiums, and conferences that address ther, issuance of supplementary in- FOIA matters; writes the Navy’s FOIA structions by DON activities, deemed Handbook; serves on FOIA boards and essential to the accommodation of per- committees; serves as principal policy ceived requirements peculiar to those advisor and oversight official on all activities, may not conflict. FOIA matters; prepares the DON An- (b) The FOIA applies to ‘‘records’’ nual FOIA Report for submission to maintained by ‘‘agencies’’ within the the Attorney General; reviews all FOIA Executive Branch of the Federal gov- appeals to determine trends that im- ernment, including the Executive Of- pact on the DON; reviews all FOIA liti- fice of the President and independent gation matters involving the DON and regulatory agencies. It states that apprises the Director, Freedom of In- ‘‘any person’’ (U.S. citizen; foreigner, formation and Security Review, DoD of whether living inside or outside the same; responds to depositions and liti- United States; partnerships; corpora- gation regarding DON FOIA policy Sec- tions; associations; and foreign and do- retary of the Navy Instruction 5820.8A, mestic governments) has the right en- Release of Information for Litigation forceable by law, to access Federal Purposes and Testimony by DON Per- agency records, except to the extent sonnel; reviews/analyzes all proposed that such records (or portions thereof) FOIA legislation to determine its im- are protected from disclosure by one or pact on the DON; develops a Navy-wide more of the nine FOIA exemptions or FOIA training program and serves as one of three special law enforcement training oversight manager; conducts exclusions. staff assistance visits/reviews within (c) Neither Federal agencies nor fugi- the DON to ensure compliance with 5 tives from justice may use the FOIA to U.S.C. 552 and this part; reviews all access agency records. SECNAV and Operations Navy instruc- (d) The Department of Defense (DoD) tions/forms that address FOIA; and FOIA directive states that the FOIA oversees the processing of FOIA re- programs of the U.S. Atlantic Com- quests received by SECNAV and Chief mand and the U.S. Pacific Command of Naval Operations (CNO), to ensure fall under the jurisdiction of the De- responses are complete, timely, and ac- partment of Defense and not the De- curate. Additionally, N09B30 works partment of the Navy. This policy rep- closely with other DoD and DON offi- resents an exception to the policies di- cials to ensure they are aware of highly rected under DoD Directive 5100.3, visible and/or sensitive FOIA requests ‘‘Support of the Headquarters of Uni- being processed by the DON. fied, Specified, and Subordinate Com- (2) SECNAV has delegated Initial De- mands.’’ nial Authority (IDA) to N09B30 for re- quests at the Secretariat and OPNAV § 701.4 Responsibility and authority. level. (a) The Head, DON PA/FOIA Policy (b) The Commandant of the Marine Branch [CNO (N09B30)] has been dele- Corps is delegated responsibility for gated the responsibility for managing administering and supervising the exe- the DON’s FOIA program, which in- cution of this instruction within the cludes setting FOIA policy and admin- Marine Corps. To accomplish this task, istering, supervising, and overseeing the Director of Administrative Re- the execution of the 5 U.S.C. 552 and source Management (Code ARAD) Department of Defense Directives serves as the FOIA Coordinator for 5400.7 and 5400.7-R series, Department Headquarters, U.S. Marine Corps, and
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assists CNO (N09B30) in promoting the Locator Service (GILS) record, as this Department of the Navy FOIA Program will serve as an index of available by issuing a Marine Corps FOIA Hand- records. book; utilizing the Marine Corps FOIA (ii) Review proposed legislation and website to disseminate FOIA informa- policy recommendations that impact tion; consolidating its activities An- the FOIA and provide comments to nual FOIA Reports and submitting it CNO (N09B30). to CNO (N09B30); maintaining a current (iii) Review SECNAVINST 5720.42F list of Marine Corps FOIA coordina- and provide recommended changes/ tors, etc. comments to CNO (N09B30). (c) The DON Chief Information Offi- (iv) Routinely conduct random staff cer (DONCIO) is responsible for pre- assistance visits/reviews/self-evalua- paring and making publicly available tions within the command and lower upon request an index of all DON major echelon commands to ensure compli- information systems and a description ance with FOIA. of major information and record loca- (v) Collect and compile command and tor systems maintained by the Depart- feeder reports for the Annual FOIA Re- ment of the Navy as required by 5 port and provide a consolidated report U.S.C. 552 and DoD 5400.7–R, ‘‘DoD to CNO (N09B30). Freedom of Information Act Program.’’ (vi) Maintain a listing of their subor- (d) FOIA coordinators will: dinate activities’ FOIA coordinators to (1) Implement and administer a local include full name, address, and tele- FOIA program under this instruction; phone (office and fax) and place on serve as principal point of contact on their website. FOIA matters; issue a command/activ- NOTE TO PARAGRAPH (d)(2)(vi): Do not place ity instruction that implements names of FOIA coordinators who are over- SECNAVINST 5740.42F by reference seas, routinely deployable or in sensitive and highlights only those areas unique units on the website. Instead just list ‘‘FOIA to the command/activity (i.e., des- Coordinator’’) ignate the command/activity’s FOIA (vii) Notify CNO (N09B30) of any Coordinator and IDA; address internal change of name, address, office code FOIA processing procedures; and ad- and zip code, telephone and facsimile dress command/activity level FOIA re- number, and/or e-mail address of Ech- porting requirements); receive and elon 2 FOIA Coordinators. track FOIA requests to ensure re- (viii) Conduct overview training to sponses are made in compliance with 5 ensure all personnel are knowledgeable U.S.C. 552 and DoD Directives 5400.7 of the FOIA and its requirements. See and 5400.7–R and this part; provide gen- § 701.12. eral awareness training to command/ (ix) Work closely with the activity activity personnel on the provisions of webmaster to ensure that information 5 U.S.C. 552 and this instruction; col- placed on the activity’s website does lect and compile FOIA statistics and not violate references in paragraphs submit a consolidated Annual FOIA (a), (c) and (f). Report to Echelon 2 FOIA coordinator (e) Initial Denial Authorities (IDAs). for consolidation; provide guidance on The following officials are delegated to how to process FOIA requests; and pro- serve as Initial Denial Authorities, on vide guidance on the scope of FOIA ex- behalf of SECNAV (see § 701.30 for defi- emptions. nition): (2) Additionally, CMC (ARAD) and (1) Under Secretary of the Navy; Dep- Echelon 2 FOIA coordinators will: uty Under Secretary of the Navy; As- (i) Ensure that reading room mate- sistant Secretaries of the Navy (ASNs) rials are placed in the activity’s elec- and their principal deputy assistants; tronic reading room and that the ac- Assistant for Administration tivity’s website is linked to the Navy (SECNAV); Director, Administrative FOIA website and the activity’s read- Division (SECNAV); Special Assistant ing room is linked to the Navy’s FOIA for Legal and Legislative Affairs reading room lobby. Documents placed (SECNAV); Director, Office of Program in the reading room shall also be in- Appraisal (SECNAV); DONCIO; Direc- dexed as a Government Information tor, Small and Disadvantaged Business
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Utilization (SECNAV); Chief of Infor- rine Corps districts; commanding offi- mation (CHINFO); Director, Navy cers, not in the administrative chain of International Programs Office; Chief of command of a commanding general or Legislative Affairs; CNO; Vice CNO; Di- district director. For each official list- rector, Naval Nuclear Propulsion Pro- ed above, the deputy or principal as- gram (NOON); Director, Navy Staff sistant is also authorized denial au- (N09B); Head, DON PA/FOIA Policy thority. Branch (N09B30); Director of Naval In- (3) JAG and his Deputy and the DON telligence (N2); Director of Space, In- General Counsel (DONGC) and his dep- formation Warfare, Command and Con- uties are excluded from this grant of trol (N6); Director of Navy Test & Eval- authorization, since SECNAV has dele- uation & Technology Requirements gated them to serve as his appellate (N091); Surgeon General of the Navy authorities. However, they are author- (N093); Director of Naval Reserve ized to designate IDA responsibilities (N095); Oceanographer of the Navy to other senior officers/ officials within (N096); Director of Religious Ministries/ JAG and DONGC. DONGC has dele- Chief of Chaplains of the Navy (N097); gated IDA responsibilities to the As- all Deputy Chiefs of Naval Operations; sistant General Counsels and the Asso- Chief of Naval Personnel; Director, ciate General Counsel (Litigation). Strategic Systems Programs; Chief, (4) For the shore establishment and Bureau of Medicine and Surgery; Direc- operating forces: All officers author- tor, Office of Naval Intelligence; Naval ized by Article 22, Uniform Code of Inspector General; Auditor General of Military Justice (UCMJ) or designated the Navy; Commanders of the Naval in section 0120, Manual of the Judge Systems Commands; Chief of Naval Advocate General (JAGINST 5800.7C) to Education and Training; Commander, convene general courts-martial. Naval Reserve Force; Chief of Naval (5) IDAs must balance their decision Research; Director, Naval Criminal In- to centralize denials for the purpose of vestigative Service; Deputy Com- promoting uniform decisions against mander, Naval Legal Service Com- decentralizing denials to respond to re- mand; Commander, Navy Personnel quests within the FOIA time limits. Command; Director, Naval Center of Accordingly, the IDAs listed in para- Cost Analysis; Commander, Naval Me- graphs (e)(1) through (4) are authorized teorology and Oceanography Com- to delegate initial denial authority to mand; Director, Naval Historical Cen- subordinate activities for the purpose ter; heads of DON staff offices, boards, of streamlining FOIA processing. They and councils; Program Executive Offi- may also delegate authority to a spe- cific staff member, assistant, or indi- cers; and all general officers. viduals acting during their absence if (2) Within the Marine Corps: CMC this serves the purpose of streamlining and his Assistant, Chief of Staff, Dep- and/or complying with the time limits uty Chiefs of Staff; Director, Personnel of FOIA. Management Division; Fiscal Director of the Marine Corps; Counsel for the NOTE TO PARAGRAPH (e)(5): Such delega- Commandant; Director of Intelligence; tions shall be limited to comply with DoD Director, Command, Communications Directive 5400.7, ‘‘DoD Freedom of Informa- and Computer Systems Division; Legis- tion Act Program’’.) lative Assistant to the Commandant; (6) Delegations of IDA authority Director, Judge Advocate Division; In- should be reflected in the activity’s spector General of the Marine Corps; supplementing FOIA instruction or by Director, Manpower, Plans, and Policy letter, with a copy to CNO (N09B30) or Division; Head, Freedom of Informa- CMC (ARAD), as appropriate. tion and Privacy Acts Section, HQMC; (f) Release authorities. Release au- Director of Public Affairs; Director of thorities are authorized to grant re- Marine Corps History and Museums; quests on behalf of the Office of the Director, Personnel Procurement Divi- Secretary of the Navy for agency sion; Director, Morale Support Divi- records under their possession and con- sion; Director, Human Resources Divi- trol for which no FOIA exemption ap- sion; Director of Headquarters Support; plies; to respond to requesters con- commanding generals; directors, Ma- cerning refinement of their requests; to
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provide fee estimates; and to offer ap- quest is received. In other words, re- peal rights for adequacy of search or questers may not have a ‘‘standing fee estimates to the requester. FOIA request’’ for release of future (g) Appellate authorities are ad- records. dressed in § 701.12. (2) There is no obligation to create, compile, or obtain a record to satisfy a § 701.5 Policy. FOIA request. However, this is not to (a) Compliance with the FOIA. DON be confused with honoring form or for- policy is to comply with the FOIA as mat requests (see § 701.8). A DON activ- set forth in the Department of De- ity, however, may compile a new fense’s FOIA Directives 5400.7 and record when so doing would result in a 5400.7–R, and this instruction in this more useful response to the requester, part in both letter and spirit; conduct or be less burdensome to the agency its activities in an open manner con- than providing existing records, and sistent with the need for security and the requester does not object. Cost of adherence to other requirements of law creating or compiling such a record and regulation; and provide the public may not be charged to the requester with the maximum amount of accurate and timely information concerning its unless the fee for creating the record is activities. equal to or less than the fee which (b) Prompt action. DON activities would be charged for providing the ex- shall act promptly on requests when a isting record. Fee assessments shall be member of the public complies with in accordance with subpart C of this the procedures established in the in- part. struction in this part (i.e., files a ‘‘per- (3) With respect to electronic data, fected request’’) and the request is re- the issue of whether records are actu- ceived by the official designated to re- ally created or merely extracted from spond. See § 701.11 for minimum re- an existing database is not always quirements of the FOIA. readily apparent. Consequently, when (c) Provide assistance. DON activities responding to FOIA requests for elec- shall assist requesters in under- tronic data where creation of a record, standing and complying with the pro- programming, or particular format are cedures established by the instruction questionable, DON activities should in this part, ensuring that procedural apply a standard of reasonableness. In matters do not unnecessarily impede a other words, if the capability exists to requester from obtaining DON records respond to the request, and the effort promptly. would be a business as usual approach, (d) Grant access. (1) DON activities then the request should be processed. shall grant access to agency records However, the request need not be proc- when a member of the public complies essed when the capability to respond with the provisions of the instruction does not exist without a significant ex- in this part and there is no FOIA ex- penditure of resources, thus not being a emption available to withhold the re- normal business as usual approach. As quested information (see subpart D of used in this sense, a significant inter- this part). ference with the operation of the DON (2) In those instances where the re- quester has not cited FOIA, but the activity’s automated information sys- records are determined to be releasable tem would not be a business as usual in their entirety, the request shall be approach. honored without requiring the re- (f) Disclosures—(1) Discretionary Dis- quester to invoke FOIA. closures. DON activities shall make dis- (e) Create a record. (1) A record must cretionary disclosures whenever disclo- exist and be in the possession and con- sure would not foreseeably harm an in- trol of the DON at the time of the re- terest protected by a FOIA exemption. quest to be considered subject to the A discretionary disclosure is normally instruction in this part and the FOIA. not appropriate for records clearly ex- Accordingly, DON activities need not empt under exemptions (b)(1), (b)(3), process requests for records which are (b)(4), (b)(6), (b)(7)(C) and (b)(7)(F). Ex- not in existence at the time the re- emptions (b)(2), (b)(5), and (b)(7)(A),
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(b)(7)(B), (b)(7)(D) and (b)(7)(E) are dis- minations shall be made on a case-by- cretionary in nature and DON activi- case basis. ties are encouraged to exercise discre- (h) Authenticate documents. Records tion whenever possible. Exemptions provided under the instruction in this (b)(4), (b)(6), and (b)(7)(C) cannot be part shall be authenticated with an ap- claimed when the requester is the propriate seal, whenever necessary, to ‘‘submitter’’ of the information. While fulfill an official Government or other discretionary disclosures to FOIA re- legal function. This service, however, is questers constitute a waiver of the in addition to that required under the FOIA exemption that may otherwise FOIA and is not included in the FOIA apply, this policy does not create any fee schedule. DON activities may legally enforceable right. charge for the service at a rate of $5.20 (2) Public domain. Non-exempt records for each authentication. released under FOIA to a member of § 701.6 Reading rooms. the public are considered to be in the public domain. Accordingly, such The FOIA requires that (a)(2) records records may also be made available in created on or after 1 November 1996, be reading rooms, in paper form, as well made available electronically (starting as electronically to facilitate public 1 November 1997) as well as in hard access. copy, in the FOIA reading room for in- spection and copying, unless such (3) Limited disclosures. Disclosure of records are published and copies are of- records to a properly constituted advi- fered for sale. DoD 5400.7–R, ‘‘DoD sory committee, to Congress, or to Freedom of Information Act Program,’’ other Federal agencies does not waive requires that each DoD Component a FOIA exemption. provide an appropriate facility or fa- (4) Unauthorized disclosures. Exempt cilities where the public may inspect records disclosed without authoriza- and copy or have copied the records tion by the appropriate DON official do held in their reading rooms. To com- not lose their exempt status. ply, the Navy FOIA website includes (5) Official versus personal disclosures. links that assist members of the public While authority may exist to disclose in locating Navy libraries, online docu- records to individuals in their official ments, and Navy electronic reading capacity, the provisions of the instruc- rooms maintained by SECNAV/CNO, tion in this part apply if the same indi- CMC, OGC, JAG and Echelon 2 com- vidual seeks the records in a private or mands. Although each of these activi- personal capacity. ties will maintain their own document (6) Distributing information. DON ac- collections on their own servers, the tivities are encouraged to enhance ac- Navy FOIA website provides a common cess to information by distributing in- gateway for all Navy online resources. formation on their own initiative To this end, DON activities shall: through the use of electronic informa- (a) Establish their reading rooms and tion systems, such as the Government link them to the Navy FOIA Reading Information Locator Service (GILS). Room Lobby which is found on the (g) Honor form or format requests. DON Navy FOIA website. activities shall provide the record in (b) Ensure that responsive documents any form or format requested by the held by their subordinate activities are requester, if the record is readily repro- also placed in the reading room. ducible in that form or format. DON NOTE TO PARAGRAPH (b): SECNAV/ASN and activities shall make reasonable efforts OPNAV offices shall ensure that responsive to maintain their records in forms or documents are provided to CNO (N09B30) for formats that are reproducible. In re- placement in the reading room.) sponding to requests for records, DON (c) Ensure that documents placed in activities shall make reasonable efforts a reading room are properly excised to to search for records in electronic form preclude the release of personal or con- or format, except when such efforts tractor-submitted information prior to would significantly interfere with the being made available to the public. In operation of the DON activities’ auto- every case, justification for the dele- mated information system. Such deter- tion must be fully explained in writing,
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and the extent of such deletion shall be rials. Such materials issued or adopted indicated on the record which is made before 4 July 1967, need not be indexed, publicly available, unless such indica- but must be made available upon re- tion would harm an interest protected quest if not exempted under the in- by an exemption under which the dele- struction in this part. tion was made. If technically feasible, (g) An index and copies of unclassi- the extent of the deletion in electronic fied Navy instructions, forms, and ad- records or any other form of record dresses for DON activities (i.e., the shall be indicated at the place in the Standard Navy Distribution List record where the deletion was made. (SNDL) are located on the Navy Elec- However, a DON activity may publish tronics Directives System (http:// in the FEDERAL REGISTER a description neds.nebt.daps.mil/). of the basis upon which it will delete (h) DON material published in the identifying details of particular types FEDERAL REGISTER, such as material of records to avoid clearly unwarranted required to be published by Section invasions of privacy, or competitive 552(a)(1) of the FOIA, shall be made harm to business submitters. In appro- available by JAG in their FOIA reading priate cases, the DON activity may room and electronically to the public. refer to this description rather than (i) Although not required to be made write a separate justification for each available in response to FOIA requests deletion. DON activities may remove or made available in FOIA Reading (a)(2)(D) records from their electronic Rooms, ‘‘(a)(1)’’ materials may, when reading room when the appropriate of- feasible, be made available to the pub- ficials determine that access is no lic in FOIA reading rooms for inspec- longer necessary. tion and copying, and by electronic (d) Should a requester submit a FOIA means. Examples of ‘‘(a)(1)’’ materials request for FOIA-processed (a)(2) are: descriptions of an agency’s central records, and insist that the request be and field organization, and to the ex- processed, DON activities shall process tent they affect the public, rules of the FOIA request. However, DON ac- procedures, descriptions of forms avail- tivities have no obligation to process a able, instruction as to the scope and FOIA request for 5 U.S.C. 552(a)(2)(A), contents of papers, reports, or exami- (B), and (C) [5 U.S.C. 552] records be- nations, and any amendment, revision, cause these records are required to be or report of the aforementioned. made public and not FOIA-processed under paragraph (a)(3) of the FOIA. § 701.7 Relationship between the FOIA (e) DON activities may share reading and PA. room facilities if the public is not un- Not all requesters are knowledgeable duly inconvenienced. When appro- of the appropriate statutory authority priate, the cost of copying may be im- to cite when requesting records. In posed on the person requesting the ma- some instances, they may cite neither terial in accordance with FOIA fee Act, but will imply one or both Acts. guidelines (see subpart C of this part). For these reasons, the following guide- (f) DON activities shall maintain an lines are provided to ensure requesters index of all available documents. A receive the greatest amount of access general index of FOIA-processed (a)(2) rights under both Acts: records shall be made available to the (a) If the record is required to be re- public, both in hard copy and electroni- leased under the FOIA, the PA does not cally by 31 December 1999. To comply bar its disclosure. Unlike the FOIA, the with this requirement, DON activities PA applies only to U.S. citizens and shall establish a GILS record for each aliens admitted for permanent resi- document it places in a reading room. dence. Subpart F of this part imple- No (a)(2) materials issued or adopted ments the DON’s Privacy Act Program. after 4 July 1967, that are not indexed (b) Requesters who seek records and either made available or published about themselves contained in a PA may be relied upon, used or cited as system of records and who cite or precedent against any individual unless imply only the PA, will have their re- such individual has actual and timely quests processed under the provisions notice of the contents of such mate- of both the PA and the FOIA. If the PA
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system of records is exempt from the is retrieved by their name and/or per- provisions of 5 U.S.C. 552a(d)(1) and the sonal identifier). records, or any portion thereof are ex- empt under the FOIA, the requester § 701.8 Processing FOIA requests. shall be so advised with the appro- Upon receipt of a FOIA request, DON priate PA and FOIA exemption. Ap- activities shall: peals shall be processed under both (a) Review the request to ensure it Acts. meets the minimum requirements of (c) Requesters who seek records the FOIA to be processed. about themselves that are not con- (1) Minimum requirements of a FOIA re- tained in a PA system of records and quest. A request must be in writing; who cite or imply the PA will have cite or imply FOIA; reasonably de- their requests processed under the pro- scribe the records being sought so that visions of the FOIA, since the PA does a knowledgeable official of the agency not apply to these records. Appeals can conduct a search with reasonable shall be processed under the FOIA. effort; and if fees are applicable, the re- (d) Requesters who seek records quester should include a statement re- about themselves that are contained in garding willingness to pay all fees or a PA system of records and who cite or those up to a specified amount or re- imply the FOIA or both Acts will have quest a waiver or reduction of fees. their requests processed under the pro- (2) If a request does not meet the visions of both the PA and the FOIA. If minimum requirements of the FOIA, the PA system of records is exempt DON activities shall apprise the re- from the provisions of 5 U.S.C. quester of the defect and assist him/her 552a(d)(1), and the records, or any por- in perfecting the request. tion thereof are exempt under the FOIA, the requester shall be so advised NOTE TO PARAGRAPH (a)(2): The statutory 20 with the appropriate PA and FOIA ex- working day time limit applies upon receipt of a ‘‘perfected’’ FOIA request.) emption. Appeals shall be processed under both Acts. (b) When a requester or his/her attor- (e) Requesters who seek access to ney requests personally identifiable in- agency records that are not part of a formation in a record, the request may PA system of records, and who cite or require a notarized signature or a imply the PA and FOIA, will have their statement certifying under the penalty requests processed under FOIA, since of perjury that their identity is true the PA does not apply to these records. and correct. Additionally, written con- Appeals shall be processed under the sent of the subject of the record is re- FOIA. quired for disclosure from a Privacy (f) Requesters who seek access to Act System of records, even to the sub- agency records and who cite or imply ject’s attorney. the FOIA will have their requests and (c) Review description of requested appeals processed under the FOIA. record(s). (1) The FOIA requester is re- (g) Requesters shall be advised in sponsible for describing the record he/ final responses which Act(s) was (were) she seeks so that a knowledgeable offi- used, inclusive of appeal rights. cial of the activity can locate the (h) The time limits for responding to record with a reasonable amount of ef- the request will be determined based on fort. In order to assist DON activities the Act cited. For example, if a re- in conducting more timely searches, a quester seeks access under the FOIA requester should endeavor to provide as for his or her personal records which much identifying information as pos- are contained in a PA system of sible. When a DON activity receives a records, the time limits of the FOIA request that does not reasonably de- apply. scribe the requested record, it shall no- (i) Fees will be charged based on the tify the requester of the defect in writ- kind of records being requested (i.e., ing. The requester should be asked to FOIA fees if agency records are re- provide the type of information out- quested; PA fees for requesters who are lined in this paragraph. DON activities seeking access to information con- are not obligated to act on the request tained in a PA system of record which until the requester responds to the
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specificity letter. When practicable, scription enables the DON activity per- DON activities shall offer assistance to sonnel to locate the record with rea- the requester in identifying the records sonable effort, the description is ade- sought and in reformulating the re- quate. The fact that a FOIA request is quest to reduce the burden on the agen- broad or burdensome in its magnitude cy in complying with the FOIA. The does not, in and of itself, entitle a DON following guidelines are provided to activity to deny the request on the deal with generalized requests and are ground that it does not reasonably de- based on the principle of reasonable ef- scribe the records sought. The key fac- fort. Descriptive information about a tor is the ability of the staff to reason- record may be divided into two broad ably ascertain and locate which records categories. are being requested. (i) Category I is file-related and in- (d) Review request to determine if FOIA cludes information such as type of fees may be applicable. (1) FOIA fee record (for example, memorandum), issues shall be resolved before a DON title, index citation, subject area, date activity begins processing a FOIA re- the record was created, and originator. quest. (ii) Category II is event-related and (2) FOIA fees shall be at the rates includes the circumstances that re- prescribed at subpart C of this part. sulted in the record being created or (3) If fees are applicable, a requester the date and circumstances sur- shall be apprised of what category of rounding the event the record covers. requester he/she has been placed and (2) Generally, a record is not reason- provided a complete breakout of fees to ably described unless the description include any and all information pro- contains sufficient Category I informa- vided before fees are assessed (e.g., first tion to permit the conduct of an orga- two hours of search and first 100 pages nized, non random search based on the of reproduction have been provided DON activity’s filing arrangements and without charge.) existing retrieval systems, or unless the record contains sufficient Category (4) Forms DD 2086 (for FOIA requests) II information to permit inference of and 2086–1 (for FOIA requests for tech- the Category I elements needed to con- nical data) serve as an administrative duct such a search. record of all costs incurred to process a (3) The following guidelines deal with request; actual costs charged to a re- requests for personal records: Ordi- quester (i.e., search, review, and/or du- narily, when personal identifiers are plication and at what salary level and provided solely in connection with a re- the actual time expended); and as input quest for records concerning the re- to the Annual FOIA Report. Requesters quester, only records in Privacy Act may request a copy of the applicable system of records that can be retrieved form to review the time and costs asso- by personal identifiers need be ciated with the processing of a request. searched. However, if a DON activity (5) Final response letters shall ad- has reason to believe that records on dress whether or not fees are applicable the requester may exist in a record sys- or have been waived. A detailed expla- tem other than a PA system, the DON nation of FOIA fees is provided at sub- activity shall search the system under part C of this part. the provisions of the FOIA. In either (e) Control FOIA Request. Each FOIA case, DON activities may request a rea- request should be date stamped upon sonable description of the records de- receipt; given a case number; and en- sired before searching for such records tered into a formal control system to under the provisions of the FOIA and track the request from receipt to re- the PA. If the records are required to sponse. Coordinators may wish to con- be released under the FOIA, the PA spicuously stamp, label, and/or place does not bar its disclosure. the request into a brightly colored (4) The guidelines in paragraph (c)(3) folder/cover sheet to ensure it receives notwithstanding, the decision of the immediate attention by the action offi- DON activity concerning reasonable- cer. ness of description must be based on (f) Enter request into multitrack proc- the knowledge of its files. If the de- essing system. When a DON activity has
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a significant number of pending re- request for expedited processing, and quests that prevents a response deter- failure to respond in a timely manner mination being made within 20 working shall be subject to judicial review. days, the requests shall be processed in (i) Compelling need means that the a multitrack processing system, based failure to obtain the records on an ex- on the date of receipt, the amount of pedited basis could reasonably be ex- work and time involved in processing pected to pose an imminent threat to the requests, and whether the request the life or physical safety of an indi- qualifies for expedited processing. vidual. (1) DON activities may establish as (ii) Compelling need also means that many queues as they wish, however, at the information is urgently needed by a 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 for simple requests, An individual primarily engaged in dis- one track for complex requests, and seminating information means a per- one track for expedited processing. De- son whose primary activity involves terminations as to whether a request is publishing or otherwise disseminating simple or complex shall be made by information to the public. Representa- each DON activity. tives of the news media would nor- (2) DON activities shall provide a re- mally qualify as individuals primarily quester whose request does not qualify engaged in disseminating information. for the fastest queue (except for expe- Other persons must demonstrate that dited processing), an opportunity to their primary activity involves pub- limit in writing by hard copy, fac- lishing or otherwise disseminating in- simile, or electronically the scope of formation to the public. the request in order to qualify for the (iii) Urgently needed means that the fastest queue. information has a particular value that (3) This multitrack processing sys- will be lost if not disseminated quick- tem does not obviate the activity’s re- ly. Ordinarily this means a breaking sponsibility to exercise due diligence in news story of general public interest. processing requests in the most expedi- However, information of historical in- tious manner possible. terest only, or information sought for (4) Referred requests shall be proc- litigation or commercial activities essed according to the original date re- would not qualify, nor would a news ceived by the initial activity and then media publication or broadcast dead- placed in the appropriate queue. line unrelated to the news breaking na- (5) Establish a separate queue for ex- ture of the information. pedited processing. A separate queue (iv) A demonstration of compelling shall be established for requests meet- need by a requester shall be made by a ing the test for expedited processing. statement certified by the requester to Expedited processing shall be granted be true and correct to the best of his/ to a requester after the requester re- her knowledge. This statement must quests such and demonstrates a com- accompany the request in order to be pelling need for the information. No- considered and responded to within the tice of the determination as to whether 10 calendar days required for decisions to grant expedited processing in re- on expedited access. sponse to a requester’s compelling need (v) Other reasons that merit expe- shall be provided to the requester with- dited processing by DON activities are in 10 calendar days after receipt of the an imminent loss of substantial due request in the office which will deter- process rights and humanitarian need. mine whether to grant expedited ac- A demonstration of imminent loss of cess. Once the determination has been substantial due process rights shall be made to grant expedited processing, made by a statement certified by the DON activities shall process the re- requester to be true and correct to the quest as soon as practicable. Actions best of his/her knowledge. Humani- by DON activities to initially deny or tarian need means that disclosing the affirm the initial denial on appeal of a information will promote the welfare
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and interests of mankind. A dem- (2) Formal extension. In those in- onstration of humanitarian need shall stances where a DON activity cannot also be made by a statement certified respond within the 20 working day time by the requester to be true and correct limit, the FOIA provides for extension to the best of his/her knowledge. Both of initial time limits for an additional of these statements must accompany 10 working days for three specific situ- the request in order to be considered ations: the need to search for and col- and responded to within the 10 calendar lect records from separate offices; the days required for decisions on expe- need to examine a voluminous amount dited access. Once the decision has of records required by the request; and been made to expedite the request for the need to consult with another agen- either of these reasons, the request cy or agency component. In such in- may be processed in the expedited stances, naval activities shall apprise processing queue behind those requests requesters in writing of their inability qualifying for compelling need. to respond within 20 working days and (6) These same procedures also apply advise them of their right to appeal to to requests for expedited processing of the appellate authority. administrative appeals. NOTE TO PARAGRAPH (g)(2): Formal exten- (g) Respond to request within FOIA sion letters require IDA signature.) time limits. Once an activity receives a (3) Informal extension. A recommended ‘‘perfected’’ FOIA request, it shall in- alternative to taking a formal exten- form the requester of its decision to sion is to call the requester and nego- grant or deny access to the requested tiate an informal extension of time records within 20 working days. Activi- with the requester. The advantages in- ties are not necessarily required to re- clude the ability to agree on a mutu- lease records within the 20 working ally acceptable date to respond that ex- days, but access to releasable records ceeds a formal extension of an addi- should be granted promptly thereafter tional 10 working days, and the letter and the requester apprised of when he/ of confirmation does not require the she may expect to receive a final re- signature of an IDA. Additionally, it sponse to his/her request. Naturally, does not impact on the additional days interim releases of documents are en- the appellate authority may take when couraged if appropriate. Sample re- responding to a FOIA appeal. sponse letters are provided on the Navy (h) Conduct a search for responsive FOIA website. records. (1) Conduct a search for respon- (1) If a significant number of re- sive records, keeping in mind a test for quests, or the complexity of the re- reasonableness (i.e., file disposition re- quests prevents a final response deter- quirements set forth in SECNAVINST mination within the statutory time pe- 5212.5D, ‘‘Navy and Marine Corps riod, DON activities shall advise the re- Records Disposal Manual’’). This in- quester of this fact, and explain how cludes making a manual search for the request will be responded to within records as well as an electronic search its multitrack processing system. A for records. Do not assume that be- final response determination is notifi- cause a document is old, it does not cation to the requester that the exist. Rather, ensure that all possible records are released, or will be released avenues are considered before making by a certain date, or the records are de- a determination that no record could nied under the appropriate FOIA ex- be found (i.e., such as determining if emption(s) or the records cannot be the record was transferred to a federal provided for one or more of the ‘‘other records center for holding). reasons’’ (see § 701.8(n)). Interim re- (2) Requesters can appeal ‘‘adequacy sponses acknowledging receipt of the of search.’’ To preclude unnecessary request, negotiations with the re- appeals, you are encouraged to detail quester concerning the scope of the re- your response letter to reflect the quest, the response timeframe, and fee search undertaken so the requester un- agreements are encouraged; however, derstands the process. It is particularly such actions do not constitute a final helpful to address the records disposal response determination under FOIA. requirements set forth in
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SECNAVINST 5212.5D, ‘‘Navy and Ma- empt, notify the requester that even if rine Corps Records Disposal Manual’’ the information were determined re- for the records being sought. sponsive, it would likely be exempted (i) Review documents for release. Once (state the appropriate exemption(s).) documents have been located, the Advise the requester of the right to re- originator or activity having posses- quest this information under a sepa- sion and control is responsible for re- rate FOIA request. The separate re- viewing them for release and coordi- quest shall be placed in the same loca- nating with other activities/agencies tion within the processing queue as the having an interest. The following pro- original request. cedures should be followed: (3) If the responsive record is classi- (1) Sort documents by originator and fied, and the requester does not agree make necessary referrals (see § 701.9). to deletion of non-responsive informa- (2) Documents for which the activity tion without a FOIA exemption, re- has possession and control should be lease all unclassified responsive and reviewed for release. If the review offi- non-responsive information which is cial determines that all or part of the not exempt. If the non-responsive in- documents requested require denial, formation is exempt, follow the proce- and the head of the activity is an IDA, dures provided. The classified, non-re- he/she shall respond directly to the re- sponsive information need not be re- quester. If, however, the activity head viewed for declassification at this is not an IDA, then the request, a copy point. Advise the requester than even if of the responsive documents the classified information were deter- (unexcised), proposed redacted copy of mined responsive, it would likely be the documents, and a detailed expla- exempt under 5 U.S.C. 552 (b)(1) and nation regarding their release must be other exemptions if appropriate. Advise referred to the IDA for a final release the requester of the right to request determination and the requester shall this information under a separate be notified in writing of the transfer. FOIA request. The separate request (3) Documents for which the activity shall be placed in the same location does not have possession and control, within the processing queue as the but has an interest, should be referred original request. to the originator along with any rec- ommendations regarding release (see (k) Withholding/excising information. § 701.9). (1) DON records may only be withheld (j) Process non-responsive information if they qualify for exemption under one in responsive documents. DON activities or more of the nine FOIA exemptions/ shall interpret FOIA requests liberally three exclusions and it is determined when determining which records are re- that a foreseeable harm to an interest sponsive to the requests, and may re- protected by those exemptions would lease non-responsive information. How- result if the information is released. ever, should DON activities desire to There are nine FOIA exemptions. See withhold non-responsive information, subpart D of this part for the scope of the following steps shall be accom- each exemption. plished: (2) Although a FOIA exemption may (1) Consult with the requester, and apply, DON activities are encouraged ask if the requester views the informa- to consider discretionary disclosures of tion as responsive, and if not, seek the information when an exemption per- requester’s concurrence to deletion of mits such disclosure (see § 701.5(f).) non-responsive information without a (3) Excising documents. The excision of FOIA exemption. Reflect this concur- information within a document should rence in the response letter. be made so that the requester can read- (2) If the responsive record is unclas- ily identify the amount of information sified and the requester does not agree being withheld and the reason for the to deletion of non-responsive informa- withholding. Accordingly, ensure that tion without a FOIA exemption, re- any deletion of information is brack- lease all non-responsive and responsive eted and all applicable exemptions list- information which is not exempt. For ed. In those instances, where multiple non-responsive information that is ex- pages of documents are determined to
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be exempt from disclosure in their en- (4) Fee-related reason. Requester is un- tirety, indicate the number of pages willing to pay fees associated with the being denied and the basis for the de- request; is past due in payment of fees nial. from a previous request; or disagrees (l) Reasonably segregable information. with the fee estimate. DON activities must release all ‘‘rea- NOTE TO PARAGRAPH (n)(4): Requester must sonably segregable information’’ when be advised that he/she may appeal the fee es- the meaning of these portions is not timate. Response letter does not require sig- distorted by deletion of the denied por- nature by IDA.) tions, and when it reasonably can be (5) Records not reasonably described. A assumed that a skillful and knowledge- record has not been described with suf- able person could not reasonably recon- ficient particularity to enable the DON struct excised information. When a activity to locate it by conducting a record is denied in whole, the response reasonable search. to the requester will specifically state NOTE TO PARAGRAPH (n)(5): Response letter that it is not reasonable to segregate does not require signature by IDA.) portions of the record for release. (m) Making a discretionary disclosure. (6) Not a proper FOIA request for some A discretionary disclosure to one re- other reason. When the requester fails quester may preclude the withholding unreasonably to comply with proce- of similar information under a FOIA dural requirements, other than those fee-related issues described in para- exemption if subsequently requested by graph (n)(4), imposed by the instruc- the same individual or someone else. tion in this part and/or other published The following suggested language rules or directives. should be included with the discre- tionary disclosure of any record that NOTE TO PARAGRAPH (n)(6): Response letter could be subject to withholding: ‘‘The does not require signature by IDA.) information you requested is subject to (7) Not an agency record. When the re- being withheld under section (b)(l) of quester is provided a response indi- the FOIA. The disclosure of this mate- cating that the requested information rial to you by the DON is discretionary was ‘‘not an agency record’’ within the and does not constitute a waiver of our meaning of the FOIA and the instruc- right to claim this exemption for simi- tion in this part. lar records in the future.’’ NOTE TO PARAGRAPH (n)(7): Response letter (n) Other reasons. There are 10 rea- does not require signature by IDA.) sons for not complying with a request for a record under FOIA: (8) Duplicate request. When a request (1) No record. The DON activity con- is duplicative of another request which ducts a reasonable search of files and has already been completed or cur- fails to identify records responsive to rently in process from the same re- the request. quester. NOTE TO PARAGRAPH (n)(8): Response letter NOTE TO PARAGRAPH (n)(1): Requester must does not require signature by IDA. be advised that he/she may appeal the ade- quacy of search and provided appeal rights. (9) Other (specify). When a FOIA re- Response letter does not require signature quest cannot be processed because the by IDA.) requester does not comply with pub- (2) Referral. The request is referred to lished rules, other than for those rea- another DoD/DON activity or to an- sons described in paragraphs (n) (1) other executive branch agency for their through (8). DON activities must docu- action. ment the specific discrepancy. NOTE TO PARAGRAPH (n)(9): Response letter NOTE TO PARAGRAPH (n)(2): Referral does does not require signature by IDA.) not need to be signed by IDA.) (10) Denial of request. The record is (3) Request withdrawn. The requester denied in whole or in part in accord- withdraws request. ance with procedures set forth in 5 NOTE TO PARAGRAPH (n)(3): Response letter U.S.C. 552, DoD 5400.7–R, and the in- does not require signature by IDA.) struction in this part.
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NOTE TO PARAGRAPH (n)(10): The requester their use should be limited to instances is advised that he/she may appeal the deter- where it appears advisable to establish mination and response letter must be signed proof of dispatch or receipt of FOIA by IDA.) correspondence. (o) Writing a response letter. FOIA re- sponse letters should contain the fol- § 701.9 Referrals. lowing information: (a) The DoD/DON FOIA referral pol- (1) The date of the request; when it icy is based upon the concept of the was received; if records were not lo- originator of a record making a release cated, where the search was conducted determination on its information. If a and what the records disposal require- DON activity receives a request for ments are for those records. records originated by another DoD/ (2) Cut-off dates. Normally, DON ac- DON activity, it should contact the ac- tivities shall consider the date of re- tivity to determine if it also received ceipt of a FOIA request as the cut-off the request, and if not, obtain concur- date for a records search. Where a DON rence to refer the request. In either sit- activity employs a particular cut-off uation, the requester shall be advised date, however, it should give notice of of the action taken, unless exempt in- that date in the response letter to the formation would be revealed. requester. (b) While referrals to originators of (3) If a request is denied in whole or in part, the denial response letter information result in obtaining the should cite the exemption(s) claimed; if best possible decision on release of the possible, delineate the kinds of infor- information, the policy does not re- mation withheld (i.e., social security lieve DON activities from the responsi- numbers, date of birth, home addresses, bility of making a release decision on a etc.) as this may satisfy the requester record should the requester object to and thus eliminate an appeal; provide referral of the request and the record. appeal rights, and be signed by an IDA. Should this situation occur, DON ac- However, there is no requirement that tivities should coordinate with the the response contain the same docu- originator of the information prior to mentation necessary for litigation (i.e., making a release determination. FOIA requesters are not entitled to a (c) A request received by a DON ac- Vaughn index (see definition in § 701.39 tivity having no records responsive to during the administrative process). a request shall be referred routinely to (4) The fees charged or waived; if fees another DoD/DON activity, if the other were charged, what category was the activity has reason to believe it has requester placed in and provide a the requested record. Prior to notifying breakout of the fees charged (i.e., the a requester of a referral to another first 2 hours of search were waived and DoD/DON activity, the DON activity so you are being charged for the re- receiving the initial request shall con- maining 4 hours of search at $25 per sult with the other DoD/DON activity hour, or $100; the first 100 pages of re- to determine if that activity’s associa- production were waived and the re- tion with the material is exempt. If the maining 400 pages being provided were association is exempt, the activity re- charged at $.15 per page, resulting in ceiving the initial request will protect $60 in reproduction fees, for a total of the association and any exempt infor- $160). These figures are derived from mation without revealing the identity Form DD 2086 (FOIA Fees) or Form DD of the protected activity. The pro- 2086–1 (Technical Data Fees). tected activity shall be responsible for (5) Sample response letters are pro- submitting the justifications required vided on the Navy FOIA website. in any litigation. (p) Press responses. Ensure responses (d) Any DON activity receiving a re- being made to the press are cleared quest that has been misaddressed shall through public affairs channels. refer the request to the proper address (q) Special mail services. DON activi- and advise the requester. DON activi- ties are authorized to use registered ties making referrals of requests or mail, certified mail, certificates of records shall include with the referral, mailing and return receipts. However, a point of contact by name, a telephone
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number (commercial and DSN), and an the DON activity must respond to the e-mail address (if available). request.
(e) A DON activity shall refer a FOIA (NOTE: DON activities shall not refer docu- request for a record that it holds but ments originated by entities outside the Ex- was originated by another Executive ecutive Branch of Government (e.g., Con- Branch agency, to them for a release gress, State and local government agencies, determination and direct response to police departments, private citizen cor- the requester. The requester shall be respondence, etc.), to them for action and di- informed of the referral, unless it has rect response to the requester, since they are not subject to the FOIA). been determined that notification would reveal exempt information. Re- (2) A DON activity shall refer to the ferred records shall only be identified agency that provided the record any to the extent consistent with security FOIA request for investigative, intel- requirements. ligence, or any other type of records (f) A DON activity may refer a re- that are on loan to the DON for a spe- quest for a record that it originated to cific purpose, if the records are re- another activity or agency when the stricted from further release and so activity or agency has a valid interest marked. However, if for investigative in the record, or the record was created or intelligence purposes, the outside for the use of the other agency or ac- agency desires anonymity, a DON ac- tivity. In such situations, provide the tivity may only respond directly to the record and a release recommendation requester after coordination with the on the record with the referral action. outside agency. DON activities should include a point § 701.10 Processing requests received of contact and telephone number in the from governmental officials. referral letter. If that organization is to respond directly to the requester, (a) Members of Congress. Many con- apprise the requester of the referral. stituents seek access to information through their Member of Congress. (g) Within the DON/DoD, a DON ac- Members of Congress who seek access tivity shall ordinarily refer a FOIA re- to records on behalf of their con- quest and a copy of the record it holds, stituent are provided the same infor- but that was originated by another mation that the constituent would be DON/DoD activity or that contains sub- entitled to receive. There is no need to stantial information obtained from verify that the individual has author- that activity, to that activity for di- ized the release of his/her record to the rect response, after direct coordination Congressional member, since the Pri- and obtaining concurrence from the ac- vacy Act’s ‘‘blanket routine use’’ for tivity. The requester shall be notified Congressional inquiries applies. of such referral. In any case, DON ac- (b) Privileged release to U.S. Govern- tivities shall not release or deny such ment officials. DON records may be au- records without prior consultation thenticated and released to U.S. Gov- with the activity, except as provided in ernment officials if they are requesting paragraph (c) of this section. them in their official capacity on be- (h) Activities receiving a referred re- half of Federal governmental bodies, quest shall place it in the appropriate whether legislative, executive, admin- processing queue based on the date it istrative, or judicial. To ensure ade- was initially received by the referring quate protection of these documents, activity/agency. DON activities shall inform officials (i) Agencies outside the DON that are receiving records under the provisions subject to the FOIA. (1) A DON activity of this paragraph that those records may refer a FOIA request for any are exempt from public release under record that originated in an agency FOIA. DON activities shall also mark outside the DON or that is based on in- the records as ‘‘Privileged’’ and ‘‘Ex- formation obtained from an outside empt from Public Disclosure’’ and an- agency to the agency for direct re- notate any special handling instruc- sponse to the requester after coordina- tions on the records. Because such re- tion with the outside agency, if that leases are not made under the provi- agency is subject to FOIA. Otherwise, sions of the FOIA, they do not impact
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on future decisions to release/deny re- (2) Processing classified documents quests for the same records to other re- originated by another activity. DON questers. Examples of privileged re- activities shall refer the request and leases are: copies of the classified documents to (1) In response to a request from a the originating activity for processing. Committee or Subcommittee of Con- If the originating activity simply com- gress, or to either House sitting as a piled the classified portions of the doc- whole. ument from other sources, it shall (2) To the Federal Courts, whenever refer, as necessary, those portions to ordered by officers of the court as nec- the original classifying authority for essary for the proper administration of their review and release determination justice. and apprise that authority of any rec- (3) To other Federal agencies, both ommendations they have regarding re- executive and administrative, as deter- lease. If the classification authority for mined by the head of a DON activity or the information cannot be determined, designee. then the originator of the compiled document has the responsibility for (c) State or local government officials. making the final determination. Requests from State or local govern- Records shall be identified consistent ment officials for DON records are with security requirements. Only after treated the same as any other re- consultation and approval from the quester. originating activity, shall the re- (d) Non-FOIA requests from foreign quester be apprised of the referral. In governments. Requests from foreign most cases, the originating activity governments that do not invoke the will make a determination and respond FOIA shall be referred to the appro- directly to the requester. In those in- priate foreign disclosure channels and stances where the originating activity the requester so notified. See § 701.11(c) determines a Glomar response is appro- regarding processing FOIA requests priate, the referring agency shall deny from foreign governments and/or their the request. officials. (b) Courts-martial records of trial. The release/denial authority for these § 701.11 Processing specific kinds of records is the Office of the Judge Advo- records. cate General (Code 20), Washington DON activities that possess copies or Navy Yard, Building 111, Washington, receive requests for the following kinds DC 20374–1111. Promptly refer the re- of records shall promptly forward the quest and/or documents to this activity requests to the officials named in this and apprise the requester of the refer- section and if appropriate apprise the ral. requester of the referral: (c) Foreign requests/information. (1) (a) Classified records. Executive Order FOIA requests received from foreign 12958 governs the classification of governments/foreign government offi- records. cials should be processed as follows: (1) Glomar response. In the instance (i) When a DON activity receives a where a DON activity receives a re- FOIA request for a record in which an quest for records whose existence or affected DoD/DON activity has a sub- nonexistence is itself classifiable, the stantial interest in the subject matter, DON activity shall refuse to confirm or or the DON activity receives a FOIA deny the existence or non-existence of request from a foreign government, a the records. This response is only effec- foreign citizen, or an individual or en- tive as long as it is given consistently. tity with a foreign address, the DON If it were to be known that an agency activity receiving the request shall gave a ‘‘Glomar’’ response only when provide a copy of the request to the af- records do exist and gave a ‘‘no fected DON activity. records’’ response otherwise, then the (ii) Upon receiving the request, the purpose of this approach would be de- affected activity shall review the re- feated. A Glomar response is a denial quest for host nation relations, coordi- and exemption (b)(1) is cited and appeal nate with Department of State as ap- rights are provided to the requester. propriate, and if necessary, provide a
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copy of the request to the appropriate tigations should be directed to the fol- foreign disclosure office for review. lowing officials: Upon request by the affected activity, (1) JAGMAN Investigations con- the DON activity receiving the initial ducted prior to 1 Jul 95—to the Judge request shall provide a copy of releas- Advocate General (Code 35), Wash- able records to the affected activity. ington Navy Yard, Suite 3000, 1322 Pat- The affected activity may further re- terson Avenue, SE, Washington, DC lease the records to its host nation 20374–5066. after coordination with Department of (2) Command Investigation—to the State if release is in the best interest command that conducted the inves- of the United States Government. If tigation. the record is released to the host na- (3) Litigation-Report Investigation— tion government, the affected DON ac- to the Judge Advocate General (Code tivity shall notify the DON activity which initially received the request of 35), Washington Navy Yard, Suite 3000, the release to the host nation. 1322 Patterson Avenue, SE, Wash- ington, DC 20374–5066. (iii) Such processing must be done expeditiously so as not to impede the (4) Court or Board of Inquiry—to the processing of the FOIA request by the Echelon 2 commander over the com- DON activity that initially received mand that convened the investigation. the request. (f) Mailing lists. Numerous FOIA re- (2) Non-U.S. Government Records quests are received for mailing lists of (i.e., records originated by multi- home addresses or duty addresses of national organizations such as the DON personnel. Processing of such re- North Atlantic Treaty Organization quests is as follows: (NATO), the North American Air De- (1) Home addresses are normally not fense (NORAD) and foreign govern- releasable without the consent of the ments) which are under the possession individuals concerned. This includes and control of DON shall be coordi- lists of home addresses and military nated prior to a final release deter- quarters’ addresses without the occu- mination being made. Coordination pant’s name (i.e., exemption (b)(6) ap- with foreign governments shall be plies). made through the Department of (2) Disclosure of lists of names and State. duty addresses or duty telephone num- (d) Government Accounting Office bers of persons assigned to units that (GAO) documents. (1) On occasion, the are stationed in foreign territories, DON receives FOIA requests for GAO routinely deployable, or sensitive, has documents containing DON informa- also been held by the courts to con- tion, either directly from requesters or stitute a clearly unwarranted invasion as referrals from GAO. Since the GAO of personal privacy and must be with- is outside of the Executive Branch and held from disclosure under 5 U.S.C. therefore not subject to FOIA, all FOIA 552(b)(6). General officers and public af- requests for GAO documents con- fairs officers information is releasable. taining DON information will be proc- Specifically, disclosure of such infor- essed by the DON under the provisions mation poses a security threat to those of the FOIA. service members because it reveals in- (2) In those instances when a re- formation about their degree of in- quester seeks a copy of an unclassified volvement in military actions in sup- GAO report, DON activities may ap- port of national policy, the type of prise the requester of its availability from the Director, GAO Distribution Navy and/or Marine Corps units to Center, ATTN: DHISF, P.O. Box 6015, which they are attached, and their Gaithersburg, MD 20877–1450 under the presence or absence from households. cash sales program. Release of such information aids in the (e) Judge Advocate General Manual targeting of service members and their (JAGMAN) investigative records. These families by terrorists or other persons records are no longer centrally proc- opposed to implementation of national essed. Accordingly, requests for inves- policy. Only an extraordinary public
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interest in disclosure of this informa- (5) DON activities are reminded that tion can outweigh the need and respon- e-mail addresses that identify an indi- sibility of the DON to protect the tran- vidual who is routinely deployable, quility and safety of service members overseas, or assigned to a sensitive and their families who repeatedly have unit should not be made available. Ad- been subjected to harassment, threats, ditionally, organizational charts for and physical injury. Units covered by these kinds of units and activities that this policy are: identify specific members should not (i) Those located outside of the 50 be placed on the Internet. States, District of Columbia, Common- (g) Medical quality assurance docu- wealth of Puerto Rico, Guam, U.S. Vir- ments. The Chief, Bureau of Medicine gin Islands, and American Samoa. and Surgery (BUMED) is the release/de- (ii) Routinely deployable units— nial authority for all naval medical Those units that normally deploy from quality assurance documents as defined homeport or permanent station on a by Title 10, United States Code, Sec- periodic or rotating basis to meet oper- tion 1102. Requests for medical quality ational requirements or participate in assurance documents shall be promptly scheduled exercises. This includes rou- referred to BUMED and the requester tinely deployable ships, aviation notified of the referral. squadrons, operational staffs, and all (h) Mishap investigation reports units of the Fleet Marine Force (FMF). (MIRs). The Commander, Naval Safety Routinely deployable units do not in- Center (NAVSAFECEN) is the release/ clude ships undergoing extensive yard denial authority for all requests for work or those whose primary mission mishap investigations or documents is support of training, e.g., yard craft which contain mishap information. All and auxiliary aircraft landing training requests or documents located which ships. apply shall be promptly referred to the Commander, Naval Safety Center, Code (iii) Units engaged in sensitive oper- 503, 375 A Street, Norfolk, VA 23511–4399 ations. Those primarily involved in for action. Telephonic liaison with training for or conduct of covert, clan- NAVSAFECEN is encouraged. The re- destine, or classified missions, includ- quester shall be notified of the referral. ing units primarily involved in col- (i) National Security Council (NSC)/ lecting, handling, disposing, or storing White House. (1) DON activities that re- of classified information and materials. ceive requests for records of NSC, the This also includes units engaged in White House, or the White House/Mili- training or advising foreign personnel. tary Office (WHMO) shall process the Examples of units covered by this ex- requests. emption are nuclear power training fa- (2) DON records in which the NSC or cilities, SEAL Teams, Security Group the White House has a concurrent re- Commands, Weapons Stations, and viewing interest, and NSC, White Communications Stations. House, or WHMO records discovered in (3) Except as otherwise provided, lists DON activity files, shall be forwarded containing names and duty addresses to CNO (N09B30), 2000 Navy Pentagon, of DON personnel, both military and ci- Washington, DC 20350–2000. N09B30, in vilian, who are assigned to units in the turn, will coordinate the request di- Continental United States (CONUS) rectly with DFOISR, so DFOISR can and U.S. territories shall be released coordinate the request with NSC, regardless of who has initiated the re- White House, or WHMO. After coordi- quest. nation, the records will be returned to (4) Exceptions to this policy must be the DON activity for their direct re- coordinated with CNO (N09B30) or CMC sponse to the requester. During the in- (ARAD) prior to responding to re- terim, DON activities should notify the quests, including those from Members requester that they are coordinating of Congress. The policy in paragraphs their request and a response will there- (f) (1) through (3) should be considered fore be delayed. when weighing the releasability of the (j) Naval attache documents/informa- address or telephone number of a spe- tion. The Director, Defense Intelligence cifically named individual. Agency (DIA) has the responsibility for
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reviewing for release/denial any naval (3) The Deputy Naval Inspector Gen- attache-originated documents/informa- eral for Marine Corps Matters tion. Accordingly, FOIA requests for (DNIGMC) is the release/denial author- naval attache documents or copies of ity for all investigations conducted by the documents located in DON files or the DNIGMC. Requests for local Marine referred in error to a DON activity Corps command Inspector General re- shall be promptly referred to the Chief, ports shall be coordinated with the Freedom of Information Act Staff, De- DNIGMC. fense Intelligence Agency (SVI–1), (n) Naval Nuclear Propulsion Informa- Washington, DC 20340–5100 for action tion (NNPI). The Director, Naval Nu- and direct response to the requester. clear Propulsion Program (CNO Ensure that the requester is notified in (NOONB)/NAVSEA (08)) is the release/ writing of the transfer to DIA. denial authority for all information (k) Naval Audit Service reports. The and requests concerning NNPI. Naval Director, Naval Audit Service is the re- activities receiving such requests are lease/denial authority for their reports. responsible for searching their files for All requests or documents located responsive records. If no documents are which apply shall be promptly referred located, the naval activity shall re- to the Director, Naval Audit Service, spond to the requester and provide CNO 5611 Columbia Pike, NASSIF Building, (NOONB) with a copy of the request Falls Church, VA 22041–5080 for action. and response. If documents are located, The requester shall be notified of the the naval activity shall refer the re- referral. quest, responsive documents, and a rec- (l) Naval Criminal Investigative Service ommendation regarding release to the (NCIS) reports. The Director, NCIS is Director, Naval Nuclear Propulsion the release/denial authority for all Program (NOONB), 2000 Navy Pen- NCIS reports/information. All requests tagon, Washington, DC 20350–2000, who for and copies of NCIS reports located will make the final release determina- in DON activity files shall be promptly tion to the requester, after coordi- referred to the Director, NCIS (Code nating the release through DoD activi- OOJF), Washington Navy Yard, Build- ties. ing 111, 716 Sicard Street, SE, Wash- (o) Naval Telecommunications Proce- ington, DC 20388–5380 for action and, if dures (NTP) publications. The Com- appropriate, the requester so notified. mander, Naval Computer and Tele- Telephonic liaison with NCIS Head- communications Command is the re- quarters is strongly encouraged. lease/denial authority for NTP publica- (m) Naval Inspector General tions. All requests or documents lo- (NAVINSGEN) reports. (1) NAVINSGEN cated which apply shall be promptly re- is the release/denial authority for all ferred to the Commander, Naval Com- investigations and inspections con- puter and Telecommunications Com- ducted by or at the direction of mand (Code NOOJ), 4401 Massachusetts NAVINSGEN and for any records held Avenue, NW, Washington, DC 20394–5460 by any command that relate to Navy for action and direct response to the hotline complaints that have been re- requester. ferred to the NAVINSGEN. Accord- (p) News media requests. (1) Respond ingly, such actions shall be promptly promptly to requests received from referred to the Naval Inspector General news media representatives through (Code OOL), Building 200, Room 100, public information channels, if the in- Washington Navy Yard, 901 M Street, formation is releasable under FOIA. SE, Washington, DC 20374–5006 for ac- This eliminates the requirement to in- tion and, if appropriate, the requester voke FOIA and may result in timely so notified. information being made available to (2) Requests for local command in- the public. spector general reports which have not (2) In those instances where records/ been referred to NAVINSGEN should be information are not releasable, either processed by the command that con- in whole or in part, or are not cur- ducted the investigation and rently available for a release consider- NAVINSGEN advised as necessary. ation, Public Affairs Officers shall
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promptly advise the requester of where in legal and substantive issues prior to and how to submit a FOIA request. making an agency determination. (3) DON activities receiving and proc- (3) The final decision to disclose in- essing requests from members of the formation claimed to be exempt under press shall ensure that responses are exemption (b)(4) shall be made by an cleared through their public affairs official at least equivalent in rank to channels. the IDA and the submitter advised that (q) Records originated by other govern- he or she may seek a restraining order ment agencies. (1) A DON activity may or take court action to prevent the re- refer a FOIA request for any record lease. The submitter is given 10 days to that originated in an agency outside take action. the DON or that is based on informa- (4) Should the submitter take such tion obtained from an outside agency action, the requester will be notified to the cognizant agency for direct re- and no action will be taken on the re- sponse to the requester after coordina- quest until the outcome of the court tion with the outside agency, if that action is known. agency is subject to FOIA. Otherwise, (s) Technical Documents Controlled the DON activity must respond to the by Distribution Statements B, C, D, E, request. F, or X shall be referred to the control- (2) A DON activity shall refer to the ling DoD office for review and release agency that provided the record any determination. FOIA request for investigative, intel- ligence, or any other type of records § 701.12 FOIA appeals/litigation. that are on loan to the DON for a spe- (a) Appellate authorities. SECNAV has cific purpose, if the records are re- delegated his appellate authority to stricted from further release and so the JAG and the DONGC to act on mat- marked. However, if for investigative ters under their cognizance. Their re- or intelligence purposes, the outside sponsibilities include adjudicating ap- agency desires anonymity, a DON ac- peals made to SECNAV on: denials of tivity may only respond directly to the requests for copies of DON records or requester after coordination with the portions thereof; disapproval of a fee outside agency. category claim by a requester; dis- (r) Submitter documents. (1) When a re- approval of a request to waive or re- quest is received for a record con- duce fees; disputes regarding fee esti- taining confidential commercial infor- mates; reviewing determinations not to mation that was submitted to the Gov- grant expedited access to agency ernment, the requirements of Execu- records, and reviewing ‘‘no record’’ de- tive Order 12600 shall apply. Specifi- terminations when the requester con- cally, the submitter shall be notified of siders such responses adverse in na- the request (telephonically, by letter, ture. They have the authority to re- or by facsimile) and afforded a reason- lease or withhold records, or portions able amount of time (anywhere from 2 thereof; to waive or reduce fees; and to weeks to a month depending on the cir- act as required by SECNAV for appeals cumstances) to present any objections under 5 U.S.C. 552 and this instruction. concerning release, unless it is clear The JAG has further delegated this ap- there can be no valid basis for objec- pellate authority to the Assistant tion. For example, the record was pro- Judge Advocate General (Civil Law). vided with actual or presumptive The DONGC has further delegated this knowledge of the submitter that it appellate authority to the Principal would be made available to the public Deputy General Counsel, the Deputy upon request. General Counsel, and the Associate (2) The DON activity will evaluate General Counsel (Management). any objections and negotiate with the (1) In their capacity, appellate au- submitter as necessary. When a sub- thorities will serve as principal points stantial issue has been raised, the DON of contact on DON FOIA appeals and activity may seek additional informa- litigation; receive and track FOIA ap- tion from the submitter and afford the peals and ensure responses are made in submitter and requester reasonable op- compliance with 5 U.S.C. 552, DoD portunities to present their arguments 5400.7 and 5400.7–R, and the instruction
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in this part; complete responsive por- made: a copy of the request, responsive tions of the Annual FOIA Report that documents both excised and unexcised, addresses actions on appeals and litiga- a copy of the denial letter, and sup- tion costs during the fiscal year and porting rationale for continued with- submit to CNO (N09B30); provide CNO holding. IDAs shall respond to the ap- (N09B30) with a copy of all appeal de- pellate authority within 10 working terminations as they are issued; and days. keep CNO (N09B30) informed in writing (2) Final determinations on appeals of all FOIA lawsuits as they are filed normally shall be made within 20 work- against the DON. Appellate authorities ing days after receipt. When the appel- shall facsimile a copy of the complaint late authority has a significant number to CNO (N09B30) for review and provide of appeals preventing a response deter- updates to CNO (N09B30) to review and mination within 20 working days, the disseminate to DFOISR. appeals shall be processed in a multi- (2) OGC’s cognizance: Legal advice track processing system based, at a and services to SECNAV and the Civil- minimum, on the three processing ian Executive Assistants on all matters tracks established for initial requests. affecting DON; legal services in subor- (3) If the appeal is received by the dinate commands, organizations, and wrong appellate authority, the time activities in the areas of business and limits do not take effect until it is re- commercial law, real and personal ceived by the right one. If, however, property law, intellectual property the time limit for responding cannot be law, fiscal law, civilian personnel and met, the appellate authority shall ad- labor law, environmental law, and in vise the appellant that he/she may con- coordination with the JAG, such other sider his/her administrative remedies legal services as may be required to exhausted. However, he/she may await support the mission of the Navy and a substantive response without the Marine Corps, or the discharge of prejudicing his/her right of judicial the General Counsel’s responsibilities; remedy. Nonetheless, the appellate au- and conducting litigation involving the thority will continue to process the areas enumerated above and oversight case expeditiously, whether or not the of all litigation affecting the DON. appellant seeks a court order for re- (3) JAG’s cognizance: In addition to lease of records. In such cases, a copy military law, all matters except those of the response will be provided to the falling under the cognizance of the Department of Justice (DOJ). DONGC. (d) Addresses for filing appeals. (1) (b) Appellants may file an appeal if General Counsel of the Navy, 720 they have been denied information in Kennon Street, SE, Room 214, Wash- whole or in part; have been denied a ington Navy Yard, Washington, DC waiver or reduction of fees; have been 20374–5012, or denied/have not received a response (2) Judge Advocate General, Wash- within 20 working days; or received a ington Navy Yard, 1322 Patterson Ave- ‘‘no record’’ response or wish to chal- nue, SE, Suite 3000, Washington, DC lenge the ‘‘adequacy of a search’’ that 20374–5066. was made. Appeal procedures also (e) Appeal letter requirements. The ap- apply to the disapproval of a fee cat- pellant shall file a written appeal with egory claim by a requester, disputes re- the cognizant appellate authority (i.e., garding fee estimates, review of an ex- DONGC or JAG). The appeal should in- pedited basis determination not to clude a copy of the DON response letter grant expedited access to agency and supporting rationale on why the records, or any determination found to appeal should be granted. be adverse in nature by the requester. (f) Consultation/coordination. (1) The (c) Action by the appellate authority. Special Assistant for Naval Investiga- (1) Upon receipt, JAG (34) or Assistant tive Matters and Security (CNO (N09N)) to the General Counsel (FOIA) will may be consulted to resolve inconsist- promptly notify the IDA of the appeal. encies or disputes involving classified In turn, the IDA will provide the appel- records. late authority with the following docu- (2) Direct liaison with officials with- ments so that a determination can be in DON and other interested Federal
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agencies is authorized at the discretion any procedural requirements, such as of the appellate authority, who also co- payment of fees. ordinates with appropriate DoD and (j) Processing appeals made under PA DOJ officials. and FOIA. When denials have been (3) SECNAV, appropriate Assistant or made under the provisions of PA and Deputy Assistant Secretaries, and CNO FOIA, and the denied information is (N09B30) shall be consulted and kept contained in a PA system of records, advised of cases with unusual implica- the appeal shall be processed under tions. CHINFO shall be consulted and both PA and FOIA. If the denied infor- kept advised on cases involving public mation is not maintained in a PA sys- affairs implications. tem of records, the appeal shall be (4) Final refusal involving issues not processed under FOIA. previously resolved or that the DON (k) Response letters. (1) When an ap- appellate authority knows to be incon- pellate authority makes a final deter- sistent with rulings of other DoD com- mination to release all or portion of ponents ordinarily should not be made records withheld by an IDA, a written before consultation with the DoD Of- response and a copy of the records so fice of General Counsel (OGC). released should be forwarded promptly (5) Tentative decisions to deny to the requester after compliance with records that raise new and significant any preliminary procedural require- legal issues of potential significance to ments, such as payment of fees. other agencies of the Government shall (2) Final refusal of an appeal must be be provided to the DoD OGC. made in writing by the appellate au- (g) Copies of final appeal determina- thority or by a designated representa- tions. Appellate authorities shall pro- tive. The response at a minimum shall vide copies of final appeal determina- include the following: tions to the activity affected and to (i) The basis for the refusal shall be CNO (N09B30) as appeals are decided. explained to the requester in writing, (h) Denying an appeal. The appellate both with regard to the applicable stat- authority must render his/her decision utory exemption or exemptions in- in writing with a full explanation as to voked under the provisions of the why the appeal is being denied along FOIA, and with respect to other issues with a detailed explanation of the basis appealed for which an adverse deter- for refusal with regard to the applica- mination was made. ble statutory exemption(s) invoked. (ii) When the final refusal is based in With regard to denials involving classi- whole or in part on a security classi- fied information, the final refusal fication, the explanation shall include should explain that a declassification a determination that the record meets review was undertaken and based on the cited criteria and rationale of the the governing Executive Order and im- governing Executive Order, and that plementing security classification this determination is based on a declas- guides (identify the guides), the infor- sification review, with the explanation mation cannot be released and that in- of how that review confirmed the con- formation being denied does not con- tinuing validity of the security classi- tain meaningful portions that are rea- fication. sonably segregable. In all instances, (iii) The final denial shall include the the final denial letter shall contain the name and title or position of the offi- name and position title of the official cial responsible for the denial. responsible for the denial and advise (iv) In the case of appeals for total the requester of the right to seek judi- denial of records, the response shall ad- cial review. vise the requester that the information (i) Granting an appeal. The appellate being denied does not contain meaning- authority must render his/her decision ful portions that are reasonably seg- in writing. When an appellate author- regable. ity makes a determination to release (v) When the denial is based upon an all or a portion of records withheld by exemption (b)(3) statute, the response, an IDA, a copy of the releasable in addition to citing the statute relied records should be promptly forwarded upon to deny the information, shall to the requester after compliance with state whether a court has upheld the
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decision to withhold the information cumstances, they may consider their under the statute, and shall contain a administrative remedies exhausted. concise description of the scope of the They may, however, without information withheld. prejudicing their right of judicial rem- (vi) The response shall advise the re- edy, await a substantive response. The quester of the right to judicial review. appellate authority shall continue to (l) Time limits/requirements. (1) A FOIA process the case expeditiously. appeal has been received by a DON ac- (m) FOIA litigation. The appellate au- tivity when it reaches the appellate au- thority is responsible for providing thority having jurisdiction. Mis- CNO (N09B30) with a copy of any FOIA directed appeals should be referred ex- litigation filed against the DON and peditiously to the proper appellate au- any subsequent status of the case. CNO thority. (N09B30) will, in turn, forward a copy of (2) The requester shall be advised to the complaint to DFOISR for their re- file an appeal so that it is postmarked view. no later than 60 calendar days after the date of the initial denial letter. If no Subpart B—FOIA Definitions and appeal is received, or if the appeal is Terms postmarked after the conclusion of the 60 day period, the case may be consid- § 701.13 5 U.S.C. 552(a)(1) materials. ered closed. However, exceptions may be considered on a case-by-case basis. Section (a)(1) of the FOIA requires (3) In cases where the requester is publication in the FEDERAL REGISTER provided several incremental deter- of descriptions of agency organizations, minations for a single request, the functions, substantive rules, and state- time for the appeal shall not begin ments of general policy. until the date of the final response. Re- § 701.14 5 U.S.C. 552(a)(2) materials. quests and responsive records that are denied shall be retained for a period of Section (a)(2) of the FOIA requires 6 years to meet the statute of limita- that certain materials routinely be tions requirement. made available for public inspection (4) Final determinations on appeals and copying. The (a)(2) materials are normally shall be made within 20 work- commonly referred to as ‘‘reading ing days after receipt. When a DON ap- room’’ materials and are required to be pellate authority has a significant indexed to facilitate public inspection. number of appeals preventing a re- (a)(2) materials consist of: sponse determination within 20 work- (a) 5 U.S.C. 552(a)(2)(A) records. Final ing days, the appeals shall be processed opinions, including concurring and dis- in a multitrack processing system, senting opinions, and orders made in based at a minimum on the three proc- the adjudication of cases, as defined in essing tracks established for initial re- 5 U.S.C. 551, that may be cited, used, or quests. (See § 701.8(f)). relied upon as precedents in future ad- (5) If additional time is needed due to judications. unusual circumstances, the final deci- (b) 5 U.S.C. 552(a)(2)(B) records. State- sion may be delayed for the number of ments of policy and interpretations working days (not to exceed 10) that that have been adopted by the agency were not used as additional time for re- and are not published in the FEDERAL sponding to the initial request. REGISTER. (6) If a determination cannot be made (c) 5 U.S.C. 552(a)(2)(C) records. Ad- and the requester notified within 20 ministrative staff manuals and instruc- working days, the appellate authority tions, or portions thereof, that estab- shall acknowledge to the requester, in lish DON policy or interpretations of writing, the date of receipt of the ap- policy that affect a member of the pub- peal, the circumstances surrounding lic. This provision does not apply to in- the delay, and the anticipated date for structions for employees on tactics and substantive response. Requesters shall techniques to be used in performing be advised that, if the delay exceeds their duties, or to instructions relating the statutory extension provision or is only to the internal management of for reasons other than the unusual cir- the DON activity. Examples of manuals
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and instructions not normally made made available in a library reading available are: room. (1) Those issued for audit, investiga- tion, and inspection purposes, or those § 701.15 5 U.S.C. 552(a)(3) materials. that prescribe operational tactics, Agency records which are processed standards of performance, or criteria for release under the provisions of the for defense, prosecution, or settlement FOIA. of cases. (2) Operations and maintenance § 701.16 Administrative appeal. manuals and technical information A request made by a FOIA requester concerning munitions, equipment, sys- asking the appellate authority (JAG or tems, and foreign intelligence oper- OGC) to reverse a decision to: withhold ations. all or part of a requested record; deny (d) 5 U.S.C. 552(a)(2)(D) records. Those a fee category claim by a requester; (a)(2) records, which because of the na- deny a request for expedited processing ture of the subject matter, have be- due to demonstrated compelling need; come or are likely to become the sub- deny a request for a waiver or reduc- ject of subsequent requests for substan- tion of fees; deny a request to review tially the same records. These records an initial fee estimate; and confirm are referred to as FOIA-processed (a)(2) that no records were located during the records. DON activities shall decide on initial search. FOIA requesters may a case-by-case basis whether records also appeal a non-response to a FOIA fall into this category based on the fol- request within the statutory time lim- lowing factors: previous experience of its. the DON activity with similar records; particular circumstances of the records § 701.17 Affirmative information dis- involved, including their nature and closure. the type of information contained in them; and/or the identity and number This is where a DON activity makes of requesters and whether there is records available to the public on its widespread press, historic, or commer- own initiative. In such instance, the cial interest in the records. DON activity has determined in ad- (1) This provision is intended for situ- vance that a certain type of records or ations where public access in a timely information is likely to be of such in- manner is important and it is not in- terest to members of the public, and tended to apply where there may be a that it can be disclosed without con- limited number of requests over a short cern for any FOIA exemption sensi- period of time from a few requesters. tivity. Affirmative disclosures can be DON activities may remove the records of mutual benefit to both the DON and from this access medium when the ap- the members of the public who are in- propriate officials determine that ac- terested in obtaining access to such in- cess is no longer necessary. formation. (2) Should a requester submit a FOIA request for FOIA-processed (a)(2) § 701.18 Agency record. records and insist that the request be Agency records are either created or processed under FOIA, DON activities obtained by an agency and under agen- shall process the FOIA request. How- cy control at the time of the FOIA re- ever, DON activities have no obligation quest. Agency records are stored as to process a FOIA request for (a)(2)(A), various kinds of media, such as: (B) and (C) records because these (a) Products of data compilation (all records are required to be made public books, maps, photographs, machine and not FOIA-processed under para- readable materials, inclusive of those graph (a)(3) of the FOIA. in electronic form or format, or other (e) However, agency records that are documentary materials), regardless of withheld under FOIA from public dis- physical form or characteristics, made closure, based on one or more of the or received by an agency of the United FOIA exemptions, do not qualify as States Government under Federal law (a)(2) materials and need not be pub- in connection with the transaction of lished in the FEDERAL REGISTER or public business and in Department of
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the Navy possession and control at the § 701.19 Appellate authority. time the FOIA request is made. SECNAV has delegated the OGC and (b) Care should be taken not to ex- clude records from being considered JAG to review administrative appeals agency records, unless they fall within of denials of FOIA requests on his be- one of the following categories: half and prepare agency paperwork for (1) Objects or articles, such as struc- use by the DOJ in defending a FOIA tures, furniture, paintings, three-di- lawsuit. JAG is further authorized to mensional models, vehicles, equipment, delegate this authority to a designated parts of aircraft, ships, etc., whatever Assistant JAG. The authority of OGC their historical value or value as evi- is further delegated to the Principal dence. Deputy General Counsel, the Deputy (2) Anything that is not a tangible or General Counsel, and the Associate documentary record, such as an indi- General Counsel (Management). vidual’s memory or oral communica- tion. § 701.20 Discretionary disclosure. (3) Personal records of an individual The decision to release information not subject to agency creation or re- that could qualify for withholding tention requirements, created and under a FOIA exemption, but upon re- maintained primarily for the conven- view the determination has been made ience of an agency employee, and not that there is no foreseeable harm to distributed to other agency employees the Government for releasing such in- for their official use. Personal papers formation. Discretionary disclosures do fall into three categories: those created before entering Government service; not apply to exemptions (b)(1), (b)(3), private materials brought into, cre- (b)(4), (b)(6) and (b)(7)(C). ated, or received in the office that were § 701.21 Electronic record. not created or received in the course of transacting Government business, and Records (including e-mail) which are work-related personal papers that are created, stored, and retrieved by elec- not used in the transaction of Govern- tronic means. ment business. (4) A record must exist and be in the § 701.22 Exclusions. possession and control of the DON at The FOIA contains three exclusions the time of the request to be consid- (c)(1), (c)(2) and (c)(3) which expressly ered subject to this instruction and the authorize Federal law enforcement FOIA. There is no obligation to create, agencies for especially sensitive compile, or obtain a record to satisfy a records under certain specified cir- FOIA request. cumstances to treat the records as not (5) Hard copy or electronic records, subject to the requirements of the which are subject to FOIA requests under 5 U.S.C. 552(a)(3), and which are FOIA. available to the public through an es- § 701.23 Executive Order 12958. tablished distribution system, or through the FEDERAL REGISTER, the Revoked Executive Order 12356 on Oc- National Technical Information Serv- tober 14, 1995 and is the basis for claim- ice, or the Internet, normally need not ing that information is currently and be processed under the provisions of properly classified under (b)(1) exemp- the FOIA. If a request is received for tion of the FOIA. It sets forth new re- such information, DON activities shall quirements for classifying and declas- provide the requester with guidance, sifying documents. It recognizes both inclusive of any written notice to the the right of the public to be informed public, on how to obtain the informa- about the activities of its government tion. However, if the requester insists and the need to protect national secu- that the request be processed under the rity information from unauthorized or FOIA, then process the request under untimely disclosure. FOIA.
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§ 701.24 Federal agency. § 701.29 Glomar response. A Federal agency is any executive de- Refusal by the agency to either con- partment, military department, Gov- firm or deny the existence or non-exist- ernment corporation, Government-con- ence of records responsive to a FOIA trolled corporation, or other establish- request. See exemptions (b)(1), (b)(6), ment in the executive branch of the and (b)(7)(C) at subpart D of this part. Government (including the Executive § 701.30 Initial Denial Authority (IDA). Office of the President), or any inde- pendent regulatory agency. SECNAV has delegated authority to a limited number of officials to act on § 701.25 5 U.S.C. 552, Freedom of Infor- his behalf to withhold records under mation Act (FOIA). their cognizance that are requested under the FOIA for one or more of the An access statute that pertains to nine categories of records exempt from agency records of the Executive Branch mandatory disclosure; to deny a fee of the Federal Government, including category claim by a requester; to deny the Executive Office of the President a request for expedited processing due and independent regulatory agencies. to demonstrated compelling need; to NOTE TO § 701.25: Records maintained by deny or grant a request for waiver or State governments, municipal corporations, reduction of fees when the information by the courts, by Congress, or by companies sought relates to matters within their and private citizens do not fall under this respective geographical areas of re- Federal statute) sponsibility or chain of command; fees; to review a fee estimate; and to con- § 701.26 FOIA exemptions. firm that no records were located in re- There are nine exemptions that iden- sponse to a request. IDAs may also tify certain kinds of records/informa- grant access to requests. tion that qualify for withholding under § 701.31 Mosaic or compilation re- FOIA. See subpart D of this part for a sponse. detailed explanation of each exemp- tion. The concept that apparently harm- less pieces of information when assem- § 701.27 FOIA fee terms location. bled together could reveal a damaging picture. See exemption (b)(1) at sub- The FOIA fee terms can be found in part D of this part. subpart C of this part. § 701.32 Perfected request. § 701.28 FOIA request. A request which meets the minimum A written request for DON records, requirements of the FOIA to be proc- made by ‘‘any person’’ including a essed and is received by the DON activ- member of the public (U.S. or foreign ity having possession and control over citizen/entity), an organization, or a the documents/information. business, but not including a Federal agency or a fugitive from the law that § 701.33 Public domain. either explicitly or implicitly invokes Agency records released under the the FOIA by citing DoD FOIA regula- provisions of FOIA and the instruction tions or the instruction in this part. in this part to a member of the public. FOIA requests can be made for any purpose whatsoever, with no showing § 701.34 Public interest. of relevancy required. Because the pur- The interest in obtaining official in- pose for which records are sought has formation that sheds light on a DON no bearing on the merits of the re- activity’s performance of its statutory quest, FOIA requesters do not have to duties because the information falls explain or justify their requests. Writ- within the statutory purpose of the ten requests may be received by postal FOIA to inform citizens what their service or other commercial delivery government is doing. That statutory means, by facsimile or electronically. purpose, however, is not fostered by disclosure of information about private
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citizens accumulated in various gov- Subpart C—FOIA Fees ernmental files that reveals nothing about an agency’s or official’s own con- § 701.40 Background. duct. (a) The DON follows the uniform fee schedule developed by DoD and estab- § 701.35 Reading room. lished to conform with the Office of Location where (a)(2) materials are Management and Budget’s (OMB’s) made available for public inspection Uniform Freedom of Information Act and copying. Fee Schedule and Guidelines. (b) Fees reflect direct costs for § 701.36 Release authorities. search; review (in the case of commer- Commanding officers and heads of cial requesters); and duplication of doc- Navy and Marine Corps shore activities uments, collection of which is per- or their designees are authorized to mitted by the FOIA. They are neither grant requests on behalf of SECNAV intended to imply that fees must be for agency records under their posses- charged in connection with providing sion and control for which no FOIA ex- information to the public in the rou- emption applies. As necessary, they tine course of business, nor are they meant as a substitute for any other will coordinate releases with other offi- schedule of fees, which does not super- cials who may have an interest in the sede the collection of fees under the releasability of the record. FOIA. § 701.37 Reverse FOIA. (c) FOIA fees do not supersede fees chargeable under a statute specifically When the ‘‘submitter’’ of informa- providing for setting the level of fees tion, usually a corporation or other for particular types of records. For ex- business entity, that has supplied the ample, 5 U.S.C. 552 (a)(4)(A)(vi) enables agency with data on its policies, oper- a Government agency such as the Gov- ations and products, seeks to prevent ernment Printing Office (GPO) or the the agency that collected the informa- National Technical Information Serv- tion from revealing the data to a third ice (NTIS), to set and collect fees. DON party in response to the latter’s FOIA activities should ensure that when doc- request. uments that would be responsive to a request are maintained for distribution § 701.38 Technical data. by agencies operating statutory-based Recorded information, regardless of fee schedule programs, such as GPO or NTIS, they inform requesters of the form or method of the recording, of a steps necessary to obtain records from scientific or technical nature (includ- those sources. ing computer software documentation). § 701.41 FOIA fee terms. § 701.39 Vaughn index. (a) Direct costs means those expendi- Itemized index, correlating each tures a DON activity actually makes in withheld document (or portion) with a searching for, reviewing (in the case of specific FOIA exemption(s) and the rel- commercial requesters), and dupli- evant part of the agency’s nondisclo- cating documents to respond to a FOIA sure justification. The index may con- request. Direct costs include, for exam- tain such information as: date of docu- ple, the salary of the employee per- ment; originator; subject/title of docu- forming the work (the basic rate of pay ment; total number of pages reviewed; for the employee plus 16 percent of that number of pages of reasonably seg- rate to cover benefits), and the costs of regable information released; number operating duplicating machinery. of pages denied; exemption(s) claimed; These factors have been included in the justification for withholding; etc. FOIA fee rates prescribed in this subpart. requesters are not entitled to a Vaughn Not included in direct costs are over- index during the administrative proc- head expenses such as costs of space, ess. heating or lighting the facility in which the records are stored.
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(b) Duplication refers to the process of necessary) of material in the record to making a copy of a document in re- determine if it, or portions thereof are sponse to a FOIA request. Such copies responsive to the request. DON activi- can take the form of paper copy, micro- ties should ensure that searches are fiche, audiovisual, or machine readable done in the most efficient and least ex- documentation (e.g., magnetic tape or pensive manner so as to minimize costs disc), among others. Every effort will for both the activity and the requester. be made to ensure that the copy pro- For example, activities should not en- vided is in a form that is reasonably gage in line-by-line searches when du- usable, the requester shall be notified plicating an entire document known to that the copy provided is the best contain responsive information would available, and that the activity’s mas- prove to be the less expensive and ter copy shall be made available for re- quicker method of complying with the view upon appointment. For duplica- request. Time spent reviewing docu- tion of computer tapes and audiovisual, ments in order to determine whether to the actual cost, including the opera- apply one or more of the statutory ex- tor’s time, shall be charged. In prac- emptions is not search time, but review tice, if a DON activity estimates that assessable duplication charges are like- time. ly to exceed $25.00, it shall notify the (1) DON activities may charge for requester of the estimate, unless the time spent searching for records, even requester has indicated in advance his if that search fails to locate records re- or her willingness to pay fees as high sponsive to the request. as those anticipated. Such a notice (2) DON activities may also charge shall offer a requester the opportunity search and review (in the case of com- to confer with activity personnel with mercial requesters) time if records lo- the object of reformulating the request cated are determined to be exempt to meet his or her needs at a lower from disclosure. cost. (3) In practice, if the DON activity (c) Review refers to the process of ex- estimates that search charges are like- amining documents located in response ly to exceed $25.00, it shall notify the to a FOIA request to determine wheth- requester of the estimated amount of er one or more of the statutory exemp- fees, unless the requester has indicated tions permit withholding. It also in- in advance his or her willingness to pay cludes processing the documents for fees as high as those anticipated. Such disclosure, such as excising them for a notice shall offer the requester the release. Review does not include the opportunity to confer with activity time spent resolving general legal or personnel with the object of reformu- policy issues regarding the application lating the request to meet his or her of exemptions. It should be noted that needs at a lower cost. charges for commercial requesters may be assessed only for the initial review. § 701.42 Categories of requesters—ap- DON activities may not charge for re- plicable fees. views required at the administrative appeal level of an exemption already (a) Commercial requesters refers to a applied. However, records or portions request from, or on behalf of one who of records withheld in full under an ex- seeks information for a use or purpose emption that is subsequently deter- that furthers the commercial, trade, or mined not to apply may be reviewed profit interest of the requester or the again to determine the applicability of person on whose behalf the request is other exemptions not previously con- made. In determining whether a re- sidered. The costs for such a subse- quester properly belongs in this cat- quent review would be properly assess- egory, DON activities must determine able. the use to which a requester will put (d) Search refers to time spent look- the documents requested. More over, ing, both manually and electronically, where an activity has reasonable cause for material that is responsive to a re- to doubt the use to which a requester quest. Search also includes a page-by- will put the records sought, or where page or line-by-line identification (if that use is not clear from the request
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itself, it should seek additional clari- (c) Non-commercial Scientific Insti- fication before assigning the request to tution refers to an institution that is a specific category. not operated on a ‘‘commercial’’ basis (1) Fees shall be limited to reason- and that is operated solely for the pur- able standard charges for document pose of conducting scientific research, search, review and duplication when the results of which are not intended to records are requested for commercial promote any particular product or in- use. Requesters must reasonably de- dustry. scribe the records sought. (1) Fees shall be limited to only rea- (2) When DON activities receive a re- sonable standard charges for document quest for documents for commercial duplication (excluding the first 100 use, they should assess charges which pages) when the request is made by a recover the full direct costs of search- non-commercial scientific institution ing for, reviewing for release, and du- whose purpose is scientific research. plicating the records sought. Commer- Requesters must reasonably describe cial requesters (unlike other request- the records sought. ers) are not entitled to 2 hours of free (2) Requesters must show that the re- search time, nor 100 free pages of repro- quest is being made under the auspices duction of documents. Moreover, com- of a qualifying institution and that the mercial requesters are not normally records are not sought for commercial entitled to a waiver or reduction of fees use, but in furtherance of or scientific based upon an assertion that disclosure research. would be in the public interest. How- (d) Representative of the news media. ever, because use is the exclusive de- (1) Refers to any person actively gath- termining criteria, it is possible to en- ering news for an entity that is orga- vision a commercial enterprise making nized and operated to publish or broad- a request that is not for commercial cast news to the public. The term use. It is also possible that a non-profit ‘‘news’’ means information that is organization could make a request that about current events or that would be is for commercial use. Such situations of current interest to the public. Exam- must be addressed on a case-by-case ples of news media entities include tel- basis. evision or radio stations broadcasting (b) Educational Institution refers to to the public at large, and publishers of a pre-school, a public or private ele- periodicals (but only in those instances mentary or secondary school, an insti- when they can qualify as disseminators tution of graduate high education, an of ‘‘news’’) who make their products institution of undergraduate higher available for purchase or subscription education, an institution of profes- by the general public. These examples sional education, and an institution of are not meant to be all-inclusive. vocational education, which operates a Moreover, as traditional methods of program or programs of scholarly re- news delivery evolve (e.g., electronic search. dissemination of newspapers through (1) Fees shall be limited to only rea- telecommunications services), such al- sonable standard charges for document ternative media would be included in duplication (excluding charges for the this category. In the case of ‘‘free- first 100 pages) when the request is lance’’ journalists, they may be re- made by an educational institution garded as working for a news organiza- whose purpose is scholarly research. tion if they can demonstrate a solid Requesters must reasonably describe basis for expecting publication through the records sought. that organization, even though not ac- (2) Requesters must show that the re- tually employed by it. A publication quest is being made under the auspices contract would be the clearest proof, of a qualifying institution and that the but DON activities may also look to records are not sought for commercial the past publication record of a re- use, but in furtherance of scholarly re- quester in making this determination. search. (2) To be eligible for inclusion in this (3) Fees shall be waived or reduced in category, a requester must meet the the public interest if criteria of § 701.58 criteria established in paragraph (d)(1), have been met. and his or her request must not be
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made for commercial use. A request for (b) Educational or noncommercial records supporting the news dissemina- scientific institution or news media. tion function of the requester shall not Requesters should indicate a willing- be considered to be a request that is for ness to pay duplication charges in ex- a commercial use. For example, a docu- cess of 100 pages if more than 100 pages ment request by a newspaper for of records are desired. records relating to the investigation of (c) All others. Requesters should in- a defendant in a current criminal trial dicate a willingness to pay assessable of public interest could be presumed to search and duplication costs if more be a request from an entity eligible for than 2 hours of search effort or 100 inclusion in this category, and entitled pages of records are desired. to records at the cost of reproduction (d) If the conditions in paragraphs (a) alone (excluding charges for the first through (c) are not met, then the re- 100 pages). quest need not be processed and the re- (3) Representative of the news media quester shall be so informed. does not include private libraries, pri- vate repositories of Government § 701.44 Restrictions. records, information vendors, data bro- (a) No fees may be charged by any kers or similar marketers of informa- DON activity if the costs of routine tion whether to industries and busi- collection and processing of the fee are nesses, or other entities. likely to equal or exceed the amount of (4) Fees shall be limited to only rea- the fee. With the exception of request- sonable standard charges for document ers seeking documents for a commer- duplication (excluding charges for the cial use, activities shall provide the first 100 pages) when the request is first 2 hours of search time, and the made by a representative of the news first 100 pages of duplication without media. Requesters must reasonably de- charge. For example, for a request scribe the records sought. Fees shall be (other than one from a commercial re- waived or reduced if the fee waiver cri- quester) that involved 2 hours and 10 teria have been met. minutes of search time, and resulted in (e) All other requesters. DON activi- 105 pages of documents, an activity ties shall charge requesters who do not would determine the cost of only 10 fit into any of the categories described minutes of search time, and only five in paragraph (a) through (d) fees which pages of reproduction. If this proc- recover the full direct cost of searching essing cost was equal to, or less than, for and duplicating records, except that the cost to the activity for billing the the first 2 hours of search time and the requester and processing the fee col- first 100 pages of duplication shall be lected, no charges would result. furnished without charge. Requesters (b) Requesters receiving the first 2 must reasonably describe the records hours of search and the first 100 pages sought. Requests from subjects about of duplication without charge are enti- themselves will continue to be treated tled to such only once per request. Con- under the fee provisions of the Privacy sequently, if a DON activity, after Act of 1974, which permit fees only for completing its portion of a request, duplication. DON activities are re- finds it necessary to refer the request minded that this category of requester to a subordinate office, another DON may also be eligible for a waiver or re- activity, or another Federal agency to duction of fees if disclosure of the in- action their portion of the request, the formation is in the public interest. referring activity shall inform the re- cipient of the referral of the expended § 701.43 Fee declarations. amount of search time and duplication Requesters should submit a fee dec- cost to date. laration appropriate for the categories (c) The elements to be considered in in paragraphs (a) through (c) of this determining the ‘‘cost of collecting a section, if fees are expected to exceed fee’’ are the administrative costs to the the minimum fee threshold of $15.00. DON activity of receiving and record- (a) Commercial. Requesters should ing a remittance, and processing the indicate a willingness to pay all search, fee for deposit in the Department of review and duplication costs. Treasury’s special account. The cost to
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the Department of Treasury to handle days), the DON activity shall render a such remittance is negligible and shall final category determination, and no- not be considered in activity deter- tify the requester of such determina- minations. tion, to include normal administrative (d) For the purposes of the restric- appeal rights of the determination. tions in this section, the word ‘‘pages’’ (2) Advise the requester that, not- refers to paper copies of a standard withstanding any appeal, a search for size, which will normally be ‘‘81⁄2×11’’ or responsive records will not be initiated ‘‘11×14.’’ Thus, requesters would not be until the requester indicates a willing- entitled to 100 microfiche or 100 com- ness to pay assessable costs appro- puter disks, for example. A microfiche priate for the category determined by containing the equivalent of 100 pages the activity. or 100 pages of computer printout how- (c) Estimate of fees. DON activities ever, might meet the terms of the re- must be prepared to provide an esti- striction. mate of assessable fees if desired by the (e) In the case of computer searches, requester. While it is recognized that the first 2 free hours will be determined search situations will vary among ac- against the salary scale of the indi- tivities, and that an estimate is often vidual operating the computer for the difficult to obtain prior to an actual purposes of the search. As an example, search, requesters who desire estimates when the direct costs of the computer are entitled to such before committing central processing unit, input-output to a willingness to pay. Should the ac- devices, and memory capacity equal tivity’s actual costs exceed the amount $24.00 (2 hours of equivalent search at of the estimate or the amount agreed the clerical level), amounts of com- to by the requester, the amount in ex- puter costs in excess of that amount cess of the estimate or the requester’s are chargeable as computer search agreed amount shall not be charged time. In the event the direct operating without the requester’s agreement. cost of the hardware configuration can- (d) Advance payment of fees. DON ac- not be determined, computer search tivities may not require advance pay- shall be based on the salary scale of the ment of any fee (i.e., before work is operator executing the computer commenced or continued on a request) search. unless the requester has failed to pay fees in a timely fashion (i.e., 30 cal- § 701.45 Fee assessment. endar days from the date of the as- (a) Fees may not be used to discour- sessed billing in writing), or the activ- age requesters, and to this end, FOIA ity has determined that the fee will ex- fees are limited to standard charges for ceed $250.00. direct document search, review (in the (e) When a DON activity estimates or case of commercial requesters) and du- determines that allowable charges that plication. a requester may be required to pay are (b) In order to be as responsive as likely to exceed $250.00, the activity possible to FOIA requests while mini- shall notify the requester of the likely mizing unwarranted costs to the tax- cost and obtain satisfactory assurance payer, DON activities shall analyze of full payment where the requester each request to determine the category has a history of prompt payments, or of the requester. If the activity’s deter- require an advance payment of an mination regarding the category of the amount up to the full estimated requester is different than that claimed charges in the case of requesters with by the requester, the activity shall: no payment history. (1) Notify the requester to provide (f) Where a requester has previously additional justification to warrant the failed to pay a fee charged in a timely category claimed, and that a search for fashion (i.e., within 30 calendar days responsive records will not be initiated from the date of the billing), the DON until agreement has been attained rel- activity may require the requester to ative to the category of the requester. pay the full amount owed, plus any ap- Absent further category justification plicable interest, or demonstrate that from the requester, and within a rea- he or she has paid the fee, and to make sonable period of time (i.e., 30 calendar an advance payment of the full amount
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of the estimated fee before the DON ac- sonable to presume that multiple re- tivity begins to process a new or pend- quests of this type made within a 30- ing request from the requester. Inter- day period had been made to avoid fees. est will be at the rate prescribed by 31 For requests made over a longer period U.S.C. 3737 and confirmed with respec- however, such a presumption becomes tive finance and accounting offices. harder to sustain and activities should (g) After all the work is completed on have a solid basis for determining that a request, and the documents are ready aggregation is warranted in such cases. for release, DON activities may require DON activities are cautioned that be- payment before forwarding the docu- fore aggregating requests from more ments, particularly for those request- than one requester, they must have a ers who have no payment history, or concrete basis on which to conclude for those requesters who have failed to that the requesters are acting in con- previously pay a fee in a timely fashion cert and are acting specifically to (i.e., within 30 calendar days from the avoid payment of fees. In no case may date of the billing). an activity aggregate multiple requests (h) DON activities may charge for on unrelated subjects. time spent searching for records, even if that search fails to locate records re- § 701.47 FOIA fees must be addressed sponsive to the request. DON activities in response letters. may also charge search and review (in DON activities shall ensure that re- the case of commercial requesters) questers receive a complete breakout time if records located are determined of all fees which are charged and ap- to be exempt from disclosure. In prac- prised of the ‘‘Category’’ in which they tice, if the DON activity estimates that have been placed. For example: ‘‘We search charges are likely to exceed are treating you as an ’All Other Re- $25.00, it shall notify the requester of quester.’ As such, you are entitled to 2 the estimated amount of fees, unless free hours of search and 100 pages of re- the requester has indicated in advance production, prior to any fees being as- his or her willingness to pay fees as sessed. We have expended an additional high as those anticipated. Such a no- 2 hours of search at $25.00 per hour and tice shall offer the requester the oppor- an additional 100 pages of reproduction, tunity to confer with activity per- for a total fee of $65.00.’’ sonnel with the object of reformulating the request to meet his or her needs at § 701.48 Fee waivers. a lower cost. Documents shall be furnished with- out charge, or at a charge reduced § 701.46 Aggregating requests. below fees assessed to the categories of Except for requests that are for a requesters, when the DON activity de- commercial use, a DON activity may termines that waiver or reduction of not charge for the first 2 hours of the fees is in the public interest be- search time or for the first 100 pages of cause furnishing the information is reproduction. However, a requester likely to contribute significantly to may not file multiple requests at the public understanding of the operations same time, each seeking portions of a or activities of the DON/DoD and is not document or documents, solely in order primarily in the commercial interest of to avoid payment of fees. When an ac- the requester. When assessable costs tivity reasonably believes that a re- for a FOIA request total $15.00 or less, quester or, on rare occasions, a group fees shall be waived automatically for of requesters acting in concert, is at- all requesters, regardless of category. tempting to break a request down into Decisions to waive or reduce fees that a series of requests for the purpose of exceed the automatic waiver threshold avoiding the assessment of fees, the ac- shall be made on a case-by-case basis, tivity may aggregate any such requests consistent with the following factors: and charge accordingly. One element to (a) Disclosure of the information ‘‘is be considered in determining whether a in the public interest because it is like- belief would be reasonable is the time ly to contribute significantly to public period in which the requests have oc- understanding of the operations or ac- curred. For example, it would be rea- tivities of the Government.’’
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(b) The subject of the request. DON against the arguments offered by the activities should analyze whether the requester. Another example is informa- subject matter of the request involves tion already known to be in the public issues that will significantly con- domain. Disclosure of duplicative or tribute to the public understanding of nearly identical information already the operations or activities of the DON/ existing in the public domain may add DoD. Requests for records in the pos- no meaningful new information con- session of the DON which were origi- cerning the operations and activities of nated by non-government organiza- the DON. tions and are sought for their intrinsic (d) The contribution to an under- content, rather than informative value, standing of the subject by the general will likely not contribute to public un- public likely to result from disclosure. derstanding of the operations or activi- The key element in determining the ties of the DON/DoD. An example of applicability of this factor is whether such records might be press clippings, disclosure will inform, or have the po- magazine articles, or records for- warding a particular opinion or con- tential to inform, the public rather cern from a member of the public re- than simply the individual requester or garding a DON/DoD activity. Similarly, small segment of interested persons. disclosures of records of considerable The identity of the requester is essen- age may or may not bear directly on tial in this situation in order to deter- the current activities of the DON/DoD, mine whether such requester has the however, the age of a particular record capability and intention to dissemi- shall not be the sole criteria for deny- nate the information to the public. ing relative significance under this fac- Mere assertions of plans to author a tor. It is possible to envisage an in- book, researching a particular subject, formative issue concerning the current doing doctoral dissertation work, or in- activities of the DON/DoD, based upon digence are insufficient without dem- historical documentation. Requests of onstrating the capacity to further dis- this nature must be closely reviewed close the information in a manner that consistent with the requester’s stated will be informative to the general pub- purpose for desiring the records and lic. Requesters should be asked to de- the potential for public understanding scribe their qualifications, the nature of the operations and activities of the of their research, the purpose of the re- DON/DoD. quested information, and their in- (c) The informative value of the in- tended means of dissemination to the formation to be disclosed. This factor public. requires a close analysis of the sub- (e) The significance of the contribu- stantive contents of a record, or por- tion to public understanding. In apply- tion of the record, to determine wheth- ing this factor, DON activities must er disclosure is meaningful, and shall differentiate the relative significance inform the public on the operations or or impact of the disclosure against the activities of the DON. While the sub- current level of public knowledge, or ject of a request may contain informa- understanding which exists before the tion that concerns operations or activi- ties of the DON, it may not always hold disclosure. In other words, will disclo- great potential for contributing to a sure on a current subject of wide public meaningful understanding of these op- interest be unique in contributing pre- erations or activities. An example of viously unknown facts, thereby en- such would be a previously released hancing public knowledge, or will it record that has been heavily redacted, basically duplicate what is already the balance of which may contain only known by the general public? A deci- random words, fragmented sentences, sion regarding significance requires ob- or paragraph headings. A determina- jective judgment, rather than subjec- tion as to whether a record in this situ- tive determination, and must be ap- ation will contribute to the public un- plied carefully to determine whether derstanding of the operations or activi- disclosure will likely lead to a signifi- ties of the DON must be approached cant public understanding of the issue. with caution and carefully weighed DON activities shall not make value
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judgments as to whether the informa- nize a commercial benefit, either di- tion is important enough to be made rectly, or indirectly (through the insti- public. tution they represent); however, nor- (f) Disclosure of the information ‘‘is mally such pursuits are primarily un- not primarily in the commercial inter- dertaken for educational purposes, and est of the requester.’’ the application of a fee charge would (1) The existence and magnitude of a be inappropriate. Conversely, data bro- commercial interest. If the request is kers or others who merely compile gov- determined to be of a commercial in- ernment information for marketing terest, DON activities should address can normally be presumed to have an the magnitude of that interest to de- interest primarily of a commercial na- termine if the requester’s commercial ture. interest is primary, as opposed to any (g) The factors and examples used in secondary personal or non-commercial this section are not all inclusive. Each interest. In addition to profit-making fee decision must be considered on a organizations, individual persons or case-by-case basis and upon the merits other organizations may have a com- of the information provided in each re- mercial interest in obtaining certain quest. When the element of doubt as to records. Where it is difficult to deter- whether to charge or waive the fee can- mine whether the requester is of a not be clearly resolved, DON activities commercial nature, DON activities should rule in favor of the requester. may draw inference from the request- (h) The following additional cir- er’s identity and circumstances of the cumstances describe situations where request. Activities are reminded that waiver or reduction of fees are most in order to apply the commercial likely to be warranted: standards of the FOIA, the requester’s (1) A record is voluntarily created to commercial benefit must clearly over- prevent an otherwise burdensome ef- ride any personal or non-profit inter- fort to provide voluminous amounts of est. available records, including additional (2) The primary interest in disclo- information not requested. sure. Once a requester’s commercial in- (2) A previous denial of records is re- terest has been determined, DON ac- versed in total, or in part, and the as- tivities should then determine if the sessable costs are not substantial (e.g. disclosure would be primarily in that $15.00–$30.00). interest. This requires a balancing test between the commercial interest of the § 701.49 Payment of fees. request against any public benefit to be (a) Normally, fees will be collected at derived as a result of that disclosure. the time of providing the documents to Where the public interest is served the requester when the requester spe- above and beyond that of the request- cifically states that the costs involved er’s commercial interest, a waiver or shall be acceptable or acceptable up to reduction of fees would be appropriate. a specified limit that covers the antici- Conversely, even if a significant public pated costs, and the fees do not exceed interest exists, and the relative com- $250.00. mercial interest of the requester is de- (b) However, after all work is com- termined to be greater than the public pleted on a request, and the documents interest, then a waiver or reduction of are ready for release, DON activities fees would be inappropriate. As exam- may request payment before for- ples, news media organizations have a warding the documents, particularly commercial interest as business orga- for those requesters who have no pay- nizations; however, their inherent role ment history, or for those requesters of disseminating news to the general who have failed previously to pay a fee public can ordinarily be presumed to be in a timely fashion (i.e., within 30 cal- of a primary interest. Therefore, any endar days from the date of the bill- commercial interest becomes sec- ing). ondary to the primary interest in serv- (c) When a DON activity estimates or ing the public. Similarly, scholars determines that allowable charges that writing books or engaged in other a requester may be required to pay are forms of academic research may recog- likely to exceed $250.00, the activity
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shall notify the requester of the likely ment methods that are agreeable to cost and obtain satisfactory assurance the requester and the activity. of full payment where the requester has a history of prompt payments, or § 701.52 Computation of fees. require an advance payment of an (a) It is imperative that DON activi- amount up to the full estimated ties compute all fees to ensure accu- charges in the case of requesters with rate reporting in the Annual FOIA Re- no history of payment. port, but ensure that only applicable (d) Advance payment of a fee is also fees be charged to the requester. For applicable when a requester has pre- example, although we calculate cor- viously failed to pay fees in a timely respondence and preparation costs, fashion (i.e., 30 calendar days) after these fees are not recoupable from the being assessed in writing by the activ- requester. ity. Further, where a requester has pre- (b) DD 2086, Record of Freedom of In- viously failed to pay a fee charged in a formation (FOI) Processing Cost, timely fashion (i.e., within 30 calendar should be filled out accurately to re- days from the date of the billing), the flect all processing costs, as requesters DON activity may require the re- may solicit a copy of that document to quester to pay the full amount owed, ensure accurate computation of fees. plus any applicable interest, or dem- Costs shall be computed on time actu- onstrate that he or she has paid the ally spent. Neither time-based nor dol- fee, and to make an advance payment lar-based minimum charges for search, of the full amount of the estimated fee review and duplication are authorized. before the activity begins to process a new or pending request from the re- § 701.53 FOIA fee schedule. quester. Interest will be at the rate The following fee schedule shall be prescribed in 31 U.S.C. 3717 and con- used to compute the search, review (in firmed with respective finance and ac- the case of commercial requesters) and counting offices. duplication costs associated with proc- essing a given FOIA request. The ap- § 701.50 Effect of the Debt Collection propriate fee category of the requester Act of 1982. shall be applied before computing fees. The Debt Collection Act of 1982 (Pub. (a) Manual search. L. 97–365) provides for a minimum an- Hourly nual rate of interest to be charged on Type Grade rate
overdue debts owed the Federal Gov- Clerical ...... E9/GS8 and below ...... $12.00 ernment. DON activities may levy this Professional ...... O1±O6/GS9±GS15 ...... interest penalty for any fees that re- 25.00 main outstanding 30 calendar days Executive ...... O7/GS16/ES1 and above 45.00 from the date of billing (the first de- mand notice) to the requester of the (b) Computer search. Fee assessments amount owed. The interest rate shall for computer search consist of two be as prescribed in 31 U.S.C. 3717. DON parts; individual time (hereafter re- activities should verify the current in- ferred to as human time) and machine terest rate with respective finance and time. accounting offices. After one demand (1) Human time. Human time is all the letter has been sent and 30 calendar time spent by humans performing the days have lapsed with no payment, necessary tasks to prepare the job for a DON activities may submit the debt to machine to execute the run command. respective finance and accounting of- If execution of a run requires moni- fices for collection. toring by a human, that human time may be also assessed as computer § 701.51 Refunds. search. The terms ‘‘programmer/oper- In the event that a DON activity dis- ator’’ shall not be limited to the tradi- covers that it has overcharged a re- tional programmers or operators. quester or a requester has overpaid, the Rather, the terms shall be interpreted DON activity shall promptly refund the in their broadest sense to incorporate charge to the requester by reimburse- any human involved in performing the
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computer job (e.g. technician, adminis- Therefore, DON activities may recover trative support, operator, programmer, the costs of special services requested database administrator, or action offi- by the requester after agreement has cer). been obtained in writing from the re- (2) Machine time. Machine time in- quester to pay for such fees as certi- volves only direct costs of the central fying that records are true copies, processing unit (CPU), input/output de- sending records by special methods vices, and memory capacity used in the such as express mail, etc. actual computer configuration. Only this CPU rate shall be charged. No § 701.54 Collection of fees and fee rates other machine-related costs shall be for technical data. charged. In situations where the capa- (a) Technical data, other than tech- bility does not exist to calculate CPU nical data that discloses critical tech- time, no machine costs can be passed nology with military or space applica- on to the requester. When CPU calcula- tion, if required to be released under tions are not available, only human the FOIA, shall be released after the time costs shall be assessed to request- person requesting such technical data ers. Should DON activities lease com- pays all reasonable costs attributed to puters, the services charged by the les- search, duplication and review of the sor shall not be passed to the requester records to be released. Technical data, under the FOIA. as used in this section, means recorded (c) Duplication. information, regardless of the form or method of the recording of a scientific Type Cost per page or technical nature (including com- Pre-Printed material ...... $.02 puter software documentation). This Office copy ...... 15 term does not include computer soft- Microfiche ...... 25 Computer copies (tapes, Actual cost of duplicating the ware, or data incidental to contract ad- discs or printouts). tape, disc or printout (in- ministration, such as financial and/or cludes operator's time and management information. cost of the medium). (b) DON activities shall retain the (d) Review time (in the case of commer- amounts received by such a release, cial requesters, only). and it shall be merged with and avail- able for the same purpose and the same Type Grade Hourly time period as the appropriation from rate which the costs were incurred in com- Clerical ...... E9/GS8 and below ...... $12.00 plying with request. All reasonable Professional ...... O1±O6/GS9±GS15 ...... costs as used in this sense are the full 25.00 Executive ...... O7/GS16/ES1 and above costs to the Federal Government of 45.00 rendering the service, or fair market value of the service, whichever is high- (e) Audiovisual documentary materials. er. Fair market value shall be deter- Search costs are computed as for any mined in accordance with commercial other record. Duplication cost is the rates in the local geographical area. In actual direct cost of reproducing the the absence of a known market value, material, including the wage of the charges shall be based on recovery of person doing the work. Audiovisual full costs to the Federal Government. materials provided to a requester need The full costs shall include all direct not be in reproducible format or qual- and indirect costs to conduct the ity. search and to duplicate the records re- (f) Other records. Direct search and sponsive to the request. This cost is to duplication cost for any record not de- be differentiated from the direct costs scribed in this section shall be com- allowable under information released puted in the manner described for under FOIA. audiovisual documentary material. (c) Waiver. DON activities shall (g) Costs for special services. Com- waive the payment of costs required in plying with requests for special serv- paragraph (a) of this section which are ices is at the discretion of the DON ac- greater than the costs that would be tivity. Neither the FOIA nor its fee required for release of this same infor- structure cover these kinds of services. mation under the FOIA if:
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(1) The request is made by a citizen Type Cost of the United States or a United States corporation and such citizen or cor- Paper reprints of microfilm indices, each ... .10 poration certifies that the technical (4) Review Time. data requested is required to enable it to submit an offer or determine wheth- Hourly er it is capable of submitting an offer Type Grade rate to provide the product to which the Clerical ...... E9/GS8 and below ...... $13.25 technical data relates to the United Clerical Minimum E9/GS8 and below ...... 8.30 States or a contractor with the United Charge. States. However, DON activities may Professional ...... 01 to 06/GS9 to GS15 ...... (**) require the citizen or corporation to Executive ...... 07/GS16/ES1 or higher ..... (**) pay a deposit in an amount equal to ** Rate to be established at actual hourly rate prior to search. (A minimum charge will be established at 1¤2 Minimum not more than the cost of complying Charge) with the request, which will be re- funded upon submission of an offer by (5) Other technical data records. the citizen or corporation; Charges for any additional services not (2) The release of technical data is re- specifically provided in paragraph (d) quested in order to comply with the of this section, consistent with Volume terms of an international agreement; 11A of DoD 7000.14–R (NOTAL) shall be or, made by DON activities at the fol- (3) The DON activity determines in lowing rates: accordance with § 701.48 that such a Minimum charge for office copy up to waiver is in the interest of the United six images)—$3.50 States. Each additional image—$ .10 (d) Fee rates. (1) Manual search. Each typewritten page—$3.50
Hourly Certification and validation with seal, Type Grade rate each—$5.20 Hand-drawn plots and sketches, each Clerical ...... E9/GS8 and below ...... $13.25 Clerical (Minimum ...... 8.30 hour or fraction Thereof—$12.00 Charge). Professional ...... 01 to 06/GS9 to GS15 ...... (**) § 701.55 Processing FOIA fee remit- Executive ...... 07/GS16/ES±1 and above (**) tances. ** Rate to be established at actual hourly rate prior to search. A minimum charge will be established at 1¤2 Minimum (a) Payments for FOIA charges, less Charge) fees assessed for technical data or by a (2) Computer search is based on the Working Capital Fund or a Non-Appro- total cost of the central processing priated Fund (NAF) activity, shall be unit, input-output devices, and mem- made payable to the U.S. Treasurer ory capacity of the actual computer and deposited in Receipt Account Num- configuration. The wage (based upon ber 172419.1203. the scale for manual search) for the (b) Payments for fees assessed for computer operator and/or programmer technical data shall be made payable determining how to conduct, and sub- to the DON activity that incurred the sequently executing the search will be costs and will be deposited directly recorded as part of the computer into the accounting line item from search. which the costs were incurred. (3) Duplication. (c) Payments for fees assessed by Working Capital Fund or Non-Appro- Type Cost priated Fund (NAF) activities shall be Aerial photograph, maps, specifications, per- made payable to the DON activity and mits, charts, blueprints, and other technical deposited directly into their account. engineering documents ...... $2.50 Engineering data (microfilm): Aperture cards: Subpart D—FOIA Exemptions Silver duplicate negative, per card ...... 75 When key punched and verified, per card .85 Diazo duplicate negative, per card .65 § 701.56 Background. When key punched and verified, per card .75 The FOIA is a disclosure statute 35mm roll film, per frame ...... 50 16mm roll film, per frame ...... 45 whose goal is an informed citizenry. Paper prints (engineering drawings), each 1.50 Accordingly, records are considered to
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be releasable, unless they contain in- at http://www.ogc.secnav.hq.navy.mil/ formation that qualifies for with- foia/index.html for easy access). holding under one or more of the nine FOIA exemptions. The exemptions are § 701.59 A brief explanation of the identified as 5 U.S.C. 552 (b)(1) through meaning and scope of the nine (b)(9). FOIA exemptions. (a) 5 U.S.C. 552 (b)(1): Those properly § 701.57 Ground rules. and currently classified in the interest (a) Identity of requester. In applying of national defense or foreign policy, as exemptions, the identity of the re- specifically authorized under the cri- quester and the purpose for which the teria established by Executive Order record is sought are irrelevant with the and implemented by regulations. exception that an exemption may not (1) Although material is not classi- be invoked where the particular inter- fied at the time of the FOIA request, a est to be protected is the requester’s classification review may be under- interest. However, if the subject of the taken to determine whether the infor- record is the requester for the record mation should be classified based on and the record is contained in a Pri- the Executive Order on classification vacy Act system of records, it may (i.e., Executive Order 12958) and/or a se- only be denied to the requester if with- curity classification guide. The proce- holding is both authorized in systems dures for reclassification are addressed notice and by a FOIA exemption. in the Executive Order. (b) Reasonably segregable. Even (2) If the information qualifies as ex- though a document may contain infor- emption (b)(1) information, there is no mation which qualifies for withholding discretion regarding its release. In ad- under one or more FOIA exemptions, dition, this exemption shall be invoked FOIA requires that all ‘‘reasonably seg- when the following situations are ap- regable’’ information be provided to the requester, unless the segregated in- parent: formation would have no meaning. In (i) Glomar response: The fact of the other words, redaction is not required existence or nonexistence of a record when it would reduce the balance of would itself reveal classified informa- the text to unintelligible gibberish. tion. In this situation, DON activities (c) Discretionary release. A discre- shall neither confirm nor deny the ex- tionary release of a record to one re- istence or nonexistence of the record quester shall prevent the withholding being requested. A ‘‘refusal to confirm of the same record under a FOIA ex- or deny’’ response must be used con- emption if the record is subsequently sistently, not only when a record ex- requested by someone else. However, a ists, but also when a record does not FOIA exemption may be invoked to exist. Otherwise, the pattern of using a withhold information that is similar or ‘‘no record’’ response when a record related that has been the subject of a does not exist, and a ‘‘refusal to con- discretionary release. firm or deny’’ when a record does exist (d) Initial Denial Authority (IDA) ac- will itself disclose national security in- tions. The decision to withhold infor- formation. mation in whole or in part based on (ii) Compilation: Compilations of one or more of the FOIA exemptions items of information that are individ- requires the signature of an IDA. See ually unclassified may be classified if listing of IDAs in § 701.4. the compiled information reveals addi- tional association or relationship that § 701.58 In-depth analysis of FOIA ex- emptions. meets the standard for classification under an existing executive order for An in-depth analysis of the FOIA ex- classification and is not otherwise re- emptions is addressed in the DOJ’s an- vealed in the individual items of infor- nual publication, ‘‘Freedom of Infor- mation. mation Act Guide & Privacy Act Over- (b) 5 U.S.C. 552 (b)(2): Those related view.’’ A copy is available on the DOJ’s FOIA website (see Navy FOIA website solely to the internal personnel rules
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and practices of the DON and its activi- or referring to particular types of mat- ties. This exemption is entirely discre- ters to be withheld. A few examples of tionary and has two profiles, high (b)(2) (b)(3) statutes are: and low (b)(2): (1) 10 U.S.C. 128, Physical Protection (1) High (b)(2) are records containing of Special Nuclear Material, Limita- or constituting statutes, rules, regula- tion on Dissemination of Unclassified tions, orders, manuals, directives, in- Information. structions, and security classification (2) 10 U.S.C. 130, Authority to With- guides, the release of which would hold From Public Disclosure Certain allow circumvention of these records Technical Data. thereby substantially hindering the ef- (3) 10 U.S.C. 1102, Confidentiality of fective performance of a significant Medical Quality Assurance Records. function of the DON. For example: (4) 10 U.S.C. 2305(g), Protection of (i) Those operating rules, guidelines, Contractor Submitted Proposals. and manuals for DON investigators, in- (5) 12 U.S.C. 3403, Confidentiality of spectors, auditors, or examiners that Financial Records. must remain privileged in order for the (6) 18 U.S.C. 798, Communication In- DON activity fulfill a legal require- telligence. ment; (ii) Personnel and other administra- (7) 35 U.S.C. 181–188, Patent Secrecy— tive matters, such as examination any records containing information re- questions and answers used in training lating to inventions that are the sub- courses or in the determination of the ject of patent applications on which qualifications of candidates for em- Patent Secrecy Orders have been ployment, entrance on duty, advance- issued. ment, or promotion; (8) 35 U.S.C. 205, Confidentiality of (iii) Computer software, the release Inventions Information. of which would allow circumvention of (9) 41 U.S.C. 423, Procurement Integ- a statute or DON rules, regulations, or- rity. ders, manuals, directives, or instruc- (10) 42 U.S.C. 2162, Restricted Data tions. In this situation, the use of the and Formerly Restricted Data. software must be closely examined to (11) 50 U.S.C. 403 (d)(3), Protection of ensure a circumvention possibility ex- Intelligence Sources and Methods. ists. (d) 5 U.S.C. 552 (b)(4): Those con- (2) Discussion of low (b)(2) is provided taining trade secrets or commercial or for information only, as DON activities financial information that a DON ac- may not invoke the low (b)(2). Low tivity receives from a person or organi- (b)(2) records are those matters which zation outside the Government with are trivial and housekeeping in nature the understanding that the informa- for which there is no legitimate public tion or record will be retained on a interest or benefit to be gained by re- privileged or confidential basis in ac- lease, and it would constitute an ad- cordance with the customary handling ministrative burden to process the re- of such records. Records within the ex- quest in order to disclose the records. emption must contain trade secrets, or Examples include rules of personnel’s commercial or financial records, the use of parking facilities or regulation disclosure of which is likely to cause of lunch hours, statements of policy as substantial harm to the competitive to sick leave, and administrative data position of the source providing the in- such as file numbers, mail routing formation; impair the Government’s stamps, initials, data processing nota- ability to obtain necessary information tions, brief references to previous com- in the future; or impair some other le- munications, and other like adminis- gitimate Government interest. Com- trative markings. mercial or financial information sub- (c) 5 U.S.C. 552 (b)(3): Those con- mitted on a voluntary basis, absent cerning matters that a statute specifi- any exercised authority prescribing cally exempts from disclosure by terms criteria for submission is protected that permit no discretion on the issue, without any requirement to show com- or in accordance with criteria estab- petitive harm. If the information quali- lished by that statute for withholding fies as exemption (b)(4) information,
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there is no discretion in its release. Ex- sively with Federal funds may be with- amples include: held under Exemption (b)(3) if it meets (1) Commercial or financial informa- the criteria of 10 U.S.C. 130 and DoD Di- tion received in confidence in connec- rective 5230.25 of 6 November 1984. tion with loans, bids, contracts, or pro- (7) Computer software which is copy- posals set forth in or incorporated by righted under the Copyright Act of 1976 reference in a contract entered into be- (17 U.S.C. 106), the disclosure of which tween the DON activity and the offeror would have an adverse impact on the that submitted the proposal, as well as potential market value of a copy- other information received in con- righted work. fidence or privileged, such as trade se- (8) Proprietary information sub- crets, inventions, discoveries, or other mitted strictly on a voluntary basis, proprietary data. Additionally, when absent any exercised authority pre- the provisions of 10 U.S.C. 2305(g) and scribing criteria for submission. Exam- 41 U.S.C. 423 are met, certain propri- ples of exercised authorities pre- etary and source selection information scribing criteria for submission are may be withheld under exemption statutes, Executive Orders, regula- (b)(3). tions, invitations for bids, requests for (2) Statistical data and commercial proposals, and contracts. Submission of or financial information concerning information under these authorities is contract performance, income, profits, not voluntary. losses, and expenditures, if offered and (e) 5 U.S.C. 552(b)(5): Those con- received in confidence from a con- taining information considered privi- tractor or potential contractor. leged in litigation, primarily under the (3) Personal statements given in the deliberative process privilege. For ex- course of inspections, investigations, ample: internal advice, recommenda- or audits, when such statements are re- tions, and subjective evaluations, as ceived in confidence from the indi- contrasted with factual matters, that vidual and retained in confidence be- are reflected in deliberative records cause they reveal trade secrets or com- mercial or financial information nor- pertaining to the decision-making mally considered confidential or privi- process of an agency, whether within leged. or among agencies or within or among (4) Financial data provided in con- DON activities. In order to meet the fidence by private employers in con- test of this exemption, the record must nection with locality wage surveys be both deliberative in nature, as well that are used to fix and adjust pay as part of a decision-making process. schedules applicable to the prevailing Merely being an internal record is in- wage rate of employees within the sufficient basis for withholding under DON. this exemption. Also potentially ex- (5) Scientific and manufacturing empted are records pertaining to the processes or developments concerning attorney-client privilege and the attor- technical or scientific data or other in- ney work-product privilege. This ex- formation submitted with an applica- emption is entirely discretionary. Ex- tion for a research grant, or with a re- amples of the deliberative process in- port while research is in progress. clude: (6) Technical or scientific data devel- (1) The nonfactual portions of staff oped by a contractor or subcontractor papers, to include after-action reports, exclusively at private expense, and lessons learned, and situation reports technical or scientific data developed containing staff evaluations, advice, in part with Federal funds and in part opinions, or suggestions. at private expense, wherein the con- (2) Advice, suggestions, or evalua- tractor or subcontractor has retained tions prepared on behalf of the DON by legitimate proprietary interests in individual consultants or by boards, such data in accordance with 10 U.S.C. committees, councils, groups, panels, 2320–2321 and DoD Federal Acquisition conferences, commissions, task forces, Regulation Supplement (DFARS), or other similar groups that are formed chapter 2 of 48 CFR, subparts 227.71 and for the purpose of obtaining advice and 227.72. Technical data developed exclu- recommendations.
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(3) Those non-factual portions of available to a requester, unless the fac- evaluations by DON personnel of con- tual material is otherwise exempt from tractors and their products. release, inextricably intertwined with (4) 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 (10) 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- (5) 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. (11) An internal communication con- (6) 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 DON porated by reference in the record con- activities, when these records have tra- taining the decision. ditionally been treated by the courts as (f) 5 U.S.C. 552(b)(6): Information in privileged against disclosure in litiga- personnel and medical files, as well as tion. similar personal information in other (7) Planning, programming, and budgetary information that is involved files, that, if disclosed to a requester, in the defense planning and resource other than the person about whom the allocation process. information is about, would result in a (8) If any such intra- or inter-agency clearly unwarranted invasion of per- record or reasonably segregable portion sonal privacy. Release of information of such record hypothetically would be about an individual contained in a Pri- made available routinely through the vacy Act System of records that would discovery process in the course of liti- constitute a clearly unwarranted inva- gation with the agency, then it should sion of privacy is prohibited, and could not be withheld under the FOIA. If, subject the releaser to civil and crimi- however, the information hypo- nal penalties. If the information quali- thetically would not be released at all, fies as exemption (b)(6) information, or would only be released in a par- there is no discretion in its release. Ex- ticular case during civil discovery amples of other files containing per- where a party’s particularized showing sonal information similar to that con- of need might override a privilege, then tained in personnel and medical files the record may be withheld. Discovery include: is the formal process by which litigants (1) Those compiled to evaluate or ad- obtain information from each other for judicate the suitability of candidates use in the litigation. Consult with legal for civilian employment or member- counsel to determine whether exemp- ship in the Armed Forces, and the eli- tion 5 material would be routinely gibility of individuals (civilian, mili- made available through the discovery tary, or contractor employees) for se- process. curity clearances, or for access to par- (9) Intra- or inter-agency memoranda ticularly sensitive classified informa- or letters that are factual, or those tion. reasonably segregable portions that are (2) Files containing reports, records, factual, are routinely made available and other material pertaining to per- through discovery, and shall be made sonnel matters in which administrative
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action, including disciplinary action, in a personnel, medical or similar may be taken. record constitutes a basis for deleting (3) Home addresses, including private those reasonably segregable portions of e-mail addresses, are normally not re- that record. When withholding third leasable without the consent of the in- party personal information from the dividuals concerned. This includes lists subject of the record and the record is of home addressees and military quar- contained in a Privacy Act system of ters’ addressees without the occupant’s records, consult with legal counsel. name. Additionally, the names and (8) This exemption also applies when duty addresses (postal and/or e-mail) of the fact of the existence or nonexist- DON/DoD military and civilian per- ence of a responsive record would itself sonnel who are assigned to units that reveal personally private information, are sensitive, routinely deployable, or and the public interest in disclosure is stationed in foreign territories can not sufficient to outweigh the privacy constitute a clearly unwarranted inva- interest. In this situation, DON activi- sion of personal privacy. ties shall neither confirm nor deny the (4) Privacy interest. A privacy inter- existence or nonexistence of the record est may exist in personal information being requested. This is a Glomar re- even though the information has been sponse, and exemption (b)(6) must be disclosed at some place and time. If cited in the response. Additionally, in personal information is not freely order to insure personal privacy is not available from sources other than the violated during referrals, DON activi- Federal Government, a privacy interest ties shall coordinate with other DON exists in its nondisclosure. The fact activities or Federal agencies before that the Federal Government expended referring a record that is exempt under funds to prepare, index and maintain the Glomar concept. records on personal information, and (i) A ‘‘refusal to confirm or deny’’ re- the fact that a requester invokes FOIA sponse must be used consistently, not to obtain these records indicates the only when a record exists, but also information is not freely available. when a record does not exist. Other- (5) Names and duty addresses (postal wise, the pattern of using a ‘‘no and/or e-mail) published in telephone records’’ response when a record does directories, organizational charts, ros- not exist and a ‘‘refusal to confirm or ters and similar materials for per- deny’’ when a record does exist will sonnel assigned to units that are sen- itself disclose personally private infor- sitive, routinely deployable, or sta- mation. tioned in foreign territories are (ii) Refusal to confirm or deny should withholdable under this exemption. not be used when the person whose per- (6) This exemption shall not be used sonal privacy is in jeopardy has pro- in an attempt to protect the privacy of vided the requester a waiver of his or a deceased person, but it may be used her privacy rights; the person initiated to protect the privacy of the deceased or directly participated in an inves- person’s family if disclosure would re- tigation that led to the creation of an kindle grief, anguish, pain, embarrass- agency record seeks access to that ment, or even disruption of peace of record; or the person whose personal mind of surviving family members. In privacy is in jeopardy is deceased, the such situations, balance the surviving Agency is aware of that fact, and dis- family members’ privacy against the closure would not invade the privacy of public’s right to know to determine if the deceased’s family. disclosure is in the public interest. Ad- (g) 5 U.S.C. 552(b)(7). Records or infor- ditionally, the deceased’s social secu- mation compiled for law enforcement rity number should be withheld since it purposes; i.e., civil, criminal, or mili- is used by the next of kin to receive tary law, including the implementation benefits. Disclosures may be made to of Executive Orders or regulations the immediate next of kin as defined in issued under law. This exemption may DoD Directive 5154.24 of 28 October 1996 be invoked to prevent disclosure of (NOTAL). documents not originally created for, (7) A clearly unwarranted invasion of but later gathered for law enforcement the privacy of third parties identified purposes. With the exception of
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(b)(7)(C) and (b)(7)(F), this exemption is nishes the information on a confiden- discretionary. This exemption applies, tial basis; and could disclose informa- however, only to the extent that pro- tion furnished from a confidential duction of such law enforcement source and obtained by a criminal law records or information could result in enforcement authority in a criminal the following: investigation or by an agency con- (1) 5 U.S.C. 552(b)(7)(A): Could reason- ducting a lawful national security in- ably be expected to interfere with en- telligence investigation. forcement proceedings. (5) 5 U.S.C. 552(b)(7)(E): Would dis- (2) 5 U.S.C. 552(b)(7)(B): Would de- close techniques and procedures for law prive a person of the right to a fair enforcement investigations or prosecu- trial or to an impartial adjudication. tions, or would disclose guidelines for (3) 5 U.S.C. 552(b)(7)(C): Could reason- law enforcement investigations or ably be expected to constitute an un- prosecutions if such disclosure could warranted invasion of personal privacy reasonably be expected to risk cir- of a living person, including surviving cumvention of the law. family members of an individual iden- (6) 5 U.S.C. 552(b)(7)(F): Could reason- tified in such a record. ably be expected to endanger the life or (i) This exemption also applies when physical safety of any individual. the fact of the existence or nonexist- (7) Some examples of exemption 7 ence of a responsive record would itself are: Statements of witnesses and other reveal personally private information, material developed during the course and the public interest in disclosure is of the investigation and all materials not sufficient to outweigh the privacy prepared in connection with related interest. In this situation, Components Government litigation or adjudicative shall neither confirm nor deny the ex- proceedings; the identity of firms or in- istence or nonexistence of the record dividuals being investigated for alleged being requested. This is a Glomar re- irregularities involving contracting sponse, and exemption (b)(7)(C) must be with the DoD when no indictment has cited in the response. Additionally, in order to insure personal privacy is not been obtained nor any civil action filed violated during referrals, DON activi- against them by the United States; in- ties shall coordinate with other DON/ formation obtained in confidence, ex- DoD activities or Federal Agencies be- pressed or implied, in the course of a fore referring a record that is exempt criminal investigation by a criminal under the Glomar concept. A ‘‘refusal law enforcement agency or office with- to confirm or deny’’ response must be in a DON activity or a lawful national used consistently, not only when a security intelligence investigation con- record exists, but also when a record ducted by an authorized agency or of- does not exist. Otherwise, the pattern fice within the DON; national security of using a ‘‘no records’’ response when intelligence investigations include a record does not exist and a ‘‘refusal background security investigations and to confirm or deny’’ when a record does those investigations conducted for the exist will itself disclose personally pri- purpose of obtaining affirmative or vate information. counterintelligence information. (ii) Refusal to confirm or deny should (8) The right of individual litigants not be used when the person whose per- to investigative records currently sonal privacy is in jeopardy has pro- available by law (such as, the Jencks vided the requester with a waiver of his Act, 18 U.S.C. 3500), is not diminished. or her privacy rights; or the person (9) Exclusions. Excluded from the ex- whose personal privacy is in jeopardy emption in paragraph (g)(8) are the fol- is deceased, and the activity is aware lowing two situations applicable to the of that fact. DON: (4) 5 U.S.C. 552(b)(7)(D): Could reason- (i) Whenever a request is made that ably be expected to disclose the iden- involves access to records or informa- tity of a confidential source, including tion compiled for law enforcement pur- a source within the DON; a State, poses, and the investigation or pro- local, or foreign agency or authority; ceeding involves a possible violation of or any private institution that fur- criminal law where there is reason to
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believe that the subject of the inves- 336, 40 FR 49111); and the Regulations of tigation or proceeding is unaware of its the Administrative Committee of the pendency, and the disclosure of the ex- Federal Register (1 CFR chaps. I and II) istence of the records could reasonably by delineating responsibilities and pre- be expected to interfere with enforce- scribing requirements, policies, cri- ment proceedings, DON activities may, teria, and procedures applicable to: during only such times as that cir- (a) Publishing the following Depart- cumstance continues, treat the records ment of the Navy documents in the or information as not subject to the FEDERAL REGISTER: FOIA. In such situation, the response (1) Certain classes of regulatory, or- to the requester will state that no ganizational policy, substantive, and records were found. procedural documents required to be (ii) Whenever informant records published for the guidance of the pub- maintained by a criminal law enforce- lic; ment organization within a DON ac- (2) Certain classes of proposed regu- tivities under the informant’s name or latory documents required to be pub- personal identifier are requested by a lished for public comment prior to third party using the informant’s name issuance; and or personal identifier, the DON activity (3) Certain public notices required by may treat the records as not subject to law or regulation to be published; the FOIA, unless the informant’s sta- (b) Making available, for public in- tus as an informant has been officially spection and copying, certain classes of confirmed. If it is determined that the documents having precedential effect records are not subject to 5 U.S.C. on decisions concerning members of 552(b)(7), the response to the requester the public; will state that no records were found. (c) Maintaining current indexes of (iii) DON activities considering in- documents having precedential effect voking an exclusion should first con- on decisions concerning members of sult with the DOJ’s Office of Informa- the public, and publishing such indexes tion and Privacy. or making them available by other (h) 5 U.S.C. 552(b)(8): Those contained means; in or related to examination, operation (d) Receiving and considering peti- or condition reports prepared by, on be- tions of members of the public for the half of, or for the use of any agency re- issuance, revision, or cancellation of sponsible for the regulation or super- regulatory documents of some classes; vision of financial institutions. and (i) 5 U.S.C. 552(b)(9): Those containing (e) Distributing the FEDERAL REG- geological and geophysical information ISTER for official use within the De- and data (including maps) concerning partment of the Navy. wells. § 701.62 Scope and applicability. Subpart E—Indexing, Public In- This subpart prescribes actions to be spection, and Federal Reg- executed by, or at the direction of, ister Publication of Depart- Navy Department (as defined in § 700.104c of this chapter) components ment of the Navy Directives and specified headquarters activities and Other Documents Affect- for apprising members of the public of ing the Public Department of the Navy regulations, policies, substantive and procedural SOURCE: 65 FR 24635, Apr. 27, 2000, unless rules, and decisions which may affect otherwise noted. them, and for enabling members of the public to participate in Department of 701.61 Purpose. the Navy rulemaking processes in mat- This subpart implements 5 U.S.C. ters of substantial and direct concern 552(a) (1) and (2) and provisions of De- to the public. This subpart com- partment of Defense Directive 5400.7 plements subpart A, which implements May 13, 1988 (32 CFR part 286, 55 FR Navy-wide requirements for furnishing 53104); Department of Defense Directive documents to members of the the pub- 5400.9, December 23, 1974 (32 CFR part lic upon request. That a document may
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be published or indexed and made the scope and contents of all papers, re- available for public inspection and ports, or examinations required to be copying under this instruction does not submitted under such rules of proce- affect the possible requirement under dures; and subpart A for producing it for examina- (4) Substantive rules and policies—sub- tion, or furnishing a copy, in response stantive rules of general applicability to a request made under that subpart. adopted as authorized by law, and statements of general policy or inter- § 701.63 Policy. pretations of general applicability for- In accordance with the spirit and in- mulated and adopted by the Depart- tent of 5 U.S.C. 552, the public has the ment of the Navy. Such rules are com- right to maximum information con- monly contained in directives, manu- cerning the organization and functions als, and memorandums. of the Department of the Navy. This (i) ‘‘General applicability’’ defined. The includes information on the policies definition prescribed in 1 CFR 1.1 per- and the substantive and procedural tains to the classes of documents con- rules used by the Department of the templated in § 701.64(b) (4). Navy in its dealings with the public. In (ii) Internal personnel rules and inter- accordance with Department of De- nal practices. In addition to other ex- fense policy described in 32 CFR part emptions listed in 5 U.S.C. 552(b) and 336, 40 FR 4911, moreover, the public is subpart B of this part, particular at- encouraged to participate in Depart- tention is directed to the exemption ment of the Navy rulemaking when the pertaining to internal personnel rules proposed rule would substantially and and internal practices. directly affect the public. (iii) Local regulations. It is unneces- sary to publish in the FEDERAL REG- § 701.64 Publication of adopted regu- ISTER a regulation which is essentially latory documents for the guidance local in scope or application, such as a of the public. directive issued by a base commander (a) Classes of documents to be pub- in the implementation of his responsi- lished. Subject to the provisions of 5 bility and authority under subpart G of U.S.C. 552(b) which exempt specified part 700 of this title for guarding the matters from requirements for release security of the installation or control- to the public [see subpart B of this ling the access and conduct of visitors part], the classes of Department of the or tradesmen. However, such publica- Navy documents required to be pub- tion may be authorized under extraor- lished on a current basis in the FED- dinary circumstances, as determined ERAL REGISTER are listed below. by the Chief of Naval Operations or the (1) Naval organization and points of Commandant of the Marine Corps, as contact—description of the central and appropriate, with the concurrence of field organization of the Department of the Judge Advocate General. the Navy and the locations at which, (iv) Incorporation by reference. with the members or employees from whom, the approval of the Director of the Fed- and the methods whereby, the public eral Register given in the limited in- may obtain information, make submit- stances authorized in 1 CFR Part 51 tals or requests, or obtain decisions; and 32 CFR 336.5(c), the requirement (2) Methods and procedures for business for publication in the FEDERAL REG- with public—statements of the general ISTER may be satisfied by reference in course and methods by which Depart- the FEDERAL REGISTER to other publi- ment of the Navy functions affecting cations containing the information members of the public are channeled which must otherwise be published in and determined, including the nature the FEDERAL REGISTER. In general, and requirements of all formal and in- matters eligible for incorporation by formal procedures available; reference are restricted to materials in (3) Procedural rules and forms—rules of the nature of published data, criteria, procedure for functions affecting mem- standards, specifications, techniques, bers of the public, descriptions of forms illustrations, or other published infor- available or the places at which forms mation which are reasonably available may be obtained, and instructions as to to members of the class affected.
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(b) Public inspection. when feasible, (b) Classes of documents affected. (1) Department of the Navy and Depart- Subject to the provisions of 5 U.S.C. ment of Defense documents published 552(b) which exempt specified matters in the FEDERAL REGISTER should be from the requirements of public disclo- made available for inspection and sure, the following classes of Depart- copying, along with available indexes ment of the Navy documents are in- of such documents, in the same loca- cluded in the requirements of this tions used for copying of the docu- paragraph: ments contemplated in § 701.65. (i) Final adjudicative opinions and or- ders—opinions (including concurring § 701.65 Availability, public inspection, and dissenting opinions) which are and indexing of other documents af- fecting the public. issued as part of the final disposition of adjudication proceedings (as defined in (a) Discussion. Section 552(a) of title 5 U.S.C. 551) and which may have prece- 5, United States Code, requires the De- dential effect in the disposition of partment of the Navy to make avail- other cases affecting members of the able for public inspection and copying public; documents which have precedential (ii) Policy statements and interpreta- significance on those Department of tions—statements of policy and inter- the Navy decisions which affect the pretations of less than general applica- public. These documents must be kept bility (i.e., applicable only to specific readily available for public inspection cases; organizations, or persons), which and copying at designated locations, are not required to be published in the unless they are promptly published and FEDERAL REGISTER, but which may copies are offered for sale. Addition- have precedential effect in the disposi- ally, documents issued after July 4, tion of other cases affecting members 1967, are required to be indexed on a of the public; current basis. These indexes, or supple- ments thereto, must be published at (iii) Manuals and instructions—admin- least quarterly in accordance with the istrative staff manuals, directives, and provisions of this paragraph. In deter- instructions to staff, or portions there- mining whether a particular document of, which establish Department of the is subject to the requirements of this Navy policy or interpretations of pol- paragraph, consideration should be icy that serve as a basis for deter- given to the statutory purposes and mining the rights of members of the legal effect of the provisions. public with regard to Department of (1) Statutory purposes. In general, the the Navy functions. In general, manu- purpose of the requirement to provide als and instructions relating only to members of the public with essential Internal management aspects of prop- information is to enable them to deal erty or fiscal accounting, personnel ad- effectively and knowledgeably with ministration, and most other ‘‘propri- Federal agencies; to apprise members etary’’ functions of the department are of the public of the existence and con- not within the scope of this provision. tents of documents which have poten- This provision also does not apply to tial legal consequences as precedents instructions for employees on methods, in administrative determinations techniques, and tactics to be used in which may affect them; and to permit performing their duties; for example: public examination of the basis for ad- (A) Instructions or manuals issued ministrative actions which affect the for audit, investigation, and inspection public. purposes; (2) Legal effect. If a document is re- (B) Those which prescribe oper- quired to be indexed and made avail- ational tactics; standards of perform- able under this paragraph, it may not ance; criteria for defense, prosecution, be used or asserted as a precedent or settlement of cases; or negotiating against a member of the public unless or bargaining techniques, limitations, it was indexed and made available, or or positions; and unless the person against whom it is (C) Operations and maintenance asserted had actual and timely notice manuals and technical information of its contents. concerning munitions, equipment, and
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systems, and foreign intelligence oper- protected by that exemption. An excep- ations. tion to this general rule does exist with (2) In determining whether a docu- regard to a record which would be ex- ment has precedential effect, the pri- empt only because it contains informa- mary test is whether it is intended as tion which, if disclosed, would result in guidance to be followed either in deci- a clearly unwarranted invasion of pri- sions or evaluations by the issuing vacy. authority’s subordinates, or by the (2) Where necessary to prevent a issuing authority itself in the adjudica- clearly unwarranted invasion of a per- tion or determination of future cases son’s privacy, identifying details involving similar facts or issues. The should be deleted from a record which kinds of orders or opinions which clear- is required to be indexed and made ly have precedential effect are those available for public inspection and that are intended to operate both as copying under this paragraph. In every final dispositions of the questions in- such case, the justification for the de- volved in the individual cases pre- letion must be fully stated in writing sented, and as rules of decision to be in a manner which avoids creating in- followed by the issuing authority or its ferences that could be injurious to the subordinates in future cases involving person whose privacy is involved. Usual similar questions. By contrast, many reasons for deletion of identifying de- adjudicative orders and opinions issued tails include the protection of privacy within the Department of the Navy op- in a person’s business affairs, medical erate only as case-by-case applications matters, or private family matters; hu- of policies or interpretations estab- manitarian considerations; and avoid- lished in provisions of manuals or di- ance of embarrassment to a person. rectives and are not themselves used, (d) Publication of indexes—(1) Form of cited, or relied on as rules of decision indexes. Each index should be arranged in future cases. In these instances, the topically or by descriptive words, so underlying manual or directive provi- that members of the public may be able sions obviously would have preceden- to locate the pertinent documents by tial effect, but the orders and opinions subject, rather than by case name or themselves would not have. A rec- by a numbering system. ommendation by an official who is not authorized to adjudicate, or to issue a (2) Time of publication. Each compo- binding statement of policy or inter- nent having cognizance of records re- pretation in a particular matter would quired under this paragraph to be in- not have precedential effect though an dexed shall compile and maintain an order, opinion, statement of policy, or index of such records on a continually interpretation issued by an authorized current basis. Each such index was re- official pursuant to such recommenda- quired to initially be published by July tion might have that effect. 1, 1975. An updated version of each such (c) Deletion of identifying details. (1) index, or a current supplement thereto, Although the exemptions from public shall be published by an authorized disclosure described in 5 U.S.C. 552 and method at least annually thereafter. subpart B of this part are applicable to (3) Methods of publication. The meth- documents which are required to be in- ods authorized for publication of the dexed and made available for public in- indexes contemplated in this paragraph spection and copying under this para- are: graph, there is no general requirement (i) Publication in the FEDERAL REG- that any segregable portions of par- ISTER; tially exempt documents be so indexed (ii) Commercial publication, provided and made available for public inspec- that such commercial publication is tion and copying. As a general rule, a readily available to members of the record may therefore be held exempt in public, or will be made available upon its entirety from the requirements of request, and payment of costs (if this this paragraph if it is determined that method is utilized, information on the it contains exempt matter and that it cost of copies and the address from is reasonably foreseeable that disclo- which they may be obtained shall be sure would be harmful to an interest published in the FEDERAL REGISTER); or
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(iii) Furnishing internally repro- ministrative policy of encouraging the duced copies upon request, at cost not maximum practicable public participa- to exceed the direct cost of duplication tion in the Department of the Navy in accordance with subpart D of this rulemaking shall be diligently fol- part, provided that it is determined by lowed, determinations by the Depart- an order published in the FEDERAL ment of the Navy as to whether a pro- REGISTER, that the publication of the posed regulatory requirement origi- index by methods § 701.65(d) (3) (i) or (ii) nated by it comes within the purview would be unnecessary or impracticable. of this paragraph and the cor- Such order shall state the cost of cop- responding provisions of 32 CFR part ies and the address from which they 336, and as to whether inviting public may be obtained. The Chief of Naval comment is warranted, shall be conclu- Operations (N09B30) is authorized to sive and final. issue such an order in a proper case. (b) Classes of documents affected. Each (4) Public inspection of indexes. In ad- proposed regulation or other document dition to publication by one of the fore- of a class described in § 701.64(a) (or a going methods, each index will be made proposed revision of an adopted docu- available for public inspection and ment of any of those classes) which copying in accordance with § 701.65(e) would ‘‘originate’’ within the Depart- at the locations where Department of ment of the Navy a requirement of gen- the Navy records are available for pub- eral applicability and future effect for lic inspection. implementing, interpreting, or pre- (e) Where records may be inspected. Lo- scribing law or policy, or practice and cations and times at which Department procedure requirements constituting of the Navy records, and indexes there- authority for prospective actions hav- of, are available for public inspection ing substantial and direct impact on and copying are shown in § 701.32. the public, or a significant portion of (f) Cost. Fees for copying services, if the public, must be evaluated to deter- any, furnished at locations shown in mine whether inviting public comment § 701.32 shall be determined in accord- prior to issuance is warranted. Docu- ance with subpart D of this part. ments that merely implement regula- (g) Records of the United States Navy- tions previously issued by higher naval Marine Corps Court of Military Review. authorities or by the Department of The United States Navy-Marine Corps Defense will not be deemed to ‘‘origi- Court of Military Review is deemed to nate’’ requirements within the purview be ‘‘a court of the United States’’ with- of this section. If a proposed document in the meaning of 5 U.S.C. 551 and is is within the purview of this section, therefore excluded from the require- publication to invite public comment ments of 5 U.S.C. 552. Nevertheless, un- will be warranted unless, upon evalua- published decisions of the United tion, it is affirmatively determined States Navy-Marine Corps Court of both that a significant and legitimate Military Review, although not indexed, interest of the Department of the Navy are available for public inspection at or the public will be served by omitting the location shown in § 701.32(c). such publication for public comment, and that the document is subject to § 701.66 Publication of proposed regu- one or more of the following excep- lations for public comment. tions: (a) Discussion. The requirements of (1) It pertains to a military or foreign this section are not imposed by stat- affairs function of the United States ute, but are the implementation of which has been determined under the policies and procedures created admin- criteria of an Executive Order or stat- istratively in 32 CFR part 336. In effect, ute to require a security classification the pertinent provisions of 32 CFR part in the interests of national defense or 336 establish, within the Department of foreign policy; Defense and its components, proce- (2) It relates to naval management, dures that are analogous to the public naval military or civilian personnel, or rulemaking procedures applicable to public contracts (e.g. Navy Procure- some functions of other Federal agen- ment Directives), including non- cies under 5 U.S.C. 553. While the ad- appropriated fund contracts;
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(3) It involves interpretative rules, § 701.67 Petitions for issuance, revi- general statements of policy, or rules sion, or cancellation of regulations of agency organization, procedure, or affecting the public. practice; or In accordance with the provisions of (4) It is determined with regard to 32 CFR part 336, the Department of the the document, for good cause, that in- Navy shall accord any interested per- viting the pubic comment is impracti- son the right to petition in writing, for cable, unnecessary, or contrary to the the issuance, revision, or cancellation public interest. of regulatory document that origi- (c) Procedures—(1) Normal case. Unless nates, or would originate, for the De- the official having cognizance of a pro- partment of the Navy, a policy, re- posed regulatory document determines quirement, or procedure which is, or under the criteria of § 701.66(b) that in- would be, within the purview of § 701.66. viting public comment is not war- The official having cognizance of the ranted, he or she shall cause it to be particular regulatory document in- volved, or having cognizance of the published in the FEDERAL REGISTER subject matter of a proposed document, with an invitation for the public to shall give full and prompt consider- submit comments in the form of writ- ation to any such petition. Such offi- ten data, views, or arguments during a cial may, at his or her absolute discre- specified period of not less than 30 days tion, grant the petitioner an oppor- following the date of publication. An tunity to appear, at his or her own ex- opportunity for oral presentation nor- pense, for the purpose of supporting the mally will not be provided, but may be petition, if this is deemed to be com- provided at the sole discretion of the patible with orderly conduct of public official having cognizance of the pro- business. The petitioner shall be ad- posed directive if he or she deems it to vised in writing of the disposition, and be in the best interest of the Depart- the reasons for the disposition, of any ment of the Navy or the public to do petition within the purview of this sec- so. After careful consideration of all tion. relevant matters presented within the period specified for public comment, Subpart F—Department of the the proposed document may be issued Navy Privacy Act Program in final form. After issuance, the adopted document, and a preamble ex- AUTHORITY: Pub. L. 93–579, 88 Stat 1896 (5 plaining the relationship of the adopt- U.S.C. 552a). ed document to the proposed and the nature and effect of public comments, SOURCE: 65 FR 31456, May 18, 2000, unless otherwise noted. shall be published in the FEDERAL REG- ISTER for guidance of the public. § 701.100 Purpose. (2) Where public comment is not war- Subparts F and G of this part imple- ranted. The official having cognizance ment the Privacy Act (5 U.S.C. 552a), of a proposed document within the pur- and DoD Directive 5400.11,1 and DoD view of this paragraph shall, if he or 5400.11–R,2 (32 CFR part 310) and pro- she determines that inviting public vides Department of the Navy policies comment concerning the document is and procedures for: not warranted under the criteria of (a) Governing the collection, safe- § 701.66(b), incorporate that determina- guarding, maintenance, use, access, tion, and the basis therefor, in the doc- amendment, and dissemination of per- ument when it is issued or submitted sonal information kept by Department to a higher authority for issuance. of the Navy in systems of records; After issuance, such document shall be published in the FEDERAL REGISTER for 1 Copies may be obtained: http:// the guidance of the public, if required www.whs.osd.mil/corres.htm. under § 701.64(b). 2 See footnote 1 to § 701.100.
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(b) Notifying individuals if any sys- Access. The review or copying of a tems of records contain a record per- record or parts thereof contained in a taining to them; system of records by any individual. (c) Verifying the identity of individ- Agency. For the purposes of dis- uals who request their records before closing records subject to the Privacy the records are made available to Act between or among Department of them; Defense (DoD) components, the Depart- (d) Notifying the public of the exist- ment of Defense is considered a single ence and character of each system of agency. For all other purposes, Depart- records. ment of the Navy is considered an agency within the meaning of Privacy (e) Exempting systems of records Act. from certain requirements of the Pri- Confidential source. A person or orga- vacy Act; and nization who has furnished information (f) Governing the Privacy Act rules to the Federal Government either of conduct for Department of the Navy under an express promise that the per- personnel, who will be subject to crimi- son’s or the organization’s identity will nal penalties for noncompliance with 5 be held in confidence or under an im- U.S.C. 552a, as amended by the Com- plied promise of such confidentiality if puter Matching Act of 1988. this implied promise was made before September 27, 1975. § 701.101 Applicability. Defense Data Integrity Board. Consists This subpart and subpart G of this of members of the Defense Privacy part apply throughout the Department Board, as outlined in DoD Directive of the Navy. It is also applicable to 5400.11 and, in addition, the DoD In- contractors by contract or other le- spector General or the designee, when gally binding action, whenever a De- convened to oversee, coordinate and partment of the Navy contract pro- approve or disapprove all DoD compo- vides for the operation of a system of nent computer matching covered by records or portion of a system of the Privacy Act. records to accomplish a Department of Disclosure. The transfer of any per- the Navy function. For the purposes of sonal information from a system of any criminal liabilities adjudged, any records by any means of communica- contractor or any employee of such tion (such as oral, written, electronic, contractor is considered to be an em- mechanical, or actual review), to any ployee of Department of the Navy. In person, private entity, or government case of a conflict, this subpart and sub- agency, other than the subject of the part G of this part take precedence record, the subject’s designated agent over any existing Department of the or the subject’s legal guardian. Navy directive that deals with the per- Federal personnel. Officers and em- sonal privacy and rights of individuals ployees of the Government of the regarding their personal records, ex- United States, members of the uni- cept for disclosure of personal informa- formed services (including members of tion required by 5 U.S.C. 552 (1988) as the Reserve Components), individuals or survivors thereof, entitled to receive amended by the Freedom of Informa- immediate or deferred retirement bene- tion Reform Act and implemented by fits under any retirement program of Secretary of the Navy Instruction the Government of the United States 5720.42F,3 ‘Department of the Navy (including survivor benefits). Freedom of Information Act Program.’ Individual. A living citizen of the United States or alien lawfully admit- § 701.102 Definitions. ted to the U.S. for permanent resi- For the purposes of this subpart and dence. The legal guardian of an indi- subpart G of this part, the following vidual has the same rights as the indi- meanings apply. vidual and may act on his or her be- half. No rights are vested in the rep- 3 Copies may be obtained: Chief of Naval resentative of a deceased person under Operations, 2000 Navy Pentagon, Wash- this instruction and the term ‘‘indi- ington, DC 20350–2000. vidual’’ does not embrace an individual
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acting in a non-personal capacity (for personnel folders or records contained example, sole proprietorship or part- in any other OPM record. nership). Risk assessment. An analysis which Individual access. Access to informa- considers information sensitivity, vul- tion pertaining to the individual by the nerability, and cost to a computer fa- individual or his or her designated cility or word processing center in safe- agent or legal guardian. guarding personal information proc- Maintain. Includes maintain, collect, essed or stored in the facility or center. use, or disseminate. Routine use. Disclosure of a record Member of the public. Any individual outside the Department of Defense for or party acting in a private capacity. a purpose that is compatible with the Minor. Under this subpart and sub- purpose for which the record was col- part G of this part, a minor is an indi- lected and maintained by the Depart- vidual under 18 years of age, who is not ment of Defense. The routine use must a member of the U.S. Navy or Marine have been included in the notice for the Corps, nor married. system of records published in the FED- Official use. Under this subpart and ERAL REGISTER. subpart G of this part, this term is used Statistical record. A record maintained when Department of the Navy officials only for statistical research, or report- and employees have a demonstrated ing purposes, and not used in whole or need for the use of any record or the in- in part in making any determination formation contained therein in the per- about a specific individual. formance of their official duties. System manager. An official who has Personal information. Information overall responsibility for a system of about an individual that is intimate or records. He or she may serve at any private to the individual, as distin- level in Department of the Navy. Sys- guished from information related sole- tems managers are indicated in the ly to the individual’s official functions published record systems notices. If or public life. more than one official is indicated as a Privacy Act (PA) request. A request system manager, initial responsibility from an individual for notification as resides with the manager at the appro- to the existence of, access to, or priate level (i.e., for local records, at amendment of records pertaining to the local activity). that individual. These records must be System of records. A group of records maintained in a system of records. under the control of a Department of Record. Any item, collection, or the Navy activity from which informa- grouping of information about an indi- tion is retrieved by the individual’s vidual that is maintained by a naval name or by some identifying number, activity including, but not limited to, symbol, or other identifying particular the individual’s education, financial assigned to the individual. System no- transactions, and medical, criminal, or tices for all Privacy Act systems of employment history, and that contains records must be published in the FED- the individual’s name or other identi- ERAL REGISTER and are also published fying particulars assigned to the indi- in periodic Chief of Naval Operations vidual, such as a finger or voice print Notes (OPNAVNOTEs) 5211.4 or a photograph. Word processing equipment. Any com- Review authority. An official charged bination of electronic hardware and with the responsibility to rule on ad- computer software integrated in a vari- ministrative appeals of initial denials ety of forms (firmware, programmable of requests for notification, access, or software, hard wiring, or similar equip- amendment of records. The Secretary ment) that permits the processing of of the Navy has delegated his review textual data. Generally, the equipment authority to the Assistant Secretary of contains a device to receive informa- the Navy (Manpower and Reserve Af- tion, a computer-like processor with fairs (ASN(MRA)), the General Counsel various capabilities to manipulate the (OGC), and the Judge Advocate General information, a storage medium, and an (NJAG). Additionally, the Office of output device. Personnel Management (OPM) is the review authority for civilian official 4 See footnote 3 to § 701.101.
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Word processing system. A combina- (e) Let individuals request amend- tion of equipment employing auto- ment of their records when discrep- mated technology, systematic proce- ancies proven to be erroneous, un- dures, and trained personnel for the timely, incomplete, or irrelevant are primary purpose of manipulating noted. human thoughts and verbal or written (f) Let individuals request an admin- communications into a form suitable istrative review of decisions that deny to the originator. The results are writ- them access, or refuse to amend their ten or graphic presentations intended records. to communicate verbally or visually (g) Ensure that adequate safeguards with another individual. are enforced to prevent misuse, unau- Working day. All days excluding Sat- thorized disclosure, alteration, or de- urday, Sunday, and legal holidays. struction of personal information in records. § 701.103 Policy. (h) Maintain no records describing It is the policy of Department of the how an individual exercises his or her Navy to: rights guaranteed by the First Amend- (a) Ensure that all its personnel com- ment (freedom of religion, political be- ply fully with 5 U.S.C. 552a, DoD Direc- liefs, speech, and press; peaceful assem- tive 5400.11 and DoD 5400.11–R, to pro- blage; and petition for redress of griev- tect individuals from unwarranted in- ances), unless they are: vasions of privacy. Individuals covered (1) Expressly authorized by statute; by this protection are living citizens of (2) Authorized by the individual; the U.S. or aliens lawfully admitted for (3) Within the scope of an authorized permanent residence. A legal guardian law enforcement activity; or of an individual or parent of a minor (4) For the maintenance of certain when acting on the individual’s or mi- items of information relating to reli- nor’s behalf, has the same rights as the gious affiliation for members of the individual or minor. (A member of the naval service who are chaplains. This Armed Forces is not a minor for the should not be construed, however, as purposes of this subpart and subpart G restricting or excluding solicitation of of this part). information which the individual is (b) Collect, maintain, and use only willing to have in his or her record con- that personal information needed to cerning religious preference, particu- support a Navy function or program as larly that required in emergency situa- authorized by law or E.O., and disclose tions. this information only as authorized by (5) Maintain only systems of records 5 U.S.C. 552a and this subpart and sub- which have been published in the FED- part G of this part. In assessing need, ERAL REGISTER, in accordance with consideration shall be given to alter- periodic Chief of Naval Operations natives, such as use of information not Notes (OPNAVNOTEs) 5211 and individually identifiable or use of sam- § 701.105. These OPNAVNOTEs 5211 pro- pling of certain data for certain indi- vide a listing of all Department of the viduals only. Additionally, consider- Navy Privacy Act systems of records ation is to be given to the length of and identify the Office of Personnel time information is needed, and the Management (OPM) government-wide cost of maintaining the information systems containing information on De- compared to the risks and adverse con- partment of the Navy civilian employ- sequences of not maintaining the infor- ees, even though technically, Depart- mation. ment of the Navy does not have cog- (c) Keep only personal information nizance over them. A Privacy Act sys- that is timely, accurate, complete, and tems notice outlines what kinds of in- relevant to the purpose for which it formation may be collected and main- was collected. tained by naval activities. When col- (d) Let individuals have access to, lecting/maintaining information in a and obtain copies of, all or portions of Privacy Act system of records, review their records, subject to exemption the systems notice to ensure activity procedures authorized by law and this compliance is within the scope of the subpart and subpart G of this part. system. If you determine the systems
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notice does not meet your needs, con- (3) Issue implementing instruction tact the systems manager or Chief of which designates the activity’s Privacy Naval Operations (N09B30) with your Act Coordinator, Privacy Act records concerns so that amendment of the disposition, Privacy Act processing system may be considered. procedures, identification of Privacy Act systems of records under their cog- § 701.104 Responsibility and authority. nizance, and training aids for those (a) Chief of Naval Operations (CNO). personnel involved with systems of CNO is designated as the official re- records. sponsible for administering and super- (4) Review internal directives, prac- vising the execution of 5 U.S.C. 552a, tices, and procedures, including those DoD Directive 5400.11, and DoD 5400.11– having Privacy Act implications and R. CNO has designated the Assistant where Privacy Act Statements (PASs) Vice Chief of Naval Operations (N09B30) are needed. as principal Privacy Act Coordinator (5) Compile input and submit consoli- for the Department of the Navy to: dated Privacy Act report to Echelon 2 (1) Set Department of the Navy pol- Privacy Act Coordinator, who, in turn, icy on the provisions of the Privacy will provide consolidated report to CNO Act. (N09B30). (2) Serve as principal advisor on all (6) Maintain liaison with records Privacy Act matters. management officials (i.e., mainte- (3) Oversee the administration of the nance and disposal procedures and Privacy Act program, which includes standards, forms, and reports), as ap- preparing the Department of the Navy propriate. Privacy Act report for submission to (7) Provide guidance on handling Pri- Congress. vacy Act requests and scope of Privacy (4) Develop Navy-wide Privacy Act training program and serve as training- Act exemptions. oversight manager. (8) Conduct staff assistance visits (5) Conduct staff assistance visits within command and lower echelon within Department of the Navy to re- commands to ensure compliance with view compliance with 5 U.S.C. 552a and the Privacy Act. this subpart and subpart G of this part. (9) Echelon 2 Privacy Act Coordina- (6) Coordinate and prepare responses tors shall provide CNO (N09B30) with a for Privacy Act requests received for complete listing of all Privacy Act Co- Office of the Secretary of the Navy ordinators under their jurisdiction. records. Such information should include activ- (b) Commandant of the Marine Corps ity name and address, office code, (CMC). CMC is responsible for admin- name of Privacy Act Coordinator, com- istering and supervising the execution mercial and DSN telephone number, of this subpart and subpart G of this and FAX number, if applicable. part within the Marine Corps. The (d) Release authority. Officials having Commandant has designated the Direc- cognizance over the requested subject tor, Manpower Management Informa- matter are authorized to respond to re- tion Systems Division (HQMC (Code quests for notification, access, and/or ARAD)) as the Privacy Act coordinator amendment of records. These officials for Headquarters, U.S. Marine Corps. could also be systems managers (see (c) Privacy Act Coordinator. Each ad- § 701.104(g)). dressee is responsible for implementing (e) Denial authority. Within the De- and administering a Privacy Act pro- partment of the Navy, the following gram under this subpart and subpart G chief officials, their respective vice of this part. Each addressee shall des- commanders, deputies, principal assist- ignate a Privacy Act Coordinator to: ants, and those officials specifically (1) Serve as principal point of contact designated by the chief official are au- on Privacy Act matters. thorized to deny requests, either in (2) Provide training for activity/com- whole or in part, for notification, ac- mand personnel on the provisions of 5 cess and amendment, made under this U.S.C. 552a and this subpart and sub- subpart and subpart G of this part, part G of this part. when the records relate to matters
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within their respective areas of respon- ance evaluations of military personnel sibility or chain of command: (see § 701.111(c)(3)). (1) Department of the Navy. Civilian (2) The Judge Advocate General and Executive Assistants; CNO; CMC; Chief General Counsel, as the Secretary’s of Naval Personnel; Commanders of the designees, shall act upon requests for Naval Systems Commands, Office of administrative review of initial denials Naval Intelligence, Naval Security of records for notification, access, or Group Command, Naval Imaging Com- amendment of records, as set forth in mand, and Naval Computer and Tele- § 701.111(c)(2) and (4). communications Command; Chief, Bu- (3) The authority of the Secretary of reau of Medicine and Surgery; Auditor the Navy (SECNAV), as the head of an General of the Navy; Naval Inspector agency, to request records subject to General; Director, Office of Civilian the Privacy Act from an agency exter- Personnel Management; Chief of Naval nal to the Department of Defense for Education and Training; Commander, civil or criminal law enforcement pur- Naval Reserve Force; Chief of Naval poses, under subsection (b)(7) of 5 Research; Commander, Naval Oceanog- U.S.C. 552a, is delegated to the Com- raphy Command; heads of Department mandant of the Marine Corps, the Di- of the Navy Staff Offices, Boards, and rector of Naval Intelligence, the Judge Councils; Flag Officers and General Of- Advocate General, and the General ficers. NJAG and his Deputy, and OGC Counsel. and his Deputies are excluded from this (g) Systems manager. Systems man- grant of authorization. While NJAG agers, as designated in Department of and OGC are not denial authorities, the Navy’s compilation of systems no- they are authorized to further delegate tices (periodic Chief of Naval Oper- 6 the authority conferred here to other ations Notes (OPNAVNOTEs) 5211, senior officers/officials within NJAG ‘‘Current Privacy Act Issuances’’) shall: and OGC. (1) Ensure the system has been pub- (2) For the shore establishment.(i) lished in the FEDERAL REGISTER and All officers authorized under Article 22, that any additions or significant Uniform Code of Military Justice changes are submitted to CNO (N09B30) (UCMJ) or designated in section 0120, for approval and publication. The sys- Manual of the Judge Advocate General tems of records should be maintained 5 (JAGINST 5800.7C), to convene general in accordance with the systems notices courts-martial. as published in the periodic Chief of (ii) Commander, Naval Investigative Naval Operations Notes Service Command. (OPNAVNOTEs) 5211, ‘‘Current Privacy (iii) Deputy Commander, Naval Legal Act Issuances.’’ Service Command. (2) Maintain accountability records (3) In the Operating Forces. All offi- of disclosures. cers authorized by Article 22, Uniform (h) Department of the Navy employees. Code of Military Justice (UCMJ), or Each employee of the Department of designated in section 0120, Manual of the Navy has certain responsibilities the Judge Advocate General (JAGINST for safeguarding the rights of others. 5800.7C), to convene general courts- These include: martial. (1) Not disclosing any information (f) Review authority. (1) The Assistant contained in a system of records by Secretary of the Navy (Manpower and any means of communication to any Reserve Affairs), is the Secretary’s des- person or agency, except as authorized ignee, and shall act upon requests for by this subpart and subpart G of this administrative review of initial denials part. of requests for amendment of records (2) Not maintaining unpublished offi- related to fitness reports and perform- cial files which would fall under the provisions of 5 U.S.C. 552a. (3) Safeguarding the privacy of indi- 5 Copies may be obtained: Judge Advocate General, Navy Department, 1322 Patterson viduals and confidentiality of personal Avenue, SE, Suite 3000, Washington Navy Yard, Washington, DC 20374-5066. 6 See footnote 3 to § 701.101.
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information contained in a system of (c) Authority to establish systems of records. records. Identify the specific Federal statute or E.O. of the President that § 701.105 Systems of records. authorizes maintaining each system of To be subject to this subpart and sub- records. When a naval activity uses its part G of this part, a ‘‘system of ‘‘internal housekeeping’’ statute, i.e., 5 records’’ must consist of ‘‘records’’ U.S.C. 301, Departmental Regulations, that are retrieved by the name, or the naval instruction that implements some other personal identifier, of an the statute should also be identified. A individual and be under the control of statute or E.O. authorizing a system of Department of the Navy. records does not negate the responsi- (a) Retrieval practices. (1) Records in a bility to ensure the information in the group of records that are not retrieved system of records is relevant and nec- by personal identifiers are not covered essary. by this subpart and subpart G of this (d) Exercise of First Amendment rights. part, even if the records contain infor- (1) Do not maintain any records de- mation about individuals and are under scribing how an individual exercises the control of Department of the Navy. rights guaranteed by the First Amend- The records must be retrieved by per- ment of the U.S. Constitution unless sonal identifiers to become a system of expressly authorized by Federal law; records. the individual; or pertinent to and (2) If records previously not retrieved within the scope of an authorized law by personal identifiers are rearranged enforcement activity. so they are retrieved by personal iden- (2) First amendment rights include, tifiers, a new system notice must be but are not limited to, freedom of reli- submitted in accordance with § 701.107. gion, freedom of political beliefs, free- (3) If records in a system of records dom of speech, freedom of the press, are rearranged so retrieval is no longer the right to assemble, and the right to by personal identifiers, the records are petition. no longer subject to this subpart and (e) System manager’s evaluations and subpart G of this part and the records reviews. (1) Evaluate each new system system notice should be deleted in ac- of records. Before establishing a sys- cordance with § 701.107. tem of records, evaluate the informa- (b) Recordkeeping standards. A record tion to be included and consider the maintained in a system of records sub- following: ject to this subpart and subpart G of (i) The relationship of each item of this part must meet the following cri- information to be collected and re- teria: tained to the purpose for which the (1) Be accurate. All information in system is maintained (all information the record must be factually correct. must be relevant to the purpose); (2) Be relevant. All information con- (ii) The specific impact on the pur- tained in the record must be related to pose or mission if each category of in- the individual who is the record subject formation is not collected (all informa- and also must be related to a lawful tion must be necessary to accomplish a purpose or mission of the Department lawful purpose or mission.); of the Navy activity maintaining the (iii) The ability to meet the informa- record. tional needs without using personal (3) Be timely. All information in the identifiers (will anonymous statistical record must be reviewed periodically to records meet the needs?); ensure that it has not changed due to (iv) The length of time each item of time or later events. information must be kept; (4) Be complete. It must be able to (v) The methods of disposal; stand alone in accomplishing the pur- (vi) The cost of maintaining the in- pose for which it is maintained. formation; and (5) Be necessary. All information in (vii) Whether a system already exists the record must be needed to accom- that serves the purpose of the new sys- plish a Department of the Navy mis- tem. sion or purpose established by Federal (2) Evaluate and review all existing Law or E.O. of the President. systems of records.
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(i) When an alteration or amendment which exemption rules have been estab- of an existing system is prepared pur- lished to determine whether each ex- suant to § 701.107(b) and (c), do the eval- emption is still needed. uation described in paragraph (e) of (vi) When directed, send the reports this section. through proper channels to the CNO (ii) Conduct the following reviews an- (N09B30). nually and be prepared to report, in ac- (f) Discontinued information require- cordance with § 701.104(c)(8), the results ments. (1) Immediately stop collecting and corrective actions taken to resolve any category or item of information problems uncovered. about individuals that is no longer jus- (A) Training practices to ensure all tified, and when feasible, remove the personnel are familiar with the re- information from existing records. quirements of 5 U.S.C. 552a, and DoD (2) Do not destroy records that must Directive 5400.11, ‘‘DoD Privacy Pro- be kept in accordance with retention gram’’, this subpart and subpart G of and disposal requirements established this part, and any special needs their under SECNAVINST 5212.5,7 ‘‘Disposal specific jobs entail. of Navy and Marine Corps Records.’’ (B) Recordkeeping and disposal prac- (g) Review records before disclosing out- tices to ensure compliance with this side the Federal government. Before dis- subpart and subpart G of this part. closing a record from a system of (C) Ongoing computer matching pro- records to anyone outside the Federal grams in which records from the sys- government, take reasonable steps to tem have been matched with non-DoD records to ensure that the require- ensure the record which is being dis- ments of § 701.115 have been met. closed is accurate, relevant, timely, (D) Actions of Department of the and complete for the purposes it is Navy personnel that resulted in either being maintained. Department of the Navy being found (h) Federal government contractors—(1) civilly liable or a person being found Applicability to Federal government con- criminally liable under 5 U.S.C. 552a, to tractors. (i) When a naval activity con- determine the extent of the problem tracts for the operation of a system of and find the most effective way of pre- records to accomplish its function, the venting the problem from occurring in activity must ensure compliance with the future. this subpart and subpart G of this part (E) Each system of records notice to and 5 U.S.C. 552a. For the purposes of ensure it accurately describes the sys- the criminal penalties described in 5 tem. Where major changes are needed, U.S.C. 552a, the contractor and its em- alter the system notice in accordance ployees shall be considered employees with § 701.107(b). If minor changes are of the agency during the performance needed, amend the system notice pur- of the contract. suant to § 701.107(c). (ii) Consistent with parts 24 and 52 of (iii) Every even-numbered year, re- the Federal Acquisition Regulation view a random sample of Department (FAR), contracts for the operation of a of the Navy contracts that provide for system of records shall identify specifi- the operation of a system of records to cally the record system and the work accomplish a Department of the Navy to be performed, and shall include in function, to ensure the wording of each the solicitations and resulting contract contract complies with the provisions the terms as prescribed by the FAR. of 5 U.S.C. 552a and paragraph (h) of (iii) If the contractor must use this section. records that are subject to this subpart (iv) Every three years, beginning in and subpart G of this part to perform 1992, review the routine use disclosures any part of a contract, the contractor associated with each system of records activities are subject to this subpart to ensure the recipient’s use of the and subpart G of this part. records continues to be compatible with the purpose for which the infor- 7 Copies may be obtained: OPNAV/SECNAV mation was originally collected. Directives Control Office, Washington Navy (v) Every three years, beginning in Yard, Building 200, Washington, DC 20350– 1993, review each system of records for 2000.
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(iv) This subpart and subpart G of lished by the DAR Council under the this part do not apply to records of a preceding subparagraph. contractor that are: (4) Disclosing records to contractors. (A) Established and maintained sole- Disclosing records to a contractor for ly to assist the contractor in making use in performing a contract let by a internal contractor management deci- naval activity is considered a disclo- sions, such as records maintained by sure within Department of the Navy. the contractor for use in managing the The contractor is considered the agent contract; of Department of the Navy when re- (B) Maintained as internal contractor ceiving and maintaining the records for employee records, even when used in that activity. conjunction with providing goods or services to the naval activity; § 701.106 Safeguarding records in sys- (C) Maintained as training records by tems of records. an educational organization contracted Establish appropriate administrative, by a naval activity to provide training technical, and physical safeguards to when the records of the contract stu- ensure the records in every system of dents are similar to and commingled records are protected from unauthor- with training records of other students, ized alteration, destruction, or disclo- such as admission forms, transcripts, sure. Protect the records from reason- and academic counseling and similar ably anticipated threats or hazards records; or that could result in substantial harm, (D) Maintained by a consumer report- embarrassment, inconvenience, or un- ing agency to which records have been fairness to any individual on whom in- disclosed under contract in accordance formation is maintained. with 31 U.S.C. 952d. (a) Minimum standards. (1) Conduct (v) For contracting that is subject to risk analysis and management plan- this subpart and subpart G of this part, ning for each system of records. Con- naval activities shall publish instruc- sider sensitivity and use of the records, tions that: present and projected threats and (A) Furnish Privacy Act guidance to vulnerabilities, and present and pro- personnel who solicit, award, or admin- jected cost-effectiveness of safeguards. ister Government contracts; The risk analysis may vary from an in- (B) Inform prospective contractors of formal review of a small, relatively in- their responsibilities under this sub- sensitive system to a formal, fully part and subpart G of this part and the quantified risk analysis of a large, Department of the Navy Privacy Pro- complex, and highly sensitive system. gram; (2) Train all personnel operating a (C) Establish an internal system for system of records or using records from reviewing contractor’s performance for a system of records in proper record se- compliance with the Privacy Act; and curity procedures. (D) Provide for the biennial review of (3) Label information exempt from a random sample of contracts that are disclosure under this subpart and sub- subject to this subpart and subpart G part G of this part to reflect their sen- of this part. sitivity, such as ‘‘FOR OFFICIAL USE (2) Contracting procedures. The De- ONLY,’’ ‘‘PRIVACY ACT SENSITIVE: fense Acquisition Regulatory (DAR) DISCLOSE ON A NEED-TO-KNOW Council, which oversees the implemen- BASIS ONLY,’’ or some other state- tation of the FAR within the Depart- ment that alerts individuals of the sen- ment of Defense, is responsible for de- sitivity to the records. veloping the specific policies and pro- (4) Administer special administra- cedures for soliciting, awarding, and tive, physical, and technical safeguards administering contracts that are sub- to protect records processed or stored ject to this subpart and subpart G of in an automated data processing or this part and 5 U.S.C. 552a. word processing system to protect (3) Contractor compliance. Naval ac- them from threats unique to those en- tivities shall establish contract sur- vironments. veillance programs to ensure contrac- (b) Records disposal. (1) Dispose of tors comply with the procedures estab- records from systems of records so as
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to prevent inadvertent disclosure. Dis- uses before the routine uses are imple- posal methods are considered adequate mented. if the records are rendered unrecogniz- (3) The notice shall contain the date able or beyond reconstruction (i.e., the system of records will become ef- such as tearing, burning, melting, fective. chemical decomposition, burying, (b) Criteria for an alteration to a system pulping, pulverizing, shredding, or mu- of records notice. A system is considered tilation). Magnetic media may be altered when any one of the following cleared by completely erasing, over- actions occur or is proposed: writing, or degaussing the tape. (1) A significant increase or change (2) The transfer of large volumes of in the number or types of individuals records (e.g., printouts and computer about whom records are maintained. cards) in bulk to a disposal activity For example, a decision to expand a such as a Defense Reutilization and Marketing Office for authorized dis- system of records that originally cov- posal is not a disclosure of records, if ered personnel assigned to only one the volume of records, coding of the in- naval activity to cover personnel at formation, or some other factor render several installations would constitute it impossible to recognize any personal an altered system. An increase or de- information about a specific indi- crease in the number of individuals vidual. covered due to normal growth or de- (3) When disposing or destroying crease is not an alteration. large quantities of records from a sys- (2) A change that expands the types tem of records, care must be taken to or categories of information main- ensure that the bulk of the records is tained. For example, a personnel file maintained to prevent easy identifica- that has been expanded to include med- tion of specific records. If such bulk is ical records would be an alteration. maintained, no special procedures are (3) A change that alters the purpose required. If bulk is not maintained, or for which the information is used. In if the form of the records makes indi- order to be an alteration, the change vidually identifiable information easily must be one that is not reasonably in- discernable, dispose of the records in ferred from any of the existing pur- accordance with paragraph (b)(1) of poses. this section. (4) A change to equipment configura- tion (either hardware or software) that § 701.107 Criteria for creating, alter- creates substantially greater use of ing, amending and deleting Privacy Act systems of records. records in the system. For example, placing interactive computer terminals (a) Criteria for a new system of records. at regional offices when the system A new system of records is one for was formerly used only at the head- which no existing system notice has quarters would be an alteration. been published in the FEDERAL REG- (5) A change in the manner in which ISTER. If a notice for a system of records has been canceled or deleted, records are organized or in the method and it is determined that it should be by which records are retrieved. reinstated or reused, a new system no- (6) Combining record systems due to tice must be published in the FEDERAL a reorganization within Department of REGISTER. Advance public notice must the Navy. be given before a naval activity may (7) Retrieving by Social Security begin to collect information for or use Numbers (SSNs), records that pre- a new system of records. The following viously were retrieved only by names procedures apply: would be an alteration if the present (1) Describe in the record system no- notice failed to indicate retrieval by tice the contents of the record system SSNs. An altered system of records and the purposes and routine uses for must be published in the FEDERAL REG- which the information will be used and ISTER. Submission for an alteration disclosed. must contain a narrative statement, (2) The public shall be given 30 days the specific changes altering the sys- to comment on any proposed routine tem, and the system of records notice.
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(c) Criteria for amending a systems of the individual refuses to provide his or records notice. Minor changes to pub- her SSN. However, this prohibition lished system of records notices are does not apply if a Federal law requires considered amendments. All amend- that the SSN be provided, or the SSN ments should be forwarded to CNO is required by a law or regulation (N09B30) for publication in the FED- adopted before January 1, 1975, to ERAL REGISTER. When submitting an verify the individual’s identity for a amendment to a system of records no- system of records established and in tice, the naval activity must include a use before that date. description of the specific changes pro- (2) Before requesting an individual to posed and the system of records notice. provide the SSN, the individual must (d) Criteria for deleting a system of be advised whether providing the SSN records notice. When a system of records is mandatory or voluntary; by what is discontinued, incorporated into an- law or other authority the SSN is so- other system, or determined to be no licited; and what uses will be made of longer subject to this subpart and sub- the SSN. part G of this part, a deletion notice (3) The preceding advice relates only must be published in the Federal Reg- to the SSN. If other information about ister. The deletion notice shall include the individual is solicited for a system the system identification number, sys- of records, a Privacy Act statement tem name, and the reason for deleting (PAS) also must be provided to him/ it. If a system is deleted through incor- her. poration into or merger with another (4) The notice published in the FED- system, identify the successor system ERAL REGISTER for each system of in the deletion notice. records containing SSNs solicited from § 701.108 Collecting information about individuals must indicate the author- individuals. ity for soliciting the SSNs and whether it is mandatory for the individuals to (a) Collecting directly from the indi- provide their SSNs. E.O. 9397 requires vidual. To the greatest extent prac- ticable, collect information for sys- federal agencies to use SSNs as numer- tems of records directly from the indi- ical identifiers for individuals in most vidual to whom the record pertains if federal records systems, however, it the record may be used to make an ad- does not make it mandatory for indi- verse determination about the individ- viduals to provide their SSNs. ual’s rights, benefits, or privileges (5) When entering military service or under the Federal programs. civilian employment with the Depart- (b) Collecting information about indi- ment of the Navy, individuals must viduals from third persons. It might not provide their SSNs. This is then the in- always be practical to collect all infor- dividual’s numerical identifier and is mation about an individual directly used to establish personnel, financial, from that person, such as verifying in- medical, and other official records (as formation through other sources for se- authorized by E.O. 9397). The individ- curity or employment suitability de- uals must be given the notification de- terminations; seeking other opinions, scribed above. Once the individual has such as a supervisor’s comments on provided his or her SSN to establish past performance or other evaluations; the records, a notification is not re- obtaining the necessary information quired when the SSN is requested only directly from the individual would be for identification or to locate the exceptionally difficult or would result records. in unreasonable costs or delays; or, the (6) The Federal Personnel Manual 8 individual requests or consents to con- must be consulted when soliciting tacting another person to obtain the SSNs for use in systems of records information. maintained by the Office of Personnel (c) Soliciting the social security number Management. (SSN). (1) It is unlawful for any Fed- eral, State, or local government agency 8 Copies may be obtained: Office of Per- to deny an individual a right, benefit, sonnel Management, 1900 E Street, Wash- or privilege provided by law because ington, DC 20415.
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(7) A Department of the Navy activ- lecting the information. If the informa- ity may request an individual’s SSN tion is collected by means other than a even though it is not required by Fed- form completed by the individual, i.e., eral statute, or is not for a system of solicited over the telephone, the Pri- records in existence and operating vacy Act Statement should be read to prior to January 1, 1975. However, the the individual and if requested by the separate Privacy Act Statement for individual, a copy sent to him/her. the SSN, alone, or a merged Privacy There is no requirement that the indi- Act Statement covering both the SSN vidual sign the Privacy Act Statement. and other items of personal informa- (e) Format for Privacy Act Statement. tion, must make clear that disclosure When forms are used to collect infor- of the number is voluntary. If the indi- mation about individuals for a system vidual refuses to disclose his or her of records, the Privacy Act Statement SSN, the activity must be prepared to shall appear as follows (listed in the identify the individual by alternate order of preference): means. (1) Immediately below the title of the (d) Contents of Privacy Act Statement. form, (1) When an individual is requested to (2) Elsewhere on the front page of the furnish information about himself/her- form (clearly indicating it is the Pri- self for a system of records, a Privacy vacy Act Statement), Act Statement must be provided to the (3) On the back of the form with a no- individual, regardless of the method tation of its location below the title of used to collect the information (i.e., the form, or forms, personal or telephonic inter- (4) On a separate form which the indi- view, etc). If the information requested vidual may keep. will not be included in a system of records, a Privacy Act Statement is § 701.109 Access to records. not required. (a) Individual access to records. (1) (2) The Privacy Act Statement shall Right of access. Only individuals who include the following: are subjects of records maintained in (i) The Federal law or E.O. that au- systems of records and by whose per- thorizes collecting the information sonal identifiers the records are re- (i.e., E.O. 9397 authorizes collection of trieved have the right of individual ac- SSNs); cess under this subpart and subpart G (ii) Whether or not it is mandatory of this part, unless they provide writ- for the individual to provide the re- ten authorization for their representa- quested information (It is only manda- tive to act on their behalf. Legal tory when a Federal law or E.O. of the guardians or parents acting on behalf President specifically imposes a re- of a minor child also have the right of quirement to furnish the information individual access under this subpart and provides a penalty for failure to do and subpart G of this part. so. If furnishing information is a condi- (2) Notification of record’s existence. tion for granting a benefit or privilege Each naval activity shall establish pro- voluntarily sought by the individual, it cedures for notifying an individual, in is voluntary for the individual to give response to his or her request, if a sys- the information.); tem of records identified by him/her (iii) The principle purposes for col- contains a record pertaining to the in- lecting the information; dividual. (iv) The routine uses that will be (3) Individual request for access. Indi- made of the information (i.e., to whom viduals shall address requests for ac- and why it will be disclosed outside the cess to records in systems of records to Department of Defense); and the system manager or the office des- (v) The possible effects on the indi- ignated in the Department of the Navy vidual if the requested information is compilation of system notices (periodic not provided. Chief of Naval Operations Notes (3) The Privacy Act Statement must (OPNAVNOTEs) 5211, ‘‘Current Privacy appear on the form used to collect the Act Issuances’’). information or on a separate form that (4) Verifying identity. (i) An individual can be retained by the individual col- shall provide reasonable verification of
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identity before obtaining access to tion and/or access must be directed to records. the appropriate system manager for (ii) When requesting records in writ- the particular record system being re- ing, naval activities may not insist quested, as indicated in the periodic that a requester submit a notarized Chief of Naval Operations Notes signature. The courts have ruled that (OPNAVNOTEs) 5211, ‘‘Current Privacy an alternative method of verifying Act Issuances’’; and the request must identity must be established for indi- either designate the particular system viduals who do not have access to no- of records to be searched, or provide tary services. This alternative permits sufficient information for the system requesters to provide an unsworn dec- manager to identify the appropriate laration that states ‘‘I declare under system. Also, provide the individual perjury or penalty under the laws of with any other information needed for the United States of America that the obtaining consideration of his or her foregoing is true and correct.’’ request. (iii) When an individual seeks access (6) Granting individual access to in person, identification can be verified records. (i) Grant the individual access by documents normally carried by the to the original record (or exact copy) individual (i.e., identification card, without any changes or deletions, driver’s license, or other license, per- other than those made in accordance mit or pass normally used for identi- with § 701.113. fication purposes). (ii) Grant the individual’s request for (iv) When access is requested other an exact copy of the record, upon the than in writing, identity may be signed authorization of the individual, verified by the individual’s providing and provide a copy to anyone des- minimum identifying data such as full ignated by the individual. In either name, date and place of birth, or other case, the copying fees may be assessed information necessary to locate the to the individual pursuant to record sought. If the information § 701.109(b). sought is sensitive, additional identi- fying data may be required. Telephonic (iii) If requested, explain any record requests should not be honored. or portion of a record that is not un- (v) Allow an individual to be accom- derstood, as well as any changes or de- panied by a person of his or her choice letions. when viewing the record; however, re- (7) Illegible or incomplete records. Do quire the individual to provide written not deny an individual access solely be- authorization to have the record dis- cause the physical condition or format cussed in front of the other person. of the record does not make it readily (vi) Do not deny access to an indi- available (i.e., when the record is in a vidual who is the subject of the record deteriorated state or on magnetic solely for refusing to divulge his or her tape). Either prepare an extract or re- SSN, unless it is the only means of re- copy the document exactly. trieving the record or verifying iden- (8) Access by parents and legal guard- tity. ians. (i) The parent of any minor, or (vii) Do not require the individual to the legal guardian of any individual de- explain why he or she is seeking access clared by a court of competent juris- to a record under this subpart and sub- diction to be incompetent due to phys- part G of this part. ical or mental incapacity or age, may (viii) Only a designated denial au- obtain access to the record of the thority may deny access. The denial minor or incompetent individual if the must be in writing and contain the in- parent or legal guardian is acting on formation required by paragraph (d) of behalf or for the benefit of the minor or this section. incompetent. However, with respect to (5) Blanket requests not honored. Do access by parents and legal guardians not honor requests from individuals for to medical records and medical deter- notification and/or access concerning minations about minors, use the fol- all Department of the Navy systems of lowing procedures: records. In these instances, notify the (A) In the United States, the laws of individual that requests for notifica- the state where the records are located
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might afford special protection to cer- considered Department of the Navy tain medical records (i.e., drug and al- records within the meaning of this sub- cohol abuse treatment, and psychiatric part and subpart G of this part. These records). The state statutes might documents are not systems of records apply even if the records are main- that are subject to this subpart and tained by a naval medical facility. subpart G of this part, if they are: (B) For installations located outside (A) Maintained and discarded solely the U.S., the parent or legal guardian at the discretion of the author; of a minor shall be denied access if all (B) Created only for the author’s per- four of the following conditions are sonal convenience; met: (C) Not the result of official direction (1) The minor at the time of the or encouragement, whether oral or treatment or consultation was 15, 16, or written; and 17 years old; (D) Not shown to other persons for (2) The treatment or consultation any reason or filed in agency files. was within a program authorized by (ii) [Reserved] law or regulation to provide confiden- (11) Relationship between the Privacy tiality to the minor; Act and FOIA. In some instances, indi- (3) The minor indicated a desire that viduals requesting access to records the treatment or consultation record pertaining to themselves may not be handled in confidence and not dis- know which Act to cite as the appro- closed to a parent or guardian; and priate statutory authority. The fol- (4) The parent or legal guardian does lowing guidelines are to ensure that not have the written authorization of the individuals receive the greatest de- the minor or a valid court order grant- gree of access under both Acts: ing access. (i) Access requests that specifically (ii) A minor or incompetent has the state or reasonably imply that they are same right of access as any other indi- made under 5 U.S.C. 552 (1988) as vidual under this subpart and subpart amended by the Freedom of Informa- G of this part. The right of access of tion Reform Act of 1986, are processed the parent or legal guardian is in addi- under Secretary of the Navy Instruc- tion to that of the minor or incom- tion 5720.42F, ‘‘Department of the Navy petent. Freedom of Information Act Program.’’ (9) Access to information compiled in (ii) Access requests that specifically reasonable anticipation of a civil pro- state or reasonably imply that they are ceeding. (i) An individual is not entitled made under 5 U.S.C. 552a are processed under this subpart and subpart G of under this subpart and subpart G of this part to access information com- this part. piled in reasonable anticipation of a (iii) Access requests that cite both 5 civil action or proceeding. U.S.C. 552a, as amended by the Com- (ii) The term ‘‘civil action or pro- puter Matching Act of 1988 and 5 U.S.C. ceeding’’ includes quasi-judicial and 552 (1988) as amended by the Freedom pre-trial judicial proceedings, as well of Information Reform Act are proc- as formal litigation. essed under the Act that provides the (iii) Paragraphs (a)(9)(i) and (ii) of greater degree of access. Inform the re- this section do not prohibit access to quester which instruction was used in records compiled or used for purposes granting or denying access. other than litigation, nor prohibit ac- (iv) Do not penalize the individual cess to systems of records solely be- access to his or her records otherwise cause they are frequently subject to releasable under 5 U.S.C. 552a and peri- litigation. The information must have odic Chief of Naval Operations Notes been compiled for the primary purpose (OPNAVNOTEs) 5211, ‘‘Current Privacy of litigation. Act Issuances’’, simply because he or (10) Personal notes or records not under she failed to cite the appropriate stat- the control of the Department of the ute or instruction. Navy. (i) Certain documents under the (12) Time limits. Acknowledge requests control of a Department of the Navy for access made under Privacy Act or employee and used to assist him/her in this subpart and subpart G of this part performing official functions are not within 10 working days after receipt,
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and advise the requester of your deci- the denial will serve a legitimate gov- sion to grant/deny access within 30 ernment purpose. An individual may be working days. refused access for failure to comply (b) Reproduction fees. Normally, only with established procedural require- one copy of any record or document ments, but must be told the specific will be provided. Checks or money or- reason for the refusal and the proper ders for fees should be made payable to access procedures. the Treasurer of the United States and (3) Deny the individual access to his deposited to the miscellaneous receipts or her medical and psychological of the treasury account maintained at records if it is determined that access the finance office servicing the activ- could have an adverse affect on the ity. mental or physical health of the indi- (1) Fee schedules shall include only vidual. This determination normally the direct cost of reproduction and should be made in consultation with a shall not include costs of: medical practitioner. If it is medically (i) Time or effort devoted to search- indicated that access could have an ad- ing for or reviewing the record by verse mental or physical effect on the naval personnel; individual, provide the record to a (ii) Fees not associated with the ac- medical practitioner named by the in- tual cost of reproduction; dividual, along with an explanation of (iii) Producing a copy when it must why access without medical super- be provided to the individual without vision could be harmful to the indi- cost under another regulation, direc- vidual. In any case, do not require the tive, or law; named medical practitioner to request (iv) Normal postage; the record for the individual. If, how- (v) Transportation of records or per- ever, the individual refuses or fails to sonnel; or designate a medical practitioner, ac- (vi) Producing a copy when the indi- cess shall be refused. The refusal is not vidual has requested only to review the considered a denial for reporting pur- record and has not requested a copy to poses under the Privacy Act. keep, and the only means of allowing (d) Notifying the individual. Written review is to make a copy (e.g., the denial of access must be given to the record is stored in a computer and a individual. The denial letter shall in- copy must be printed to provide indi- clude: vidual access, or the naval activity (1) The name, title, and signature of does not wish to surrender temporarily a designated denial authority; the original record for the individual to (2) The date of the denial; review). (3) The specific reason for the denial, (2) Fee schedules. citing the appropriate subsections of 5 (i) Office copy (per page)...... $.10 U.S.C. 552a or this subpart and subpart (ii) Microfiche (per fiche)...... $.25 G of this part authorizing the denial; (3) Fee waivers. Waive fees automati- (4) The individual’s right to appeal cally if the direct cost of reproduction the denial within 60 calendar days of is less than $15, unless the individual is the date the notice is mailed; and seeking an obvious extension or dupli- (5) The title and address of the review cation of a previous request for which authority. he or she was granted a waiver. Deci- sions to waive or reduce fees that ex- § 701.110 Amendment of records. ceed $15 are made on a case-by-case (a) Individual review and amendment. basis. Encourage individuals to review peri- (c) Denying individual access. (1) Deny odically, the information maintained the record subject access to requested about them in systems of records, and record only if it was compiled in rea- to avail themselves of the amendment sonable anticipation of a civil action or procedures established by this subpart proceeding or is in a system of records and subpart G of this part. that has been exempt from the access (1) Right to amend. An individual may provisions of § 701.113. request to amend any record retrieved (2) Deny the individual access only to by his or her personal identifier from a those portions of the record for which system of records, unless the system
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has been exempt from the amendment be accurate, relevant, timely, com- procedures under this subpart. Amend- plete, and necessary. If the record in ments under this subpart and subpart its present state does not meet each of G of this part are limited to correcting the criteria, grant the amendment re- factual matters, not matters of opinion quest to the extent necessary to meet (i.e., information contained in evalua- them. tions of promotion potential or per- (f) Time limits. Within 10 working days formance appraisals). When records of receiving an amendment request, the sought to be amended are covered by systems manager shall provide the in- another issuance, the administrative dividual a written acknowledgement of procedures under that issuance must be the request. If action on the amend- exhausted before using the Privacy ment request is completed within the Act. In other words, the Privacy Act 10 working days and the individual is may not be used to avoid the adminis- so informed, no separate acknowledg- trative procedures required by the ment is necessary. The acknowledg- issuance actually covering the records ment must clearly identify the request in question. and advise the individual when to ex- (2) In writing. Amendment requests pect notification of the completed ac- shall be in writing, except for routine tion. Only under exceptional cir- administrative changes, such as change cumstances should more than 30 work- of address. ing days be required to complete the (3) Content of amendment request. An action on an amendment request. amendment request must include a de- (g) Granting an amendment request in scription of the information to be whole or in part—(1) Notify the requester. amended; the reason for the amend- To the extent the amendment request ment; the type of amendment action is granted, the systems manager shall sought ( deletion, correction, or ad- i.e., notify the individual and make the ap- dition); and copies of available docu- propriate amendment. mentary evidence supporting the re- (2) Notify previous recipients. Notify quest. all previous recipients of the informa- (b) Burden of proof. The individual must provide adequate support for the tion (as reflected in the disclosure ac- request. counting record) that the amendment (c) Verifying identity. The individual has been made and provide each a copy may be required to provide identifica- of the amended record. Recipients who tion to prevent the inadvertent or in- are known to be no longer retaining tentional amendment of another’s the record need not be advised of the record. Use the verification guidelines amendment. If it is known that other provided in § 701.109(a)(4). naval activities, DoD components, or (d) Limits on amending judicial and Federal agencies have been provided quasi-judicial evidence and findings. This the information that now requires subpart and subpart G of this part do amendment, or if the individual re- not permit the alteration of evidence quests that these agencies be notified, presented in the course of judicial or provide the notification of amendment quasi-judicial proceedings. Amend- even if those activities or agencies are ments to such records must be made in not listed on the disclosure accounting accordance with procedures established form. for such proceedings. This subpart and (h) Denying an amendment request in subpart G of this part do not permit a whole or in part. If the amendment re- collateral attack on a judicial or quasi- quest is denied in whole or in part, judicial finding; however, this subpart promptly notify the individual in writ- and subpart G of this part may be used ing. Include in the notification to the to challenge the accuracy of recording individual the following: the finding in a system of records. (1) Those sections of 5 U.S.C. 552a or (e) Standards for amendment request this subpart and subpart G of this part determinations. The record which the in- upon which the denial is based; dividual requests to be amended must (2) His or her right to appeal to the meet the recordkeeping standards es- head of the activity for an independent tablished in § 701.105. The record must review of the initial denial;
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(3) The procedures for requesting an individual’s statement of disagree- appeal, including the title and address ment. of the official to whom the appeal (3) At the discretion of the naval ac- should be sent; and tivity, the statement of reasons may be (4) Where the individual can receive disclosed to those individuals, activi- assistance in filing the appeal. ties, and agencies that receive the (i) Requests for amending OPM records. statement of disagreement. The records in an OPM government- § 701.111 Privacy Act appeals. wide system of records are only tempo- rarily in the custody of naval activi- (a) How to file an appeal. The fol- ties. Requests for amendment of these lowing guidelines shall be followed by records must be processed in accord- individuals wishing to appeal a denial ance with OPM Regulations and the of notification, access, or amendment Federal Personnel Manual. The denial of records. authority may deny a request, but all (1) The appeal must be received by denials are subject to review by the As- the cognizant review authority (i.e., sistant Director for Workforce Infor- ASN (MRA), NJAG, OGC, or OPM) mation, Personnel Systems Oversight within 60 calendar days of the date of Group, Office of Personnel Manage- the response. ment, 1900 E Street, NW, Washington, (2) The appeal must be in writing and DC 20415. requesters should provide a copy of the (j) Individual’s statement of disagree- denial letter and a statement of their ment. (1) If the review authority refuses reasons for seeking review. (b) Time of receipt. The time limits for to amend the record as requested, the responding to an appeal commence individual may submit a concise state- when the appeal reaches the office of ment of disagreement listing the rea- the review authority having jurisdic- sons for disagreeing with the refusal to tion over the record. Misdirected ap- amend. peals should be referred expeditiously (2) If possible, incorporate the state- to the proper review authority. ment of disagreement into the record. (c) Review authorities. ASN (MRA), If that is not possible, annotate the NJAG, and OGC are authorized to adju- record to reflect that the statement dicate appeals made to SECNAV. NJAG was filed and maintain the statement and OGC are further authorized to dele- so that it can be readily obtained when gate this authority to a designated As- the disputed information is used or dis- sistant NJAG and the Principal Deputy closed. General or Deputy General Counsel, re- (3) Furnish copies of the statement of spectively, under such terms and condi- disagreement to all individuals listed tions as they deem appropriate. on the disclosure accounting form (ex- (1) If the record is from a civilian Of- cept those known to be no longer re- ficial Personnel Folder or is contained taining the record), as well as to all on any other OPM forms, send the ap- other known holders of copies of the peal to the Assistant Director for record. Workforce Information, Personnel Sys- (4) Whenever the disputed informa- tems and Oversight Group, Office of tion is disclosed for any purpose, en- Personnel Management, 1900 E Street, sure that the statement of disagree- NW, Washington, DC 20415. Records in ment also is used or disclosed. all systems of records maintained in (k) Department of the Navy statement accordance with the OPM government- of reasons. (1) If the individual files a wide systems notices are only in the statement of disagreement, the naval temporary custody of the Department activity may file a statement of rea- of the Navy. sons containing a concise summary of (2) If the record pertains to the em- the activity’s reasons for denying the ployment of a present or former Navy amendment request. and Marine Corps civilian employee, (2) The statement of reasons shall such as Navy or Marine Corps civilian contain only those reasons given to the personnel records or an employee’s individual by the appellate official and grievance or appeal file, to the General shall not contain any comments on the Counsel, Navy Department, 720 Kennon
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Street, SE, Washington Navy Yard, § 701.112 Disclosure of records. Building 36, Washington, DC 20374–5012. (a) Conditions of disclosure. (1) 5 U.S.C. (3) If the record pertains to a present 552a prohibits an agency from dis- or former military member’s fitness re- ports or performance evaluations to closing any record contained in a sys- the Assistant Secretary of the Navy tem of records to any person or agency, (Manpower and Reserve Affairs), Navy except when the record subject gives Department, Washington, DC 20350– written consent for the disclosure or 1000. when one of the 12 conditions listed (4) All other records dealing with below in this subsection applies. present or former military members to (2) Except for disclosures made under the Judge Advocate General, Navy De- 5 U.S.C. 552 (1988) as amended by the partment, 1322 Patterson Avenue, SE, Freedom of Information Reform Act of Suite 3000, Washington Navy Yard, 1986 and Secretary of the Navy Instruc- Washington, DC 20374–5066. tion 5720.42F, ‘‘Department of the Navy (d) Appeal procedures. (1) If the appeal Freedom of Information Act Program,’’ is granted, the review authority shall before disclosing any record from a sys- advise the individual that his or her tem of records to any recipient other appeal has been granted and provide than a Federal agency, make reason- access to the record being sought. able efforts to ensure the record is ac- (2) If the appeal is denied totally or curate, relevant, timely, and complete in part, the appellate authority shall for Department of the Navy purposes. advise the reason(s) for denying the ap- Records discovered to have been im- peal, citing the appropriate subsections properly filed in the system of records of 5 U.S.C. 552a or this subpart and sub- should be removed before disclosure. part G of this part that apply; the date (i) If validation cannot be obtained of the appeal determination; the name, from the record itself, the naval activ- title, and signature of the appellate au- ity may contact the record subject (if thority; and a statement informing the reasonably available) to verify the ac- requester of his or her right to seek ju- curacy, timeliness, completeness, and dicial relief in the Federal District relevancy of the information. Court. (ii) If validation cannot be obtained (e) Final action, time limits and docu- from the record and the record subject mentation. (1) The written appeal notifi- is not reasonably available, advise the cation granting or denying access is recipient that the information is be- the final naval activity action on the lieved to be valid as of a specific date initial request for access. and reveal any factors bearing on the (2) All appeals shall be processed validity of the information. within 30 working days of receipt, un- (b) Nonconsensual disclosures. 5 U.S.C. less the appellate authority finds that 552a provides 12 instances when a an adequate review cannot be com- record in a system of records may be pleted within that period. If additional disclosed without the written consent time is needed, notify the applicant in of the record subject: writing, explaining the reason for the (1) Disclosures within the Department delay and when the appeal will be com- of Defense. For purposes of disclosing pleted. records, the Department of Defense is (f) Denial of appeal by activity’s failure considered a single agency; hence, a to act. An individual may consider his record may be disclosed to any officer or her appeal denied if the appellate or employee in the Department of De- authority fails to: fense (including private contractor per- (1) Take final action on the appeal sonnel who are engaged to perform within 30 working days of receipt when services needed in connection with the no extension of time notice was given; operation of a system of records for a or DoD component), who have a need for (2) Take final action within the pe- the record in the performance of their riod established by the notice to the duties, provided this use is compatible appellate authority of the need for an with the purpose for which the record extension of time to complete action is maintained. This provision is based on the appeal. on the ‘‘need to know’’ concept.
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(i) For example, this may include dis- tion (b)(6) of 5 U.S.C. 552 (1988) as closure to personnel managers, review amended by the Freedom of Informa- boards, discipline officers, courts-mar- tion Act Reform Act of 1986. Under that tial personnel, medical officers, inves- exemption, disclosure of information tigating officers, and representatives of pertaining to an individual can be de- the Judge Advocate General, Auditor nied only when the disclosure would be General, Naval Inspector General, or a clearly unwarranted invasion of per- the Naval Investigative Service, who sonal privacy. The first step is to de- require the information in order to dis- termine whether a viable personal pri- charge their official duties. Examples vacy interest exists in these records in- of personnel outside the Department of volving an identifiable living person. the Navy who may be included are: The second step is to consider how dis- Personnel of the Joint Staff, Armed closure would benefit the general pub- Forces Entrance and Examining Sta- lic in light of the content and context tions, Defense Investigative Service, or of the information in question. The the other military departments, who third step is to determine whether the require the information in order to dis- identified public interests qualify for charge an official duty. consideration. The fourth step is to (ii) It may also include the transfer balance the personal privacy interests of records between naval components against the qualifying public interest. and non-DoD agencies in connection Numerous factors must be considered with the Personnel Exchange Program such as: The nature of the information (PEP) and interagency support agree- to be disclosed (i.e., Do individuals nor- ments. Disclosure accountings are not mally have an expectation of privacy required for intra-agency disclosure in the type of information to be dis- and disclosures made in connection closed?); importance of the public in- with interagency support agreements terest served by the disclosure and or the PEP. Although some disclosures probability of further disclosure which authorized by this paragraph might may result in an unwarranted invasion also meet the criteria for disclosure of privacy; relationship of the re- under other exceptions specified in the quester to the public interest being following paragraphs of this section, served; newsworthiness of the indi- they should be treated under this para- vidual to whom the information per- graph for disclosure accounting pur- tains (i.e., high ranking officer, public poses. figure); degree of sensitivity of the in- (2) Disclosures required by the FOIA. (i) formation from the standpoint of the A record must be disclosed if required individual or the individual’s family, by 5 U.S.C. 552 (1988) as amended by the and its potential for being misused to Freedom of Information Reform Act of the harm, embarrassment, or inconven- 1986, which is implemented by Sec- ience of the individual or the individ- retary of the Navy Instruction 5720.42F, ual’s family; the passage of time since ‘‘Department of the Navy Freedom of the event which is the topic of the Information Act Program.’’ record (i.e., to disclose that an indi- (ii) 5 U.S.C. 552 (1988) as amended by vidual has been arrested and is being the Freedom of Information Reform held for trial by court-martial is nor- Act of 1986 and Secretary of the Navy mally permitted, while to disclose an Instruction 5720.42F, ‘‘Department of arrest which did not result in convic- the Navy Freedom of Information Act tion might not be permitted after the Program’’ require that records be made passage of time); and the degree to available to any person requesting which the information is already in the them in writing, unless the record is public domain or is already known by exempt from disclosure under one of the particular requester. the nine FOIA exemptions. Therefore, (iv) Records or information from in- if a record is not exempt from disclo- vestigatory records, including per- sure, it must be provided to the re- sonnel security investigatory records, quester. are exempt from disclosure under the (iii) Certain records, such as per- broader standard of ‘‘an unwarranted sonnel, medical, and similar files, are invasion of personal privacy’’ found in exempt from disclosure under exemp- exemption (b)(7)(C) of 5 U.S.C. 552. This
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broader standard applies only to vasion of personal privacy and is pro- records or information compiled for hibited. However, they may be dis- law enforcement purposes. closed if the individual has consented (v) A disclosure under 5 U.S.C. 552 to the disclosure; the disclosure is re- about military members must be in ac- quired by the FOIA; the disclosure is cordance with Secretary of the Navy required by another law, such as 42 Instruction 5720.42F, ‘‘Department of U.S.C. 653, which provides assistance to the Navy Freedom of Information Act states in locating parents who have de- Program’’, but the following informa- faulted on child support payments, or tion normally may be disclosed from the collection of alimony, and to state military personnel records (except for and local tax authorities for the pur- those personnel assigned to sensitive or pose of enforcing tax laws. However, routinely deployable units, or located care must be taken prior to release to in a foreign territory), without a clear- ensure that a written record is pre- ly unwarranted invasion of personal pared to document the reasons for the privacy: Full name, rank, date of rank, release determination. base pay, past duty stations, present duty station and future duty station (if (A) When compiling home addresses finalized), unless the stations have and telephone numbers, the individual been determined by the Department of may be offered the option of author- the Navy to be sensitive, routinely izing disclosure of the information deployable, or located in a foreign ter- without further consent for specific ritory, office or duty telephone num- purposes, such as locator services. In ber, source of commission, promotion that case, the information may be dis- sequence number, awards and decora- closed for the stated purpose without tions, attendance at professional mili- further consent. If the information is tary schools, and duty status at any to be disclosed for any other purpose, a given time. signed consent permitting the addi- (vi) The following information nor- tional disclosure must be obtained mally may be disclosed from civilian from the individual. employee records about CONUS em- (B) Before listing home addresses and ployees: Full name, present and past telephone numbers in Department of position titles and occupational series, the Navy telephone directories, give present and past grades, present and the individual the opportunity to past annual salary rates (including per- refuse such a listing. If the individual formance awards or bonuses, incentive requests that the home address or tele- awards, merit pay amount, Meritorious phone number not be listed in the di- and Distinguished Executive Ranks, rectory, do not assess any additional and allowances and differentials), past fee associated with maintaining an un- duty stations, present duty station and listed number for government-owned future duty station (if finalized), in- telephone services. cluding room numbers, shop designa- (C) The sale or rental of lists of tions, or other identifying information names and addresses is prohibited un- regarding buildings or places of em- ployment, unless the duty stations less such action is specifically author- have been determined by the Depart- ized by Federal law. This does not pro- ment of the Navy to be sensitive, rou- hibit the disclosure of names and ad- tinely deployable, or located in a for- dresses made under Secretary of the eign territory, position descriptions, Navy Instruction 5720.42F, ‘‘Depart- identification of job elements, and ment of the Navy Freedom of Informa- those performance standards (but not tion Act Program.’’ actual performance appraisals) that (D) In response to FOIA requests, in- the disclosure of which would not formation concerning special and gen- interfere with law enforcement pro- eral courts-martial results (e.g., grams or severely inhibit Department records of trial) are releasable. How- of the Navy effectiveness. ever, information regarding summary (viii) Disclosure of home addresses courts-martial and non-judicial punish- and home telephone numbers normally ment are generally not releasable. The is considered a clearly unwarranted in- balancing of interests must be done. It
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is possible that in a particular case, in- been established. These ‘‘Blanket Rou- formation regarding non-judicial pun- tine Uses’’ are published at the begin- ishment should be disclosed pursuant ning of the Department of the Navy’s to a FOIA request (i.e., the facts lead- FEDERAL REGISTER compilation of ing to a nonjudicial punishment are record systems notices rather than at particularly newsworthy or the case in- each system notice and are also re- volves a senior official abusing the flected in periodic Chief of Naval Oper- public trust through office-related mis- ations Notes (OPNAVNOTEs) 5211, conduct, such as embezzlement). An- ‘‘Current Privacy Act Issuances.’’ Un- nouncement of nonjudicial punishment less a system notice specifically ex- dispositions under JAGMAN, sub- cludes a system of records from a section 0107, is a proper exercise of ‘‘Blanket Routine Use,’’ all ‘‘Blanket command authority and not a release Routine Uses’’ apply to that system. of information under FOIA or this sub- (vi) If the recipient has not been part and subpart G of this part. Excep- identified in the FEDERAL REGISTER or tions to this policy must be coordi- if the recipient, though identified, in- nated with CNO (N09B30) or CMC tends to employ the information for a (ARAD) prior to responding to request- purpose not published in the FEDERAL ers, including all requests for this type REGISTER, the written consent of the of information from members of Con- individual is required before the disclo- gress. sure can be made. (3) Disclosures for established routine (4) Disclosures to the Bureau of the uses. (i) Records may be disclosed out- Census. Records may be disclosed to side the Department of the Navy if the the Bureau of the Census for purposes disclosure is for an established routine of planning or carrying out a census, use. survey, or related activities authorized (ii) A routine use shall: by 13 U.S.C. 8. (A) Be compatible with and related to (5) Disclosures for statistical research or the purpose for which the record was reporting. Records may be disclosed to a created; recipient for statistical research or re- (B) Identify the persons or organiza- porting if: tions to whom the record may be dis- (i) Prior to the disclosure, the recipi- closed; ent has provided adequate written as- (C) Identify specifically the uses for surance that the records shall be used which the information may be em- solely for statistical research or re- ployed by the receiving person or orga- porting; and nization; and (ii) The records are transferred in a (D) Have been published previously in form that does not identify individuals. the FEDERAL REGISTER. (6) Disclosures to the National Archives (iii) A routine use shall be estab- and Records Administration. (i) Records lished for each user of the information may be disclosed to the National Ar- outside the Department of the Navy chives and Records Administration for who needs the information for an offi- evaluation to determine whether the cial purpose. records have sufficient historical or (iv) Routine uses may be established, other value to warrant preservation by discontinued, or amended without the the Federal government. If preserva- consent of the individuals to whom the tion is warranted, the records will be records pertain. However, new and retained by the National Archives and amended routine uses must be pub- Record Administration, which becomes lished in the FEDERAL REGISTER at the official owner of the records. least 30 days before the information (ii) Records may be disclosed to the may be disclosed under their provi- National Archives and Records Admin- sions. istration to carry out records manage- (v) In addition to the routine uses es- ment inspections required by Federal tablished by the Department of the law. Navy for each system of records, com- (iii) Records transferred to a Federal mon ‘‘Blanket Routine Uses,’’ applica- Records Center operated by the Na- ble to all record systems maintained tional Archives and Records Adminis- with the Department of the Navy, have tration for storage are not within this
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category. Those records continue to be stances where information is requested maintained and controlled by the by telephone, an attempt will be made transferring naval activity. The Fed- to verify the inquirer’s and medical fa- eral Records Center is considered the cility’s identities and the caller’s tele- agent of Department of the Navy and phone number. The requested informa- the disclosure is made under paragraph tion, if then considered appropriate and (b)(1) of this section. of an emergency nature, may be pro- (7) Disclosures when requested for law vided by return call. enforcement purposes. (i) A record may (9) Disclosures to Congress. (i) A record be disclosed to another agency or an may be disclosed to either House of instrumentality of any governmental Congress at the request of either the jurisdiction within or under the con- Senate or House of Representatives as trol of the U.S. for a civil or criminal a whole. law enforcement activity if: (ii) A record also may be disclosed to (A) The civil or criminal law enforce- any committee, subcommittee, or joint ment activity is authorized by law (fed- committee of Congress if the disclosure eral, state or local); and pertains to a matter within the legisla- (B) The head of the agency (or his or tive or investigative jurisdiction of the her designee) has made a written re- committee, subcommittee, or joint quest to the naval activity specifying committee. the particular record or portion desired (iii) Disclosure may not be made to a and the law enforcement purpose for Member of Congress requesting in his which it is sought. or her individual capacity. However, (ii) Blanket requests for any and all for Members of Congress making in- records pertaining to an individual quiries on behalf of individuals who are shall not be honored. The requesting subjects of records, a ‘‘Blanket Routine agency must specify each record or Use’’ has been established to permit portion desired and how each relates to disclosures to individual Members of the authorized law enforcement activ- Congress. ity. (iii) If a naval activity discloses a (A) When responding to a congres- record outside the Department of De- sional inquiry made on behalf of a con- fense for law enforcement purposes stituent by whose identifier the record without the individual’s consent and is retrieved, there is no need to verify without an adequate written request, that the individual has authorized the the disclosure must be under an estab- disclosure to the Member of Congress. lished routine use, such as the ‘‘Blan- (B) The oral or written statement of ket Routine Use’’ for law enforcement. a Congressional staff member is suffi- (iv) Disclosure to foreign law enforce- cient to establish that a request has ment agencies is not governed by the been received from the individual to provisions of 5 U.S.C. 552a and this whom the record pertains. paragraph, but may be made only (C) If the constituent inquiry is made under established ‘‘Blanket Routine on behalf of an individual other than Uses,’’ routine uses published in the in- the record subject, provide the Member dividual record system notice, or to of Congress only that information re- other governing authority. leasable under 5 U.S.C. 552. Advise the (8) Disclosure to protect the health or Member of Congress that the written safety of an individual. Disclosure may consent of the record subject is re- be made under emergency conditions quired before additional information involving circumstances affecting the may be disclosed. Do not contact the health and safety of an individual (i.e., record subject to obtain consent for the when the time required to obtain the disclosure to the Member of Congress consent of the individual to whom the unless the Congressional office specifi- records pertain might result in a delay cally requests it be done. which could impair the health or safety (10) Disclosures to the Comptroller Gen- of a person) provided notification of eral for the General Accounting Office the disclosure is sent to the record sub- (GAO). Records may be disclosed to the ject. Sending the notification to the Comptroller General of the U.S., or au- last known address is sufficient. In in- thorized representative, in the course
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of the performance of the duties of the REGISTER notice for the system of GAO. records from which the information (11) Disclosures under court orders. (i) will be disclosed indicate that the in- Records may be disclosed under the formation may be disclosed to a con- order of a court of competent jurisdic- sumer reporting agency. tion. (c) Disclosures to commercial enter- (ii) When a record is disclosed under prises. Records may be disclosed to this provision and the compulsory legal commercial enterprises only under the process becomes a matter of public criteria established by Secretary of the record, make reasonable efforts to no- Navy Instruction 5720.42F and 42 U.S.C. tify the individual to whom the record 653, Parent Locator Service for En- pertains. Notification sent to the last forcement of Child Support. known address of the individual is suf- (1) Any information required to be ficient. If the order has not yet become disclosed by Secretary of the Navy In- a matter of public record, seek to be struction 5720.42F and 42 U.S.C. 653, advised as to when it will become pub- Parent Locator Service for Enforce- lic. Neither the identity or the party to ment of Child Support may be dis- whom the disclosure was made nor the closed to a requesting commercial en- purpose of the disclosure shall be made terprise. available to the record subject unless (2) Commercial enterprises may the court order has become a matter of present a consent statement signed by public record. the individual indicating specific con- (iii) The court order must bear the ditions for disclosing information from signature of a federal, state, or local a record. Statements such as the fol- judge. Orders signed by court clerks or lowing, if signed by the individual, are attorneys are not deemed to be orders considered sufficient to authorize the of a court of competent jurisdiction. A disclosure: I hereby authorize the De- photocopy of the order, regular on its partment of the Navy to verify my SSN face, will be sufficient evidence of the or other identifying information and to court’s exercise of its authority of the disclose my home address and tele- minimal requirements of phone number to authorized represent- 9 SECNAVINST 5820.8A, ‘‘Release of Of- atives of (name of commercial enter- ficial Information for Litigation Pur- prise) to be used in connection with my poses and Testimony by Department of commercial dealings with that enter- the Navy Personnel.’’ prise. All information furnished will be (12) Disclosures to consumer reporting used in connection with my financial Certain information may be agencies. relationship with (name of commercial disclosed to consumer reporting agen- enterprise). cies (i.e., credit reference companies (3) When a consent statement as de- such as TRW and Equifax, etc.) as de- scribed in the preceding subsection is fined by the Federal Claims Collection presented, provide the information to Act of 1966 (31 U.S.C. 952d). Under the the commercial enterprise, unless the provisions of that Act, the following disclosure is prohibited by another reg- information may be disclosed to a con- ulation or Federal law. sumer reporting agency: (i) Name, address, taxpayer identi- (4) Blanket consent statements that fication number (SSN), and other infor- do not identify the Department of De- mation necessary to establish the iden- fense or Department of the Navy, or tity of the individual; that do not specify exactly the infor- (ii) The amount, status, and history mation to be disclosed, may be honored of the claim; and if it is clear that the individual, in (iii) The agency or program under signing the consent statement, was which the claim arose. 31 U.S.C. 952d seeking a personal benefit (i.e., loan for specifically requires that the FEDERAL a house or automobile) and was aware of the type of information necessary to obtain the benefit sought. 9 Copies may be obtained: Judge Advocate General, Navy Department, (Code 34), 1322 (5) Do not honor requests from com- Patterson Avenue, SE, Suite 3000, Wash- mercial enterprises for official evalua- ington Navy Yard, Washington, DC 20374– tions of personal characteristics such 5066. as personal financial habits.
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(d) Disclosure of health care records to closure accounting is to permit the in- the public. This paragraph applies to dividual to determine what agencies or disclosure of information to the news persons have been provided informa- media and the public concerning indi- tion from the record, enable Depart- viduals treated or hospitalized in De- ment of the Navy activities to advise partment of the Navy medical facilities prior recipients of the record of any and, when the cost of care is paid by subsequent amendments or statements the Department of the Navy, in non- of dispute concerning the record, and Federal facilities. provide an audit trial of Department of (1) Disclosures without the individual’s the Navy’s compliance with 5 U.S.C. consent. Normally, the following infor- 552a. mation may be disclosed without the (1) Disclosure accountings shall con- individual’s consent: (i) Information required to be re- tain the date of the disclosure; a de- leased by Secretary of the Navy In- scription of the information disclosed; struction 5720.42F and OPM Regula- the purpose of the disclosure; and the tions and the Federal Personnel Man- name and address of the person or ual, as well as the information listed in agency to whom the disclosure was paragraphs (b)(2)(v) (for military per- made. sonnel) and (b)(2) of this section. (2) The record subject has the right of (ii) For civilian employees; and access to the disclosure accounting ex- (iii) General information concerning cept when the disclosure was made at medical conditions, i.e., date of admis- the request of a civil or criminal law sion or disposition; present medical as- enforcement agency under paragraph sessment of the individual’s condition (b)(7) of this section; or when the sys- if the medical practitioner has volun- tem of records has been exempted from teered the information, i.e., the indi- the requirement to provide access to vidual’s condition presently is (stable) the disclosure accounting. (good) (fair) (serious) (critical), and the (g) Methods of disclosure accounting. patient is (conscious) (semi-conscious) Since the characteristics of various (unconscious). records maintained within the Depart- (2) Disclosures with the individual’s ment of the Navy vary widely, no uni- consent. With the individual’s informed form method for keeping disclosure ac- consent, any information about the in- countings is prescribed. The primary dividual may be disclosed. If the indi- vidual is a minor or has been declared criteria are that the selected method incompetent by a court of competent be one which will: jurisdiction, the parent of the minor or (1) Enable an individual to ascertain appointed legal guardian of the incom- what persons or agencies have received petent may give consent on behalf of disclosures pertaining to him/her; the individual. (2) Provide a basis for informing re- (e) Disclosure of Personal Informa- cipients of subsequent amendments or tion on Group/Bulk Orders. Do not use statements of dispute concerning the personal information including com- record; and plete SSNs, home addresses and phone (3) Provide a means to prove, if nec- numbers, dates of birth, etc., on group/ essary that the activity has complied bulk orders. This personal information with the requirements of 5 U.S.C. 552a should not be posted on lists that ev- and this subpart and subpart G of this eryone listed on the orders sees. Such a part. disclosure of personal information vio- (h) Retention of disclosure accounting. lates the Privacy Act and this subpart Maintain a disclosure accounting of and subpart G of this part. the life of the record to which the dis- (f) Disclosure accounting. Keep an ac- closure pertains, or 5 years after the curate record of all disclosures made from a record (including those made date of the disclosure, whichever is with the consent of the individual) ex- longer. Disclosure accounting records cept those made to DoD personnel for are normally maintained with the use in performing their official duties; record, as this will ensure compliance and those made under the FOIA. Dis- with paragraph (f) of this section.
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§ 701.113 Exemptions. tem itself has been established by pub- (a) Using exemptions. No system of lishing a notice in the FEDERAL REG- records is automatically exempt from ISTER, at least 30 days prior to the ef- all provisions of 5 U.S.C. 552a. A system fective date, describing the system. of records is exempt from only those This allows interested persons an op- provisions of 5 U.S.C. 552a that are portunity to comment. An exemption identified specifically in the exemption may not be used to deny an individual rule for the system. Subpart G of this access to information that he or she part contains the systems designated can obtain under Secretary of the Navy as exempt, the types of exemptions Instruction 5720.42F, ‘‘Department of claimed, the authority and reasons for the Navy Freedom of Information Act invoking the exemptions and the provi- Program.’’ sions of 5 U.S.C. 552a from which each (d) Exemption for classified material. system has been exempt. Exemptions All systems of records maintained by are discretionary on the part of De- the Department of the Navy shall be partment of the Navy and are not effec- exempt under section (k)(1) of 5 U.S.C. tive until published as a final rule in 552a, to the extent that the systems the FEDERAL REGISTER. The naval ac- contains any information properly tivity maintaining the system of classified under E.O. 12958 and that is records shall make a determination required by that E.O. to be kept secret that the system is one for which an ex- in the interest of national defense or emption may be established and then foreign policy. This exemption is appli- propose an exemption rule for the sys- cable to parts of all systems of records tem. Submit the proposal to CNO including those not otherwise specifi- (N09B30) for approval and publication cally designated for exemptions herein in the FEDERAL REGISTER. which contain isolated items of prop- (b) Types of exemptions. There are two erly classified information. types of exemptions permitted by 5 U.S.C. 552a. NOTE: Department of the Navy Privacy Act (1) General exemptions. Those that au- systems of records which contain classified thorize the exemption of a system of information automatically qualify for a records from all but specifically identi- (k)(1) exemption, without establishing an ex- fied provisions of 5 U.S.C. 552a. emption rule. (2) Specific exemptions. Those that (e) Exempt records in nonexempt sys- allow a system of records to be exempt tems. (1) An exemption rule applies to from only a few designated provisions the system of records for which it was of 5 U.S.C. 552a. established. If a record from an exempt (c) Establishing exemptions. (1) 5 U.S.C. system is incorporated intentionally 552a authorizes the Secretary of the into a system that has not been ex- Navy to adopt rules designating eligi- empt, the published notice and rules ble systems of records as exempt from for the nonexempt system will apply to certain requirements. The Secretary of the record and it will not be exempt the Navy has delegated the CNO from any provisions of 5 U.S.C. 552a. (N09B30) to make a determination that the system is one for which an exemp- (2) A record from one component’s tion may be established and then pro- (i.e., Department of the Navy) exempt- pose and establish an exemption rule ed system that is temporarily in the for the system. No system of records possession of another component (i.e., within Department of the Navy shall Army) remains subject to the published be considered exempt until the CNO system notice and rules of the origi- (N09B30) has approved the exemption nating component’s (i.e., Department and an exemption rule has been pub- of the Navy). However, if the non-origi- lished as a final rule in the FEDERAL nating component incorporates the REGISTER. A system of records is ex- record into its own system of records, empt from only those provisions of 5 the published notice and rules for the U.S.C. 552a that are identified specifi- system into which it is incorporated cally in the Department of the Navy shall apply. If that system of records exemption rule for the system. has not been exempted, the record shall (2) No exemption may be established not be exempt from any provisions of 5 for a system of records until the sys- U.S.C. 552a.
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(3) A record accidentally misfiled law enforcement duties as one of its into a system of records is governed by principle functions, or the published notice and rules for the (B) Investigative records compiled by system of records in which it actually any element concerning individual’s should have been filed. suitability, eligibility, or qualification (f) General exemptions—(1)Central In- for duty, employment, or access to telligence Agency (CIA). The Depart- classified information, regardless of ment of the Navy is not authorized to the principle functions of the naval ac- establish an exemption for records tivity that compiled them. maintained by the CIA under sub- (vi) The (j)(2) exemption established section (j)(1) of 5 U.S.C. 552a. for a system of records maintained by (2) Law enforcement. (i) The general a criminal law enforcement activity exemption provided by subsection (j)(2) cannot protect law enforcement of 5 U.S.C. 552a may be established to records incorporated into a nonexempt protect criminal law enforcement system of records or any system of records maintained by Department of records maintained by an activity not the Navy. principally tasked with enforcing (ii) To be eligible for the (j)(2) exemp- criminal laws. All system managers, tion, the system of records must be therefore, are cautioned to comply maintained by an element that per- strictly with Department of the Navy forms, as one of its principal functions, regulations or instructions prohibiting the enforcement of criminal laws. The or limiting the incorporation of crimi- Naval Investigative Service, Naval In- nal law enforcement records into sys- spector General, and military police tems other than those maintained by activities qualify for this exemption. criminal law enforcement activities. (iii) Criminal law enforcement in- (g) Specific exemptions. Specific ex- cludes police efforts to detect, prevent, emptions permit certain categories of control, or reduce crime, or to appre- records to be exempted from specific hend criminals, and the activities of provisions of 5 U.S.C. 552a. Subsections prosecution, court, correctional, proba- (k)(1)–(k)(7) of 5 U.S.C. 552a allow ex- tion, pardon, or parole authorities. emptions for seven categories of (iv) Information that may be pro- records. To be eligible for a specific ex- tected under the (j)(2) exemption in- emption, the record must meet the cor- cludes: responding criteria. (A) Information compiled for the pur- NOTE: Department of the Navy Privacy Act pose of identifying criminal offenders systems of records which contain classified information automatically qualify for a and alleged criminal offenders con- (k)(1) exemption, without an established ex- sisting of only identifying data and no- emption rule. tations of arrests; the nature and dis- (1) (k)(1) exemption: Information prop- position of criminal charges; and sen- erly classified under Secretary of the tencing, confinement, release, parole, Navy Instruction 5720.42F, ‘‘Depart- and probation status; ment of the Navy Freedom of Informa- (B) Information compiled for the pur- tion Act Program’’ and E.O. 12958, in pose of a criminal investigation, in- the interest of national defense or for- cluding reports of informants and in- eign policy. vestigators, and associated with an (2) (k)(2) exemption: Investigatory in- identifiable individual; and formation (other than that information (C) Reports identifiable to an indi- within the scope of paragraph (f)(2) of vidual, compiled at any stage of the en- this section) compiled for law enforce- forcement process, from arrest, appre- ment purposes. If maintaining the in- hension, indictment, or preferral of formation causes an individual to be charges through final release from the ineligible for or denied any right, ben- supervision that resulted from the efit, or privilege that he or she would commission of a crime. otherwise be eligible for or entitled to (v) The (j)(2) exemption does not under Federal law, then he or she shall apply to: be given access to the information, ex- (A) Investigative records maintained cept for the information that would by a naval activity having no criminal identify a confidential source (see
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paragraph (h) of this section, ‘‘con- § 701.114 Enforcement actions. fidential source’’). The (k)(2) exemp- (a) Administrative remedies. An indi- tion, when established, allows limited vidual who alleges he or she has been protection on investigative records affected adversely by a naval activity’s maintained for use in personnel and ad- violation of 5 U.S.C. 552a or this sub- ministrative actions. part and subpart G of this part shall be (3) (k)(3) exemption: Records main- permitted to seek relief from SECNAV tained in connection with providing through proper administrative chan- protective services to the President of nels. the United States and other individuals (b) Civil court actions. After exhaust- under 18 U.S.C. 3056. ing all administrative remedies, an in- (4) (k)(4) exemption: Records required dividual may file suit in Federal court by Federal law to be maintained and against a naval activity for any of the used solely as statistical records that following acts: (1) Denial of an amendment request. are not used to make any determina- The activity head, or his or her des- tion about an identifiable individual, ignee wrongfully refuses the individ- except as provided by 13 U.S.C. 8. ual’s request for review of the initial (5) (k)(5) exemption: Investigatory ma- denial of an amendment or, after re- terial compiled solely for the purpose view, wrongfully refuses to amend the of determining suitability, eligibility, record; or qualifications for Federal civilian (2) Denial of access. The activity employment, military service, Federal wrongfully refuses to allow the indi- contracts, or access to classified infor- vidual to review the record or wrong- mation, but only to the extent such fully denies his or her request for a material would reveal the identity of a copy of the record; confidential source (see paragraph (h) (3) Failure to meet recordkeeping stand- of this section, ‘‘confidential source’’). ards. The activity fails to maintain an This exemption allows protection of individual’s record with the accuracy, confidential sources in background in- relevance, timeliness, and complete- vestigations, employment inquiries, ness necessary to assure fairness in any and similar inquiries used in personnel determination about the individual’s screening to determine suitability, eli- rights, benefits, or privileges and, in fact, makes an adverse determination gibility, or qualifications. based on the record; or (6) (k)(6) exemption: Testing or exam- (4) Failure to comply with Privacy Act. ination material used solely to deter- The activity fails to comply with any mine individual qualifications for ap- other provision of 5 U.S.C. 552a or any pointment or promotion in the Federal rule or regulation promulgated under 5 or military service if the disclosure U.S.C. 552a and thereby causes the indi- would compromise the objectivity or vidual to be adversely affected. fairness of the testing or examination (c) Criminal penalties. Subsection (i)(1) process. of 5 U.S.C. 552a authorizes three crimi- (7) (k)(7) exemption: Evaluation mate- nal penalties against individuals for rial used to determine potential for violations of its provisions. All three promotion in the military services, but are misdemeanors punishable by fines only to the extent that disclosure of $5,000. would reveal the identity of a confiden- (1) Wrongful disclosure. Any member tial source (see paragraph (h) of this or employee of Department of the Navy section, ‘‘confidential source’’.) who, by virtue of his or her employ- (h) Confidential source. Promises of ment or position, has possession of or confidentiality are to be given on a access to records and willfully makes a disclosure knowing that disclosure is limited basis and only when essential in violation of 5 U.S.C. 552a or this sub- to obtain the information sought. Es- part and subpart G of this part. tablish appropriate procedures for (2) Maintaining unauthorized records. granting confidentiality and designate Any member or employee of Depart- those categories of individuals author- ment of the Navy who willfully main- ized to make such promises. tains a system of records for which a
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notice has not been published under Subpart G—Privacy Act periodic Chief of Naval Operations Exemptions Notes (OPNAVNOTEs) 5211, ‘‘Current Privacy Act Issuances.’’ AUTHORITY: Pub. L. 93–579, 88 Stat. 1896 (5 (3) Wrongful requesting or obtaining U.S.C. 552a). records. Any person who knowingly and SOURCE: 65 FR 31471, May 18, 2000, unless willfully requests or obtains informa- otherwise noted. tion concerning an individual under false pretenses. § 701.116 Purpose. Subparts F and G of this part contain § 701.115 Computer matching program. rules promulgated by the Secretary of (a) General. 5 U.S.C. 552a and this sub- the Navy, pursuant to 5 U.S.C. 552a (j) part and subpart G of this part are ap- and (k), and subpart F, § 701.113, to ex- plicable to certain types of computer empt certain systems of Department of matching, i.e., the computer compari- the Navy records from specified provi- son of automated systems of records. sions of 5 U.S.C. 552a. There are two specific kinds of match- ing programs that are fully governed § 701.117 Exemption for classified records. by 5 U.S.C. 552a and this subpart and subpart G of this part: All systems of records maintained by (1) Matches using records from Fed- the Department of the Navy shall be eral personnel or payroll systems of exempt from the requirements of the records; access provision of the Privacy Act (5 U.S.C. 552a(d)) under the (k)(1) exemp- (2) Matches involving Federal benefit tion, to the extent that the system programs to accomplish one or more of contains information properly classi- the following purposes: fied under E.O. 12958 and that is re- (i) To determine eligibility for a Fed- quired by that E.O. to be kept secret in eral benefit. the interest of national defense or for- (ii) To comply with benefit program eign policy. This exemption is applica- requirements. ble to parts of all systems of records (iii) To effect recovery of improper including those not otherwise specifi- payments or delinquent debts from cur- cally designated for exemptions herein rent or former beneficiaries. which contain isolated items of prop- (b) The record comparison must be a erly classified information. computerized one. Manual comparisons are not covered, involving records from § 701.118 Exemptions for specific Navy record systems. two or more automated systems of records (i.e., systems of records main- (a) System identifier and name: tained by Federal agencies that are (1) N01070–9, White House Support Pro- subject to 5 U.S.C. 552a); or a Depart- gram. ment of the Navy automated systems (2) Exemption: (i) Information specifi- of records and automated records cally authorized to be classified under E.O. 12958, as implemented by DoD maintained by a non-Federal agency 5200.1–R, may be exempt pursuant to 5 (i.e., State or local government or U.S.C. 552a(k)(1). agent thereof). A covered computer (ii) Investigatory material compiled matching program entails not only the for law enforcement purposes may be actual computerized comparison, but exempt pursuant to 5 U.S.C. 552a(k)(2). also preparing and executing a written However, if an individual is denied any agreement between the participants, right, privilege, or benefit for which he securing approval of the Defense Data would otherwise be entitled by Federal Integrity Board, publishing a matching law or for which he would otherwise be notice in the FEDERAL REGISTER before eligible, as a result of the maintenance the match begins, ensuring that inves- of such information, the individual will tigation and due process are completed, be provided access to such information and taking ultimate action, if any. except to the extent that disclosure
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would reveal the identity of a confiden- (1) N01131–1, Officer Selection and Ap- tial source. pointment System. (iii) Records maintained in connec- (2) Exemption: (i) Information specifi- tion with providing protective services cally authorized to be classified under to the President and other individuals E.O. 12958, as implemented by DoD under 18 U.S.C. 3506, may be exempt 5200.1–R, may be exempt pursuant to 5 pursuant to 5 U.S.C. 552a(k)(3). U.S.C. 552a(k)(1). (iv) Investigatory material compiled (ii) Investigatory material compiled solely for the purpose of determining solely for the purpose of determining suitability, eligibility, or qualifica- suitability, eligibility, or qualifica- tions for federal civilian employment, tions for federal civilian employment, military service, federal contracts, or military service, federal contracts, or access to classified information may be access to classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such mate- but only to the extent that such mate- rial would reveal the identity of a con- rial would reveal the identity of a con- fidential source. fidential source. (v) Portions of this system of records (iii) Testing or examination material are exempt from the following sub- used solely to determine individual sections of the Privacy Act: (c)(3), (d), qualifications for appointment or pro- motion in the Federal service may be (e)(1), (e)(4) (G) through (I), and (f). exempt pursuant to 5 U.S.C. 552a(k)(6), (3) Authority: 5 U.S.C. 552a(k)(1), if the disclosure would compromise the (k)(2), (k)(3), and (k)(5). objectivity or fairness of the test or ex- (4) Reasons: (i) Exempted portions of amination process. this system contain information which (iv) Evaluation material used to de- has been properly classified under E.O. termine potential for promotion in the 12958, and which is required to be kept Military Services may be exempt pur- secret in the interest of national de- suant to 5 U.S.C. 552a(k)(7), but only to fense or foreign policy. Exempted por- the extent that the disclosure of such tions of this system may also contain material would reveal the identity of a information considered relevant and confidential source. necessary to make a determination as (v) Portions of this system of records to qualifications, eligibility, or suit- are exempt from the following sub- ability for access to classified informa- sections of the Privacy Act: (c)(3), (d), tion, and which was obtained by pro- (e)(1), (e)(4)(G) through (I), and (f). viding an express or implied promise to (3) Authority: 5 U.S.C. 552a(k)(1), the source that his or her identity (k)(5), (k)(6), and (k)(7). would not be revealed to the subject of (4) Reasons: (i) Granting individuals the record. Exempted portions of this access to portions of this system of system may also contain information records could result in the disclosure of collected and maintained in connection classified material, or the identifica- with providing protective services to tion of sources who provided informa- the President and other individuals tion to the government under an ex- protected pursuant to 18 U.S.C. 3056. press or implied promise of confiden- Exempted portions of this system may tiality. Material will be screened to also contain investigative records com- permit access to unclassified material piled for law enforcement purposes, the and to information that does not dis- disclosure of which could reveal the close the identity of a confidential identity of sources who provide infor- source. mation under an express or implied (ii) [Reserved] promise of confidentiality, compromise (c) System identifier and name: investigative techniques and proce- (1) N01133–2, Recruiting Enlisted Selec- dures, jeopardize the life or physical tion System. safety of law-enforcement personnel, or (2) Exemption: (i) Information specifi- otherwise interfere with enforcement cally authorized to be classified under proceedings or adjudications. E.O. 12958, as implemented by DoD (ii) [Reserved] 5200.1–R, may be exempt pursuant to 5 (b) System identifier and name: U.S.C. 552a(k)(1).
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(ii) Investigatory material compiled (4) Reason: (i) Granting individuals solely for the purpose of determining access to portions of these records per- suitability, eligibility, or qualifica- taining to or consisting of, but not lim- tions for federal civilian employment, ited to, disciplinary reports, criminal military service, federal contracts, or investigations, and related statements access to classified information may be of witnesses, and such other related exempt pursuant to 5 U.S.C. 552a(k)(5), matter in conjunction with the en- but only to the extent that such mate- forcement of criminal laws, could rial would reveal the identity of a con- interfere with the orderly investiga- fidential source. tions, with the orderly administration (iii) Testing or examination material of justice, and possibly enable suspects used solely to determine individual to avoid detection or apprehension. qualifications for appointment or pro- Disclosure of this information could re- motion in the Federal service may be sult in the concealment, destruction, exempt pursuant to 5 U.S.C. 552a(k)(6), or fabrication of evidence, and jeop- if the disclosure would compromise the ardize the safety and well-being of in- objectivity or fairness of the test or ex- formants, witnesses and their families, amination process. and law enforcement personnel and (iv) Evaluation material used to de- their families. Disclosure of this infor- termine potential for promotion in the mation could also reveal and render in- Military Services may be exempt pur- effectual investigative techniques, suant to 5 U.S.C. 552a(k)(7), but only to sources, and methods used by these the extent that the disclosure of such components and could result in the in- material would reveal the identity of a vasion of the privacy of individuals confidential source. only incidentally related to an inves- (v) Portions of this system of records tigation. The exemption of the individ- are exempt from the following sub- ual’s right of access to portions of sections of the Privacy Act: (c)(3), (d), these records, and the reasons therefor, (e)(1), (e)(4)(G) through (I), and (f). necessitate the exemption of this sys- (3) Authority: 5 U.S.C. 552a(k)(1), tem of records from the requirement of (k)(5), (k)(6), and (k)(7). the other cited provisions. (4) Reasons: Granting individuals ac- (ii) [Reserved] cess to portions of this system of (e) System identifier and name: records could result in the disclosure of (1) N01754–3, Navy Child Development classified material, or the identifica- Services Program. tion of sources who provided informa- (2) Exemption: (i) Investigatory mate- tion to the government under an ex- rial compiled for law enforcement pur- press or implied promise of confiden- poses may be exempt pursuant to 5 tiality. Material will be screened to U.S.C. 552a(k)(2). However, if an indi- permit access to unclassified material vidual is denied any right, privilege, or and to information that does not dis- benefit for which he would otherwise be close the identity of a confidential entitled by Federal law or for which he source. would otherwise be eligible, as a result (d) System identifier and name: of the maintenance of such informa- (1) N01640–1, Individual Correctional tion, the individual will be provided ac- Records. cess to such information except to the (2) Exemption: (i) Parts of this system extent that disclosure would reveal the may be exempt pursuant to 5 U.S.C. identity of a confidential source. 552a(j)(2) if the information is compiled (ii) Portions of this system of records and maintained by a component of the are exempt from the following sub- agency which performs as its principle sections of the Privacy Act: (c)(3) and function any activity pertaining to the (d). enforcement of criminal laws. (3) Authority: 5 U.S.C. 552a(k)(2). (ii) Portions of this system of records (4) Reasons: (i) Exemption is needed are exempt from the following sub- in order to encourage persons having sections of the Privacy Act: (c)(3), knowledge of abusive or neglectful acts (c)(4), (d), (e)(2), (e)(3), (e)(4)(G) through toward children to report such infor- (I), (e)(5), (e)(8), (f), and (g). mation, and to protect such sources (3) Authority: 5 U.S.C. 552a(j)(2). from embarrassment or recrimination,
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as well as to protect their right to pri- (g) System identifier and name: vacy. It is essential that the identities (1) N04060–1, Navy and Marine Corps of all individuals who furnish informa- Exchange Security Files. tion under an express promise of con- (2) Exemption: (i) Investigatory mate- fidentiality be protected. Additionally, rial compiled for law enforcement pur- granting individuals access to informa- poses may be exempt pursuant to 5 tion relating to criminal and civil law U.S.C. 552a(k)(2). However, if an indi- enforcement, as well as the release of vidual is denied any right, privilege, or certain disclosure accountings, could benefit for which he would otherwise be interfere with ongoing investigations entitled by Federal law or for which he and the orderly administration of jus- would otherwise be eligible, as a result tice, in that it could result in the con- of the maintenance of such informa- cealment, alteration, destruction, or tion, the individual will be provided ac- fabrication of information; could ham- cess to such information except to the per the identification of offenders and extent that disclosure would reveal the the disposition of charges; and could jeopardize the safety and well being of identity of a confidential source. parents and their children. (ii) Portions of this system of records (ii) [Reserved] are exempt from the following sub- (f) System identifier and name: sections of the Privacy Act: (c)(3), (d), (1) N03834–1, Special Intelligence Per- (e)(4) (G) through (I), and (f). sonnel Access File. (3) Authority: 5 U.S.C. 552a(k)(2). (2) Exemption: (i) Information specifi- (4) Reasons: (i) Granting individuals cally authorized to be classified under access to information collected and E.O. 12958, as implemented by DoD maintained by these activities relating 5200.1–R, may be exempt pursuant to 5 to the enforcement of criminal laws U.S.C. 552a(k)(1). could interfere with orderly investiga- (ii) Investigatory material compiled tions, with orderly administration of solely for the purpose of determining justice, and possibly enable suspects to suitability, eligibility, or qualifica- avoid detection or apprehension. Dis- tions for federal civilian employment, closure of this information could result military service, federal contracts, or in the concealment, destruction, or access to classified information may be fabrication of evidence, and could also exempt pursuant to 5 U.S.C. 552a(k)(5), reveal and render ineffectual investiga- but only to the extent that such mate- tive techniques, sources, and methods rial would reveal the identity of a con- used by these activities. fidential source. (h) [Reserved] (iii) Portions of this system of (i) System identifier and name: records are exempt from the following (1) N05041–1, Inspector General (IG) subsections of the Privacy Act: (c)(3), Records. (d), (e)(1), (e)(4) (G) through (I), and (f). (2) Exemption: (i) Information specifi- (3) Authority: 5 U.S.C. 552a(k)(1) and (k)(5). cally authorized to be classified under (4) Reasons: (i) Exempted portions of E.O. 12958, as implemented by DoD this system contain information that 5200.1–R, may be exempt pursuant to 5 has been properly classified under E.O. U.S.C. 552a(k)(1). 12356, and that is required to be kept (ii) Investigatory material compiled secret in the interest of national de- for law enforcement purposes may be fense or foreign policy. exempt pursuant to 5 U.S.C. 552a(k)(2). (ii) Exempted portions of this system However, if an individual is denied any also contain information considered right, privilege, or benefit for which he relevant and necessary to make a de- would otherwise be entitled by Federal termination as to qualifications, eligi- law or for which he would otherwise be bility, or suitability for access to clas- eligible, as a result of the maintenance sified information and was obtained by of such information, the individual will providing an express or implied assur- be provided access to such information ance to the source that his or her iden- except to the extent that disclosure tity would not be revealed to the sub- would reveal the identity of a confiden- ject of the record. tial source.
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(iii) Portions of this system of to subsections (k)(1) and (k)(2) of the records may be exempt from the provi- Privacy Act of 1974. sions of 5 U.S.C. 552a(c)(3); (d); (e)(1); (v) From subsection (e)(4)(I) because (e)(4)(G), (H), and (I); and (f). it is necessary to protect the confiden- (3) Authority: 5 U.S.C. 552a(k)(1) and tiality of sources and to protect the (k)(2). privacy and physical safety of wit- (4) Reasons: (i) From subsection (c)(3) nesses. Although the system is exempt because the release of the disclosure from this requirement, the Department accounting would permit individuals to of the Navy has published a notice in obtain valuable information con- broad, generic terms in the belief that cerning the nature of the investigation this is all that subsection (e)(4)(I) of and would present a serious impedi- the Act requires. ment to the orderly conduct of any in- (j) System identifier and name: vestigative activities. Such accounting (1) N05300–3, Faculty Professional Files. could result in the release of properly (2) Exemption: (i) Investigatory mate- classified information which would rial compiled solely for the purpose of compromise the national defense or determining suitability, eligibility, or disrupt foreign policy. qualifications for federal civilian em- (ii) From subsections (d) and (f) be- ployment, military service, federal cause access to the records would in- contracts, or access to classified infor- form individuals of the existence and mation may be exempt pursuant to 5 nature of the investigation; provide in- U.S.C. 552a(k)(5), but only to the extent formation that might result in the con- that such material would reveal the cealment, destruction, or fabrication of identity of a confidential source. evidence; possibly jeopardize the safety (ii) Portions of this system of records and well-being of informants, witnesses are exempt from the following sub- and their families; likely reveal and sections of the Privacy Act: (c)(3), (d), render ineffectual investigatory tech- (e)(4) (G) and (H), and (f). niques and methods and sources of in- (3) Authority: 5 U.S.C. 552a(k)(5). formation; and possibly result in the (4) Reasons: Exempted portions of invasion of the personal privacy of this system contain information con- third parties. Access could result in the sidered relevant and necessary to make release of properly classified informa- a release determination as to qualifica- tion which could compromise the na- tions, eligibility, or suitability for Fed- tional defense or disrupt foreign policy. eral employment, and was obtained by Amendment of the records would inter- providing an express or implied prom- fere with the ongoing investigation and ise to the source that his or her iden- impose an impossible administrative tity would not be revealed to the sub- burden by requiring investigations to ject of the record. be continually reinvestigated. (k) System identifier and name: (iii) From subsection (e)(1) because in (1) N05354–1, Equal Opportunity Infor- the course of the investigation it is not mation Management System. always possible, at least in the early (2) Exemption: (i) Information specifi- stages of the inquiry, to determine rel- cally authorized to be classified under evance and or necessity as such deter- E.O. 12958, as implemented by DoD minations may only occur after the in- 5200.1–R, may be exempt pursuant to 5 formation has been evaluated. Informa- U.S.C. 552a(k)(1). tion may be obtained concerning the (ii) Investigatory material compiled actual or potential violation of laws or solely for the purpose of determining regulations other than those relating suitability, eligibility, or qualifica- to the ongoing investigation. Such in- tions for federal civilian employment, formation should be retained as it can military service, federal contracts, or aid in establishing patterns of im- access to classified information may be proper activity and can provide valu- exempt pursuant to 5 U.S.C. 552a(k)(5), able leads in the conduct of other in- but only to the extent that such mate- vestigations. rial would reveal the identity of a con- (iv) From subsection (e)(4)(G) and (H) fidential source. because this system of records is ex- (iii) Portions of this system of empt from individual access pursuant records are exempt from the following
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subsections of the Privacy Act: (c)(3), (4) Reasons: Granting individuals ac- (d), (e)(4)(G) through (I), and (f). cess to information collected and (3) Authority: 5 U.S.C. 552a(k)(1) and maintained in this system of records (k)(5). could interfere with orderly investiga- (4) Reasons: Granting access to infor- tions; result in the disclosure of classi- mation in this system of records could fied material; jeopardize the safety of result in the disclosure of classified informants, witnesses, and their fami- material, or reveal the identity of a lies; disclose investigative techniques; source who furnished information to and result in the invasion of privacy of the Government under an express or individuals only incidentally related to implied promise of confidentiality. Ma- an investigation. Material will be terial will be screened to permit access screened to permit access to unclassi- to unclassified material and to infor- fied information that will not disclose mation that will not disclose the iden- the identity of sources who provide the tity of a confidential source. information to the government under (l) System identifier and name: an express or implied promise of con- (1) N05520–1, Personnel Security Eligi- fidentiality. bility Information System. (m) System identifier and name: (2) Exemption: (i) Information specifi- (1) N05520–4, NCIS Investigative Files cally authorized to be classified under System. E.O. 12958, as implemented by DoD (2) Exemption: (i) Parts of this system 5200.1–R, may be exempt pursuant to 5 may be exempt pursuant to 5 U.S.C. U.S.C. 552a(k)(1). 552a(j)(2) if the information is compiled (ii) Investigatory material compiled and maintained by a component of the for law enforcement purposes may be agency which performs as its principle exempt pursuant to 5 U.S.C. 552a(k)(2). function any activity pertaining to the However, if an individual is denied any enforcement of criminal laws. right, privilege, or benefit for which he (ii) Portions of this system of records would otherwise be entitled by Federal are exempt from the following sub- law or for which he would otherwise be sections of the Privacy Act: (c)(3), eligible, as a result of the maintenance (c)(4), (d), (e)(2), (e)(3), (e)(4)(G) through of such information, the individual will (I), (e)(5), (e)(8), (f), and (g). be provided access to such information (3) Authority: 5 U.S.C. 552a(j)(2). except to the extent that disclosure (4) Reason: would reveal the identity of a confiden- (i) Granting individuals access to in- tial source. formation collected and maintained by (iii) Investigatory material compiled this activity relating to the enforce- solely for the purpose of determining ment of criminal laws could interfere suitability, eligibility, or qualifica- with the orderly investigations, with tions for federal civilian employment, the orderly administration of justice, military service, federal contracts, or and possibly enable suspects to avoid access to classified information may be detection or apprehension. Disclosure exempt pursuant to 5 U.S.C. 552a(k)(5), of this information could result in the but only to the extent that such mate- concealment, destruction, or fabrica- rial would reveal the identity of a con- tion of evidence, and jeopardize the fidential source. safety and well-being of informants, (iv) Evaluation material used to de- witnesses and their families, and law termine potential for promotion in the enforcement personnel and their fami- Military Services may be exempt pur- lies. Disclosure of this information suant to 5 U.S.C. 552a(k)(7), but only to could also reveal and render ineffectual the extent that the disclosure of such investigative techniques, sources, and material would reveal the identity of a methods used by these components and confidential source. could result in the invasion of the pri- (v) Portions of this system of records vacy of individuals only incidentally are exempt from the following sub- related to an investigation. The exemp- sections of the Privacy Act: (c)(3), (d), tion of the individual’s right of access (e)(4)(G) and (I), and (f). to portions of these records, and the (3) Authority: 5 U.S.C. 552a(k)(1), reasons therefor, necessitate the ex- (k)(2), (k)(5), and (k)(7). emption of this system of records from
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the requirement of the other cited pro- (ii) Access to the records contained visions. in this system would inform the sub- (ii) [Reserved] ject of the existence of material com- (5) Exemption: piled for law enforcement purposes, the (i) Information specifically author- premature release of which could pre- ized to be classified under E.O. 12958, as vent the successful completion of in- implemented by DoD 5200.1–R, may be vestigation, and lead to the improper exempt pursuant to 5 U.S.C. 552a(k)(1). influencing of witnesses, the destruc- (ii) Records maintained in connec- tion of records, or the fabrication of tion with providing protective services testimony. Exempt portions of this to the President and other individuals system also contain information that under 18 U.S.C. 3506, may be exempt has been properly classified under E.O. pursuant to 5 U.S.C. 552a(k)(3). 12958, and that is required to be kept (iii) Records maintained solely for secret in the interest of national de- statistical research or program evalua- fense or foreign policy. tion purposes and which are not used to (iii) Exempt portions of this system make decisions on the rights, benefits, also contain information considered or entitlement of an individual except relevant and necessary to make a de- for census records which may be dis- termination as to qualifications, eligi- closed under 13 U.S.C. 8, may be ex- bility, or suitability for Federal civil- empt pursuant to 5 U.S.C. 552a(k)(4). ian employment, military service, Fed- (iv) Investigatory material compiled eral contracts, or access to classified solely for the purpose of determining information, and was obtained by pro- suitability, eligibility, or qualifica- viding an express or implied assurance tions for federal civilian employment, to the source that his or her identity military service, federal contracts, or would not be revealed to the subject of access to classified information may be the record. exempt pursuant to 5 U.S.C. 552a(k)(5), (iv) The notice of this system of but only to the extent that such mate- records published in the FEDERAL REG- rial would reveal the identity of a con- ISTER sets forth the basic statutory or fidential source. related authority for maintenance of (v) Testing or examination material the system. used solely to determine individual qualifications for appointment or pro- (v) The categories of sources of motion in the Federal service may be records in this system have been pub- exempt pursuant to 5 U.S.C. 552a(k)(6), lished in the FEDERAL REGISTER in if the disclosure would compromise the broad generic terms. The identity of objectivity or fairness of the test or ex- specific sources, however, must be amination process. withheld in order to protect the con- (vi) Portions of this system of fidentiality of the source, of criminal records are exempt from the following and other law enforcement informa- subsections of the Privacy Act: (c)(3), tion. This exemption is further nec- (d), (e)(1), (e)(4)(G) through (I), and (f). essary to protect the privacy and phys- (6) Authority: 5 U.S.C. 552a(k)(1), ical safety of witnesses and informants. (k)(3), (k)(4), (k)(5) and (k)(6). (vi) This system of records is exempt- (7) Reason: ed from procedures for notice to an in- (i) The release of disclosure account- dividual as to the existence of records ings would permit the subject of an in- pertaining to him/her dealing with an vestigation to obtain valuable informa- actual or potential civil or regulatory tion concerning the nature of that in- investigation, because such notice to vestigation, and the information con- an individual would be detrimental to tained, or the identity of witnesses or the successful conduct and/or comple- informants, would therefor present a tion of an investigation, pending or fu- serious impediment to law enforce- ture. Mere notice of the fact of an in- ment. In addition, disclosure of the ac- vestigation could inform the subject or counting would amount to notice to others that their activities are under, the individual of the existence of a or may become the subject of, an inves- record. tigation. This could enable the subjects
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to avoid detection, to influence wit- tained. Amendment could cause alter- nesses improperly, to destroy records, ation of the record of adjudication. or to fabricate testimony. (ii) [Reserved] (vii) Exempt portions of this system (o) System identifier and name: containing screening board reports. (1) N05527–1, Security Incident System. (viii) Screening board reports set (2) Exemption: forth the results of oral examination of (i) Parts of this system may be ex- applicants for a position as a special empt pursuant to 5 U.S.C. 552a(j)(2) if agent with the Naval Investigation the information is compiled and main- Service Command. Disclosure of these tained by a component of the agency records would reveal the areas pursued which performs as its principle func- in the course of the examination and tion any activity pertaining to the en- thus adversely affect the result of the forcement of criminal laws. selection process. Equally important, (ii) Portions of this system of records the records contain the candid views of are exempt from the following sub- the members composing the board. Re- sections of the Privacy Act: (c)(3), lease of the records could affect the (c)(4), (d), (e)(2), and (e)(4)(G) through willingness of the members to provide (I), (e)(5), (e)(8), (f) and (g). candid opinions and thus diminish the (3) Authority: 5 U.S.C. 552a(j)(2). effectiveness of a program which is es- (4) Reasons: sential to maintaining the high stand- (i) Granting individuals access to in- ard of the Special Agent Corps., i.e., formation collected and maintained by those records constituting examination this component relating to the enforce- material used solely to determine indi- ment of criminal laws could interfere vidual qualifications for appointment with orderly administration of justice, in the Federal service. and possibly enable suspects to avoid (n) System identifier and name: detection or apprehension. Disclosure (1) N05520–5, Personnel Security Pro- of this information could result in con- gram Management Records System. cealment, destruction, or fabrication of (2) Exemption: evidence, and jeopardize the safety and (i) Information specifically author- well being of informants, witnesses and ized to be classified under E.O. 12958, as their families, and of law enforcement implemented by DoD 5200.1–R, may be personnel and their families. Disclo- exempt pursuant to 5 U.S.C. 552a(k)(1). sure of this information could also re- (ii) Investigatory material compiled veal and render ineffectual investiga- solely for the purpose of determining tive techniques, sources, and methods suitability, eligibility, or qualifica- used by this component, and could re- tions for federal civilian employment, sult in the invasion of privacy of indi- military service, federal contracts, or viduals only incidentally related to an access to classified information may be investigation.The exemption of the in- exempt pursuant to 5 U.S.C. 552a(k)(5), dividual’s right of access to his or her but only to the extent that such mate- records, and the reason therefore, ne- rial would reveal the identity of a con- cessitate the exemption of this system fidential source. of records from the requirements of (iii) Portions of this system of other cited provisions. records are exempt from the following (ii) [Reserved] subsections of 5 U.S.C. 552a: (d)(1–5). (p) System identifier and name: (3) Authority: 5 U.S.C. 552a(k)(1) and (1) N05527–4, Naval Security Group Per- (k)(5). sonnel Security/Access Files. (4) Reasons: (2) Exemption: (i) Granting individuals access to in- (i) Information specifically author- formation collected and maintained in ized to be classified under E.O. 12958, as this system of records could result in implemented by DoD 5200.1–R, may be the disclosure of classified material; exempt pursuant to 5 U.S.C. 552a(k)(1). and jeopardize the safety of inform- (ii) Investigatory material compiled ants, and their families. Further, the for law enforcement purposes may be integrity of the system must be en- exempt pursuant to 5 U.S.C. 552a(k)(2). sured so that complete and accurate However, if an individual is denied any records of all adjudications are main- right, privilege, or benefit for which he
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would otherwise be entitled by Federal (i) Information specifically author- law or for which he would otherwise be ized to be classified under E.O. 12958, as eligible, as a result of the maintenance implemented by DoD 5200.1–R, may be of such information, the individual will exempt pursuant to 5 U.S.C. 552a(k)(1). be provided access to such information (ii) Investigatory material compiled except to the extent that disclosure for law enforcement purposes may be would reveal the identity of a confiden- exempt pursuant to 5 U.S.C. 552a(k)(2). tial source. However, if an individual is denied any (iii) Records maintained in connec- right, privilege, or benefit for which he tion with providing protective services to the President and other individuals would otherwise be entitled by Federal under 18 U.S.C. 3506, may be exempt law or for which he would otherwise be pursuant to 5 U.S.C. 552a(k)(3). eligible, as a result of the maintenance (iv) Records maintained solely for of such information, the individual will statistical research or program evalua- be provided access to such information tion purposes and which are not used to except to the extent that disclosure make decisions on the rights, benefits, would reveal the identity of a confiden- or entitlement of an individual except tial source. for census records which may be dis- (iii) Investigatory material compiled closed under 13 U.S.C. 8, may be ex- solely for the purpose of determining empt pursuant to 5 U.S.C. 552a(k)(4). suitability, eligibility, or qualifica- (v) Investigatory material compiled tions for federal civilian employment, solely for the purpose of determining military service, federal contracts, or suitability, eligibility, or qualifica- access to classified information may be tions for federal civilian employment, exempt pursuant to 5 U.S.C. 552a(k)(5), military service, federal contracts, or but only to the extent that such mate- access to classified information may be rial would reveal the identity of a con- exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such mate- fidential source. rial would reveal the identity of a con- (iv) Testing or examination material fidential source. used solely to determine individual (vi) Portions of this system of qualifications for appointment or pro- records are exempt from the following motion in the Federal service may be subsections of the Privacy Act: (c)(3), exempt pursuant to 5 U.S.C. 552a(k)(6), (d), (e)(1), (e)(4)(G) through (I), and (f). if the disclosure would compromise the (3) Authority: 5 U.S.C. 552a(k)(1) objectivity or fairness of the test or ex- through (k)(5). amination process. (4) Reasons: (v) Evaluation material used to de- (i) Exempt portions of this system termine potential for promotion in the contain information that has been Military Services may be exempt pur- properly classified under E.O. 12958, suant to 5 U.S.C. 552a(k)(7), but only to and that is required to be kept secret the extent that the disclosure of such in the interest of national defense or material would reveal the identity of a foreign policy. (ii) Exempt portions of this system confidential source. also contain information considered (vi) Portions of this system of relevant and necessary to make a de- records are exempt from the following termination as to qualification, eligi- subsections of the Privacy Act: (d), bility or suitability for access to clas- (e)(1), and (f)(2), (3), and (4). sified special intelligence information, (3) Authority: 5 U.S.C. 552a(k)(1), and that was obtained by providing an (k)(2), (k)(5), (k)(6), and (k)(7). express or implied promise to the (4) Reasons: source that his or her identity would (i) Subsection (d) because granting not be revealed to the subject of the individuals access to information relat- record. ing to the preparation and conduct of (q) System identifier and name: litigation would impair the develop- (1) N05800–1, Legal Office Litigation/ ment and implementation of legal Correspondence Files. strategy. Accordingly, such records are (2) Exemption:
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exempt under the attorney-client privi- persons under the jurisdiction of the lege. Disclosure might also com- Board. Material will be screened to per- promise on-going investigations and re- mit access to all material except such veal confidential informants. Addition- records or documents as reflecting ally, granting access to the record sub- items of opinion, conclusion, or rec- ject would seriously impair the Navy’s ommendation expressed by individual ability to negotiate settlements or pur- board members or by the board as a sue other civil remedies. Amendment is whole. inappropriate because the litigation (ii) The exemption of the individual’s files contain official records including right to access to portions of these transcripts, court orders, investigatory records, and the reasons therefore, ne- materials, evidentiary materials such cessitate the partial exemption of this as exhibits, decisional memorandum system of records from the require- and other case-related papers. Adminis- ments of the other cited provisions. trative due process could not be (s) System identifier and name: achieved by the ‘‘exparte’’ correction (1) N06320–2, Family Advocacy Program of such materials. System. (ii) Subsection (e)(1) because it is not (2) Exemption: possible in all instances to determine relevancy or necessity of specific infor- (i) Investigatory material compiled mation in the early stages of case de- for law enforcement purposes may be velopment. What appeared relevant and exempt pursuant to 5 U.S.C. 552a(k)(2). necessary when collected, ultimately However, if an individual is denied any may be deemed unnecessary upon as- right, privilege, or benefit for which he sessment in the context of devising would otherwise be entitled by Federal legal strategy. Information collected law or for which he would otherwise be during civil litigation investigations eligible, as a result of the maintenance which is not used during subject case is of such information, the individual will often retained to provide leads in other be provided access to such information cases or to establish patterns of activ- except to the extent that disclosure ity. would reveal the identity of a confiden- (iii) Subsections (f)(2), (3), and (4) be- tial source. cause this record system is exempt (ii) Investigatory material compiled from the individual access provisions solely for the purpose of determining of subsection (d). suitability, eligibility, or qualifica- (r) System identifier and name: tions for federal civilian employment, (1) N01000–5, Naval Clemency and Pa- military service, federal contracts, or role Board Files. access to classified information may be (2) Exemption: exempt pursuant to 5 U.S.C. 552a(k)(5), (i) Parts of this system may be ex- but only to the extent that such mate- empt pursuant to 5 U.S.C. 552a(j)(2) if rial would reveal the identity of a con- the information is compiled and main- fidential source. tained by a component of the agency (iii) Portions of this system of which performs as its principle func- records are exempt from the following tion any activity pertaining to the en- subsections of the Privacy Act: (c)(3) forcement of criminal laws. and (d). (ii) Portions of this system of records (3) Authority: 5 U.S.C. 552a(k)(2) and are exempt from the following sub- (k)(5). sections of the Privacy Act: (c)(4), (d), (4) Reasons: (e)(4)(G), and (f). (i) Exemption is needed in order to (3) Authority: 5 U.S.C. 552a(j)(2). encourage persons having knowledge of (4) Reasons: abusive or neglectful acts toward chil- (i) Granting individuals access to dren to report such information, and to records maintained by this Board could protect such sources from embarrass- interfere with internal processes by ment or recriminations, as well as to which Board personnel are able to for- protect their right to privacy. It is es- mulate decisions and policies with re- sential that the identities of all indi- gard to clemency and parole in cases viduals who furnish information under involving naval prisoners and other an express promise of confidentiality
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be protected. Additionally, granting in- viding express or implied promise to dividuals access to information relat- the source that his or her identity ing to criminal and civil law enforce- would not be revealed to the subject of ment, as well as the release of certain the record. disclosure accounting, could interfere (ii) Exempted portions of this system with ongoing investigations and the or- also contain test or examination mate- derly administration of justice, in that rial used solely to determine individual it could result in the concealment, al- qualifications for appointment or pro- teration, destruction, or fabrication of motion in the Federal service, the dis- information; could hamper the identi- closure of which would comprise the fication of offenders or alleged offend- objectivity or fairness of the testing or ers and the disposition of charges; and examination process. could jeopardize the safety and well being of parents and their children. § 701.119 Exemptions for specific Ma- (ii) Exempted portions of this system rine Corps record systems. also contain information considered (a) System identifier and name: relevant and necessary to make a de- (1) MMN00018, Base Security Incident termination as to qualifications, eligi- Reporting System. bility, or suitability for Federal em- (2) Exemption: ployment and Federal contracts, and (i) Parts of this system may be ex- that was obtained by providing an ex- empt pursuant to 5 U.S.C. 552a(j)(2) if press or implied promise to the source the information is compiled and main- that his or her identity would not be tained by a component of the agency revealed to the subject of the record. which performs as its principle func- (t) System identifier and name: tion any activity pertaining to the en- (1) N12930–1, Human Resources Group forcement of criminal laws. Personnel Records. (ii) Portions of this system of records (2) Exemption: are exempt from the following sub- (i) Investigatory material compiled sections of the Privacy Act: (c)(3), solely for the purpose of determining (c)(4), (d), (e) (2) and (3), (e)(4)(G) suitability, eligibility, or qualifica- through (I), (e)(5), (e)(8), (f), and (g). tions for federal civilian employment, (3) Authority: 5 U.S.C. 552a(j)(2). military service, federal contracts, or (4) Reasons: access to classified information may be (i) Granting individuals access to in- exempt pursuant to 5 U.S.C. 552a(k)(5), formation collected and maintained by but only to the extent that such mate- these activities relating to the enforce- rial would reveal the identity of a con- ment of criminal laws could interfere fidential source. with orderly investigations, with the (ii) Testing or examination material orderly administration of justice, and used solely to determine individual might enable suspects to avoid detec- qualifications for appointment or pro- tion or apprehension. Disclosure of this motion in the Federal service may be information could result in the con- exempt pursuant to 5 U.S.C. 552a(k)(6), cealment, destruction, or fabrication of if the disclosure would compromise the evidence, and jeopardize the safety and objectivity or fairness of the test or ex- well being of informants, witnesses and amination process. their families, and law enforcement (iii) Portions of this system of personnel and their families. Disclo- records are exempt from the following sure of this information could also re- subsections of the Privacy Act: (d), veal and render ineffectual investiga- (e)(4)(G) and (H), and (f). tive techniques, sources, and methods (3) Authority: 5 U.S.C. 552a(k)(5) and used by this component, and could re- (k)(6). sult in the invasion of the privacy of (4) Reasons: individuals only incidentally related to (i) Exempted portions of this system an investigation. The exemption of the contain information considered rel- individual’s right of access to his or evant and necessary to make a deter- her records, and the reasons therefore, mination as to qualifications, eligi- necessitate the exemption of this sys- bility, or suitability for Federal em- tem of records from the requirements ployment, and was obtained by pro- of other cited provisions.
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(ii) [Reserved] (iii) Exempt portions of this system (b) System identifier and name: further contain information that iden- (1) MIN00001, Personnel and Security tifies sources whose confidentiality Eligibility and Access Information System. must be protected to ensure that the (2) Exemption: privacy and physical safety of these (i) Investigatory material compiled witnesses and informants are pro- for law enforcement purposes may be tected. exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is denied any PART 705—PUBLIC AFFAIRS right, privilege, or benefit for which he REGULATIONS would otherwise be entitled by Federal law or for which he would otherwise be Sec. eligible, as a result of the maintenance 705.1 Purpose. of such information, the individual will 705.2 Chief of Information and the Office of be provided access to such information Information (CHINFO). except to the extent that disclosure 705.3 [Reserved] would reveal the identity of a confiden- 705.4 Communication directly with private tial source. organizations and individuals. 705.5 Taking of photos on board naval ships, (ii) Records maintained in connec- aircraft and installations by members of tion with providing protective services the general public. to the President and other individuals 705.6 Releasing public information material under 18 U.S.C. 3506, may be exempt to the media. pursuant to 5 U.S.C. 552a(k)(3). 705.7 Radio and television. (iii) Investigatory material compiled 705.8 Motion pictures. solely for the purpose of determining 705.9 Availability of motion pictures to ex- ternal audiences. suitability, eligibility, or qualifica- 705.10 Still photography. tions for federal civilian employment, 705.11 Supplying photographs and services military service, federal contracts, or to other than Navy and Marine Corps. access to classified information may be 705.12 Print media. exempt pursuant to 5 U.S.C. 552a(k)(5), 705.13 Commercial advertising. but only to the extent that such mate- 705.14 Embarkation of media representa- rial would reveal the identity of a con- tives. fidential source. 705.15 Employment of Navy personnel as correspondents or staff members of civil- (iv) Portions of this system of ian news media. records are exempt for the following 705.16 Navy produced public information subsections of the Privacy Act: (c)(3), material. (d), (e)(1), (e)(4)(G) through (I), and (f). 705.17 Participation guidelines. (3) Authority: 5 U.S.C. 552a(k)(2), (k)(3), 705.18 Authority and coordination. and (k)(5), as applicable. 705.19 Financing. (4) Reasons: 705.20 Use of Navy material and facilities. 705.21 Requests for Navy participation. (i) Exempt portions of this system 705.22 Relations with community groups. contain information that has been 705.23 Guest cruises. properly classified under E.O. 12958, 705.24 Exhibits. and that is required to be kept secret 705.25 Navy Exhibit Center. in the interest of national defense or 705.26 Exhibit availability report. foreign policy. 705.27–705.28 [Reserved] (ii) Exempt portions of this system 705.29 Navy Art Collection. 705.30 Aerospace Education Workshop. also contain information considered 705.31 USS Arizona Memorial, Pearl Harbor. relevant and necessary to make a de- 705.32 Aviation events and parachute dem- termination as to qualifications, eligi- onstrations. bility, or suitability for Federal civil- 705.33 Participation by Armed Forces bands, ian employment, military service, Fed- choral groups, and troops in the public eral contracts, or access to classified, domain. compartmented, or otherwise sensitive 705.34 Other special events. information, and was obtained by pro- 705.35 Armed Forces participation in events in the public domain. viding an expressed or implied assur- 705.36 Government transportation of civil- ance to the source that his or her iden- ians for public affairs purposes. tity would not be revealed to the sub- 705.37 Public affairs and public service ject of the record. awards.
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AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031. Los Angeles, and New York. As rep- SOURCE: 41 FR 29101, July 15, 1976, unless resentatives of the Secretary of the otherwise noted. Navy, Chief of Naval Operations, and Chief of Information, the NAVINFOs § 705.1 Purpose. have a primary mission of providing di- The regulations and rules in this part rect liaison with local and regional prescribe policies and procedures for mass communications media. the Department of the Navy pertaining (1) The function of the NAVINFOs to public affairs practices. are as follows: (i) Establish and maintain close per- § 705.2 Chief of Information and the sonal relationships with local tele- Office of Information (CHINFO). vision, radio, film, publishing, and (a) The Chief of Information is the di- other mass-media organizations includ- rect representative of the Secretary of ing minority-group-oriented media. the Navy and of the Chief of Naval Op- (ii) Seek ways through these media erations in all public affairs and inter- to inform the public about naval per- nal relations matters. As such, the sonnel and activities. Chief of Information has the authority (iii) Provide assistance to media or- to implement public affairs and inter- ganizations and respond to their inter- nal relations policies and to coordinate est in Navy programs, stories, and fea- Navy and Marine Corps public affairs tures. In this regard, maintain infor- and internal relations activities of mu- mal liaison with various information tual interest. offices afloat and ashore in order to re- (b) The Chief of Information will spond to requests from local media rep- keep Navy commands informed of De- resentatives, particularly those from partment of Defense policies and re- inland areas, who desire to visit fleet quirements. No command within the units or activities ashore. Department of the Navy, except Head- (iv) Provide advice on Navy coopera- quarters, Marine Corps, will deal di- tion and assistance, as appropriate, to rectly with the Office of the Assistant representatives of national industrial Secretary of Defense (Public Affairs) and commercial organizations, includ- on public affairs matters unless au- ing advertising agencies. thorized to do so by the Chief of Infor- (v) Maintain a library of Navy mo- mation. tion picture films for use by local tele- (c) The Chief of Information will be vision stations, distribute news films consulted on all Navy public affairs and audio material, and otherwise per- and internal relations matters and in- form normal audio-visual functions at formed of all operations and proposed the local level. plans and policies which have national or international (and in the case of (vi) Provide personnel and other as- audio-visual material, regional) public sistance as appropriate, to special affairs aspects. Command Information Bureaus and (d) The Chief of Information heads public information staffs of other naval the Navy Office of Information, the activities as directed by the Chief of Navy Internal Relations Activity Information. (NIRA), the Office of Information (vii) Advise the Chief of Information Branch Offices (NAVINFOs), the Navy on current trends and significant prob- Public Affairs Center (NAVPACENs) lems relating to local media require- and the Fleet Home Town News Center ments. (FHTNC). In addition, the Chief of In- (viii) Seek ways to support the long- formation has responsibility (on behalf range goals and immediate priorities of of the Secretary of the Navy as Execu- the Navy. tive Agent for the Department of De- (ix) Provide advice and assistance in fense) for the High School News Serv- the placement of news and feature ma- ice and has operational control of the terials to the field activities of the U.S. Navy Band, Washington, DC. Navy Recruiting Command. (e) The Navy Office of Information (x) Perform such other tasks as may Branch Offices (NAVINFOs) are located be assigned by the Chief of Informa- in Atlanta, Boston, Chicago, Dallas, tion.
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(2) Additionally, NAVINFO Los Ange- ries for dissemination to the media les is the Navy representative for all through normal information channels. appropriate liaison with motion pic- (1) The following tasks are included ture and network television offices in among the functions of the the Hollywood area. Naval activities NAVPACENs. will channel all requests for informa- (i) Produce written, audio and photo- tion or assistance from these media to graphic feature public information ma- NAVINFO Los Angeles, which will co- terial about fleet and shore personnel, ordinate with CHINFO. units and activities, as coordinated (3) Additionally, NAVINFO New York with and approved for policy and con- is the Navy representative for all ap- cept by the respective fleet and shore propriate liaison with television and commander concerned. radio networks in the New York area (ii) Serve as public affairs emergency and with magazine and book publishers reaction teams/resource personnel re- in that area. Requests for assistance sponsive to the requirements of the originating from these media should be CNO and CHINFO, and when feasible directed to NAVINFO New York, which and appropriate and as approved by will coordinate with CHINFO. CNO or CHINFO, serve as public affairs (4) Except as specifically directed by emergency reaction teams/resource CHINFO, the Branch Offices do not personnel in support of Fleet Com- have responsibility or authority for manders. community relations or internal rela- (iii) Develop feature material to sup- tions. port the long range goals and the im- (5) Direct liaison between NAVINFOs mediate priorities of the Navy. Direct and Naval District public affairs of- liaison is authorized with the Navy Re- fices, Navy recruiters and other naval cruiting Command, Recruiting Areas, activities afloat and ashore is encour- Recruiting Districts, and other Com- aged. manders as appropriate to achieve this (f) Areas covered by the respective function. offices are: (iv) Perform such other tasks as may be assigned by the Chief of Informa- (1) NAVINFO Atlanta: Alabama, the tion. District of Columbia, Florida, Georgia, (2) NAVPACENs will have no public Kentucky, Maryland, Mississippi, affairs news media responsibilities North Carolina, South Carolina, Ten- which conflict with the basic public af- nessee, Virginia, and Southern West fairs responsibilities of Fleet Com- Virginia. manders-in-Chief. Specifically, (2) NAVINFO Boston: Maine, Massa- NAVPACENs are excluded from re- chusetts, New Hampshire, Rhode Is- sponding to news media queries, releas- land, and Vermont. ing news information, arranging news (3) NAVINFO Chicago: Illinois, Indi- media embarkations, or any other day- ana, Iowa, Michigan, Minnesota, Ne- to-day news media services concerning braska, North Dakota, Ohio, South Da- the respective fleets. These responsibil- kota, Wisconsin, and Northern West ities remain with the Fleet Com- Virginia. mander. (4) NAVINFO Dallas: Arkansas, Colo- (3) NAVPACENs have no direct re- rado, Kansas, Louisiana, Missouri, New sponsibility or authority for commu- Mexico, Oklahoma, and Texas. nity relations or internal relations and (5) NAVINFO Los Angeles: Arizona, shall defer in these areas to the cog- California, Idaho, Montana, Nevada, nizant Naval District Commandant. Oregon, Utah, Washington, and Wyo- (4) Direct liaison with Fleet Com- ming. manders-in-Chief and NAVINFOs is ap- (6) NAVINFO New York: Connecticut, propriate and authorized. As approved Delaware, New Jersey, New York, and by the Fleet CINCs, direct liaison with Pennsylvania. forces afloat and shore activities under (g) The Navy Public Affairs Centers the Fleet CINCs is appropriate. (NAVPACENs) are located in Norfolk (5) NAVPACENs will carry out their and San Diego. The centers have a pri- mission and functions in such a man- mary mission of producing Navy sto- ner as not to interfere with the public
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affairs responsibilities of the District § 705.5 Taking of photos on board Commandants. naval ships, aircraft and installa- tions by members of the general [44 FR 6389, Feb. 1, 1979] public. § 705.3 [Reserved] (a) Visitors will not be allowed to take photographic equipment on board § 705.4 Communication directly with a naval ship or aircraft or into a naval private organizations and individ- activity or to take photographs within uals. a naval jurisdiction unless specially (a) Questions from the public and re- authorized by the officer in command quests from groups or individuals for or higher authority. pamphlets, photos, biographies, histor- (b) Guests of the Navy who wish to ical matter, etc., must be promptly an- take photos within naval jurisdictions swered. (32 CFR part 701, subparts A–D will be advised of areas where photog- refers.) raphy is permitted. An escort will be (b) Assistance within the command’s assigned to assure that security is capabilities should (and in some cases, maintained, unless photography is per- must) be given. Where an established mitted throughout the ship, aircraft or channel for obtaining the item exists, installation, or the areas in which it is such as a publication stocked by the not permitted are appropriately guard- ed or secured. Superintendent of Documents (Govern- ment Printing Office), or photos, as ex- (c) If there is reason to believe that plained in the subparagraph below, the film exposed by a visitor or media pho- requester may be directed to it. Under tographer contains classified informa- tion, the film will be processed under some circumstances, a charge may be Navy jurisdiction. made. (Consult part 701 or the com- mand’s Freedom of Information au- (1) Classified photos, if any, will be thority for details.) If a lengthy search, retained. All unclassified film will be beyond the convenient manpower re- returned to the owner. sources of the command, would be re- (2) When film exposed by civilian quired, the requester may be offered visitors or media representatives in the opportunity of examining the ma- sensitive areas is beyond the capability terial at the command instead of cop- of the local command to process, it ies being made. may be forwarded to the Commanding Officer, Naval Photographic Center, for (c) If a request is refused, the reason processing. Any special processing in- must be fully and courteously ex- structions should be sent with the film. plained, as required by part 701 of this chapter. § 705.6 Releasing public information (d) Copies of released U.S. Navy material to the media. photos may be purchased by the gen- eral public. (a) Methods of releasing information: (1) Photos made within the last 10 (1) Release at the seat of government years may be purchased from the Naval and/or as approved by the Assistant Secretary of Defense (Public Affairs). Photographic Center. Information on the conditions of sale can be obtained (i) Overall responsibility for release by writing to the Commanding Officer, of information rests with the Assistant Naval Photographic Center, Naval Sta- Secretary of Defense (Public Affairs). tion, Washington, DC 20390. The Chief of Information is responsible for coordinating with him releases of (2) Photos made more than 10 years national and international interest prior to the current date may be pur- (and in the case of audiovisual mate- chased from the National Archives. De- rial of regional interest) and for ar- tails are available from: Audio-Visual ranging for local release of such mate- Branch National Archives and Records rial if considered appropriate by Service, General Services Administra- OASD(PA). Information of the above tion, Washington, DC 20408. types and also information proposed [41 FR 29101, July 15, 1976, as amended at 44 for release at the seat of government, FR 6390, Feb. 1, 1979] with the exception of ‘‘spot news,’’ as
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described in paragraph (b) of this sec- tially similar inquiries or requests are tion, following. received from other newsmen, the first (2) Releases by local commands: inquirer will be so informed, and subse- (i) News of purely local interest may quent inquirers will be advised that a be released by the command concerned. prior request has been received. None Higher and coordinating authorities of the inquirers will be told the iden- (such as the District Commandant) will tity of the individuals or media who be informed, when appropriate, that have placed these similar inquiries. the release has been made. (B) If not more than three similar re- (ii) News of national or other wide in- quests are received, the information terest may be released by a local com- will be provided simultaneously to mand under the following cir- each inquirer. cumstances: (C) If more than three requests for (A) The Assistant Secretary of De- substantially the same information fense (Public Affairs), having approved have been received before any are an- a release, directs that it be issued by swered, inquirers will be advised as the command concerned. soon as possible that the information (B) An event of immediate and ur- cannot be given on an exclusive or lim- gent news interest, such as a ited basis, and a general release cov- disasterous accident, occurs at the ering the subject will be issued to all command, and emergency announce- media. ments must be made as delay in issuing (4) News conferences: information would be against the best (i) A news conference is held when a interests of the Navy. The officer in command has something specific to an- command will make a ‘‘spot news’’ re- nounce to the press that cannot be han- lease of all appropriate information dled in a news release or by phone call. considered releasable. A news conference should not be called (1) Copies of spot news releases made just to get together with the press. A (or a description if the announcement request from the press is also a reason is made orally) will be forwarded for conducting a news conference. Spe- promptly to the Chief of Information. cial events, significant operations or (2) If the situation is considered crit- serious accidents are frequent reasons ical, the spot news release will be for- for calling news conferences. If re- warded by telephone or message. quested, spokesmen may be made (b) Means through which information available to the press for questions is released to media: without specific subject matter in (1) Navy oriented information mate- mind, but the press should be clearly rial (written, taped, motion picture, informed of the nature of this meeting. still photo) is regularly released to all Technically, this is not considered a media presumed to be interested. news conference. (2) Similar material is provided in re- (ii) When a news conference is held, it sponse to query from a news media rep- is essential that all interested media be resentative. The material may be pro- invited to attend. duced by the Navy, or the newsman (iii) A record of what is said should may be assisted in researching, film- be kept. Ideally, the news conference ing, etc. himself. should be tape recorded and a public af- (3) Exclusive releases: fairs officer should be present. (i) Information concerning naval ac- (iv) Official spokesmen will be pre- tivities may be provided on an exclu- pared to answer questions in a frank sive basis only when a specific request and candid manner. If the answer or inquiry is received from one news would compromise military security, media representative for material not the inquirer should be so advised. If the requested by other media. answer is not known to the spokesman, (ii) In such cases, and assuming that he should say so and add that the mat- the information is properly releasable, ter will be checked and any available the following rules will apply: unclassified information provided (A) If prior to the time information is later. given to the newsman making the (v) Newsmen are not normally asked original inquiry or request substan- to submit their questions in advance. If
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this is considered advisable, as in cases (b) Requirement for approval by where highly technical answers may be higher authority. required, the answers are prepared in (1) Commanding officers may: advance and given to all attending (i) Release audiovisual material newsmen (not just the questioner) at which is spot news, as defined in the news conference. § 705.6(a)(2)(ii) preceding, or is of purely (5) Interviews. These are similar to local interest. news conferences except that they in- (ii) Participate in local community volve a single newsman (who has usu- audiovisual projects of benefit to the ally requested the interview) and a sin- Department of Defense or in the na- gle Navy spokesman. tional interest. (i) Required procedures are essen- (iii) Approve one-time, one-station tially the same as for news con- participation by personnel of their ferences. However, a public affairs offi- commands (as individuals) in programs cer should be present only if desired by of purely local interest. the person being interviewed. The (2) All other audiovisual material interview may be taped, if the news- originated by the Department of the man agrees. Navy or requiring Navy cooperation (ii) Without penalizing initiative dis- must be approved by the Chief of Infor- played by a newsman in asking perti- mation, who will effect the necessary nent questions, care should be exer- coordination and/or approval of the As- cised by the naval spokesman not to sistant Secretary of Defense (Public make a major revelation of news mate- Affairs). rial to a single media outlet in the (i) Requests for assistance from non- course of a routine interview. governmental audiovisual media will (iii) If major areas of difficulty arise be forwarded, with the maximum avail- in the interview, the Chief of Informa- able details and an evaluation of the tion should be notified of them. request, through the chain of command (6) Background briefings; ‘‘Not for at- to the Chief of Information. tribution’’; or ‘‘Off the record.’’ (ii) No direct coordination or contact (i) Since there is a possibility or risk between local naval commands and the of a misunderstanding arising in these Assistant Secretary of Defense (PA) is briefings, it is important that all con- authorized unless specifically provided cerned understand and agree to the for by separate directives or cor- ground rules. respondence. (ii) In general, information will not be made public unless it can be openly (c) Navy cooperation in productions attributed to the Navy and dissemi- by audiovisual media representatives nated without reservation. Occasion- (nongovernment). ally, a backgrounder may be helpful. (1) The production or project must: An example is a briefing of embarked (i) Be consistent with the goals and newsmen in advance of an operation, aims of the Department of Defense and/ providing information which may not or be in the national interest. be reported until the operation is over. (ii) Portray military operation, his- The purpose is to help the newsmen un- torical incidents, persons and places, in derstand the operation while it is tak- such a manner as to give a true por- ing place. trayal and interpretation of military life. § 705.7 Radio and television. (iii) Comply with accepted standards (a) Navy relationships with radio and of dignity and propriety in the indus- TV representatives are of two types: try. (1) Dissemination to them of Navy (2) There will be no deviation from produced tapes, photos, films, etc. established safety standards. (This is discussed in more detail in (3) Operational readiness shall not be § 705.17). impaired. (2) Cooperation with them when they (4) Official activities of military per- produce a program on a Navy subject. sonnel assisting the production must This is discussed in the paragraph fol- be within the scope of normal military lowing: activities. Exceptions to this policy
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will be made only in unusual cir- (i) Approval is not required for per- cumstances. sonnel attending audience participa- (5) Diversion of ships, equipment, tion broadcasts if they are selected at personnel and material resources from random from the audience. normal military locations or military (ii) One-time, one-station participa- operations will not normally be au- tion of purely local interest may be ap- thorized for filming. Exceptions to proved by the officer in command con- such policy must be authorized by the cerned. Assistant Secretary of Defense (Public (iii) If participation will be on a net- Affairs), through the Chief of Informa- work (defined as more than one sta- tion. tion, even if local) of if the same per- (i) The production company con- son or program is requested by two or cerned must reimburse the government more unrelated stations, approval by for any extra expense involved. A strict the Chief of Information must be ob- accounting of the additional expenses tained even if the show is of local in- incurred and charged to the production terest only. company must be maintained by the (e) Use of official footage: designated project officer. A copy of (1) Use of official U.S. Navy stock this accounting will be forwarded to film footage on TV broadcasts is not the Chief of Information. authorized without approval and clear- (6) Naval material and personnel will ance by the Chief of Information and not be employed in such a manner as to the Department of Defense. compete with commercial and private (2) Use of Navy public information enterprise. In this regard, any person motion pictures cleared for TV is au- or agency requesting their use will fur- thorized and encouraged except that nish a noncompetitive certification. such films may be used on subscription (7) Additional details on procedures or pay TV only when offered to the will be found in DOD Instruction viewers at no cost. 5410.16. (3) Navy films will not be cut or por- (8) In addition to cooperation re- tions duplicated for TV use in lieu of quested by the media, commands will stock footage without prior approval be alert to the advantages of providing by the Chief of Information. Navy programming and/or encouraging (f) Music clearance. The Navy as- participation by Navy personnel in sumes no responsibility for clearance local radio and TV programming. Ex- of music used on Navy recordings, amples are community forums, local transcriptions, or films not specially talent shows, educational and religious produced or authorized for radio or TV programs, children’s shows, sports pro- broadcast. grams, etc. (g) Disclaimers. A disclaimer is not (d) Participation by individual Navy necessary if a product is advertised on personnel on radio or TV programs: a program in which the Navy partici- (1) In general, such participation is pates, but there must be no stated or encouraged if it is: implied endorsement of it by the Navy (i) Dignified and considered in the in- or by naval personnel appearing on the terests of the Navy. program. (ii) Compatible with operational (h) Requests for courtesy prints of commitments. commercial television programs: (iii) Not in competition with the reg- (1) Requests will not be made directly ular employment of professional per- to the producer or network concerned, formers. but will be forwarded to the Chief of In- (2) The public affairs officer will formation by the Navy requester. screen requests for such appearances (2) These courtesy prints will be ex- for members of his command to see hibited only under circumstances that the programs are in good taste, which cannot be construed as competi- and that neither the Navy nor its per- tive with commercial ventures. sonnel are exposed to embarrassment for the sake of entertainment. § 705.8 Motion pictures. (3) Approval of participation by Navy (a) The rules and procedures given in individuals: the preceding for TV will also apply to
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cooperation with commercial motion with the production will be carried out picture producers. by Patent Counsel, Naval Air Systems (b) The Navy assists in the produc- Command (AIR–OOP). Cleared motion tion of commercial, privately financed, pictures may also be made available nontheatrical motion pictures of insti- for free loan as determined by the indi- tutional or of educational value to the vidual services. In addition, cleared public. They Navy will not: motion pictures may be provided for (1) Solicit their production. rent or sale through the National (2) Provide lists of subjects the Navy Audio-Visual Center, National Ar- considers ‘‘desirable.’’ chives and Records Service (GSA), (3) State that the Navy will use a Washington, DC 20409. commercially produced film. (b) Foreign military training. Motion (4) Imply endorsement of a product. pictures from the Navy inventory may (5) Permit the use of official Navy be made available for foreign military seals. training programs on approval by the (c) Navy assistance to motion pic- Chief of Naval Operations. Classified tures and all other audio-visual prod- motion pictures selected for such use ucts produced by Navy contractors will will also require a security review by be subject to the same rules and proce- the Chief of Naval Operations. dures that apply to other non-govern- ment producers. Audio-visual products § 705.10 Still photography. produced by Navy contractors, with or (a) Policy and procedures on taking without Navy assistance, will be sub- photos by the general public, given in mitted to the Chief of Information via § 705.5 apply also to media representa- the appropriate Navy headquarters ac- tives. tivity for coordination with the Assist- (b) Basic policy and procedures for ant Secretary of Defense (Public Af- still photos are set forth in the Manual fairs) for clearance for public release. of Naval Photography, OPNAVINST They will be accompained by five cop- 3150.6D. ies of the script and a statement from (c) Authority to forbid photography: the producer that costs were paid from (1) On Navy property, the officer in corporate (vice contract) funds. command may forbid the taking of (d) When a commercial film which photographs and may confiscate film, has been produced with Navy coopera- reviewing it if it is suspected that clas- tion is screened in a community, local sified material has been photographed. commands can provide Navy exhibits In such cases, all unclassified photos for display in theater lobbies, coordi- will be returned promptly to the pho- nate displays of recruiting material, tographer. and arrange for personal appearances (2) Navy personnel have no authority of Department of Defense and Depart- to confiscate film off Navy property. If, ment of the Navy military and civilian as in an accident, classified equipment personnel, provided such cooperation is is exposed which cannot be removed or approved by the Chief of Information covered, Navy representatives will ask and the Assistant Secretary of Defense news media photographers not to pho- (Public Affairs). tograph it and will inform them of 18 [41 FR 29101, July 15, 1976, as amended at 44 U.S.C. 793(e), 795, 797, which makes it a FR 6390, Feb. 1, 1979] criminal offense to photograph classi- fied material. Navy personnel will not § 705.9 Availability of motion pictures use force if media photographers refuse to external audiences. to cooperate, but will instead seek the (a) Public access. Navy and Marine assistance of appropriate civil authori- Corps general motion pictures and mo- ties and/or the photographer’s superior tion picture projects not previously in recovering film or photographs pre- cleared for public exhibition will re- sumed to be of classified nature. quire clearance by the Chief of Infor- (3) If media photographers are unco- mation or the Marine Corps Director of operative in regard to protection of Information, as appropriate, prior to classified material, an account of the public viewing. Concurrent review of matter will be forwarded to the Chief legal rights and instruments associated of Information.
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(d) Release of photographs: (iv) Still photographs of national (1) Most unclassified photographs of news interest may be forwarded, un- interest to the public may be released processed, for release by the Chief of to news media. However, the rights of Information by any command not sub- individuals photographed and special ject to the authority of a Unified or constraints such as those described in Specified Commander. Such forwarding section 0403 of the Public Affairs Regu- will be in accordance with paragraph lations must be taken into consider- 0445, subparagraph 3, of the Manual of ation before a decision is made to re- Naval Photography. All available cap- lease a photograph. In addition, photos tion material will be forwarded with which might be harmful to recruiting this unprocessed photography. or otherwise not be in the Navy’s best interests will not be used unless this § 705.11 Supplying photographs and failure to release them constitutes sup- services to other than Navy and Ma- pression of legitimate news. rine Corps. (2) Photographs of strictly local in- (a) To avoid competition with civil- terest can be made available by the ian photographic organizations, naval command to local media without being aircraft will not be used to take photo- submitted to review by higher author- ity. graphs for, nor will photographs or mo- (3) If a feature type photo released lo- saic maps be provided to any individ- cally is considered of possible interest uals, corporations, or agencies other elsewhere, because of its human inter- than departments or agencies of the est or artistic merit, a single print federal government, without specific should be forwarded to the Chief of In- permission from the Chief of Naval Op- formation, together with a notation of erations. the distribution made. (b) In the case of natural catas- (4) Photographs of national interest: trophe, or other circumstances where (i) ‘‘Spot news’’ photos may be re- prompt action is required, the senior leased by a District Commandant or officer present may authorize a depar- Fleet or Force Commander. ture from the preceding paragraph. In (ii) If a photo has been released by a all such cases, a report of the cir- local command to national news cumstances will be made to the Chief media: of Naval Operations. (A) The original negative or trans- (c) This policy does not preclude re- parency will be forwarded by the fast- leases to the media, news companies, est available means to the Com- and others in accordance with estab- manding Officer, Naval Photographic lished procedures, or the sale of re- Center, Naval Station, Washington, DC leased photographs to private agencies 20390. Such forwarding will be in ac- or individuals under existing Depart- cordance with the Manual of Naval ment of Defense regulations and part Photography, par. 0445, subparagraphs 701, subparts A–D, Availability to the 3 and 4. public of Department of the Navy In- (B) One print, a copy of the letter of formation and Records. Normally, re- transmittal, and the distribution list quests by individuals for still photo- will be forwarded to the Chief of Infor- graphs and motion picture photog- mation. (C) Navy units with a Unified Com- raphy for private use are forwarded to mand will forward the photos through the Commanding Officer, Naval Photo- Unified Command channels. graphic Center, Naval Station, Wash- (D) All other commands will forward ington, DC 20390, for action. Procedures the photos to the Chief of Information for the collection or authority for who will effect coordination with the waiver of fees for service and material Office of the Assistant Secretary of De- provided are set forth in Volume III, fense (Public Affairs) and, if necessary, NAVCOMPT Manual, and part 701, sub- arrange for security review. parts A–D. (iii) Photography of research activi- (d) Navy aerial photography released ties is normally considered to be of na- for sale to the public is transferred to tional interest. the United States Department of the
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Interior. Inquirers regarding the pur- taken exclusively for the use of an ad- chase of this photography should be di- vertiser. rected to Chief, Map Information Of- (d) Navy cooperation in commercial fice, Geological Survey, Department of advertising, publicity and other pro- the Interior, Washington, DC 20025. motional activities will be based on the (e) Navy training films suitable for following requirements. sale to the public are transferred to the (1) It must be in accordance with the National Audio-Visual Center, Na- provisions of 32 CFR part 721. tional Archives and Records Service, (2) It must be in good taste and not General Services Administration, reflect discredit on the Navy or the Washington, DC 20408. Inquires regard- U.S. Government. Statements made ing the sale of Navy training films must be matters of fact, without mis- should be addressed to the National leading information or other objection- Audio-Visual Center. able features. (f) This policy does not preclude re- (3) It must not indicate that a prod- leases to contractors and others prop- uct is used by the Navy to the exclu- erly engaged in the conduct of the sion of similar products offered by Navy’s business. However, when serv- other manufacturers or appear to en- ices are performed for other agencies of dorse or selectively benefit or favor (di- the government, and under certain con- rectly or indirectly) any private indi- ditions, for other military depart- vidual, sect, fraternal organization, ments, the Navy Comptroller Manual commercial venture or political group, prescribes that such are subject to re- or be associated with solicitation of imbursement. votes in a political election. It will not (g) All private inquiries from foreign infer Navy responsibility for the accu- nationals should be returned, advising racy of the advertiser’s claims or for the addressee to contact his local U.S. his compliance with laws protecting Information Service officer for the de- the rights of privacy of military per- sired materials. sonnel whose photographs, names or statements appear in the advertise- § 705.12 Print media. ment. It will neither indicate that a product has undergone Navy tests nor Requests for reprints of items pub- disclose data from any Navy tests lished in national media will be ad- which may have been made. dressed to the Chief of Information. (4) It may not promote the use of to- Commands will be careful not to repro- bacco or alcohol. duce on their own authority any copy- (e) Use of uniforms and naval insig- righted material without advance per- nias. These may be used provided it is mission from the copyright holder. done in a dignified manner. (f) Use of Naval personnel: § 705.13 Commercial advertising. (1) Personnel may receive no com- (a) The Navy encourages cooperation pensation. with advertisers. However, the layout, (2) Personnel will not be inconven- artwork and text of the proposed ad- ienced or have their training or normal vertisement must be submitted to the duties interrupted. Chief of Information for review and for (3) Written consent from the person clearance by other appropriate authori- concerned must be obtained before a ties. photo may be used. (b) Requests from commercial enter- (4) Navy civilians and military per- prises (including those with Navy con- sonnel on active duty may not use tracts) for use of Navy personnel, fa- their position titles or ranks in connec- cilities, equipment or supplies for ad- tion with any commercial enterprise or vertising purposes must be referred to endorsement of a commercial product. the Chief of Information. (Retired personnel and Reserves not on (c) Official Navy photos which have active duty may use their military ti- been cleared and are released for open tles in connection with commercial en- publication may be furnished for com- terprises if this does not give rise to mercial advertising, if properly identi- the appearance of sponsorship of the fied and captioned. No photos will be enterprise by the Navy or Department
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or in any way reflect discredit upon (c) Arrangements aboard ship. (1) them.) Where appropriate, a briefing should be (5) Testimonials from naval per- held at the earliest convenient time sonnel are not banned, but the person after embarkation at which newsmen giving the testimonial must not be spe- may meet the commanding officer and cifically identified. other key personnel and guests and at (i) The use of name, initials, rank or which previously supplied information rate of Navy personnel appearing in is reviewed. testimonial advertising is not per- (2) If feasible, an escort officer will be mitted, but such expressions as, ‘‘says assigned to each newsman (or group of a Navy chief,’’ may be used. newsmen having similar requirements). (ii) Care will be taken to ensure that (3) It should be reported in the ship’s testimonials from Navy personnel are newspaper (and on radio and closed-cir- presented in such a way as to make cuit TV, if any) that newsmen will be clear that the views expressed are embarked, giving their names and the those of the individual and not of the media they represent. Department of the Navy. (4) If a correspondent is interested in § 705.14 Embarkation of media rep- home town material, personnel from resentatives. his area should be contacted in ad- vance, if possible, to determine if and (a) General. (1) Although this para- when they would be available for inter- graph applies primarily to embar- views and photos. kation in ships, provisions which are applicable to embarkation on aircraft (5) Representatives of press associa- or visits to shore installations apply tions and radio and TV networks will also to those situations. be embarked in the Exercise Com- (2) See also § 705.37 on transportation mander’s flagship or the Exercise Con- of non-Navy civilians. trol ship, when possible. This ship (b) Invitations to embark. (1) Invita- should also control the ship-to-shore tions should be extended as far in ad- press radio and teletype (RATT). vance as possible and inclusive infor- (6) When more than one representa- mation on the following should be pro- tive from the same medium is em- vided: barked, an attempt should be made to (i) Type, scope and duration of oper- have them located at separate vantage ation or cruise. points. (ii) Communications, methods of (d) Communications. (1) Every effort press transmission, and charges, if any. will be made to provide suitable com- (iii) Transportation arrangements. munication facilities for newsmen em- (iv) Approximate cost of meals and/or barked (including equipment and per- quarters, and the statement that the sonnel, if feasible). newsman will be expected to pay for (2) All persons embarked with per- these and other personal expenses in- mission of proper authority and accred- curred. ited as correspondents are eligible to (2) It should be made clear to the file press traffic, as authorized by the newsman that there may be limits on procedures set forth in Naval Tele- movement from one participating unit communication Procedures (NTP–9), to another. If helicopters or highline ‘‘Commercial Communications.’’ transfers are to be used, their limita- (3) Navy radio or wire transmission tions and hazards should be explained. facilities, where available, may be (3) On operations where security is made available to news media (includ- critical, embarkation of newsmen may ing accredited civilian photographers) be made contingent to their agreement when operational requirements permit, to submit copy for security review. in accordance with instructions set Under such circumstances, the reason forth by the Director of Naval Commu- for the review will be made clear prior nications. This includes making live to embarkation, and every effort will broadcasts or telecasts. (A live net- be made to avoid any interpretation of work broadcast or telecast must, how- such review as ‘‘censorship’’ or inter- ever, be approved by the Chief of Infor- ference with freedom of the press. mation.)
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(4) Messages and instructions from Navy will, however, be immediately in- editors and station managers to em- formed, via the Chief of Information. barked newsmen will be handled as (1) See section 0307 (par. 5), section press traffic, as authorized in Naval 0308 (par. 4), and section 0309 (par. 3) of Telecommunication Procedures (NTP– the Navy Public Affairs Regulations 9). for regulations referring to personnel (5) Stations receiving press circuits assigned to public affairs staffs receiv- will be authorized to receipt for press ing compensation for such work. traffic without asking for time-con- (2) In time of war, only personnel as- suming ‘‘repeats.’’ signed to public affairs billets and such (6) Under normal circumstances, other personnel as the Secretary of the press copy will be transmitted on a Navy may authorize can act as cor- first-come, first-served basis; however, respondents for civilian media. newsmen will be informed that the pre- (b) Military personnel on active duty rogative of limiting the amount to be and Navy civilians may not serve on filed during any one period rests with the staff of a ‘‘civilian enterprise’’ the Exercise Commander. newspaper published for personnel of a (7) If it becomes necessary for oper- Navy installation or activity. ational reasons for newsmen to pool copy, such messages shall be filed as § 705.16 Navy produced public infor- ‘‘multiple address messages’’ or book mation material. messages, as appropriate, or when re- (a) Still photo—(1) General. (i) The pol- quested by the newsmen concerned. icy and procedures given for media pro- (8) If the locale of the exercise per- duced still photos in § 705.10, apply to mits newsfilm and press mail to be Navy produced photos. flown ashore, flights should be sched- (ii) The Office of Information does uled on a high priority basis to connect with scheduled commercial air traffic. not issue, nor have funds available for Operational aircraft as well as sched- the purchases of, any photographic uled government air flights should be equipment or supplies for Navy com- considered for delivery of television mands. Details on the establishment of news film, radio tapes and photography authorized laboratories and acquisition to the nearest commercial communica- of equipment and supplies are given in tions facility. the Manual of Navy Photography (e) Voluntary submission of material by (OPNAVINST 3150.6D). a newsman for security review. When a (2) Photographic coverage of command review is not required but is sought by events. (i) If more than two photog- the newsman, no attempt will be made raphers are required to cover a public to delete or change any material, event, consideration should be given to whether or not it appears critical of having them wear appropriate civilian the Navy or of naval personnel. If any attire. classified information is included, the (ii) Personnel in uniform who are newsman will be asked to delete it. In amateur photographers and who are at- addition, his attention will be drawn to tending the event as spectators will any inaccurate or possibly misleading not be discouraged from taking photos. statements. (3) Unofficial photos taken by Navy per- sonnel. (i) The following regulations [41 FR 29101, July 15, 1976, as amended at 44 FR 6390, Feb. 1, 1979] apply to Navy civilian employees and to Navy personnel in transit through a § 705.15 Employment of Navy per- command, as well as to active duty sonnel as correspondents or staff personnel assigned to the command. members of civilian news media. (ii) Personal cameras and related (a) A member of the naval service on equipment are permitted on Navy active duty or Navy civilian may act as ships, aircraft and stations at the dis- correspondent for a news periodical or cretion of the officer in command. service, radio or TV station or net- (iii) An officer in command may work, or may work part-time for such screen all photos taken by naval per- an organization. The Secretary of the sonnel with personal cameras within
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the jurisdiction of the command to pro- (i) Film of major news value will be tect classified information or to ac- forwarded immediately, unprocessed, quire photos for official use, including to the Commanding Officer, U.S. Naval public affairs. Photographs taken by Photographic Center. The package bystanders at times of accident, com- should be labeled as follows: bat, or similar significant events can be valuable for preparation of official NEWS FILM—DO NOT DELAY report and public release. They should Commanding Officer, U.S. Naval Photo- be collected for screening and review as graphic Center (ATTN: CHINFO Liaison), expeditiously as possible. Washington, DC 20374. (iv) Amateur photographers should NEWS FILM—DO NOT DELAY also be encouraged to volunteer the use of interesting or significant photos for The Commanding Officer of the Naval public affairs use. Photographic Center will be advised (v) Photos made by naval personnel, (with an information copy to the Chief with either personal cameras and film, of Information) of its forwarding, the Navy equipment and film, or any com- subject, type and amount of footage, bination thereof, may be designated method of delivery, and estimated time ‘‘Official Navy Photo’’ if it is consid- of arrival in Washington. ered in the best interests of the Navy. (ii) The original negative of motion (A) All precautions will be taken to picture photography of feature value protect such film from loss or damage, (photography which will not lose its and all unclassified personal photos not timeliness over a reasonable length of designated as ‘‘official’’ will be re- time) will be forwarded to the Naval turned to the owner immediately after Photographic Center, and a copy of the review. forwarding letter will be sent to the (B) When a photo taken by an indi- Chief of Information. vidual who is not an official photog- (c) Fleet Home Town News Center rapher is selected for public affairs re- (FHTNC). (1) All public affairs officers lease: will assure that appropirate news and (1) The photographer will receive photo releases on personnel of their credit for his work in the same manner commands are regularly sent to the as an official photographer. Fleet Home Town News Center. (2) The original negative or trans- (2) Procedures, requirements and for- parency will be retained and assigned mats are contained in CHIN–FOINST an official file number. It will then be 5724.1. handled like any other official Navy [41 FR 29101, July 15, 1976, as amended at 44 photograph. FR 6390, Feb. 1, 1979] (3) At least one duplicate negative or transparency of each unclassified per- § 705.17 Participation guidelines. sonal photo which has been designated (a) The provisions of this section as ‘‘official’’ will be prepared and deliv- refer to participation by naval per- ered to the photographer. A black-and- sonnel and use of Navy facilities and white print may also be prepared for material in events sponsored by non- the photographer’s personal use. government organizations except (b) Audiovisual. (1) The Chief of Infor- where otherwise stated. mation releases TV featurettes directly (b) In accordance with the estab- to local TV stations and the Office of lished responsibilities of local officers Information’s Branch Offices (NAV in command, these officers will con- INFO’s). After such featurettes have tinue to determine whether facilities, been cleared for public release by the equipment and personnel within their Assistant Secretary of Defense (Public cognizance may be provided for such Affairs). programs (except in the Washington, (2) The Assistant Secretary of De- DC area where the Assistant Secretary fense (PA) must approve, prior to com- of Defense (Public Affairs) is the au- mitment of funds, the initiation of thorizing authority). Navy audiovisual productions intended (c) Officers in command will ensure for public release. that participation is appropriate in (3) Motion picture film. scope and type, and is limited to those
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occasions which are: In keeping with to endorse, benefit or favor, any pri- the dignity of the Department of the vate individual, group, corporation Navy, in good taste and in conformance (whether for profit or nonprofit), sect, with the provisions of part 721 of this quasi-religious or ideological move- chapter. The national, regional, state ment, fraternal, or political organiza- or local significance of the event and tion, or commercial venture, or be as- the agency sponsoring the event will be sociated with the solicitation of votes used as guides in determining the scope in a political election. and type of Navy participation to be (1) Providing use of government fa- authorized. cilities, such as transportation, hous- (d) Participation in community rela- ing, or messing, at government expense tions programs is authorized and en- to private groups is normally inter- couraged to accomplish the aims and preted as a selective benefit or favor purposes as set forth in § 705.18 (fol- and is not authorized as part of a com- lowing). Where mutually beneficial to munity relations program. Therefore, the Department of Defense and the such provisions are normally not au- public, support authorized and provided thorized as part of a community rela- is always subject to operational consid- tions program, even though certain erations, availability of requested sup- uses of facilities may be authorized port and the policy guidance provided under directives on domestic action or herein. other programs. (e) Military personnel, facilities, and (2) The above does not bar private materiel may be used to support non- groups from providing entertainment government public affairs programs on base. However, the appearance must when: be for entertainment and not for fund- (1) The use of such facilities, equip- raising, or any political or promotional ment and personnel will not interfere purpose. with the military mission or the train- (j) Community relations programs ing or operational commmitments of must always be conducted in a manner the command. free from any discrimination because (2) Such programs are sponsored by of race, creed, color, national origin, or responsible organizations. sex. (3) Such programs are known to be (1) Navy participation in a public nonpartisan in character, and there is event is not authorized if admission, no reason to believe that the views to seating and other accommodations and be expressed by the participants will be facilities are restricted in a discrimina- contrary to established national pol- tory manner. icy. (2) Exceptions for participation may (f) The sponsoring organizations or be made under certain circumstances groups will be clearly identified in all for an ethnic or ideological group when cases where naval personnel partici- they do not entertain any purpose of pate as speakers, or military support is discriminating against any other furnished. group. Any such exceptions must be re- (g) Public affairs programs sponsored ferred to the Chief of Information for by civilian organizations will not be consideration. cosponsored by a naval command un- (3) Support to nationally recognized less expressly authorized by the Chief veterans’ organizations is authorized of Information. when the participation is in support of (h) Participation will not normally positive programs which are not in be authorized in public events when the themselves discriminatory. presence of military participants de- (4) Navy support to nonpublic school prives civilians of employment. Offi- activities is authorized when the par- cers in command will screen all re- ticipation is clearly in support of edu- quests for use of material and per- cational programs or Navy recruiting. sonnel in Navy-sponsored social func- (5) Commands should ensure minor- tions held off military installations. ity participation in all community re- (i) Navy participation and coopera- lations activities and events, as appro- tion must not directly or indirectly en- priate. This includes but is not limited dorse, or selectively benefit, or appear to the following:
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(i) Ensure that the minority commu- authorized at no additional cost to the nity is aware of the procedure for ob- government. Additional costs to the taining Navy support for community government (travel and transportation events and that they are appraised of of military personnel, meals and quar- the use of Navy demonstration teams, ters, or standard per diem allowances, units, and speakers. etc.) will be borne by the sponsor. (ii) Encourage Navy involvement in, (q) Department of Defense policy pro- and attention to, local minority com- hibits payment by the Armed Forces munity events. for rental of exhibit space, utilities, or (iii) Continue to cultivate a rapport janitorial costs. Other exceptions may with key members of all minority com- be given under unusual circumstances. munities. (r) Navy participation in professional (k) Participation is not authorized if sports events and post-season bowl there is fund raising of any type con- games will frequently be authorized at nected with the event, except as pro- no additional cost to the government, vided for in § 705.34. will emphasize Joint Service activity (l) No admission charge may be lev- when possible, and must support re- ied on the public solely to see an cruiting programs. Chief of Informa- Armed Forces demonstration, unit, or tion approval is required. exhibit. (1) When admission is charged, the (s) Navy participation in public Armed Forces activity must not be the events shall be authorized only when it sole or primary attraction. can be reasonably expected to bring (2) A general admission charge need credit to the individuals involved and not be considered prohibitory to Navy to the Armed Forces and their recruit- participation, but no specific or addi- ing objectives. Naval personnel will not tional charge may be made because of be used in such capacities as ushers, Navy participation. guards, parking lot attendants, runner (3) Participation shall be incidental or messengers, baggage handlers or for to the event except for programs of a crowd control, or in any installations. patriotic nature, celebration of na- (t) Maximum advantage of recruiting tional holidays, or events which are potential will be taken at appropriate open to the general public at no charge events for which Navy participation for admission. has been authorized. (4) The provisions of this paragraph (u) Navy support will not normally do not apply to the Navy’s Blue Angel be authorized for commercially-ori- Flight Demonstration Team or to the ented events such as shopping center Navy Band and other special bands en- promotions, Christmas parades, and gaged in authorized concert tours con- other such events clearly sponsored by, ducted at no additional cost to the gov- or conducted for the benefit of com- ernment. mercial interests. However, this policy (m) Some participation in or support does not preclude participation of Navy of commercially sponsored programs recruiting personnel and their organic on audio or visual media is allowable. equipment, materials and exhibits so See §§ 705.7 and 705.8. long as their participation is not used (n) Some participation which sup- to stimulate sales or increase the flow ports commercial advertising, pub- of business traffic or to give that ap- licity and promotional activities or pearance. Requests for exceptions will events is allowable. See section 0405, be considered on a case-by-case basis par. 3 of the Navy Public Affairs Regu- by the Chief of Information. lations. (v) Questions as to appropriateness of (o) Navy speakers may be provided Navy participation, or as to existing for certain events at which other forms Navy and OASD (PA) policy, may be of Navy participation may not be ap- referred to the Chief of Information. propriate. See section 0604, par. 8 of the (w) Procedures for requesting partici- Navy Public Affairs Regulations. (p) When participation is in the mu- pation are addressed in § 705.21. tual interest of the Navy and the spon- [41 FR 29101, July 15, 1976, as amended at 44 sor of the event, participation will be FR 6390, Feb. 1, 1979]
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§ 705.18 Authority and coordination. (8) Overall planning for Armed Forces (a) Each naval command will coordi- Day (not including local activities). nate its community relations program (9) Granting exceptions to policy. with the senior authority having re- (e) Overseas, Unified Commanders sponsibility for community relations in are designated to act for and on behalf its area (District Commandant, Unified of the Secretary of Defense in imple- Commander, or other). menting community relations pro- (b) Within policy limitations out- grams within their command areas and lined in this section, the command re- in granting any exceptions to policy or ceiving a request for Navy participa- regulations. This authority may be del- tion, and processing the required re- egated. sources, has the authority to process (1) Policy, direction and guidance for the request and provide the support re- Unified Command community relations quested. programs are provided to Navy compo- (c) Requests for support exceeding nents of these commands by the Uni- local capability, or requiring approval fied Commander concerned. from higher authority, or requiring an (2) Authority of the Commander-in- exception to policy will be referred as Chief, Pacific extends to planning and directed in § 705.21 for determination. execution of community relations pro- (d) The Assistant Secretary of De- grams in Alaska and Hawaii. Participa- fense (Public Affairs) has the overall tion in events held in Alaska and Ha- responsibility for the Department of waii will be governed by the same prin- Defense community relations program. ciples as policies applicable to other Civilian sponsors should be advised to states. address requests for approval of the fol- (3) Community relations programs lowing types of programs directly to and events taking place within the the Director of Community Relations, United States which have an effect on Office of the Assistant Secretary of De- a Unified or Specified Command as a fense (Public Affairs), Pentagon, Wash- whole, or are otherwise of significant ington, DC 20301: concern to the Unified Command, re- (1) National and international events, quire complete coordination through including conventions, except those appropriate channels between the Uni- taking place in overseas areas which fied Command and naval activities con- are primarily of internal concern to cerned. Unified Commanders. (4) Unified Commanders overseas re- (2) Events outside the United States quiring Navy support for a community which have an interest and impact ex- reltaions program or participation in a tending beyond the Unified Command public event should coordinate their re- areas, or which require assistance from quirements with the appropriate Navy outside the command area. component command. (3) Public events in the Washington, (f) The Secretary of the Navy will DC area. plan and execute Navy community re- (4) Aerial, parachute, or simulated lations programs and approve Navy tactical demonstrations held in the participation in public events not oth- public domain, except those held in erwise reserved or assigned to the Sec- areas assigned to overseas Unified retary of Defense. This authority may Commands. be delegated. (5) Aerial reviews on military instal- lations within the United States if the § 705.19 Financing. review involves more than one Service. (a) The financial requirements for (6) Programmed national sports, pro- community relations purposes will be fessional athletic events, formal inter- kept to the minimum necessary to ac- national competitions, and contests be- complish Department of Defense objec- tween a Navy and professional team in tives. the public domain. See section 0605, (b) Costs of participation will nor- par. 18 of the Navy Public Affairs Regu- mally be at government expense for the lations. following types of events and programs (7) Performing Navy units appearing when they are in the primary interest on regional or national television. of the Department of Defense:
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(1) Public observances of national (6) There must be no potential danger holidays. to persons or private property that (2) Official ceremonies and functions. could result in a claim against the gov- (3) Speaking engagements. ernment. Safety requirements will be (4) Programmed, scheduled tours by observed. Navy information activity support (b) Use of open mess facilities will be units (e.g., an exhibit from the Navy permitted only under one of the fol- Exhibit Center) when this method of lowing conditions: reaching special audiences is consid- (1) Incident to the holding of a pro- ered by the Secretary of the Navy to be fessional or technical seminar at the the most effective and economical way command. of accomplishing a priority public af- (2) Incident to an official visit to the fairs program. command by a civic group. (5) Tours by units (e.g., the Navy (3) Navy League Council luncheon or Band) for which appropriated funds have been specifically provided. dinner meetings (not to exceed one per (6) Support of recruiting. quarter per group). (7) Events considered to be in the na- (4) Incident to group visits by the tional interest, or in the professional, Boy Scouts of America, Boys Clubs of scientific, or technical interests of the America, the Navy League Sea Cadets Navy or Department of Defense, when (by virtue of their federal charters), approved by the Secretary of Defense Girl Scouts and the Navy League Ship- or the overseas Unified Commander, as mates, and a few representative adult appropriate. leaders. (c) Navy participation in all other (c) Use of the official Navy flag will public events will normally be at no be in accordance with SECNAVINST additional costs to the government. 10520.2C and of official emblem in ac- (1) Continuing type costs to the gov- cordance with OPNAVINST 5030.11B. ernment which would have existed had (d) Requests not meeting the criteria the Navy not participated in the event cited here, but which are considered by will not be reimbursed by the sponsor. the officer in command to have merit, (2) Transportation costs may be ex- may be referred to the Chief of Infor- cluded from the costs to be borne by mation. the sponsor when the transportation can be accomplished by government [41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979] aircraft on a normal training flight or opportune airlift. § 705.21 Requests for Navy participa- tion. § 705.20 Use of Navy material and fa- cilities. (a) Decisions will be made on a case- (a) The loan of equipment and per- by-case basis. Events which are inap- mission to use facilities will be depend- propriate for one type of participation ent on the following: may be entirely appropriate for an- (1) The program support must be other type of participation. A positive within the command’s public affairs re- and flexible approach should be em- sponsibility. ployed. (2) The loan of the equipment must (b) Requests by civilian organizations not interfere with the military mission for Navy participation in programs or of the command. events they sponsor should be ad- (3) Equipment must be available dressed to the nearest naval installa- within the command or obtainable tion and should be evaluated and au- from another Navy command in the thorized at that level if possible. Re- local area. quest exceeding local resoures, or re- (4) The event must be of the type for quiring authorization from higher au- which participation is considered ap- thority, should be forwarded through propriate. appropriate channels. (5) It must not be in any direct or im- (c) Requests for Armed Forces par- plied competition with a commercial ticipation in public events are to be source. submitted on official request forms
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(§§ 705.33, 705.34 and 705.36) by the spon- the Secretary of the Navy, open mess sors of events occurring outside a com- facilities may be used for luncheon or mand’s area of direct knowledge and dinner meetings of Navy League Coun- local capability, or involving a type or cils, but not more often than once per level of participation unavailable lo- quarter per group. cally, or requiring approval of higher (e) Relations with Industry and authority. Labor in the Community (refer to (d) Fact sheets expounding upon nor- SECNAVINST 5370.2F and DOD Direc- mally requested assets are enclosed in tive 5500.7): §§ 705.33, 705.34 and 705.36 and may be (1) Relations with Navy contractors reproduced and distributed locally. and with industry and business in gen- (e) The official request form is to be eral are the responsibility of the officer used on all requests referred to the in command, with the assistance of his Chief of Information and to the Office public affairs officer. of Assistant Secretary of Defense (Pub- (2) Navy commands will cooperate lic Affairs). with industry and its representatives in planning and executing community § 705.22 Relations with community relations projects of mutual interest. groups. (i) Visits to commands will be sched- (a) Naval commands will cooperate uled for industrial and employee with and assist community groups groups under the same conditions as within their capabilities, to the event for other civilian groups. authorized by current instructions, and (ii) A contractor may be identified in will participate in their activitis to the a news release, exhibit, or the like extent feasible. whenever the major responsibility for (b) Navy commands will encourage the product can be clearly and fairly membership of personnel in commu- credited to him. In such cases, both the nity organizations. manufacturer’s name for the product (c) Officers in command will withhold and the Navy designation of it will be approval of requests from community used. groups, organizations or individuals (iii) Commands will not solicit, nor whose purposes are unclear, pending authorize others to solicit, contractors advice from the Chief of Information. to provide advertising, contributions, (d) Commands may make facilities, donations, subscriptions, etc. Where less housing and messing, available to there is a legitimate need for indus- community groups, at no expense to trial promotion items, such as scale the government, when it is in the best models, the command will contact the interest of the Navy to do so. Mess fa- Chief of Information for advice as to cilities may not be used for meetings of the procedure for requesting procure- civic groups or other asociations unless ment. all the members of the group concerned (iv) Similarly, if Defense contractors are authorized participants of the mess wish to distribute information mate- as prescribed in NAVPERS 15951, ex- rial through official Navy channels, the cept as provided below: Office of Information will be queried as (1) Requests to make open mess fa- to the desirability and feasibility of cilities available to professional or undertaking the desired distribution. technical seminars or civic groups (v) Visits to contractor facilities are meeting in connection with an official governed by the provisions of DOD visit to the activity may be submitted Manual 5520.22–M (Industrial Security to the officer in charge of the mess, or Manual for Safeguarding Classified In- other appropriate authority. Such re- formation). If nationally known press quests may be approved when it is representatives will be involved, prior shown that the inspection of the activ- approval must be obtained both from ity or the holding of a professional the contractor (via the Chief of Infor- seminar is of principal importance and mation) and from the Assistant Sec- the use of mess facilities is incidental retary of Defense (Public Affairs). thereto. (3) Commands will maintain the (2) Because of the exceptional nature same relationship with labor unions as of the Navy League, as recognized by with other community groups and will
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not take action in connection with nate commands if so designated), Chief labor disputes. Personnel inadvertently of Naval Education and Training, and or incidentally involved in labor dis- District Commandants may authorize putes will consult officers in command the embarkation of female civilians for for guidance. daylight cruises. Embarkation of civil- (f) Emergency Assistance to the Com- ians for overnight cruises must be au- munity: thorized by the Chief of Naval Oper- (1) Navy commands will offer and ations via the Chief of Information. provide assistance to adjacent commu- (5) All guest visits are normally au- nities in the event of disaster or other thorized on an unclassified basis. emergency. (6) In all instances, due precautions (2) The Chief of Information will be must be taken for the safety of the advised immediately of action when guests. (See section 0403, pars. 6(b) and, taken, and copies of subsequent reports 6(e), of the Navy Public Affairs Regula- to the Chief of Naval Operations will be tions, for procedures to be followed in forwarded to the Chief of Information. the case of death of, or injury to, civil- (3) Navy commands will participate in planning by local Civil Defense offi- ians embarked on naval ships.) cials. (7) For further information on policy, procedures, and eligibility criteria, see [41 FR 29101, July 15, 1976, as amended at 44 OPNAVINST 5720.2G. FR 6391, Feb. 1, 1979] (b) Authority. (1) Authority to estab- § 705.23 Guest cruises. lish procedures for the conduct of the embarkation of guests for public af- (a) General policy. (1) The embar- fairs purposes (including the Secretary kation of civilian guests in Navy ships of the Navy Guest Cruise and Guest of is appropriate in the furtherance of the Navy Cruise programs, which are continuing public awareness of the discussed in § 705.24) is vested in the Navy and its mission. Secretary of the Navy. This authority (i) Examples of embarkations for is limited only insofar as the Chairman public affairs purposes are (but not of the Joint Chiefs of Staff and the limited to): Individuals, community commanders of the Unified and Speci- service clubs, civic groups, the Navy fied Commands (and their component League, and trade and professional as- sociations. commanders, if so designated) have the (ii) Embarkation of media represent- authority to use Navy ships to embark atives on assignment is discussed in individuals other than news media rep- § 705.14. resentatives for public affairs purposes. (iii) Other categories may be estab- (i) Public affairs embarkations origi- lished by the Secretary of the Navy, nating within the geographical limits subject to the approval of the Sec- of the Unified Command will be ap- retary of Defense. proved by and coordinated with the (2) It has also been demonstrated commanders of such commands. This that the occasional embarkation on authority may be delegated. Requests cruises of families and personal guests for such embarkations originating with of naval personnel has contributed ma- the subordinate fleet or force command terially to the morale of the family cir- of a Unified Command will be sub- cle and has instilled in each individual mitted via the operational chain of a sense of pride in his ship. For further command, to the appropriate com- information see OPNAVINST 5720.2G. mander of the Unified Command, un- (3) Embarkations should be con- less delegated. ducted within the framework of regu- (ii) Requests for public affairs embar- larly scheduled operations; underway kations originating from any Navy periods solely to accommodate guests source other than the Chairman of the are not authorized. Joint Chiefs of Staff, or the Unified and (4) Commander-in-Chief, Pacific Specified Commanders or their subor- Fleet, Commander-in-Chief, Atlantic dinate commands, will be submitted to Fleet, Commander-in-Chief, U.S. Naval the Chief of Information, who will ef- Forces Europe, Commander Military fect coordination with the Chief of Sealift Command (and their subordi- Naval Operations and/or the Assistant
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Secretary of Defense (Public Affairs) as prehensive unclassified briefings will appropriate. be given dealing with the Navy’s mis- (iii) When guests debark in a foreign sion, fleet operations, and current port which is in the geographic area of problems. a Unified Command other than that in (F) Cruises will vary in length from 3 which the cruise originated, the Chief to 7 days, when appropriate, to con- of Information will coordinate travel form with the operating schedule of the by obtaining concurrence of all appro- ship. priate commanders and the approval of (ii) Guests of the Navy Cruise Program. the Chief of Naval Operations, and the (A) All types of ships will be used. This Assistant secretary of Defense (Public will include carriers when available, Affairs) as appropriate. after selection of a cruise for the Sec- (2) Officers in command to whom au- retary of the Navy Guest Cruise Pro- thority to embark guests for public af- gram. fairs purposes is delegated will make (B) Guest of the Navy Cruise guests maximum use of this authority. will be drawn from middle-level execu- (c) Secretary of the Navy Guest Cruise tives and leaders who have not had pre- and Guest of the Navy Cruise Programs. vious exposure to the Navy. Guests (1) The objective of these two programs should include persons who have direct is: To expose top-level and middle-level impact on recruiting, such as sec- opinion leaders in the fields of busi- ondary school principals, guidance ness, industry, science, education, and counselors, coaches and teachers. labor to the operation of the U.S. (C) Cruises of relatively short dura- Navy, in order that they may gain a tion (3 to 5 days) are preferred, al- better understanding of its capabilities though cruises up to 7 days are author- and problems, the complicated nature ized. Protracted cruises will not be ap- of modern sea-based equipment, and proved except for special cir- the high levels of responsibility and cumstances. training required of Navy men and (D) Invitations will be extended by women. the District of Commandants. Invita- (2) In addition to policy contained in tions will include: paragraph (c)(1) of this section, the fol- (1) Statement of the purpose of the lowing policy guidelines apply to the Guest of the Navy Cruise Program. conduct of the Secretary of the Navy (2) Authorization for embarkation Guest Cruise and the Guest of the Navy and, if applicable, for COD flights, with Cruise Programs. instructions for reporting on board. (i) Secretary of the Navy Guest Cruise (3) Name and rank of the com- Program. (A) Only aircraft carriers and manding officer and, if applicable, cruisers will be used. name and rank of embarked flag offi- (B) Cruises will be conducted once cer. each quarter on each coast, contingent (4) A caution that guests should not upon the availability of appropriate accept the invitation unless they are in ships. good health. (C) The optimum number of guests is (5) Statement to the effect that the 15. tempo of operations might cause (D) Guests will be drawn from top- changes in scheduling which could re- level executives and leaders who have sult in the invitation having to be not had previous exposure to the Navy. withdrawn. ‘‘Previous exposure’’ is defined as ac- (E) The following necessary informa- tive or reserve service in the U.S. Navy tion may be included separately with a or U.S. Marine Corps within the last 10 letter of invitation: Recommended years; membership in the Navy League wardrobe, passport and immunization or any other Navy-oriented organiza- requirements, availability of emer- tion; or participation in a cruise on a gency medical and dental facilities, U.S. Navy ship in the last 10 years. ship’s store and laundry facilities, (E) Whenever feasible, Secretary of statement that guest’s use of a camera the Navy Guests will be greeted by will be authorized subject to certain re- CINCLANTFLT or CINCPACFLT, or in strictions, and a listing of those re- their absence by the SOPA. Com- strictions. In addition, the following
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statement will be included with each pictures renew guests’ feelings of iden- invitation, or form part of the attached tification with a ship. Guests will be information sheets: advised of areas, however, where pho- The Department of the Navy has no spe- tography is prohibited, and security cific authority to use its funds to defray or regulations will be courteously but reimburse any personal expenses of a navy firmly enforced. guest. As a result, the Department of the (E) Guests will be billeted in officers Navy cannot provide you with transpor- quarters and normally subsisted in the tation to the port of embarkation or from wardroom. It is not necessary that the port of debarkation back to your home. guests be assigned individual rooms. Your expenses for meals will be quite nomi- Billeting with ship’s officers promotes nal while you are on board a naval ship or fa- cility. You should make provision for any ex- mutual understanding, and guests feel traordinary expense which may arise. For more closely identified with the ship’s example, if a personal or other emergency company. They will be invited to dine arises which necessitates your returning at least once in each mess on board, if home during the cruise, you should be pre- the length of the cruise permits. pared to take commercial transportation at Guests will be encouraged to speak your own expense from the most distant freely and mingle with the crew. point on the cruise itinerary. (F) Guests will be accorded privileges Navy ships and aircraft, by their very na- ture, present certain hazards not normally of the cigar mess commissioned offi- encountered on shore. These hazards require cers mess (open) ashore—with the ex- persons on board to exercise a high degree of ception of package store privileges— care for their own safety. and the use of ship’s or Navy Exchange Acceptance of this invitation will be con- laundry and tailor shops. Other Navy sidered your understanding of the above ar- Exchange privileges will be limited to rangements and limitations. purchase of items for immediate per- (iii) Applicable to both programs. (A) sonal use. Guests will provide their own transpor- (G) Only emergency medical and den- tation from home to the ship and re- tal care will be provided and then only turn, and must reimburse the Navy for where civilian care is not conveniently living and incidental expenses while available. embarked so that the program may be (1) In the event of injury to civilians conducted at no additional expense to embarked in Navy ships and aircraft or the government. visiting naval activities, commanding (B) Because the number of billets officers will notify the Chief of infor- available to accommodate all of the po- mation, the appropriate Commandant, tential guests is limited, the guest’s and operational commanders, by mes- opportunity to communicate his expe- sage, of the injury and action taken. rience to his associates must be consid- (2) In the event of an emergency not ered. For this reason, one of the cri- covered by Navy Regulations, the facts teria for selection of guests will be and circumstances will be reported im- their level of activity in civic, profes- mediately to the Secretary of the sional, and social organizations. In Navy. nominating and selecting guests, effort (H) Guests may be allotted time for will be made to ensure that minority side trips at their own expense when an citizens are included as appropriate. itinerary includes naval activities or (C) Atlantic cruises will be made on ports adjacent to recognized points of ships operating between East Coast interest. ports, or between CONUS and the U.S. (I) As a souvenir of the cruise, it is Caribbean ports of San Juan, PR, or suggested that guests be provided with Charlotte Amalie (St. Thomas), Virgin a photograph of the ship, perhaps suit- Islands. Pacific cruises will be made on ably inscribed by the commanding offi- ships operating between West Coast cer prior to debarkation. ports: Between CONUS and ports in Ha- (J) Any publicity will be limited to waii, Alaska, Mexico or Canada; or be- that initiated by the participants. tween ports within Hawaii or Alaska. Navy-sponsored publicity will be avoid- (D) Guests will be informed of secu- ed unless sought by the participants. rity restrictions. Unclassified photog- At the same time, media inquiries or raphy should be permitted on board, as inquiries from the general public will
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be answered fully, the purposes of the (i) Requests for exhibits must be sub- cruise program outlined and the fact mitted well in advance of their pro- stressed that no cost to the govern- posed dates of use. ment is incurred. (ii) Requests for mobile exhibits re- quiring tractor-trailer transportation [41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979] should be forwarded prior to November 15th previous to the year desired. A § 705.24 Exhibits. tour itinerary of mobile exhibits will then be established for the following (a) Navy exhibits are representations year. or collections of naval equipment, (iii) The period of time for which an models, devices and information and exhibit is authorized will be deter- orientation material placed on public mined by the nature of the event and display for information purposes before the type of exhibit (e.g., equipment audiences at conventions, conferences, from local resources used for a local seminars, demonstrations, exhibits, celebration would normally not be ex- fairs, or similar events. Also included hibited for more than three days; but, are general purpose displays in public a formal exhibit at an exposition might buildings or public locations. Museums remain for the duration of the event). also occasionally request a Navy ex- (2) The office of the Assistant Sec- hibit on a permanent or temporary retary of Defense (Public Affairs) is the loan basis. approving authority for Navy exhibits (1) Exhibits may be displayed in any in events of international or national appropriate location or event (includ- scope, or those requiring major coordi- ing commercially owned spaces such as nation among the Armed Forces, or shopping centers, malls, etc.) provided with other agencies of the Federal Gov- it is clearly established that such areas ernment. are places the general public frequents (i) All Navy activities will forward and that the exhibit is not for the pur- such requests to the Chief of Informa- pose of drawing the public to that loca- tion for coordination with the OASD tion, and that it is determined that (PA). participation is in the best interests of (ii) Subordinate commands of a Uni- the Department of Defense and the De- fied Command will forward exhibit re- partment of the Navy. quests of the above types to the Unified (2) [Reserved] Commander concerned, via the chain of (b) Exhibits will be used for the fol- command. lowing purposes only: (3) The official OASD(PA) Request (1) To inform the public of the Navy’s Form for Armed Forces Participation mission and operations. will be used. See Armed Forces Request (2) To disseminate technical and sci- Form, § 705.36. entific information. (4) Requests for exceptions to policy (3) To assist recruiting of personnel for exhibit displays should be for- for Navy military service and for civil- warded to the Officer in Charge, Navy ian employment in the Department of Recruiting Exhibit Center. the Navy. (5) Policy guidance on costs is de- (c) Exhibit requests and procedures: fined in § 705.19. (1) Requests for Navy exhibits, other (6) Occasionally, a project officer will than local exhibits may be forwarded be assigned to coordinate use of the ex- to the Navy Recruiting Exhibit Center hibit with the sponsor. via the local Navy recruiter with an in- (i) Project officers are normally com- formation copy to the Chief of Infor- missioned officers, equivalent civilian mation. The primary mission of the personnel, local recruiters or reserv- Navy Recruiting Exhibit Center is to ists, who have been assigned the re- support local Navy recruiters. Requests sponsibility of coordinating Service for exhibits for community relations participation in a special event. events will be considered favorably (ii) The project officer should estab- only when not in conflict with recruit- lish immediate liaison with the spon- ing requirements. sor.
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(iii) The project officer should assist works is being added each year. The in determining the actual location of combat artists of World War II have the exhibit, make arrangements for as- been replaced by civilian artists who sembling and disassembling the exhibit witness today’s Navy in action, record material, and supervise these oper- their impressions, and donate their ations. works of art to the Department of the (iv) The project officer will ensure Navy. Navy and Department of Defense poli- (1) The voluntary services of most of cies are followed, and will coordinate the artists are arranged through the local news releases concerning Navy Navy Art Cooperation and Liaison participation. Committee (NACAL) which operates in [41 FR 29101, July 15, 1976, as amended at 44 close cooperation with the Salmagundi FR 6391, Feb. 1, 1979] Club of New York City and the Munic- ipal Art Department of the City of Los § 705.25 Navy Exhibit Center. Angeles. (a) The center is a field activity of (2) The Chief of Information has es- the Chief of Information and is located tablished liaison with the Salmagundi in the Washington Navy Yard. Its pri- Club in order to maintain a continuing mary mission is to produce, transport historical record of the Navy. Orga- and display U.S. Navy exhibits nized in 1871, the Salmagundi Club is throughout the United States. It also the oldest club of professional artists facilitates assignments of Navy combat in the United States. The Club ap- artists and, additionally, produces ex- pointed a Navy Art Cooperation and hibits for its own tours and for short- Liaison (NACAL) Committee to advise term loans to naval commands. the Navy on art matters and to nomi- (b) [Reserved] nate artists for assignment to paint Navy activities through the world. The [41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979] Chief of Information reviews the nomi- nations, and issues SECNAV invita- § 705.26 Exhibit availability report. tional travel orders to each artist ap- (a) A center index of exhibits which proved. are available at the local level in each (3) The following policy pertains: Naval District is maintained by the ex- (i) All finished art portraying the hibit center. To achieve maximum ef- Navy and produced by Navy artists on fectiveness for an overall integrated active duty for that purpose and by program, an up-to-date registry of all guest artists working under invita- exhibits is required. tional travel orders becomes the prop- (b) A current inventory of exhibits erty of the Department of the Navy. headquartered in Washington, DC, and (ii) Civilian artists selected to paint managed by the Navy Recruiting Ex- Navy life through cooperation of a pri- hibit Center for scheduling purposes vate sponsor and the Chief of Informa- may be obtained by writing to: Officer- tion may be authorized by the Chief of in-Charge, Navy Recruiting Exhibit Information or the Office of the Sec- Center, Washington Navy Yard, Wash- retary of Defense to retain their works. ington, DC 20374. (iii) Paintings, sketches, drawings and other forms of artwork will not be [41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979] accepted by the Department of the Navy unless all reproduction rights are §§ 705.27–705.28 [Reserved] surrendered and unless they become the permanent property of the Depart- § 705.29 Navy Art Collection. ment of the Navy. (a) The U.S. Navy has continued to (iv) Requests for reproduction of record its military actions, explo- combat art for use in advertising or rations, launchings, etc., in fine art publication will be directed to the form since before World War II. The Chief of Information. present Navy Combat Art Collection (b) Responsibilities: contains over 4,000 paintings and (1) The Chief of Information exercises sketches. A significant number of new supervision and control of the Navy
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Art Program and issues SECNAV invi- prearranged tours similar to ‘‘Oper- tational travel orders and letters of in- ation Palette I.’’ vitation to artists selected for assign- (3) Other exhibitions of original ment. paintings from the Combat Art Collec- (2) When directed by the Chief of In- tion may be scheduled on request by ei- formation or other appropriate Navy ther Navy commands or civilian art authority, a NACAL project officer will groups. Requests should be directed to perform the following functions: the Director, Community Relations Di- (i) Act as a local liaison officer for vision, Office of Information, Navy De- the NACAL Program. partment, Washington, DC 20350 and (ii) Assist NACAL artists on assign- contain the following: ments within his area. (i) The occasion. (ii) Inclusive dates. (Not less than 10 (3) The Curator Navy Combat Art days or more than 90 days sub-cus- Center, in coordination with the Chief tody.) of Information, will: (iii) Expected attendance and type of (i) Plan trips for the NACAL Pro- publicity planned. gram. (iv) Amount of space allotted. (ii) Approve requests for art displays. (v) If Navy-sponsored show, certifi- (iii) Provide logistic support for the cation that 24-hour security will be maintenance, storage, shipment and provided for the paintings while in cus- display of the Navy Combat Art Pro- tody. gram. (vi) If civilian-sponsored show, state- (c) Requests for art displays should ment that transportation and insur- be forwarded to the Director, Commu- ance requirements will be met. (Phys- nity Relations Division, Office of Infor- ical security must be available for ex- mation, Navy Department, Wash- hibit, with an attendant on duty during ington, DC 20350. open hours and locked building or (d) Exhibition of Navy Art: other means of protecting exhibit when (1) Operation Palette I’’ is a carefully closed to the public.) selected group of 75 to 100 combat art (e) Navy Combat Art Lithograph Pro- paintings depicting Navy and Marine gram: Corps activities during World War II. (1) This program makes available full The schedule of ‘‘Operation Palette I’’ color, high quality lithographs which is promulgated by the Officer-in- are faithful reproductions of the origi- Charge, Navy Recruiting Exhibit Cen- nal artwork on quality paper of se- ter and supervised by the Chief of In- lected works of art from the Navy Art formation, with the concurrence of Dis- Collection. trict Commandants. Schedules are ar- (2) Additional information and order- ranged so that the exhibition travels ing details are contained in CHINFO within a particular Naval District for NOTICE 5605, which is issued periodi- several months at a time. District cally. Commandants designate project offi- [41 FR 29101, July 15, 1976, as amended at 44 cers for each city where ‘‘Operation FR 6391, Feb. 1, 1979] Palette I’’ is exhibited. The project of- ficer makes all arrangements, includ- § 705.30 Aerospace Education Work- ing suitable location, publicity and shop. personnel to assist the chief petty offi- (a) This program is devised by the cer who travels with the collection. Navy to give students at colleges and Promotional kits are provided by the universities conducting teacher train- Officer-in-Charge, Navy Recruiting Ex- ing a comprehensive background in the hibit Center. Requests for exhibitions field of aviation. The teachers in turn are not desired, since the collection al- integrate this knowledge into their ways travels on a prearranged tour. education programs. (2) ‘‘Operation Palette II’’ consists of (b) Appropriate commands are en- 75 to 100 paintings representative of the couraged to provide assistance to edu- worldwide operations of the contem- cational institutions sponsoring the porary Navy and Marine Corps * * * workshop program: Provided, That such the Navy today * * *, and travels on support does not interfere with the
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command’s primary mission and that (b) Events which are appropriate for such cooperation involves no addi- aviation participation include: Dedica- tional expense to the government. tion of airports; aviation shows; air- (c) The Chief of Naval Operations has craft exposition; air fairs; recruiting cognizance of all assistance provided programs; civic events which con- by the Navy to all Aerospace Edu- tribute to the public knowledge of cation Workshop program. A summary naval aviation equipment and capabili- report of local command participation ties and to the advancement of general in Aerospace projects will be submitted aviation; public observances of certain to the Chief of Naval Operations via national holidays (Armed Forces Day, the appropriate chain of command. In- Veterans Day, Memorial Day and Inde- formation copies of such reports will be pendence Day); national conventions of sent to Commander, Navy Recruiting major veterans organizations; memo- Command and the Chief of Informa- rial services for deceased, nationally tion. For further information see recognized dignitaries; and receptions OPNAVINST 5726.1C. for foreign dignitaries. (c) Support of Armed Forces recruit- § 705.31 USS Arizona Memorial, Pearl ing is the primary purpose of military Harbor. flight and parachute demonstration (a) Limited space and the desirability teams. Armed Forces recruiting teams of keeping the Memorial simple and are available to assist sponsors in co- ordinating advance publicity and infor- dignified require the following prac- mation coverage to insure maximum tices to be observed: exposure for the demonstration team (1) Rendering of formal ceremonies and the event. This assistence is at no on the USS Arizona Memorial will be additional expense to the sponsor; how- confined to Memorial Day. ever, the sponsor is required to give (2) Observances on December 7, or full support to the recruiting effort and any other date, at the request of indi- to cooperate fully with local service of- viduals or organizations, will consist of ficials. Such support could include (but simple wreath-laying, or other appro- is not limited to) the provision of priate expressions conducted with dig- prime space for recruiters at the event nity. site and the provision of courtesy (3) Plaques intended for display on passes in controlled quantities to re- the Memorial may be presented by cruiters for the purpose of bringing re- headquarters of national organizations cruit prospects and recruiting advisors only. Plaques from regional, state or to view the show. local organizations cannot be accepted. (d) DOD support of air show fund Only one plaque will be accepted from raising efforts in the form of provision any organization. The overall size of of military flight and parachute dem- the plaques, including mounting, must onstration teams is limited to charities be no larger than 12 inches square. recognized by the Federal Services (b) The Commandant, Fourteenth Fund-Raising Program. These include Naval District, is designated to coordi- such agencies as the United Givers nate all formal or informal observances Fund, Community Chests, National involving the Memorial. Health Agencies (as a group), Inter- national Service Agencies and the mili- § 705.32 Aviation events and parachute tary aid societies. Armed Forces sup- demonstrations. port to fund-raising events for a single (a) Armed Forces aircraft and para- cause, even though the charity is a chutists may be authorized to partici- member of a federated or joint cam- pate in appropriate in public events paign or donates in part to one or sev- which meet basic Department of De- eral of the campaigns, is inconsistent fense criteria. This participation may with the basic position of Department be one of the officially designated mili- of Defense. The name of the nearest tary flight or parachute demonstration Combined Federal Campaign coordi- teams, flyover by aircraft, a general nator will be supplied to the sponsor, demonstration of capabilities by air- or if he chooses, he might elect to work craft, or the static display of aircraft. with the local United Givers Fund
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(Community Chest). As a minimum, llllllllllllllllllllllll the sponsor must agree to provide at 15. It may be necessary for representatives of least half of the profit above costs to the requested unit to visit the site prior to the Combined Federal or United Givers the event. Will transportation, meals and hotel accommodations be provided by the Campaigns to receive Armed Forces sponsor? llllllllllllllllll support. llllllllllllllllllllllll (e) Request form. This form is used to 16. Please describe the space which will be request military flight and parachute provided to recruiters: llllllllll demonstration team participation in llllllllllllllllllllllll public events. The information is re- llllllllllllllllllllllll quired to evaluate the event for appro- llllllllllllllllllllllll 17. Designate charity beneficiary(s): llll priateness and compliance with De- llllllllllllllllllllllll partment of Defense policies and for coordination with the units involved. FLIGHT TEAM, PARACHUTE TEAM, FLYOVERS, STATICS GENERAL 1. This request is for (check appropriate 1. Title of Event lllllllllllllll line): lllllll lllll Town or City: State: Flight Team Demonstration ...... Date: llllllll Time—From: lllll U.S. Navy Blue Angels ...... To: llll Place: (Airport, etc.) llllll U.S. Air Force Thunderbirds. (Cost for ei- 2. Sponsor: lllllllllllllllll ther team is $1500.00 for each day team 3. The sponsor (is) (is not) a civic organiza- scheduled at your event.) ...... tion and the event (does) (does not) have the Aircraft Flyover: (No cost to sponsor.) ...... official backing of the mayor. Static Aircraft: (Cost is $25.00 per day per 4. The sponsoring organization (does) (does crewmember.) ...... U.S. Army Silver Eagles: (Cost for this not) exclude any person from its membership team is $750.00 for each day team sched- or practice any form of discrimination in its uled at your event.) ...... functins, based on race, creed, color or na- Parachute Team Demonstration U.S. tional origin. Army Golden Knights: (Cost is $25.00 per 5. Sponsor’s representative authorized to day per man for each day required to complete arrangements for Armed Forces support your event. Team consists of participation and responsible for reimburs- 10–14 personnel.) ...... (Other) ...... ing Department of Defense for accrued ex- penses when required: 2. Flight and/or Parachute Team demonstra- tions are restricted to appropriate events Name: llllllllllllllllllll at airports, over open bodies of water, or Address: lllllllllllllllllll City, State: lllllllll Zip: lllll over suitable open areas of land. Please ll Telephone: (Office) llll (AC) llllll give the specific location of your event llllllllllllllllllllllll llllllllllllllllllllllll (home) llllllllll (AC) lllllll If an airport, name of airdrome facility and llllllllllllllllllllllll longest usable landing runway. Airport: l llllllllllllllllllllllll 6. Purpose of this event (explain fully): lll llllllllllllllllllllllll Runway data:llllllllllllllfeet. 7. Expected attendance: lllllllllll 3. Flyovers, Flight and Parachute Team 8. Is this event being used to promote funds demonstrations require that sponsors se- for any purpose? lllllllllllll cure FAA clearance or waiver. Will steps 9. Admission charge: llllllllllll be taken by sponsor to accomplish this at ‘‘Charge for seating: llllllllllll least sixty days prior to the event? llll 10. Disposition of profits which may accrue: 4. Flight and Parachute Team demonstra- 11. Will admission, seating and all other ac- tions must adhere to FAA regulations commodations and facilities connected which specify that spectators not be per- with the event be available to all persons mitted within 1500 feet of an area over without regard to race, creed, color or na- which the flight demonstration takes tional origin? lllllllllllllll place, or 250 feet of the jump area over 12. Will the standard Military Services al- which parachutists are performing. What lowance for quarters and meals be provided type of crowd control is planned? lllll by the sponsor for Armed Forces partici- llllllllllllllllllllllll pants? lllllllllllllllllll 5. Flight and Parachute Team demonstra- 13. Will transportation at sponsor’s expense tions require that an ambulance and a doc- be proviced for Armed Forces participants tor be on the site during the demonstra- between the site of this event and hotel? tion. Will this requirement be met? lll llllllllllllllllllllllll 6. Flight and Parachute Team demonstra- 14. Will telephone facilities, at sponsor’s ex- tions require that the sponsor provide a re- pense, be made available for necessary offi- cent aerial photograph, taken vertically cial communications regarding the event? from an altitude of 5,000 feet or higher, to
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the team(s) giving the demonstration. Will parachute demonstration is an exhi- this requirement be met? lllllllll bition of free-fall and precision landing 7. Flight Team demonstrations and Static techniques by the official DOD para- Aircraft displays require that the sponsor provide suitable aircraft fuel (JP jet fuel chute team, the U.S. Army Golden or aviation gas, as appropriate) and pay Knights. Other parachute demonstra- the cost of transporting and handling this tions can be performed by the U.S. fuel, if it is not available at the staging Navy Parachute Team, or another un- airport under military contract prices. official team or sports parachute club Will this requirement be met? llllll representing the Department of De- 8. Flight Team demonstrations and Static fense. A flyover is a flight of not more Aircraft displays require mobile fire- fighting, crash and ground-to-air commu- than four aircraft over a fixed point at nications equipment at the demonstration a specific time and does not involve site. Will this requirement be met? llll precision maneuvers or demonstra- 9. Flight Teams and Static Aircraft displays tions. Flyovers are authorized for cer- require that the sponsor provide guards for tain events when the presence of the aircraft that land and are parked at Armed Forces aircraft overhead would the site during their entire stay. Will this contribute to the effectiveness of the lllllllllll requirement be met? event based on a direct correlation be- 10. Parachute Team demonstrations may re- quire that the sponsor arrange aircraft tween the event and the aircraft. Fly- transportation from the team’s home base overs can also be authorized for occa- to the location of the event, for use as a sions primarily designed to encourage jump platform and return to the home the advancement of aviation and which base. Will this requirement be met, if nec- are of more than local interest. Fly- essary? llllllllllllllllll overs by any of the official DOD flight llllllllllllllllllllllll teams are not authorized. Parades are 11. Name and address of any Armed Forces representative or government official with not considered an appropriate event for whom you have discussed possible partici- authorizing flyover support. The static pation: llllllllllllllllll display of aircraft is the ground display llllllllllllllllllllllll of any military aircraft and its related equipment, not involving flight, tax- CERTIFICATION iing or starting of engines. I certify that the information provided (g) Events which are appropriate for above is complete and correct to the best of Armed Forces aviation participation in my knowledge and belief. I understand that the public domain include such activi- representatives of the Military Services will ties as dedication of airports and facili- contact me to discuss arrangements and costs involved prior to final commitments. ties, aviation shows, expositions, and fairs; and other civic events which con- Signature: llllllllllllllllll tribute to the public knowledge of the (Sponsor’s Representative) U.S. Military Services aviation equip- Date of Request: llllllllllllll ment and capabilities. The number one llllllllllll Return this form to: priority for utilization of military air- (f) Definitions. A flight team dem- craft and parachutists in such events onstration is an exhibition of precision in the public domain is to support the aerial maneuvers flown by the official recruiting aspects of the all-volunteer Department of Defense military flight force concept. The approval of any such demonstration teams, the U.S. Air military demonstration will only be Force Thunderbirds, the U.S. Navy authorized if a maximum recruiting Blue Angels and the U.S. Army Silver benefit exists at each location. Eagles. An aircraft demonstration is a (h) Costs. (1) The cost for either the flight demonstration by aircraft other United States Air Force Thunderbirds than those of the teams listed above or the United States Navy Blue Angels and designed to portray tactical capa- will be $1500 for each day a demonstra- bilities of aircraft by a single aircraft tion is scheduled. If the United States (i.e., the U.S. Marine Corps ‘‘Harrier’’) Army Golden Knights precision para- or group of aircraft, including air-to- chute team is scheduled for your event, air refueling, helicopter hover and the cost will be $25 per man per day for pick-up or rappelling capabilities, Low each day required to support your Altitude Parachute Extraction System, event, to include the days of travel if maximum performance take-off, etc. A required. Under normal conditions, this
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group is comprised of fourteen mem- sistence cannot be procured for these bers: Nine jumpers, three aircraft crew- amounts, it will be the responsibility men, one ground controller, and a nar- of the sponsor to absorb the additional rator. The sponsor will be advised by cost. As stated, these costs will cover the Golden Knights in advance of the participation but does not include cer- costs related to his event for which the tain ground support requirements (i.e., government must be reimbursed. The ground transportation, telephone, etc.) United States Army Silver Eagles heli- to be furnished by a sponsor as out- copter team, composed of seven heli- lined in a team support packet. copters, performs precision formation (4) Other costs that could be incurred manuevers and solo helicopter aero- by the sponsor are in the area of the batics to demonstrate the capabilities sponsor’s agreement to provide suit- of modern helicopters and the skill of able aircraft fuel (defined as JP jet fuel Army aviators. The Silver Eagles per- or aviation gas and lubricants) at U.S. formance lasts about 30 minutes and is Government contract prices. Where conducted entirely in full view of spec- tators on the crowd line. The cost for fuel is available from local military the team is $750 for each day a dem- stocks—usually military installa- onstration is scheduled. The sponsor tions—or when fuel is available from should make a check payable to the commercial into-plane contract loca- Treasurer of the United States for the tions, the U.S. Government will pay all required amount and present it to the fuel costs. If military contract fuel is appropriate demonstration team com- not available at the show site, the mander in advance of the scheduled sponsor will be required to pay all event. costs above the contract price and that (2) Costs associated with static air- price charged by the local supplier. craft are normally $25 per day for each However, the sponsor may choose to crew member plus possible fuel require- transport military contract fuel from a ments discussed below. Charges for any military base or a commercial airport other military parachuting demonstra- having a U.S. Government into-plane tion (i.e., U.S. Navy Parachute Team, contract. In this case, his cost would be local Armed Forces sport parachute only the transporting and handling of clubs, etc.) will depend on the number this fuel to the show site. of personnel and transportation in- (5) The Department of Defense no volved. Checks payable to the Treas- longer requires the sponsor to provide urer of the United States should be the Department with a public liability made available to the appropriate air- and property damage insurance policy. craft commander for static displays or This should in no way deter the spon- parachute team commander upon ar- sor from obtaining such liability and rival at the event. property damage insurance he feels is (i) As noted in the Department of De- necessary for his own protection. Due fense request form, the sponsor is re- to the costs that could accrue to the quired to pay per diem costs for team sponsor in case of cancellations be- and static display crew members ex- cause of inclement weather, the spon- cept for flyovers or aircraft demonstra- sor may wish to consider rain insur- tions not involving landing. (3) These costs are binding after a ance to protect his investment. Pre- team or crew personnel have arrived at vious sponsors have advised us that the show site, even though weather such insurance is available from most conditions or other unforeseen cir- commercial companies. cumstances force the event to be can- (i) Other information. (1) Flight and/or celled. These funds provided by the parachute team demonstrations are re- sponsor will be utilized by team mem- stricted to appropriate events at air- bers or crew personnel for paying hous- ports, over open bodies of water, or ing and subsistence costs. The actual over suitable open areas of land. For breakdown of the per diem involved is the U.S. Air Force Thunderbirds or $13.20 for housing, $9.30 for subsistence, U.S. Navy Blue Angels to operate from and $2.50 for incidental expenses. In an airport show site, the following those locations where housing and sub- operational requirements must be met:
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(i) Minimum useable runway length performing in the same geographical for the Thunderbirds is 5000 feet by 150 area and has open dates or when the feet in width. event is national or international in (ii) Minimum useable runway length nature and participation would be in for the Blue Angels is 6000 feet by 150 the best interests of Department of De- feet in width. fense. Participation in an event is nor- (iii) Minimum single landing gear mally limited to two days unless a load bearing capacity for Thunderbirds third day can be included without pre- is 45,000 pounds; for Blue Angels, 21,000 empting other requests. pounds. Tandem landing gear load (7) Sponsors are required to obtain a bearing capacity is 155,000 pounds for Federal Aviation Agency (FAA) waiver Blue Angels and Thunderbirds. for any demonstration by military air- (2) A staged performance may not be craft and/or parachutists in the public given if the location planned for the domain. The final authorization for show site does not meet these mini- such Armed Forces participation mums. The maximum distance for a staged performance’’ under normal hinges upon the sponsor securing this conditions is 50 nautical miles. It waiver far enough in advance to permit should be noted that staged perform- adequate planning (normally not later ances are seldom authorized since the than 60 days prior to the event). Fur- recruiting potential is reduced at such ther guidance on the details of obtain- events. ing this waiver will be contained in the (3) The type and number of static team support packet or FAA. FAA reg- and/or flyover aircraft which may be ulations require that spectators be con- assigned is entirely dependent upon the fined 1500 feet from a flight or aircraft Military Services’ capability to provide demonstration and 250 feet from a such resources at the time of your parachute demonstration. event. This capability is affected by (i) In some cases, parachute dem- operational commitments and sponsors onstrations require that the sponsor are advised that confirmation of static/ arrange for appropriate transportation flyover aircraft cannot be made by the for the team and equipment from its appropriate Service more than 15–30 home station to the event and return. days before your event. (ii) Mass parachute jumps, drops of (4) The U.S. Army Silver Eagles are equipment, assault aircraft demonstra- normally restricted to performances at tions, or tactical helicopter troop land- airports. Other open land areas may be ings under simulated tactical condi- operationally suitable but require the tions, will be limited to military in- prior approval of the team commander stallations. These activities, except in each case. those scheduled as part of regular (5) Only one flight demonstration training programs, are not authorized team and a parachute demonstration for public events in the civil domain. team may be authorized for any one (8) When civilian air racing is in- event. Military aircraft demonstra- volved in an event where Armed Forces tions may not be authorized for events on the days a flight team is partici- participation has also been scheduled, pating. A flyover is not authorized prize monies must come from sources when a flight team is participating un- other than admission charges. less it can be provided by a locally- (9) Flight team, parachute and air- based National Guard or Reserve com- craft demonstrations also require that ponent. the sponsor provide: (i) Recent aerial (6) Participation by the U.S. Navy photograph of the site; (ii) an ambu- Blue Angels and the U.S. Air Force lance and doctor at the site; and (iii) Thunderbirds is normally limited to Guards for the Armed Forces aircraft two consecutive years in any one during their entire stay. The aerial event. This usually involves one ap- photograph should be recent, taken pearance by each of the two flight vertically from at least 5,000 feet. teams. This provision may be waived (10) Maximum advantage of Armed when other appropriate requests have Forces recruiting will be taken at ap- not been received, when the team is propriate events in the public domain
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where demonstrations by military air- pearance of Navy musicians. A state- craft and parachutists have been au- ment to this effect from the cognizant thorized. local musicians’ union must be ob- (11) Exception to the policies con- tained by the sponsor and attached to tained herein will only be considered his request. by OASD(PA) on events of national or (c) Armed Forces musical units may international significance. be authorized to provide certain speci- (12) Department of Defense hosts a fied musical programs in the public do- scheduling conference in mid-December main. The performance must not place each year to prepare U.S. Air Force military musicians in competition Thunderbirds, U.S. Navy Blue Angels, with professional civilian musicians. U.S. Army Golden Knights and U.S. Background, dinner, dance or other so- Army Silver Eagles participation cial music cannot be authorized. The schedules for the ensuing year. All re- specified programs which may be au- quests for such demonstrations from thorized usually include a short open- sponsors should reach OASD(PA) prior ing or closing patriotic presentation. to the middle of November each year to Musical selections normally consist of be considered at this conference. In a medley of military or patriotic songs, order to accommodate many requests honors to the President or Vice Presi- Department of Defense receives for dent (if he is there), or music to accom- other parachuting demonstrations, air- pany the presentation of colors by a craft demonstrations, static aircraft Color Detail. displays, and flyovers, each request (1) Armed Forces musical units may must be received by OASD(PA) a min- be authorized to participate in official imum of 30 days in advance of the government, military and civic func- event and preferably 60 days in ad- tions. vance. (i) Official government functions in- (13) If there are any points that a clude those in which senior officials of member of the public might wish to the Federal government are involved in have clarified, contact Chief, Aerial the performance of their official duties. Events Branch, OASD(PA), Room (ii) Official military functions in- 1E790, The Pentagon, Washington, DC clude social activities held on military 20301. Telephone: AC (202) 695–6795 or installations (or off when the Military 695–9900. Service certifies that suitable facilities are not available on post) which are § 705.33 Participation by Armed sponsored by the Military Services, Forces bands, choral groups, and have as their principal purpose the pro- troops in the public domain. motion of esprit de corps, and are con- (a) Military musical participation in ducted primarily for active duty per- public events which otherwise meet the sonnel and their guests. criteria outlined herein will be limited (iii) Official civic functions include to patriotic programs as opposed to such State, county or municipal events pure entertainment and will not dupli- as inaugurals, dedication of public cate a performance within the capa- buildings and projects, the convening bility of a civilian group. For example, of legislative bodies, and ceremonies music to accompany the presentation for officially invited government visi- of the national colors, or a perform- tors. ance of military or patriotic music by (2) Armed Forces musical units may a military band, drum and bugle corps also be authorized to provide patriotic or choral group may be authorized; and military programs at national con- background, dinner, dance or other so- ventions and meetings of nationally- cial music is considered ‘‘entertain- recognized civic, patriotic and veterans ment.’’ organizations. (b) Requests received for military (d) Bands, drill teams and other units musical participation in appropriate can normally participate at no cost to events in the civilian domain must in- the sponsor if the event is within the clude an indication from the sponsor installation’s immediate community that there is no conflict with the local relations area (approximately 100-mile civilian musicians concerning the ap- radius).
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(1) Normally, not more than one band (iv) An admission charge is levied on or other musical unit will be author- the public primarily to see participa- ized for a parade in the civilian do- tion by an Armed Forces unit. main. This guidance intended to assure (v) There is fund-raising of any type widest possible participation in public connected with the event, unless all events of local interest (particularly on profits are to be donated to a charity national holidays) does not apply to which is one of the consolidated pro- national convention of veterans’ grams recognized by the Federal Serv- groups or other events having national ices Fund-Raising Program. These are significance. the United Givers Fund Community (2) All Armed Forces participation in Chest, National Health Agencies (as a international and national events, and group), the International Service Agen- in the Washington, DC area, must be cies, and the American Red Cross authorized by the Assistant Secretary (when not included in a consolidated of Defense (Public Affairs). campaign). The Military Services’ Wel- (3) Requests for Armed Forces musi- fare Societies (Army Emergency Re- cal or troop units when no military in- lief, Navy Relief and Air Force Aid So- stallation is accessible, or for the ciety) are also included. Washington, DC-based ceremonial (5) Sponsors of an event must agree bands or troop units (when the event is to reimburse the Military Services con- outside the Washington, DC area), cerned for transportation and per diem should be addressed to the parent Serv- when participation is authorized at no ice of the unit: additional cost to the government. (6) Participation by Armed Forces (I) U.S. ARMY musical units in other areas is within Chief of Public Information, Department of the authority of local military com- the Army, Washington, DC 20310. manders, and requests for participation should be made directly to those local (II) U.S. NAVY military installations. All requests Chief of Information, Code OI–321, Depart- should be submitted no earlier than 60 ment of the Navy, Washington, DC 20350. days and preferably no later than 45 days prior to the event. (III) U.S. AIR FORCE Director of Information, Secretary of the Air § 705.34 Other special events. Force, Community Relations Division, (a) Ship visits. Requests for visits gen- Washington, DC 20330. erally originate with civic groups de- (IV) U.S. MARINE CORPS siring Navy participation in local events. Often, members of Congress en- Commandant of the Marine Corps, Code AG, dorse these requests, advising the Navy Headquarters, U.S. Marine Corps, Wash- ington, DC 20380. of their interest in a particular event. Because of the marked increase in re- (4) Armed Forces units may not be quests for ship visits, and in order to authorized to participate when: give equal consideration to all re- (i) The event directly or indirectly quests, the Chief of Information has ar- endorses or selectively benefits or fa- ranged for quarterly meetings of rep- vors (or appears to do so) any private resentatives from CHINFO, Com- individual, commercial venture, sect, mander, Navy Recruiting Command, fraternal organization, political group, Chief of Naval Operations and Chief of or if it is associated with solicitation Legislative Affairs. Based on the im- of votes in a political election. portance of the event (nationally, re- (ii) Admission, seating and other ac- gionally, or locally) location, and pro- commodations or facilities are re- spective audience, recommendations stricted in any manner with regard to are consolidated and forwarded to the race, creed, color or national origin. fleet commanders prior to their quar- (iii) The sponsoring organization or terly scheduling conferences. group excludes any person from its (b) Visits to Naval activities—(1) Types membership or practices any form of of visits. (i) General visits or Open discrimination in its functions, based House are occasions when a ship or sta- on race, creed, color or national origin. tion acts as host to the general public.
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These visits will be conducted in ac- as inaugurals, dedications of public cordance with instructions issued by buildings and projects, and convening Fleet and Force Commanders, District of legislative bodies and ceremonies for Commandants, or other cognizant au- officially invited government visitors. thority. (5) Overseas, similar functions at- (ii) Casual visits are visits to ships or tended by comparable host-country of- stations by individuals or specific ficials in their official capacities might groups, as differentiated from the gen- also be considered appropriate for Navy eral public. Details and procedures con- participation. cerning these visits are a matter of command discretion. (d) A parade which is sponsored by (iii) Tours are occasions when a ship the community as a whole (rather than or station is host to a specific group on by a single commercial venture) and a scheduled date. Some of the larger held on a Sunday or holiday or at a shore commands also regularly sched- time when shops are closed for business ule one or more sightseeing type tours may be a public event for which par- daily during seasons when many vaca- ticipation could properly be author- tioners ask to visit the command. ized; representation by individual com- (2) General rules. Prior approval for mercial ventures in such parades need general visiting or Open House at any not be a bar to Navy participation as time other than civic-sponsored public long as the emphasis is planned and observances and official ceremonies for placed on the civic rather than com- Armed Forces Day, memorial Day, mercial aspects. Such participation Independence Day, and Veterans Day, will be at no additional cost to the gov- and for observances in overseas areas ernment. of similar significant holidays, will be (e) Fund-raising events. (1) Navy sup- requested as follows: Fleet units vis- iting U.S. ports, from Senior Officer port of fund-raising events must be present Afloat; fleet units visiting for- limited to recognized, joint or other eign ports, from commander ordering authorized campaigns. Navy support of the visit; shore stations and district fund-raising events or projects for a vessels in the United States, from Dis- single cause, even though the cause is trict Commandants; and overseas shore a member of one of the federated, joint stations, from the naval area com- or authorized campaigns, or donates in mander. part to one of several of the recognized (c) Official functions. (1) Navy units campaigns, is not authorized by De- may be authorized by local com- partment of Defense. manding officers to participate in offi- (2) Navy support for a single-cause cial government military and civic fund-raising event may be authorized if functions, except in the Washington DC the event is: area where OASD(PA) retains author- (i) In support of Navy recruiting ob- ity. jectives; (2) Official government functions in- (ii) Supported by a letter indicating clude those in which senior officials of the federal government are involved in the local United Way representative the performance of their official duties. has no objection; and (3) Official military functions include (iii) Approved by the local Navy social activities held on military in- Commander as a single-cause charity stallations (or off, when it is certified which has broad local benefit. that suitable facilities are not avail- [41 FR 29101, July 15, 1976, as amended at 44 able on base), which are sponsored by FR 6391, Feb. 1, 1979] the Navy, have as their principal pur- pose the promotion of esprit de corps, § 705.35 Armed Forces participation in and are conducted primarily for active events in the public domain. duty personnel and their guests. (a) Requests for bands, troops, units, (4) Official civic functions include such state, county or municipal events teams, exhibits and other Armed
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Forces participation should be ad- (ii) Be associated with the solicita- dressed to the nearest military instal- tion of votes in a political election. lation. Local commanders have re- Sites such as commercial theaters or sources which they can commit to ap- department stores, churches or fra- propriate events if mission require- ternal halls; and events such as ments permit. If no military installa- testimonials to private individuals or tion is accessible, or if resources re- sectarian religious services, are gen- quested are not available locally or re- erally inappropriate for Armed Forces quire approval by higher authorities, a participation. standard Department of Defense Re- (3) Participation by the Armed quest Form should be completed. This Forces in any event or activity may be form is used to evaluate the request, authorized only if admission, seating determine appropriateness of the event and all other accommodations and fa- and compliance with Department of cilities are available to all without re- Defense policies, and eliminate re- gard to race, creed, color or national peated correspondence. The request origin, and only if the sponsoring orga- form should be returned to the office or nization does not exclude any form of military command from which it was discrimination based on race, creed, received unless another address is indi- color or national origin. This does not cated. bar participation in events sponsored (b) Basic criteria governing Armed by nationally-recognized veteran’s or- Forces participation in public events ganizations when the program is ori- have been developed by the Depart- ented toward the veterans’ interests, ment of Defense to ensure compliance nor does it bar participation in non- with public law, to assure equitable public school events when the program distribution of resources to as many is directed toward education or recruit- appropriate events as possible, and to ing. avoid excessive disruption of primary (i) No admission charge may be lev- training and operational missions of ied on the public solely to see an Armed Forces demonstration, unit or the Military Services. the following exhibit. When admission is charged, general rules and information are in- the Armed Forces activity must not be cluded as an aid to you in under- the sole or primary attraction. standing Department of Defense poli- (4) Armed Forces participation is au- cies and in planning programs of mu- thorized in a fund-raising event only tual benefit to the Armed Forces and when the sponsor certifies that all net your community. profits in excess of actual operating (1) When evaluating requests for costs will be donated to one of the con- Armed Forces participation in public solidated programs recognized by the events, the interests of the Department Federal Services Fund-Raising pro- of Defense and the public at large, gram. These include such agencies as operational requirements of the Mili- the United Givers Fund, Community tary services, and availability of re- Chests, National Health Agencies (as a sources are prime considerations. Com- group), International Service Agencies mitment of resources to specific events and the military aid societies. must be balanced with the above fac- (5) When Armed Forces participation tors and with requests for similar par- in an event is in the mutual interest of ticipation received from other sources. the Department of Defense and the (2) Department of Defense participa- sponsor of the event, participation will tion and cooperation must not directly be authorized at no additional cost to or indirectly: the government. Additional costs to (i) Endorse or selectively benefit or the government—travel and transpor- favor or appear to endorse or selec- tation of military personnel, meals and tively benefit or favor any private indi- quarters or standard per diem allow- vidual, group, corporation (whether for ance, etc.—will be borne by the spon- profit or nonprofit), sect, quasi-reli- sor. gious or ideological movement, fra- (6) Department of Defense policy pro- ternal organization, political organiza- hibits payment by the Armed Forces tion, or commercial venture. for rental of exhibit space, connection
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of electricity, or utility or janitorial (B) An exception is also made for costs. short trips between an airport (or other (7) The duration of participation by transportation center) and the com- military units in any one event is lim- mand. Cars and buses within the re- ited in the interests of proper utiliza- sources of the command may be used tion and equitable distribution of for meeting guests or taking them to Armed Forces manpower and resources. make their travel connections. While an exhibit might be scheduled (ii) When authorization is requested for the duration of an event, a unit for travel which is of interest to or will such as a military band is limited to affect more than one command or three days. Service, the approving authority will (8) Armed Forces participation in coordinate the request with all other professional sports events and post-sea- interested commands, Services and son bowl games will normally be au- Agencies. thorized at no additional cost to the (iii) Travel in connection with any government, will emphasize joint Serv- public affairs program arranged by the ice activity and must support recruit- Navy jointly with another Federal De- ing programs. Participation in beauty partment or Agency or a foreign gov- contests, fashion shows, pageants, ernment will be authorized only by the Christmas parades, and motion picture Assistant Secretary of Defense (Public premieres is not authorized since mili- Affairs, or those to whom he has dele- tary support would violate policy and gated this authority. Navy commands appropriateness. desiring authorization of such travel § 705.36 Government transportation of will forward the request to the Chief of civilians for public affairs purposes. Information. (iv) If a request for travel for (a) General policy. (1) Regulations on nonlocal public affairs purposes is dis- transportation of civilians vary accord- approved, sufficient reasons should be ing to whether: provided so that the action is clearly (i) The civilians are news media rep- resentatives or not. understood by the individual or group (ii) The travel is local or nonlocal concerned. (see paragraph (b) of this section). (b) Definition of local v. nonlocal trav- (iii) The purpose of the travel is to el. (1) Local travel is travel within the get to a desired destination or is to ob- immediate vicinity of the command serve the Navy at first hand. concerned in connection with a public (2) Authority for embarkation of in- affairs program of local interest only. dividuals in naval vessels and military (For air travel within the continental aircraft is vested in the Chief of Naval U.S., about 150 miles or less is gen- Operations by § 700.710 of this chapter. erally considered local.) Nothing in this part shall be construed (2) Nonlocal travel is that conducted as limiting his authority in this re- in connection with a public affairs pro- gard. gram affecting more than one Service, (3) The following policy has been es- geographic area or major command, tablished by DOD for providing all usually of primary concern to higher types of Navy transportation to non- authority. Navy civilians. (c) Transportation of news media rep- (i) Military transport facilities shall resentatives. (1) This section applies to not be placed in a position of competi- media representatives who are em- tion with U.S. commercial carriers. barked for the purpose of news gath- (A) When embarkation of a newsman ering or of traveling to an area in order is necessary for him to obtain news to cover a news event. It does not apply material about a ship, aircraft, cargo to: or embarked personnel, or when he is (i) Correspondents when members of invited to report on a matter of special groups embarked as regular cruise interest to the Navy, it is not consid- guests of the Navy. ered that the transportation furnished (ii) Casual trips by correspondents to him is in competition with commercial ships in port or to shore stations in transport. CONUS. Such visits may be authorized
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by officers in command or higher au- overseas should be made at least three thority in accordance with instructions weeks prior to the date required and promulgated by the Chief of Naval Op- should be addressed to the Assistant erations. Written orders are not re- Secretary of Defense (Public Affairs) quired. via the Chief of Information or Unified (2) Local travel. Commanding officers Commander, as appropriate. The re- at all levels are authorized (under De- quests should include: fense Department policy) to approve (A) A statement that the cor- local travel for public affairs purposes respondent is a full-time employee, or within the scope of the mission and re- has a specific assignment, and that the sponsibilities of their command, if: trip is for the purpose of news gath- (i) Public interest in the public af- ering. fairs purpose involved is confined pri- (B) Appropriate date of entry into marily to the vicinity of that com- area, port of entry, method of travel, mand. proposed duration of visit and travel (ii) The travel is being provided for termination date. the benefit of local media and meets a (C) Assurance that the correspondent naval public affairs objective. will observe currency control regula- (iii) Scheduled commercial air trans- tions, and sponsoring agency will guar- portation is not readily available. antee financial obligations incurred. (iv) The aircraft to be used is a heli- (5) Embarkation of male correspondents copter, or multiengine dual piloted air- between ports within CONUS. (i) Male craft, and is within the resources of the correspondents may be embarked in host command on a not-to-interfere naval ships for passage between ports basis. This provision does not apply to within the area of a single Fleet com- orientation flights. mand for the purpose of news gathering (3) Nonlocal travel. (i) Requests for at the discretion of the Sea Frontier nonlocal travel will be submitted to Commander, Commandants of the the Chief of Information, who will for- Naval Districts, the Chief of naval Air ward them with his recommendations Training, Fleet, Force and Type com- to the Chief of Naval Operations and/or manders and flag officers afloat who the Assistant Secretary of Defense have been delegated authority to ar- (Public Affairs), as appropriate. range directly with appropriate Fleet, (ii) When the proposed travel is for Force and Type commanders for em- news coverage of a major emergency barkation of civilians on a local cruise nature and the coverage will be im- basis. paired or delayed, to the serious det- (ii) Invitational travel orders may be riment of the interests of the Depart- issued. ment of Defense, if military transpor- (6) Embarkation of female correspond- tation is not provided, requests for ents in naval vessels. (i) Privileges equal such travel will be submitted to the to those given male correspondents Chief of Information, who will forward will be accorded female correspondents the request—if approved—to the Assist- whenever practicable. ant Secretary of Defense (Public Af- (ii) Female correspondents may not fairs). The most expeditious means (in- be embarked overnight in a naval ship cluding telephone) will be used by com- without prior approval of the appro- mands requesting such emergency priate Fleet Commander-in-Chief. This travel. Justification will include both authority may be delegated to the the public affairs purpose and the ne- numbered Fleet Commanders. cessity for military carriers. (7) Travel in ships of the Military Sea- (4) Travel between the U.S. and over- lift Command. Correspondents may be seas area. (i) The Chief of Naval Oper- carried in ships of the Military Sealift ations may authorize military trans- Command on either a space-required or portation for correspondents in un- space-available basis when travel is in usual circumstances, upon rec- the best interests of the Navy or the ommendations of the Chief of Informa- Department of Defense. tion and the Defense Department. (i) Space-available travel will be used (ii) Requests for government trans- when practicable. A nominal charge is portation to cover specific assignments made by the Military Sealift Command
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and must be borne by the correspond- background check on the newsman and ents. his employer. (ii) Space-required travel may be au- (B) If the request is received by a thorized when sufficiently in the inter- subordinate of the appropriate Fleet est of the Navy, and the charge may be Commander, it may be forwarded di- borne by the Navy. rectly to the latter, but the U.S. Naval (iii) In either case, determination of Attache in the newsman’s country will Navy interests will be made by the be given the opportunity to comment Chief of Information, guided by the on the proposed embarkation. transportation policy of the Chief of (ii) Naval commands should not in- Naval Operations, whose approval of troduce an embarked third-party (i.e., such embarkation is required. a foreign media representative) into a (iv) Requests for such travel will be foreign country other than his own submitted to the Chief of Information, without first obtaining appropriate who will coordinate with the Chief of clearance from the country to be vis- Naval Operations and/or the Assistant ited. Approval for entry should be for- Secretary of Defense (Public Affairs), warded via appropriate command chan- as appropriate. nels to the cognizant U.S. Naval Atta- (8) Point to point transportation che. within the continental United States (10) Security considerations. (i) No in naval aircraft other than those oper- media representative known to be af- ated by the Military Airlift Command. filiated with a group advocating the (i) SECNAVINST 4630.2A contains overthrow of the U.S. government will guidance for travel in military aircraft be permitted aboard naval ships or sta- other than those operated by the Mili- tions. tary Airlift Command. (ii) If security review is directed, the (ii) Naval activities desiring to ar- reason will be made clear to the cor- range such transportation will address respondent prior to embarkation. News requests via the chain of command to media people refusing to agree to ob- the operational command of the lowest serve security regulations may have echelon which has been delegated au- their privileges suspended. Failure to thority to approve such requests. observe security regulations will be re- (iii) Upon approval of such a request, ported to CHINFO and interested com- the naval activity sponsoring the cor- mands. respondent shall: (A) Prepare travel orders. (d) Transportation of other civilians. (1) (B) Ensure that any waiver forms, as Although groups normally provide may be required by governing direc- their own transportation to Navy com- tives, are executed. mands, Navy transportation may be (9) Embarkation of news media rep- authorized when: resentatives of foreign citizenship: (i) Commercial transport is not avail- (i) Requests from foreign news media able. representatives to cruise with units of (ii) A professional group visit has the U.S. Navy are usually made to the been solicited by the Navy, such as par- nearest U.S. military installation ticipants in the Naval Academy Infor- known to the correspondent, and are mation Program (‘‘Blue and Gold’’) or often not made in the proper chain of educators invited to an Aerospace Edu- command to the Fleet Commander un- cation Workshop. less authorized to effect arrangements (2) Requests for nonlocal transpor- for an underway cruise. tation under the above circumstances (A) if the request is received by a will be made to the Chief of Naval Op- command which is not a subordinate of erations. the Fleet Commander concerned, it (3) Carrier-on-board-delivery (COD) will be forwarded to the U.S. Naval At- flights and helicopters flights to ships tache assigned to the foreign news- are considered local transportation. man’s country. The Attache will then (4) When units or areas of a Unified forward the request to the appropriate Command are involved in the public af- Fleet Commander, with his rec- fairs program in connection with which ommendations and the result of a brief travel authorization is requested by a
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Navy command which is not a compo- (D) This transportation is not avail- nent of the Unified Command con- able to other youth programs, includ- cerned, coordination will be effected by ing others sponsored by the Navy the host command, through command League. channels, via the Chief of Information, (f) Other instructions on transportation to the Assistant Secretary of Defense of non-Navy civilians. Details on policy, (Public Affairs), who—as appropriate— procedures, and the transportation of will consult with the Unified Com- certain categories of people will be mander concerned. found in OPNAVINST 5720.2G and DOD (e) Special programs. (1) Cruises are Directive 4515.13. discussed in Chapter 6, section 0604, [41 FR 29101, July 15, 1976, as amended at 44 para. 1 of the Navy Public Affairs Reg- FR 6391, Feb. 1, 1979] ulations. (2) Embarkation of news media rep- § 705.37 Public affairs and public serv- resentatives, especially on operations ice awards. and exercises, is discussed in Chapter 4, (a) General. (1) A number of public section 0405, paragraph 4 of the Navy service awards are presented by the De- Public Affairs Regulations. partment of Defense and the Navy to (3) Other programs subject to special business and civic leaders, scientists requirements or which have had excep- and other nongovernment civilians. tions authorized for them include: Other awards—military and civilian— (i) Naval Air Training Command Ci- are presented to members of the naval vilian Orientation Cruise Program, establishment. conducted by the Chief of Naval Air (2) These awards are of public affairs Training. interest in the locale where they are (ii) Joint Civilian Orientation Con- presented and also in the home towns ference, conducted by the Assistant of those who receive them. Secretary of Defense (Public Affairs). (b) Department of Defense awards. (1) (iii) Orientation flights in govern- The Department of Defense Medal for ment aircraft, conducted in accordance Distinguished Public Service is pre- with OPNAVINST 37107H. sented to individuals. The Department (iv) Space-available air transpor- of Defense Meritorious Award honors tation may be provided Navy League organizations. members if they are invited to accom- (2) Details, including nominating pro- pany a flag officer attending a Navy cedures, are given in SECNAVINST League convention or regional meeting 5061.12. and if the trip is economically justifi- (c) Secretary of the Navy awards. (1) able, based on military travel consider- The following awards are presented by ations and not community relations or the Secretary of the Navy: The Navy public affairs reasons. Approval in each Distinguished Public Service Award instance will be obtained in advance and Navy Meritorious Public Service from the Chief of Naval Operations. Citation to individuals; the Navy Cer- (v) Air transportation for the Naval tificate of Commendation to members Sea Cadet Corps of the Navy League. of special committees and groups; and (A) Flights must be in Navy multien- the Navy Certificate of Merit to orga- gine, transport type craft. nizations and associations. (B) Point-to-point flights on a space- (2) Details are given in SECNAVINST required basis are governed by an an- 5061.12. nual quota set by the Chief of Naval (3) Nominations for awards to mili- Operations. Space-available transpor- tary personnel are considered by the tation is authorized and will not be Board of Decorations and Medals, in charged against this quota if it will not accordance with SECNAVINST result in delays of takeoffs or a change 1650.24A. in the itinerary planned for the pri- (4) Nominations for honorary awards mary mission. to Department of the Navy civilian em- (C) Flights must not interfere with ployees are considered by the Distin- operational commitments or training guished Civilian Service Awards Panel. or results in additional expense to the (See Civilian Manpower Management government. Instruction 451.)
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(d) Chief of Information awards—(1) are included if produced for the exclu- Certificate of Public Relations Achieve- sive use of a naval installation. ment. (i) This certificate is signed by (iii) Nominations are made in two the Chief of Information. It honors in- ways: dividuals who are not Navy employees, (A) Selection during regular review corporations, or associations. periodicals and broadast air-checks re- (ii) It was established to fill the need ceived by the Internal Relations Activ- for a civilian award for public relations ity. achievements which, while not meeting (B) Nominations from the field. Such the criteria for public service awards nominations are informal and may be presented by the Secretary of the made by the officer-in-charge, publica- Navy, are of such Navy-wide signifi- tions editor, broadcast station man- cance as to merit recognition at the ager, or public affairs officer to the Department level. Examples of these chief of Information, Navy Depart- achievements might be a particularly ment, Washington, DC 20350 (ATTN: well done feature article about the OP–0071). Navy in a nationally read newspaper or (3) Other awards pertaining to public an outstanding contribution to a lo- affairs/internal relations. (i) Silver Anvil cally sponsored event, which ulti- award is given by the Public Relations mately gave national or regional rec- Society of America for outstanding ognition to the Navy. public relations programs carried out (iii) The achievement for which the during the preceding year. Entry certificate is given shall meet the fol- blanks and details may be obtained by lowing criteria: writing directly to Public Relations (A) Contribute to accomplishment of Society of America, 845 Third Ave., the public information objectives of New York, NY 10022. All Navy entries the Navy. will be forwarded via the Chief of Infor- (B) Be the result of a single out- mation. standing project or program. (ii) Freedom Foundation Awards of (C) Have been accomplished within cash and medals are annually given to one year of the date of the official let- service personnel for letters on patri- ter of nomination. otic themes. Details are carried in ship (iv) Nominations will be submitted and station publications, or may be ob- through appropriate administrative tained by writing to Freedom Founda- channels to the Chief of Information, tions, Valley Forge, PA 19481. and will include a description of the (iii) Thomas Jefferson Awards are the service rendered, a statement of its rel- prizes in an annual interservice com- evance to the accomplishment of the petition sponsored by civilian media public affairs objectives of the Navy through the Department of Defense’s and a draft of the recommended cita- Office of Information for the Armed tion. To avoid possible embarrassment, Forces. The contest is open to all nominations shall be marked ‘‘For Offi- Armed Forces media—broadcast and cial Use Only’’ and safeguarded until print. Details can be obtained by writ- final action has been taken. ing to Office of Information, Depart- (2) CHINFO Merit Awards. (i) These ment of the Navy, Washington, DC awards, or certificates, are presented 20350. quarterly to Navy publications and (iv) Navy League Awards. Several an- broadcasts considered to be out- nual awards are presented to naval per- standing or to have shown improve- sonnel and civilians who have made a ment in meeting professional standards notable contribution to the importance of journalism. of seapower. The awards are for inspi- (ii) Publications and broadcasts eligi- rational leadership, scientific and tech- ble are those which inform the reader nical progess, operational competence, concerning aspects of service life or re- literary achievement, etc. Nominations lated matters which contribute to the should be forwarded directly to Board well-being of naval personnel, their de- of Awards, Navy League of the United pendents, and civilian employees of the States, 818 18th St., NW., Washington, Navy. Civilian enterprise periodicals DC 20006.
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(v) Nonofficial awards to outstanding (E) Directives in the 5061, 1650 and Navy students or training units. 3590 series issued by pertinent authori- (A) Various civilian organizations ties may provide further guidance in and private individuals have estab- individual cases. lished awards to be presented to out- (vi) Awards established by a com- standing training units or naval stu- mand to honor non-Navy civilians. dents. (A) Examples of such awards are (B) Requests to establish an award ‘‘Good Neighbor’’ or ‘‘Honorary Crew for students in the Naval Air Training Member’’ certificates. program should be forwarded to the (B) Established to honor persons who Chief of Naval Air Training. have been helpful to the command, (C) Requests to establish an award they are a valuable community rela- which will involve more than one tions program. They should not be school (other than the Naval Air Train- awarded to persons or organizations ing Program) will be forwarded to the with which the command is associated Chief of Naval Personnel. in a commercial or governmental busi- (D) All other cases may be decided by ness capacity. the Navy authority at the school con- [41 FR 29101, July 15, 1976, as amended at 44 cerned. FR 6391, Feb. 1, 1979]
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PART 706—CERTIFICATIONS AND shown in combination with the naviga- EXEMPTIONS UNDER THE INTER- tional lights. NATIONAL REGULATIONS FOR (c) During peacetime naval maneu- PREVENTING COLLISIONS AT SEA, vers, naval ships, alone or in company, 1972 may also dispense with showing any lights, though efforts will be made to display lights on the approach of ship- Sec. ping. 706.1 Purpose of regulations. 706.2 Certifications of the Secretary of the (d) Executive Order 11964 of January Navy under Executive Order 11964 and 33 19, 1977, and 33 U.S.C. 1605 provide that U.S.C. 1605. the requirements of the International 706.3 Exemptions by the Secretary of the Regulations for Preventing Collisions Navy under Executive Order 11964. at Sea, 1972, as to the number, position, AUTHORITY: 33 U.S.C. 1605. range, or arc of visibility of lights or shapes, as well as to the disposition § 706.1 Purpose of regulations. and characteristics of sound-signalling (a) All ships are warned that, when appliances, shall not apply to a vessel U.S. naval vessels are met in inter- of the Navy where the Secretary of the national waters, certain navigational Navy shall find and certify that, by lights and sound-signalling appliances reason of special construction or pur- of some naval vessels may vary from pose, it is not possible for such vessel the requirements of the International to comply fully with the provisions Regulations for Preventing Collisions without interfering with the special at Sea, 1972 (33 U.S.C. foll. section 1602 function of the vessel. (1982)), as to number, position, range, (e) Executive Order 11964 also pro- or arc of visibility of lights, as well as vides that the Secretary of the Navy is to the disposition and characteristics authorized to exempt, in accordance of sound-signalling appliances. Those with Rule 38 of the International Regu- differences are necessitated by reason lations for preventing Collisions at of the special construction or purpose Sea, 1972, any vessel, or class of vessels, of the naval ships. An example is the the keel of which is laid, or which is at aircraft carrier where the two mast- a corresponding stage of construction, head lights are considerably displaced before July 15, 1977, from full compli- from the center or keel line of the ves- ance with the International Regula- sel when viewed from ahead. Certain tions, provided that such vessel, or other naval vessels cannot comply with class of vessels, complies with the re- the horizontal separation requirements quirements of the International Regu- for masthead lights, and the two mast- lations for Preventing Collisions at head lights on even large naval vessels Sea, 1960. will thus appear to be crowded together (f) This part consolidates and codifies when viewed from a distance. Naval certifications and exemptions granted vessels may also have unorthodox navi- by the Secretary of the Navy under Ex- gational light arrangements or charac- teristics when seen either underway or ecutive Order 11964 and 33 U.S.C. 1605. at anchor. It has been determined that, because of their special construction or purpose, (b) Naval vessels may also be ex- pected to display certain other lights. the vessels and classes of vessels listed These lights include, but are not lim- in this part cannot comply fully with ited to, different colored rotating bea- all of the requirements of the Inter- cons, different colored fixed and rotary national Regulations for Preventing wing aircraft landing signal lights, red Collisions at Sea, 1972. aircraft warning lights, and red or blue [42 FR 36434, July 14, 1977, as amended at 42 contour approach lights on replenish- FR 48876, Sept. 26, 1977; 45 FR 43165, June 26, ment-type ships. These lights may be 1980; 52 FR 4770, Feb. 17, 1987]
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§ 706.2 Certifications of the Secretary TABLE ONEÐContinued of the Navy under Executive Order Distance in 11964 and 33 U.S.C. 1605. meters of The Secretary of the Navy hereby forward masthead finds and certifies that each vessel list- Vessel Number light below ed in this section is a naval vessel of minimum required special construction or purpose, and height. that, with respect to the position of § 2(a)(i) Annex I the navigational lights listed in this section, it is not possible to comply USS THACH ...... FFG 43 1.6 fully with the requirements of the pro- USS DEWERT ...... FFG 45 1.6 USS RENTZ ...... FFG 46 1.6 visions enumerated in the Inter- USS NICHOLAS ...... FFG 47 1.6 national Regulations for Preventing USS VANDEGRIFT ...... FFG 48 1.6 Collisions at Sea, 1972, without inter- USS ROBERT G. BRADLEY ...... FFG 49 1.6 USS TAYLOR ...... FFG 50 1.6 fering with the special function of the USS GARY ...... FFG 51 1.6 vessel. The Secretary of the Navy fur- USS CARR ...... FFG 52 1.6 ther finds and certifies that the naviga- USS HAWES ...... FFG 53 1.6 USS FORD ...... FFG 54 1.6 tional lights in this section are in the USS ELROD ...... FFG 55 1.6 closest possible compliance with the USS SIMPSON ...... FFG 56 1.6 applicable provisions of the Inter- USS REUBEN JAMES ...... FFG 57 1.6 national Regulations for Preventing USS SAMUEL B. ROBERTS ...... FFG 58 1.6 USS KAUFFMAN ...... FFG 59 1.6 Collisions at Sea, 1972. USS RODNEY M. DAVIS ...... FFG 60 1.6 USS INGRAHAM ...... FFG 61 1.37 TABLE ONE USS OGDEN ...... LPD 5 4.15 USS DULUTH ...... LPD 6 4.4 Distance in USS DUBUQUE ...... LPD 8 4.2 meters of USS DENVER ...... LPD 9 4.4 forward USS JUNEAU ...... LPD 10 4.27 masthead light below USS GUADALCANAL ...... LPH 7 3.0 Vessel Number minimum USS GUAM ...... LPH 9 3.3 required USS TRIPOLI ...... LPH 10 3.3 height. USS NEW ORLEANS ...... LPH 11 3.3 § 2(a)(i) USS INCHON ...... LPH 12 3.0 Annex I LCAC (class) ...... LCAC 1 1 6.51 through AALC JEFF(B) ...... ACV 7.21 LCAC 100 USS DOLPHIN ...... AGSS 555 0.8 LCAC (class) ...... LCAC 1 2 7.94 USS OLIVER HAZARD PERRY .... FFG 7 1.6 through USS MC INERNY ...... FFG 8 1.6 LCAC 100 USS WADSWORTH ...... FFG 9 1.6 USS DUNCAN ...... FFG 10 1.6 USS IMPLICIT ...... MSO 455 3.7 USS CLARK ...... FFG 11 1.6 USS CONQUEST ...... MSO 488 3.4 USS GEORGE PHILIP ...... FFG 12 1.6 USS GALLANT ...... MSO 489 3.2 USS SAMUEL ELIOT MORISON .. FFG 13 1.6 USS PLEDGE ...... MSO 492 3.4 USS SIDES ...... FFG 14 1.6 NR±1 ...... NR 1 2.7 USS ESTOCIN ...... FFG 15 1.6 USS TACOMA ...... PG 92 2.3 USS CLIFTON SPRAGUE ...... FFG 16 1.6 USS WELCH ...... PG 93 2.3 USS JOHN A. MOORE ...... FFG 19 1.6 USS SEAWOLF ...... SSN 21 4.62 USS ANTRIM ...... FFG 20 1.6 USS CONNECTICUT ...... SSN 22 4.62 USS FLATLEY ...... FFG 21 1.6 USS GATO ...... SSN 615 4.20 USS FAHRION ...... FFG 22 1.6 USS WHALE ...... SSN 638 2.44 USS LEWIS B. PULLER ...... FFG 23 1.6 USS TAUTOG ...... SSN 639 2.44 USS JACK WILLIAMS ...... FFG 24 1.6 USS GRAYLING ...... SSN 646 2.44 USS COPELAND ...... FFG 25 1.6 USS POGY ...... SSN 647 2.40 USS GALLERY ...... FFG 26 1.6 USS ASPRO ...... SSN 648 2.40 USS MAHLON S. TISDALE ...... FFG 27 1.6 USS SUNFISH ...... SSN 649 2.40 USS BOONE ...... FFG 28 1.6 USS PARGO ...... SSN 650 2.40 USS STEPHEN W. GROVES ...... FFG 29 1.6 USS PUFFER ...... SSN 652 2.40 USS REID ...... FFG 30 1.6 USS SANDLANCE ...... SSN 660 2.40 USS STARK ...... FFG 31 1.6 USS GURNARD ...... SSN 662 1.52 USS JOHN L. HALL ...... FFG 32 1.6 USS HAMMERHEAD ...... SSN 663 2.40 USS JARRETT ...... FFG 33 1.6 USS HAWKBILL ...... SSN 666 1.52 USS AUBREY FITCH ...... FFG 34 1.6 USS BERGALL ...... SSN 667 2.40 USS UNDERWOOD ...... FFG 36 1.6 USS SPADEFISH ...... SSN 668 2.40 USS CROMMELIN ...... FFG 37 1.6 USS SEAHORSE ...... SSN 669 2.40 USS CURTS ...... FFG 38 1.6 USS FINBACK ...... SSN 670 2.40 USS DOYLE ...... FFG 39 1.6 USS NARWHAL ...... SSN 671 2.74 USS HALYBURTON ...... FFG 40 1.6 USS PINTADO ...... SSN 672 1.52 USS MCCLUSKY ...... FFG 41 1.6 USS FLYING FISH ...... SSN 673 2.40 USS KLAKRING ...... FFG 42 1.6 USS TREPANG ...... SSN 674 2.40
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TABLE ONEÐContinued TABLE ONEÐContinued
Distance in Distance in meters of meters of forward forward masthead masthead Vessel Number light below light below minimum Vessel Number minimum required required height. height. § 2(a)(i) § 2(a)(i) Annex I Annex I
USS BLUEFISH ...... SSN 675 2.40 USS ALBANY ...... SSN 753 3.5 USS BILLFISH ...... SSN 676 2.40 USS TOPEKA ...... SSN 754 3.5 USS DRUM ...... SSN 677 1.52 USS MIAMI ...... SSN 755 3.5 USS ARCHERFISH ...... SSN 678 2.40 USS SCRANTON ...... SSN 756 3.5 USS WILLIAM H BATES ...... SSN 680 2.40 USS ALEXANDRIA ...... SSN 757 3.5 USS BATFISH ...... SSN 681 2.40 USS ASHEVILLE ...... SSN 758 3.5 USS TUNNY ...... SSN 682 2.40 USS JEFFERSON CITY ...... SSN 759 3.4 USS PARCHE ...... SSN 683 3.58 USS ANNAPOLIS ...... SSN 760 3.5 USS CAVALLA ...... SSN 684 2.40 USS SPRINGFIELD ...... SSN 761 3.5 USS MENDEL RIVERS ...... SSN 686 2.40 USS RICHARD B RUSSELL ...... SSN 687 2.40 USS COLUMBUS ...... SSN 762 3.5 USS LOS ANGELES ...... SSN 688 6.10 USS SANTA FE ...... SSN 763 3.5 USS PHILADELPHIA ...... SSN 690 6.10 USS BOISE ...... SSN 764 3.5 USS MEMPHIS ...... SSN 691 6.10 USS MONTPELIER ...... SSN 765 3.5 USS OMAHA ...... SSN 692 6.10 USS CHARLOTTE ...... SSN 766 3.5 USS CINCINNATI ...... SSN 693 3.49 USS HAMPTON ...... SSN 767 3.5 USS GROTON ...... SSN 694 3.45 USS HARTFORD ...... SSN 768 3.5 USS BIRMINGHAM ...... SSN 695 3.49 USS TOLEDO ...... SSN 769 3.5 USS NEW YORK CITY ...... SSN 696 3.49 USS TUCSON ...... SSN 770 3.5 USS INDIANAPOLIS ...... SSN 697 3.49 USS COLUMBIA ...... SSN 771 3.5 USS BREMERTON ...... SSN 698 3.49 USS GREENEVILLE ...... SSN 772 3.5 USS JACKSONVILLE ...... SSN 699 3.35 USS CHEYENNE ...... SSN 773 3.5 USS DALLAS ...... SSN 700 3.5 USS DANIEL WEBSTER ...... SSBN 626 3.58 USS LA JOLLA ...... SSN 701 3.5 USS STONEWALL JACKSON ...... SSBN 634 3.58 USS PHOENIX ...... SSN 702 3.5 USS SIMON BOLIVAR ...... SSBN 641 3.60 USS BOSTON ...... SSN 703 3.5 USS KAMEHAMEHA ...... SSBN 642 3.58 USS BALTIMORE ...... SSN 704 3.5 USS JAMES K. POLK ...... SSBN 645 3.60 USS CITY OF CORPUS CHRISTI SSN 705 3.5 USS MARIANO G VALLEJO ...... SSBN 658 3.60 USS ALBUQUERQUE ...... SSN 706 3.5 USS OHIO ...... SSBN 726 3.70 USS PORTSMOUTH ...... SSN 707 3.5 USS MICHIGAN ...... SSBN 727 3.70 USS MINNEAPOLIS-ST. PAUL .... SSN 708 3.5 USS FLORIDA ...... SSBN 728 3.70 USS HYMAN G. RICKOVER ...... SSN 709 3.5 USS GEORGIA ...... SSBN 729 3.70 USS AUGUSTA ...... SSN 710 3.5 USS HENRY M. JACKSON ...... SSBN 730 3.70 USS SAN FRANCISCO ...... SSN 711 3.5 USS ALABAMA ...... SSBN 731 3.70 USS ATLANTA ...... SSN 712 3.5 USS ALASKA ...... SSBN 732 3.70 USS HOUSTON ...... SSN 713 3.5 USS NEVADA ...... SSBN 733 3.70 USS NORFOLK ...... SSN 714 3.5 USS TENNESSEE ...... SSBN 734 3.70 USS BUFFALO ...... SSN 715 3.5 USS PENNSYLVANIA ...... SSBN 735 3.70 USS SALT LAKE CITY ...... SSN 716 3.5 USS WEST VIRGINIA ...... SSBN 736 3.70 USS OLYMPIA ...... SSN 717 3.5 USS HONOLULU ...... SSN 718 3.5 USS KENTUCKY ...... SSBN 737 3.70 USS PROVIDENCE ...... SSN 719 3.5 USS MARYLAND ...... SSBN 738 3.70 USS PITTSBURGH ...... SSN 720 3.5 USS NEBRASKA ...... SSBN 739 3.70 USS CHICAGO ...... SSN 721 3.5 USS RHODE ISLAND ...... SSBN 740 3.70 USS KEY WEST ...... SSN 722 3.5 USS MAINE ...... SSBN 741 3.70 USS OKLAHOMA CITY ...... SSN 723 3.5 USS WYOMING ...... SSBN 742 3.70 USS LOUISVILLE ...... SSN 724 3.5 USS LOUISIANA ...... SSBN 743 3.70 USS HELENA ...... SSN 725 3.5 1 The permanent masthead light is 5.26 meters athwartship USS NEWPORT NEWS ...... SSN 750 3.5 to port of centerline, 5.49 meters above the main deck. USS SAN JUAN ...... SSN 751 3.5 2 The temporary masthead light is 3.98 meters athwartship USS PASADENA ...... SSN 752 3.5 to starboard of centerline, 4.06 meters above the main deck.
TABLE TWO
AFT an- Side Masthead Forward chor light, Side lights, Side lights, anchor Forward distance AFT an- lights, distance lights, distance light, dis- anchor below chor distance forward of distance to stbd of tance light, flight dk light, below forward inboard of Vessel Number keel in below number in meters; number flight dk masthead ship's meters; flight dk of; Rule Rule of; Rule in meters; light in sides in Rule in meters; 30(a)(i) 21(e), 30(a)(ii) § 2(g), meters; meters; 21(a) § 2(K), Rule Annex I § 3(b), § 3(b), Annex I 30(a)(ii) Annex I Annex I
AALC JEFF(B) 1 ...... ACV 4.01 ......
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TABLE TWOÐContinued
AFT an- Side Masthead Forward chor light, Side lights, Side lights, anchor Forward distance AFT an- lights, distance lights, distance light, dis- anchor below chor distance forward of distance to stbd of tance light, flight dk light, below forward inboard of Vessel Number keel in below number in meters; number flight dk masthead ship's meters; flight dk of; Rule Rule of; Rule in meters; light in sides in Rule in meters; 30(a)(i) 21(e), 30(a)(ii) § 2(g), meters; meters; 21(a) § 2(K), Rule Annex I § 3(b), § 3(b), Annex I 30(a)(ii) Annex I Annex I
CSP (class) ...... CSP±101 1.62 ...... 3.93 through CSP±182 USS FORRESTAL .. CV 59 26.5 ...... 1 ...... 1 1.5 ...... USS SARATOGA ... CV 60 26.5 ...... 1 ...... 1 0.5 ...... USS INDEPEND- ENCE ...... CV 62 26.5 0.5 2 7.0 2 0.2 ...... USS KITTY HAWK CV 63 27.8 ...... 1 ...... 1 0.2 ...... USS CONSTELLA- TION ...... CV 64 28.2 ...... 1 ...... 1 0.4 ...... USS AMERICA ...... CV 66 28.7 ...... 1 0.7 2 0.1 ...... USS JOHN F. KEN- NEDY ...... CV 67 27.5 ...... 1 9.0 2 0.4 ...... USS ENTERPRISE CVN 65 28.0 ...... 1 6.6 2 0.4 ...... USS NIMITZ ...... CVN 68 31.00 ...... 1 9.2 2 0.7 ...... USS DWIGHT D. EISENHOWER .... CVN 69 30.00 ...... 1 9.3 2 0.7 ...... USS CARL VINSON CVN 70 29.9 0.3 2 9.4 2 0.5 ...... USS THEODORE ROOSEVELT ...... CVN 71 30.0 ...... 1 9.0 2 0.6 ...... USS ABRAHAM LINCOLN ...... CVN 72 30.0 ...... 0.6 ...... USS GEORGE WASHINGTON ... CVN 73 30.0 ...... 0.6 ...... USS JOHN C. STENNIS ...... CVN 74 30.0 ...... 0.6 ...... USS HARRY S TRUMAN ...... CVN 75 30.02 ...... 1 ...... 1 0.56 ...... USS TARAWA ...... LHA 1 10.0 ...... 1 ...... 1 2.4 71.0 ...... USS SAIPAN ...... LHA 2 10.1 ...... 1 ...... 1 2.8 72.1 ...... USS BELLEAU WOOD ...... LHA 3 10.0 ...... 2.7 72.4 ...... USS NASSAU ...... LHA 4 10.0 ...... 2.7 72.4 ...... USS PELELIU ...... LHA 5 10.0 4 ...... 2.6 72.4 ...... USS WASP ...... LHD 1 9.0 ...... 2.8 89.0 ...... USS ESSEX ...... LHD 2 ...... 3.1 91.1 ...... USS KEARSARGE LHD 3 8.9 ...... 3.0 91 ...... USS BOXER ...... LHD 4 ...... 3.0 90.9 ...... USS BATAAN ...... LHD 5 ...... 2.9 98.6 ...... USS BONHOMME RICHARD ...... LHD 6 9.0 ...... 2.9 89.6 ...... USS GUADAL- CANAL ...... LPH 7 10.6 ...... 1 2.5 2 0.2 61.0 ...... USS GUAM ...... LPH 9 10.6 ...... 1 2.0 2 0.2 48.8 ...... USS TRIPOLI ...... LPH 10 10.6 ...... 1 2.2 2 0.4 47.5 ...... USS NEW ORLE- ANS ...... LPH 11 10.6 ...... 1 2.2 2 0.5 50.0 ...... USS INCHON ...... LPH 12 10.6 ...... 1 2.2 2 0.4 47.5 ...... LCAC (class) ...... LCAC 1 5.26 ...... 31.5 through (Perm.)2 LCAC 100 LCAC (class) ...... LCAC 1 3.98 ...... 31.5 through (Temp.)4 LCAC 100 SLWT (class) ...... SLWT 1 1.62 ...... 53.93 SLWT (class) ...... SLWT 2 1.62 ...... 53.93 SLWT (class) ...... SLWT 3 1.62 ...... 53.93 SLWT (class) ...... SLWT±6 1.62 ...... 3.93 SLWT (class) ...... SLWT±8 1.62 ...... 3.93 through SLWT±19
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TABLE TWOÐContinued
AFT an- Side Masthead Forward chor light, Side lights, Side lights, anchor Forward distance AFT an- lights, distance lights, distance light, dis- anchor below chor distance forward of distance to stbd of tance light, flight dk light, below forward inboard of Vessel Number keel in below number in meters; number flight dk masthead ship's meters; flight dk of; Rule Rule of; Rule in meters; light in sides in Rule in meters; 30(a)(i) 21(e), 30(a)(ii) § 2(g), meters; meters; 21(a) § 2(K), Rule Annex I § 3(b), § 3(b), Annex I 30(a)(ii) Annex I Annex I
SLWT (class) ...... SLWT±22 1.62 ...... 3.93 through SLWT±24 SLWT (class) ...... SLWT±26 1.62 ...... 3.93 through SLWT±65 1 On AALC JEFF(B) the masthead light is located 4.01 meters athwartship to port of centerline, at frame five, 4.79 meters above the main deck. 2 The permanent masthead light is 5.26 meters athwartship to port of centerline, at frame 3, 5.49 meters above the main deck. 3 The sidelights are on top of the port and starboard deckhouses 3.28 meters above the hull. 4 The temporary masthead light is 3.98 meters athwartship to starboard of centerline 4.06 meters above the main deck. 5 Port sidelight only.
TABLE THREE
Side Forward lights dis- Stern anchor Anchor Masthead Side Stern tance in- light, dis- light, lights rela- lights arc lights arc light arc board of tance for- height tionship of Vessel No. of visi- of visi- of visi- ship's ward of above aft light to bility; rule bility; rule bility; rule sides in stern in hull in forward 21(a) 21(b) 21(c) meters meters; meters; light in me- 3(b) rule 21(c) 2(K) ters 2(K) annex 1 annex 1 annex 1
USS CYCLONE ...... PC 1 ...... 1 25.5 3.0 1.0 USS TEMPEST ...... PC 2 ...... 1 25.5 3.0 1.1 below USS HURRICANE ...... PC 3 ...... 1 25.5 3.0 1.1 below USS MONSOON ...... PC 4 ...... 1 25.5 3.0 1.1 below USS TYPHOON ...... PC 5 ...... 1 25.5 3.0 1.1 below USS SIROCCO ...... PC 6 ...... 1 25.5 3.0 1.1 below USS SQUALL ...... PC 7 ...... 1 25.5 3.0 1.0 USS ZEPHYR ...... PC 8 ...... 1 25.5 3.0 1.0 USS CHINOOK ...... PC 9 ...... 1 25.5 3.0 1.0 USS FIREBOLT ...... PC 10 ...... 1 25.5 3.0 1.0 USS WHIRLWIND ...... PC 11 ...... 1 25.5 3.0 1.0 USS THUNDERBOLT PC 12 ...... 1 25.5 3.0 1.0 USS SHAMAL ...... PC 13 ...... 1 25.5 3.0 1.0 USS DOLPHIN ...... AGSS 555 227.51¤2 1191¤2 1911¤2 2.1 10.8 1.8 0.5 above NR±1 ...... NR 1 238.51¤2 114° 136.5° 1.5 4.1 2.1 USS SEAWOLF ...... SSN 21 225° 111.5° 205° 5.1 10.7 2.8 1.8 below USS CONNECTICUT SSN 22 232° 112.8° 207° 5.1 10.7 2.8 1.63 below. USS GATO ...... SSN 615 232° 114° 252° 4.1 37.8 3.1 1.5 below USS WHALE ...... SSN 638 226° 113° 252° 3.8 5.2 3.4 1.4 below USS TAUTOG ...... SSN 639 226° 113° 252° 3.8 5.2 3.4 1.4 below USS GRAYLING ...... SSN 646 228° 113° 252° 3.8 5.2 3.4 1.4 below USS POGY ...... SSN 647 226° 114° 252° 3.8 5.2 3.4 1.4 below USS ASPRO ...... SSN 648 228° 113° 252° 3.8 5.2 3.4 1.4 below USS SUNFISH ...... SSN 649 226° 114° 252° 3.8 5.2 3.4 1.4 below USS PARGO ...... SSN 650 228° 114° 252° 3.8 5.2 3.4 1.4 below USS PUFFER ...... SSN 652 228° 113° 252° 3.8 5.2 3.4 1.4 below USS SANDLANCE ...... SSN 660 226° 113° 252° 3.8 5.2 3.4 1.4 below USS GURNARD ...... SSN 662 232° 116° 252° 3.8 5.2 3.4 1.4 below USS HAMMERHEAD .. SSN 663 228° 114° 252° 3.8 5.2 3.4 1.4 below USS HAWKBILL ...... SSN 666 232° 113° 252° 3.8 5.2 3.4 1.4 below USS BERGALL ...... SSN 667 232° 114° 252° 3.8 5.2 3.4 1.4 below USS SPADEFISH ...... SSN 668 234° 113° 252° 3.8 5.2 3.4 1.4 below USS SEAHORSE ...... SSN 669 228° 113° 252° 3.8 5.2 3.4 1.4 below USS FINBACK ...... SSN 670 234° 114° 252° 3.8 5.2 3.4 1.4 below USS NARWHAL ...... SSN 671 228° 113° 252° 3.8 5.2 2.0 1.4 below USS PINTADO ...... SSN 672 234° 120° 252° 3.8 5.2 3.4 1.4 below USS FLYING FISH ..... SSN 673 232° 114° 252° 3.8 5.2 3.4 1.4 below USS TREPANG ...... SSN 674 228° 113° 252° 3.8 5.2 3.4 1.4 below USS BLUEFISH ...... SSN 675 234° 113° 252° 3.8 5.2 3.4 1.4 below
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TABLE THREEÐContinued
Side Forward lights dis- Stern anchor Anchor Masthead Side Stern tance in- light, dis- light, lights rela- lights arc lights arc light arc board of tance for- height tionship of Vessel No. of visi- of visi- of visi- ship's ward of above aft light to bility; rule bility; rule bility; rule sides in stern in hull in forward 21(a) 21(b) 21(c) meters meters; meters; light in me- 3(b) rule 21(c) 2(K) ters 2(K) annex 1 annex 1 annex 1
USS BILLFISH ...... SSN 676 234° 114° 252° 3.8 5.2 3.4 1.4 below USS DRUM ...... SSN 677 234° 113° 252° 3.8 5.2 3.4 1.4 below USS ARCHERFISH .... SSN 678 232° 113° 252° 3.8 5.2 3.4 1.4 below USS WILLIAM H. SSN 680 232° 114° 252° 3.8 5.2 3.4 1.4 below BATES. USS BATFISH ...... SSN 681 234° 115° 252° 3.8 5.2 3.4 1.4 below USS TUNNY ...... SSN 682 234° 114° 252° 3.8 5.2 3.4 1.4 below USS PARCHE ...... SSN 683 232° 112.5° 209° 4.1 6.8 2.2 0.2 below USS CAVALLA ...... SSN 684 234° 113° 252° 3.8 5.2 3.4 1.4 below USS L. MENDEL RIV- SSN 686 236° 113° 252° 3.8 5.2 3.4 1.4 below ERS. USS RICHARD B. SSN 687 236° 114° 252° 3.8 5.2 3.4 1.3 below RUSSELL. USS LOS ANGELES .. SSN 698 236° 115° 252° 4.2 6.1 2.0 1.6 below USS PHILADELPHIA .. SSN 690 238° 115° 252° 4.2 6.1 2.0 1.6 below USS MEMPHIS ...... SSN 691 236° 115° 252° 4.3 6.1 2.0 1.6 below USS OMAHA ...... SSN 692 236° 115° 252° 4.2 6.1 2.0 1.6 below USS CINCINNATI ...... SSN 693 ...... 209° 4.3 6.1 3.4 1.6 below USS GROTON ...... SSN 694 226°55′ 118°37′ 219° 4.3 6.6 3.5 1.7 below USS BIRMINGHAM .... SSN 695 ...... 209° 4.3 6.1 3.4 1.7 below USS NEW YORK CITY SSN 696 ...... 209° 4.3 6.1 3.4 1.7 below USS INDIANAPOLIS .. SSN 697 ...... 209° 4.3 6.1 3.4 1.7 below USS BREMERTON ..... SSN 698 ...... 209° 4.2 6.1 3.5 1.7 below USS JACKSONVILLE SSN 699 ...... 211° 4.2 6.1 3.5 1.7 below USS DALLAS ...... SSN 700 ...... 4.1 6.5 3.4 1.7 below USS LA JOLLA ...... SSN 701 ...... 4.2 6.1 3.5 1.7 below USS PHOENIX ...... SSN 702 ...... 4.2 6.1 3.5 1.7 below USS BOSTON ...... SSN 703 ...... 4.2 6.2 3.8 1.7 below USS BALTIMORE ...... SSN 704 ...... 209° 4.2 6.1 3.5 1.7 below USS CITY OF COR- SSN 705 ...... 209° 4.2 6.1 3.5 1.7 below PUS CHRISTI. USS ALBUQUERQUE SSN 706 ...... 114° ...... 4.2 6.1 3.5 1.7 below USS PORTSMOUTH .. SSN 707 ...... 209° 4.2 6.1 3.5 1.7 below USS MINNEAPOLIS- SSN 708 ...... 209° 4.2 6.2 3.5 1.7 below ST. PAUL. USS HYMAN G. RICK- SSN 709 ...... 209° 4.2 6.1 3.4 1.7 below OVER. USS AUGUSTA ...... SSN 710 ...... 209° 4.2 6.1 3.4 1.7 below USS SAN FRAN- SSN 711 ...... 4.1 6.5 3.4 1.7 below CISCO. USS ATLANTA ...... SSN 712 ...... 4.3 6.1 3.4 1.6 below USS HOUSTON ...... SSN 713 ...... 209° 4.3 6.1 3.4 1.7 below USS NORFOLK ...... SSN 714 ...... 209° 4.3 6.1 3.4 1.7 below USS BUFFALO ...... SSN 715 ...... 209° 4.2 6.1 3.5 1.7 below USS SALT LAKE CITY SSN 716 ...... 209° 4.2 6.1 3.5 1.7 below USS OLYMPIA ...... SSN 717 ...... 209° 4.2 6.1 3.4 1.7 below USS HONOLULU ...... SSN 718 ...... 209° 4.2 6.1 3.4 1.7 below USS PROVIDENCE .... SSN 719 ...... 209° 4.2 6.1 3.4 1.7 below USS PITTSBURGH .... SSN 720 ...... 209° 4.2 6.1 3.4 1.7 below USS CHICAGO ...... SSN 721 ...... 209° 4.3 6.1 3.4 1.7 below USS KEY WEST ...... SSN 722 ...... 209° 4.2 6.1 3.4 1.7 below USS OKLAHOMA SSN 723 ...... 209° 4.3 6.1 3.4 1.7 below CITY. USS LOUISVILLE ...... SSN 724 ...... 113° 209° 4.2 6.1 3.5 1.7 below USS HELENA ...... SSN 725 ...... 207° 4.2 6.2 3.5 1.7 below USS NEWPORT SSN 750 ...... 209° 4.3 6.1 3.4 1.7 below NEWS. USS SAN JUAN ...... SSN 751 229° 113° 208° 4.2 6.1 3.5 1.7 below USS PASADENA ...... SSN 752 255° 112.5° 206° 4.2 6.1 3.5 1.7 below USS ALBANY ...... SSN 753 225° 112.5° 209° 4.3 6.1 3.4 1.7 below USS TOPEKA ...... SSN 754 ...... 206° 4.2 6.2 3.5 1.7 below USS MIAMI ...... SSN 755 ...... 206° 4.2 6.2 3.5 1.7 below USS SCRANTON ...... SSN 756 ...... 209° 4.3 6.1 3.4 1.7 below USS ALEXANDRIA ..... SSN 757 ...... 205° 4.2 6.2 3.5 1.7 below USS ASHEVILLE ...... SSN 758 ...... 209° 4.3 6.1 3.4 1.7 below
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TABLE THREEÐContinued
Side Forward lights dis- Stern anchor Anchor Masthead Side Stern tance in- light, dis- light, lights rela- lights arc lights arc light arc board of tance for- height tionship of Vessel No. of visi- of visi- of visi- ship's ward of above aft light to bility; rule bility; rule bility; rule sides in stern in hull in forward 21(a) 21(b) 21(c) meters meters; meters; light in me- 3(b) rule 21(c) 2(K) ters 2(K) annex 1 annex 1 annex 1
USS JEFFERSON SSN 759 ...... 209° 4.3 6.1 3.4 1.7 below CITY. USS ANNAPOLIS ...... SSN 760 ...... 205° 4.2 6.2 3.5 1.7 below USS SPRINGFIELD .... SSN 761 ...... 205° 4.2 6.2 3.5 1.7 below USS COLUMBUS ...... SSN 762 ...... 205° 4.2 6.2 3.5 1.7 below USS SANTA FE ...... SSN 763 ...... 205° 4.2 6.2 3.5 1.7 below USS BOISE ...... SSN 764 ...... 209° 4.3 6.1 3.4 1.7 below USS MONTPELIER .... SSN 765 ...... 209° 4.3 6.1 3.4 1.7 below USS CHARLOTTE ...... SSN 766 ...... 209° 4.3 6.1 3.4 1.7 below USS HAMPTON ...... SSN 767 ...... 209° 4.3 6.1 3.4 1.7 below USS HARTFORD ...... SSN 768 ...... 205° 4.2 6.2 3.5 1.7 below USS TOLEDO ...... SSN 769 ...... 209° 4.4 6.1 3.4 1.7 below USS TUCSON ...... SSN 770 ...... 209° 4.4 6.1 3.4 1.7 below USS COLUMBIA ...... SSN 771 ...... 205° 4.2 6.2 3.5 1.7 below USS GREENEVILLE ... SSN 772 ...... 209° 4.4 6.1 3.4 1.7 below USS CHEYENNE ...... SSN 773 ...... 209° 4.4 6.1 3.4 1.7 below USS DANIEL WEB- SSBN 626 236° 114° 252° 3.8 7.3 2.0 1.0 above STER. USS STONEWALL SSBN 634 236° 114° 252° 3.8 7.3 2.0 1.4 above JACKSON. USS SIMON BOLIVAR SSBN 641 234° 115° 252° 3.8 7.6 2.1 0.8 below USS KAMEHAMEHA .. SSBN 642 236° 117° 252° 3.8 7.6 2.1 same height USS JAMES K. POLK SSBN 645 230° 114° 252° 3.8 7.6 2.1 0.9 below USS MARIANO G. SSBN 658 234° 116° 252° 3.8 7.6 2.1 1.1 below VALLEJO. USS OHIO ...... SSBN 726 225° 112.5° 209° 5.3 9.0 3.8 4.0 below USS MICHIGAN ...... SSBN 727 225° 112.5° 209° 5.3 9.0 3.8 4.0 below USS FLORIDA ...... SSBN 728 ...... 209° 5.3 9.0 3.8 4.0 below USS GEORGIA ...... SSBN 729 225° 112.5° 209° 5.3 9.0 3.8 4.0 below USS HENRY M. SSBN 730 ...... 209° 5.3 9.0 3.8 4.0 below JACKSON. USS ALABAMA ...... SSBN 731 ...... 209° 5.3 9.0 3.8 4.0 below USS ALASKA ...... SSBN 732 ...... 209° 5.3 9.0 3.8 4.0 below USS NEVADA ...... SSBN 733 ...... 209° 5.3 9.0 3.8 4.0 below USS TENNESSEE ...... SSBN 734 ...... 209° 5.3 9.0 3.8 4.0 below USS PENNSYLVANIA SSBN 735 ...... 211.5° 5.3 9.0 3.8 4.0 below USS WEST VIRGINIA SSBN 736 ...... 211.5° 5.3 9.0 3.8 4.0 below USS KENTUCKY ...... SSBN 737 ...... 209° 5.3 9.0 3.8 4.0 below USS MARYLAND ...... SSBN 738 ...... 209° 5.3 9.0 3.8 4.0 below USS NEBRASKA ...... SSBN 739 ...... 209° 5.3 9.0 3.8 4.0 below USS RHODE ISLAND SSBN 740 ...... 209° 5.3 9.0 3.8 4.0 below USS MAINE ...... SSBN 741 ...... 209° 5.3 9.0 3.8 4.0 below USS WYOMING ...... SSBN 742 ...... 209° 5.3 9.0 3.8 4.0 below USS LOUISIANA ...... SSBN 743 ...... 209° 5.3 9.0 3.8 4.0 below YTB±752 ...... YTB 752 ...... 2.69 13.71 ...... OSHKOSH ...... YTB 757 ...... 2.70 13.30 ...... YTB 758 ...... YTB 758 ...... 2.66 15.97 ...... YTB (class) ...... YTB 769 ...... 2.77 14.02 ...... KEOKUK ...... YTB 771 ...... 3.11 13.00 ...... SAUGUS ...... YTB 780 ...... 2.79 13.78 ...... YTB 781 ...... YTB 781 ...... 2.56 13.41 ...... YTB 785 ...... YTB 785 ...... 2.94 14.02 ...... WAPATO ...... YTB 788 ...... 3.10 12.88 ...... YTB (class) ...... YTB 789 ...... 2.50 14.99 ...... NATCHITOCHES ...... YTB 799 ...... 3.00 14.05 ...... PALATKA ...... YTB 801 ...... 2.80 13.00 ...... YTB 806 ...... YTB 806 ...... 2.79 10.97 ...... HOUMA ...... YTB 811 ...... 3.20 14.05 ...... YTB 812 ...... YTB 812 ...... 3.03 14.02 ...... YTB 813 ...... YTB 813 ...... 2.63 19.2 ...... YTB 820 ...... YTB 820 ...... 3.08 14.20 ...... YTB 826 ...... YTB 826 ...... 2.82 14.32 ...... SHABONEE ...... YTB 833 ...... 2.77 13.34 ......
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TABLE THREEÐContinued
Side Forward lights dis- Stern anchor Anchor Masthead Side Stern tance in- light, dis- light, lights rela- lights arc lights arc light arc board of tance for- height tionship of Vessel No. of visi- of visi- of visi- ship's ward of above aft light to bility; rule bility; rule bility; rule sides in stern in hull in forward 21(a) 21(b) 21(c) meters meters; meters; light in me- 3(b) rule 21(c) 2(K) ters 2(K) annex 1 annex 1 annex 1
YTB 835 ...... YTB 835 ...... 3.00 14.02 ...... 1 Only when towing.
TABLE FOUR 2. To provide all-round visibility, the lights required by Rules 27 (a) and (b) will consist 1. Ships other than aircraft carrier types of two lights, one light port and one light (CV, CVN, LHA, LHD, and LPH) may not si- starboard on the mast or superstructure at multaneously exhibit the masthead lights re- each location in the vertical array. quired by Rule 27(b)(iii) and the lights re- 3. The second masthead light required by quired by Rule 27(b)(i) for vessels restricted Rule 23(a)(ii) and the lights and shapes re- in their ability to maneuver when such si- quired by Rules 24, 27, and 30(d)(i) are not multaneous exhibition will present a hazard displayed by submarines. to their own safe operations. In those in- 4. On mine warfare type ships the mast- stances, the lights required by Rule 27(b)(i) head lights will not always be above and will be exhibited. Ships conducting flight op- clear of the minesweeping lights, as is re- quired by Annex I, Section 2(f). The positions erations also may not exhibit the stern light of the masthead lights with relation to the required by Rule 27(b)(iii). minesweeping lights are as follows:
Relationship of after Relationship of forward Relationship of after masthead light to Vessel MSO No. masthead light to all masthead light to lower upper minesweeping minesweeping lights minesweeping lights lights
USS IMPLICIT ...... 455 below ...... lower than ...... below USS CONQUEST ...... 488 below ...... lower than ...... below USS GALLANT ...... 489 below ...... lower than ...... below USS PLEDGE ...... 492 below ...... lower than ...... below MSB ...... 15 below ...... MSB ...... 16 do ...... MSB ...... 25 do ...... MSB ...... 28 do ...... MSB ...... 29 do ...... MSB ...... 41 do ...... MSB ...... 51 do ...... MSB ...... 52 do ......
5. The masthead light required by Rule 1.6° arc of visibility at the points 021° and 23(a)(i) is not located in the forepart of the 339° relative to the ship’s head. vessel on the CSP Class and SLWT Class. USS OLIVER HAZARD PERRY ...... FFG 7 6. The arc of visibility of the after mast- USS MCINERNEY ...... FFG 8 head light required by Rule 23(a)(ii) and USS WADSWORTH ...... FFG 9 Annex I, section 2(f) may be obstructed from USS DUNCAN ...... FFG 10 right ahead on certain naval ships as follows: USS CLARK ...... FFG 11 USS GEORGE PHILIP ...... FFG 12 ° ′ USS KANSAS CITY (AOR 3) ...... 1 13 USS SAMUEL ELIOT MORISON ...... FFG 13 ° ′ USS SAVANNAH (AOR 4) ...... 1 13 USS SIDES ...... FFG 14 ° ′ USS WABASH (AOR 5) ...... 1 13 USS ESTOCIN ...... FFG 15 ° ′ USS KALAMAZOO (AOR 6) ...... 1 13 USS CLIFTON SPRAGUE ...... FFG 16 ° ′ USS HUNLEY (AS 31) ...... 2 10 USS JOHN A. MOORE ...... FFG 19 ° ′ USS HOLLAND (AS 32) ...... 3 46 USS ANTRIM ...... FFG 20 ° ′ USS KIDD (DDG 993) ...... 0 28.8 USS FLATLEY ...... FFG 21 ° ′ USS CALLAGHAN (DDG 994) ...... 0 28.8 USS FAHRION ...... FFG 22 ° ′ USS SCOTT (DDG 995) ...... 0 28.8 USS LEWIS B. PULLER ...... FFG 23 ° ′ USS CHANDLER (DDG 996) ...... 0 28.8 USS JACK WILLIAMS ...... FFG 24 7. On the following ships the arc of visi- USS COPELAND ...... FFG 25 bility of the forward masthead light required USS GALLERY ...... FFG 26 by Rule 23(a)(i) may be obstructed through USS MAHLON S. TISDALE ...... FFG 27
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USS BOONE ...... FFG 28 Distance of USS STEPHEN W. GROVES ...... FFG 29 sidelights USS REID ...... FFG 30 Vessel Number forward of USS STARK ...... FFG 31 masthead USS JOHN L. HALL ...... FFG 32 light in me- ters USS JARRETT ...... FFG 33 USS AUBREY FITCH ...... FFG 34 USS DEWERT ...... FFG 45 2.75 USS UNDERWOOD ...... FFG 36 USS RENTZ ...... FFG 46 2.75 USS CROMMELIN ...... FFG 37 USS NICHOLAS ...... FFG 47 2.75 USS CURTS ...... FFG 38 USS VANDEGRIFT ...... FFG 48 2.75 USS DOYLE ...... FFG 39 USS ROBERT G. BRADLEY ...... FFG 49 2.75 USS HALYBURTON ...... FFG 40 USS TAYLOR ...... FFG 50 2.75 USS MCCLUSKY ...... FFG 41 USS GARY ...... FFG 51 2.75 USS KLAKRING ...... FFG 42 USS CARR ...... FFG 52 2.75 USS THACH ...... FFG 43 USS HAWES ...... FFG 53 2.75 USS DEWERT ...... FFG 45 USS FORD ...... FFG 54 2.75 USS RENTZ ...... FFG 46 USS ELROD ...... FFG 55 2.75 USS NICHOLAS ...... FFG 47 USS SIMPSON ...... FFG 56 2.75 USS VANDERGRIFT ...... FFG 48 USS REUBEN JAMES ...... FFG 57 2.75 USS ROBERT G. BRADLEY ...... FFG 49 USS SAMUEL B. ROBERTS ...... FFG 58 2.75 USS TAYLOR ...... FFG 50 USS KAUFFMAN ...... FFG 59 2.75 USS GARY ...... FFG 51 USS RODNEY M. DAVIS ...... FFG 60 2.75 USS CARR ...... FFG 52 USS INGRAHAM ...... FFG 61 2.19 USS HAWES ...... FFG 53 USS FORD ...... FFG 54 9. On LCAC-class amphibious vessels, full USS ELROD ...... FFG 55 compliance with Rules 21(a), 21(b), and 22(b), USS SIMPSON ...... FFG 56 USS REUBEN JAMES ...... FFG 57 and Annex I, section 2(a)(i), 72 COLREGS, USS SAMUEL B. ROBERTS ...... FFG 58 cannot be obtained. Tables One and Two of USS KAUFFMAN ...... FFG 59 section 706.2 provide the dimensions of clos- USS RODNEY M. DAVIS ...... FFG 60 est possible compliance of LCAC-class am- USS INGRAHAM ...... FFG 61 phibious vessels with the aforementioned 8. Sidelights on the following ships do not rules. The following paragraph details the comply with Annex 1, Section 3(b): specific dimensions of closest possible com- pliance and the basis for certification by the Distance of Secretary of the Navy that full compliance sidelights forward of with the aforementioned rules is not obtain- Vessel Number masthead able. light in me- In LCAC-class amphibious vessels, there ters are permanent and temporary masts. The USS OLIVER HAZARD PERRY .... FFG 7 2.75 permanent masthead light is located 5.26 me- USS MCINERNEY ...... FFG 8 2.75 ters athwartship to port of centerline 5.49 USS WADSWORTH ...... FFG 9 2.75 meters above the hull. The temporary mast- USS DUNCAN ...... FFG 10 2.75 head light is located 3.98 meters athwartship USS CLARK ...... FFG 11 2.75 to starboard of centerline 4.06 meters above USS GEORGE PHILIP ...... FFG 12 2.75 the hull. The temporary masthead light is USS SAMUEL ELIOT MORISON .. FFG 13 2.75 displayed in lieu of the permanent masthead USS SIDES ...... FFG 14 2.75 USS ESTOCIN ...... FFG 15 2.75 light only when LCAC-class amphibious ves- USS CLIFTON SPRAGUE ...... FFG 16 2.75 sels are operating with amphibious assault USS JOHN A. MOORE ...... FFG 19 2.75 vessels. When operating in this mode, the USS ANTRIM ...... FFG 20 2.75 sidelights are displayed at a height greater USS FLATLEY ...... FFG 21 2.75 than three-quarters of the height of the tem- USS FAHRION ...... FFG 22 2.69 porary masthead light. The sidelights are lo- USS LEWIS B. PULLER ...... FFG 23 2.75 cated on top of the port and starboard deck- USS JACK WILLIAMS ...... FFG 24 2.75 USS COPELAND ...... FFG 25 2.75 houses to permit the required unobstructed USS GALLERY ...... FFG 26 2.75 arcs of visibility and are 3.28 meters above USS MAHLON S. TISDALE ...... FFG 27 2.75 the hull, resulting in a vertical separation USS BOONE ...... FFG 28 2.75 between those lights and the temporary USS STEPHEN W. GROVES ...... FFG 29 2.75 masthead light of 0.78 meters. Because of the USS REID ...... FFG 30 2.75 minimal vertical separation between the USS STARK ...... FFG 31 2.75 sidelights and the temporary masthead light USS JOHN L. HALL ...... FFG 32 2.75 USS JARRETT ...... FFG 33 2.69 and the luminous intensity of the temporary USS AUBREY FITCH ...... FFG 34 2.75 light, the sidelights on these vessels may not USS UNDERWOOD ...... FFG 36 2.75 be distinguishable by the naked eye at the 2- USS CROMMELIN ...... FFG 37 2.75 mile range required by Rule 22(b). USS CURTS ...... FFG 38 2.75 10. On the following ships the arc of visi- USS DOYLE ...... FFG 39 2.75 bility of the after masthead light required by USS HALYBURTON ...... FFG 40 2.75 Rule 23(a)(ii) may be obstructed through USS MCCLUSKY ...... FFG 41 2.75 ° ′ ° USS KLAKRING ...... FFG 42 2.75 0 48.6 arc of visibility at the point 349 rel- USS THACH ...... FFG 43 2.75 ative to the ship’s head: 179
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USS KIDD (DDG 993) Horizontal dis- USS CALLAGHAN (DDG 994) tance from the USS SCOTT (DDG 995) fore and aft Vessel Number centerline of USS CHANDLER (DDG 996) the vessel in 11. On USS DOLPHIN (AGSS 555) the mast- the athwart- head light will be visible at a distance of 4.3 ship direction nautical miles and the sidelights will be visi- USS CARNEY ...... DDG 64 1.90 meters ble at a distance of 2 nautical miles. USS BENFOLD ...... DDG 65 1.90 meters 12. [Reserved] USS GONZALES ...... DDG 66 1.90 meters 13. [Reserved] USS COLE ...... DDG 67 1.90 meters 14. The following harbor tugs are equipped USS THE SULLIVANS ...... DDG 68 1.87 meters with a hinged mast. When the mast is in the USS MILIUS ...... DDG 69 1.93 meters lowered position as during a towing along- USS HOPPER ...... DDG 70 1.83 meters side or pushing operation, the two masthead USS ROSS ...... DDG 71 1.96 meters USS MAHAN ...... DDG 72 1.90 meters lights required by Rule 24(c), and the all USS DECATUR ...... DDG 73 1.87 meters around lights required by Rule 27(b)(i) will USS MCFAUL ...... DDG 74 1.91 meters not be shown; however, an auxiliary mast- USS DONALD COOK ...... DDG 75 1.90 meters head light not meeting with Annex I, section USS HIGGINS ...... DDG 76 1.92 meters 2(a)(i) height requirement will be exhibited. USS O'KANE ...... DDG 77 1.92 meters USS PORTER ...... DDG 78 1.92 meters Distance in meters of aux. masthead light 16. On the following ships, the arc of visi- Vessel No. below minimum re- quired height. Annex bility of the forward masthead light, re- I, sec. 2(a)(i) quired by rule 21(a), may be obstructed at the following angles relative to ship’s head- YTB 752 ...... 3.97 ing: YTB 757 ...... 3.40 YTB 758 ...... 3.97 Obstruction angle rel- YTB 769 ...... 3.86 Vessel Number ative ship's headings YTB 771 ...... 3.89 YTB 780 ...... 3.53 USS ARLEIGH BURKE ... DDG 51 100.00° thru 112.50° YTB 781 ...... 3.66 USS BARRY ...... DDG 52 101.16° thru 112.50° YTB 785 ...... 4.47 USS JOHN PAUL JONES DDG 53 103.29° thru 112.50° YTB 788 ...... 3.76 USS CURTIS WILBUR ... DDG 54 102.61° thru 112.50° YTB 789 ...... 3.30 USS STOUT ...... DDG 55 102.00° thru 112.50° YTB 799 ...... 4.07 USS JOHN S. MCCAIN .. DDG 56 102.53° thru 112.50° YTB 801 ...... 3.89 USS MITSCHER ...... DDG 57 102.27° thru 112.50° YTB 806 ...... 3.58 USS LABOON ...... DDG 58 102.80° thru 112.50° YTB 811 ...... 4.07 USS RUSSELL ...... DDG 59 92.62° thru 109.38° YTB 812 ...... 4.04 USS PAUL HAMILTON ... DDG 60 101.35° thru 112.50° YTB 813 ...... 6.15 USS RAMAGE ...... DDG 61 103.66° thru 112.50° YTB 820 ...... 3.30 USS FITZGERALD ...... DDG 62 102.32° thru 112.50° YTB 826 ...... 3.89 USS STETHEM ...... DDG 63 102.51° thru 112.50° YTB 833 ...... 3.68 USS CARNEY ...... DDG 64 105.06° thru 112.50° YTB 835 ...... 4.04 USS BENFOLD ...... DDG 65 101.86° thru 112.50° USS GONZALES ...... DDG 66 101.69° thru 112.50° 15. Task (restricted maneuverability) USS COLE ...... DDG 67 101.83° thru 112.50° lights on the following ships do not comply USS THE SULLIVANS .... DDG 68 103.06° thru 112.50° with Annex I, section 3(c). USS MILIUS ...... DDG 69 102.30° thru 112.50° USS HOPPER ...... DDG 70 102.25° thru 112.50° Horizontal dis- USS ROSS ...... DDG 71 104.05° thru 112.50° tance from the USS MAHAN ...... DDG 72 102.11° thru 112.50° fore and aft USS DECATUR ...... DDG 73 103.00° thru 112.50° Vessel Number centerline of USS MCFAUL ...... DDG 74 102.00° thru 112.50E° the vessel in ° ° the athwart- USS DONALD COOK ..... DDG 75 102.00 thru 112.50 ship direction USS HIGGINS ...... DDG 76 102.00 thru 112.50° USS O'KANE ...... DDG 77 102.00 thru 112.50° USS ARLEIGH BURKE ...... DDG 51 1.85 meters USS PORTER ...... DDG 78 102.00 thru 112.50° USS BARRY ...... DDG 52 1.94 meters USS PORTER ...... DDG 78 104.60 THRU 112.50° USS JOHN PAUL JONES ...... DDG 53 1.89 meters USS CURTIS WILBUR ...... DDG 54 1.90 meters 17. The second masthead light required by USS STOUT ...... DDG 55 1.90 meters Rule 23(a)(ii) will not be displayed on the PC USS JOHN S. MCCAIN ...... DDG 56 1.88 meters 1 Class. USS MITSCHER ...... DDG 57 1.93 meters USS LABOON ...... DDG 58 1.90 meters 18. On the following mine warfare type USS RUSSELL ...... DDG 59 1.91 meters ships, the arc of visibility of the lower all- USS PAUL HAMILTON ...... DDG 60 1.88 meters round minesweep lights required by Rule USS RAMAGE ...... DDG 61 1.91 meters 27(f), may be obstructed through the fol- USS FITZGERALD ...... DDG 62 1.90 meters lowing angles relative to the ship’s heading: USS STETHEM ...... DDG 63 1.91 meters
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Obscured angles relative to Obscured angles relative to Vessel Number ship's heading Vessel Number ship's heading Port STBD Port STBD
OSPREY ...... MHC 51 59.5° to 78.3° 281.7° to 300.5° BLACK HAWK MHC 58 65.0° to 75.6° 284.1° to 294.6° HERON ...... MHC 52 59.5° to 78.3° 281.7° to 300.5° USS FALCON MHC 59 65.0° to 75.6° 284.1° to 294.6° PELICAN ...... MHC 53 59.5° to 78.3° 281.7° to 300.5° CARDINAL ..... MHC 60 65.0° to 75.6° 284.1° to 294.6° ROBIN ...... MHC 54 59.5° to 78.3° 281.7° to 300.5° ORIOLE ...... MHC 55 65.0° to 75.6° 284.1° to 294.6° 19. Sidelights on the following ships do not KING-FISHER MHC 56 59.5° to 78.3° 281.7° to 300.5° comply with Annex I, Section 2 (g): CORMORANT MHC 57 59.5° to 78.3° 281.7° to 300.5°
Distance in meters of sidelights Vessel Number above maximum allowed height.
USS OGDEN ...... LPD 5 3.40 USS DUBUQUE ...... LPD 8 1.2 USS DENVER ...... LPD 9 4.9 USS JUNEAU ...... LPD 10 1.6 TABLE FIVE
Masthead Forward After mast- lights not masthead head light less than 1¤2 Percentage over all light not in ship's length horizontal Vessel No. other lights forward quar- aft of forward separation at- and obstruc- ter of ship. masthead tained tions. annex annex I, sec. light. annex I, sec. 2(f) 3(a) I, sec. 3(a)
USS SURIBACHI ...... AE 21 ...... X 87 USS MAUNA KEA ...... AE 22 ...... X 88 USS NITRO ...... AE 23 ...... X 86 USS PYRO ...... AE 24 ...... X 87 USS FLINT ...... AE 32 ...... X 98 USS SHASTA ...... AE 33 ...... X 98 USS MARS ...... AFS 1 ...... X 98 USS SYLVANIA ...... AFS 2 ...... X 99 USS NIAGARA FALLS ...... AFS 3 ...... X 97.9 USS WHITE PLAINS ...... AFS 4 ...... X 98 USS CONCORD ...... AFS 5 ...... X 97 USS SAN DIEGO ...... AFS 6 ...... X 97.5 USS SAN JOSE ...... AFS 7 ...... X 98.1 USS LA SALLE ...... AGF 3 ...... X 54 USS CORONADO ...... AGF 11 ...... X 55 USS DALE ...... CG 19 ...... X X 30 USS RICHMOND K. TURNER ...... CG 20 ...... X X 27 USS BELKNAP ...... CG 26 ...... X X 30 USS TICONDEROGA ...... CG 47 ...... X X 38.3 USS YORKTOWN ...... CG 48 ...... X X 38.0 USS VINCENNES ...... CG 49 ...... X X 38 USS VALLEY FORGE ...... CG 50 ...... X X 38 USS THOMAS S. GATES ...... CG 51 ...... X X 38 USS BUNKER HILL ...... CG 52 ...... X X 38 USS MOBILE BAY ...... CG 53 ...... X X 38 USS ANTIETAM ...... CG 54 ...... X X 38 USS LEYTE GULF ...... CG 55 ...... X X 38 USS SAN JACINTO ...... CG 56 ...... X X 38 USS LAKE CHAMPLAIN ...... CG 57 ...... X X 38 USS PHILIPPINE SEA ...... CG 58 ...... X X 38 USS PRINCETON ...... CG 59 ...... X X 38 USS NORMANDY ...... CG 60 ...... X X 38 USS MONTEREY ...... CG 61 ...... X X 38 USS CHANCELLORSVILLE ...... CG 62 ...... X X 38 USS COWPENS ...... CG 63 ...... X X 38 USS GETTYSBURG ...... CG 64 ...... X X 38 USS CHOSIN ...... CG 65 ...... X X 38 USS HUE CITY ...... CG 66 ...... X X 38 USS SHILOH ...... CG 67 ...... X X 38 USS ANZIO ...... CG 68 ...... X X 38 USS VICKSBURG ...... CG 69 N/A X X 38 USS LAKE ERIE ...... CG 70 N/A X X 38 USS CAPE ST. GEORGE ...... CG 71 N/A X X 38 USS VELLA GULF ...... CG 72 N/A X X 38
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TABLE FIVEÐContinued
Masthead Forward After mast- lights not masthead head light less than 1¤2 Percentage over all light not in ship's length horizontal Vessel No. other lights forward quar- aft of forward separation at- and obstruc- ter of ship. masthead tained tions. annex annex I, sec. light. annex I, sec. 2(f) 3(a) I, sec. 3(a)
USS PORT ROYAL ...... CG 73 N/A X X 38 USS LONG BEACH ...... CGN 9 ...... X X 13.5 USS BAINBRIDGE ...... CGN 25 ...... X X 19 USS TRUXTUN ...... CGN 35 ...... X X 21 USS CALIFORNIA ...... CGN 36 ...... X X 26.2 USS SOUTH CAROLINA ...... CGN 37 ...... X X 26.2 USS MISSISSIPPI ...... CGN 40 N/A X X 16 USS ARKANSAS ...... CGN 41 ...... X X 18 USS FORRESTAL ...... CV 59 ...... X X 66 USS SARATOGA ...... CV 60 ...... X X 69 USS INDEPENDENCE ...... CV 62 ...... X X 70 USS KITTY HAWK ...... CV 63 ...... X USS CONSTELLATION ...... CV 64 ...... X USS ENTERPRISE ...... CVN 65 ...... X USS NIMITZ ...... CVN 68 ...... X USS DWIGHT D. EISENHOWER ...... CVN 69 ...... X USS CARL VINSON ...... CVN 70 ...... X USS THEODORE ROOSEVELT ...... CVN 71 ...... X USS ABRAHAM LINCOLN ...... CVN 72 ...... X USS GEORGE WASHINGTON ...... CVN 73 ...... X USS JOHN C. STENNIS ...... CVN 74 ...... X USS HARRY S TRUMAN ...... CVN 75 ...... X USS SPRUANCE ...... DD 963 ...... X X 46 USS PAUL F. FOSTER ...... DD 964 ...... X X 46.4 USS KINKAID ...... DD 965 ...... X X 46.4 USS HEWITT ...... DD 966 ...... X X 46.4 USS ELLIOT ...... DD 967 ...... X X 46.4 USS PETERSON ...... DD 969 ...... X X 46.4 USS ARTHUR W. RADFORD ...... DD 968 ...... X X 46.4 USS CARON ...... DD 970 ...... X X 46.4 USS DAVID R. RAY ...... DD 971 ...... X X 46.4 USS OLDENDORF ...... DD 972 N/A X X 45 USS JOHN YOUNG ...... DD 973 ...... X X 46 USS COMTE DE GRASSE ...... DD 974 ...... X X 46.4 USS O'BRIEN ...... DD 975 ...... X X 46.1 USS MERRILL ...... DD 976 ...... X 46.1 USS BRISCOE ...... DD 977 ...... X X 46.4 USS STUMP ...... DD 978 ...... X X 46 USS CONOLLY ...... DD 979 ...... X X 46.4 USS MOOSBRUGGER ...... DD 980 ...... X X 46 USS JOHN HANCOCK ...... DD 981 ...... X X 46.4 USS NICHOLSON ...... DD 982 ...... X X 46.4 USS JOHN RODGERS ...... DD 983 ...... X X 46.4 USS LEFTWICH ...... DD 984 ...... X X 46 USS CUSHING ...... DD 985 ...... X X 46 USS HARRY W. HILL ...... DD 986 ...... X X 46 USS O'BANNON ...... DD 987 ...... X X 46 USS THORN ...... DD 988 ...... X X 46 USS DEYO ...... DD 989 ...... X X 46 USS INGERSOLL ...... DD 990 ...... X X 46 USS FIFE ...... DD 991 ...... X X 48 USS FLETCHER ...... DD 992 ...... X X 46 USS KIDD ...... DD 993 X X X 39.8 USS HAYLER ...... DD 997 N/A X X 44 USS ARLEIGH BURKE ...... DDG 51 X X X 19.0 USS BARRY ...... DDG 52 X X X 19.8 USS JOHN PAUL JONES ...... DDG 53 X X X 18.9 USS CURTIS WILBUR ...... DDG 54 X X X 19.6 USS STOUT ...... DDG 55 X X X 19.6 USS JOHN S. McCAIN ...... DDG 56 X X X 19.8 USS MITSCHER ...... DDG 57 X X X 20.7 USS LABOON ...... DDG 58 X X X 19.6 USS RUSSELL ...... DDG 59 X X X 20.6 USS PAUL HAMILTON ...... DDG 60 X X X 20.4 USS RAMAGE ...... DDG 61 X X X 20
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TABLE FIVEÐContinued
Masthead Forward After mast- lights not masthead head light less than 1¤2 Percentage over all light not in ship's length horizontal Vessel No. other lights forward quar- aft of forward separation at- and obstruc- ter of ship. masthead tained tions. annex annex I, sec. light. annex I, sec. 2(f) 3(a) I, sec. 3(a)
USS FITZGERALD ...... DDG 62 X X X 20.4 USS STETHEM ...... DDG 63 X X X 20 USS CARNEY ...... DDG 64 X X X 19.7 USS BENFOLD ...... DDG 65 X X X 20.4 USS GONZALES ...... DDG 66 X X X 20.4 USS COLE ...... DDG 67 X X X 20.4 USS THE SULLIVANS ...... DDG 68 X X X 20.5 USS MILIUS ...... DDG 69 X X X 20.4 USS HOPPER ...... DDG 70 X X X 20.4 USS ROSS ...... DDG 71 X X X 20.6 USS MAHAN ...... DDG 72 X X X 13.9 USS DECATUR ...... DDG 73 X X X 14.0 USS MCFAUL ...... DDG 74 X X X 13.9 USS DONALD COOK ...... DDG 75 X X X 14.0 USS HIGGINS ...... DDG 76 X X X 14.0 USS O'KANE ...... DDG 77 X X X 14.0 USS PORTER ...... DDG 78 X X X 13.5 USS PORTER ...... DDG 78 X X X 13.8 USS CALLAGHAN ...... DDG 994 X X X 44.6 USS SCOTT ...... DDG 995 X X X 44.6 USS CHANDLER ...... DDG 996 X X X 44.6 USS ELK RIVER ...... IX 501 ...... X 18.4 USS BLUE RIDGE ...... LCC 19 N/A N/A X 84 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 BONHOMME RICHARD ...... LHD 6 ...... X X 39.8 USS AUSTIN ...... LPD 4 ...... X 37 USS OGDEN ...... LPD 5 N/A N/A X 56.6 USS DULUTH ...... LPD 6 N/A N/A X 56.8 USS CLEVELAND ...... LPD 7 ...... X 49 USS DUBUQUE ...... LPD 8 ...... X 57 USS DENVER ...... LPD 9 N/A N/A X 54.7 USS JUNEAU ...... LPD 10 N/A N/A X 54.8 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
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TABLE FIVEÐContinued
Masthead Forward After mast- lights not masthead head light less than 1¤2 Percentage over all light not in ship's length horizontal Vessel No. other lights forward quar- aft of forward separation at- and obstruc- ter of ship. masthead tained tions. annex annex I, sec. light. annex I, sec. 2(f) 3(a) I, sec. 3(a)
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 PEARL HARBOR ...... LSD 52 ...... 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 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 Sec- tions Affected in the Finding Aids section of this volume.
§ 706.3 Exemptions by the Secretary of TABLE ONE the Navy under Executive Order [The following vessels and classes of vessels, less than 150 meters in length, are permanently exempted pursuant to 11964. 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- USNS HAYES (T±AG±195) venting Collisions at Sea, 1972, the ves- USNS RANGE SENTINEL (T±AGM±22) sels and classes of vessels listed in this T±AGOR 3 Class section, from full compliance with the T±AGS 26 Class T±AGS 33 Class Regulations, where an exemption is al- T±AOG 77 Class lowed by, and for the periods specified USNS ALBERT J. MYER (T±ARC 6) in, Rule 38. The Secretary of the Navy T±ATF 166 Class ARS 6 Class further finds that the vessels and class- ARS 38 Class es of vessels listed have had their keels ASR 7 Class laid or are in corresponding stages of ASR 21 Class ATF 148 Class construction before July 15, 1977, and ATS 1 Class that such vessels and classes of vessels DDG 2 Class comply with the requirements of the FF 1037 Class FF 1040 Class International Regulations for Pre- FF 1052 Class venting Collisions at Sea, 1960. USS GLOVER (FF 1098) FFG 1 Class
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TABLE ONEÐContinued for any light authorized by either set [The following vessels and classes of vessels, less than 150 of rules. This part publishes the special meters in length, are permanently exempted pursuant to rules with respect to these additional rule 38(d)(i) from repositioning of masthead lights resulting from the prescriptions of Annex I, section 3(a)] station and signal lights promulgated by the Secretary of the Navy for ves- Vessel or class sels of the Navy. FFG 7 Class LCU 1610 Class § 707.2 Man overboard lights. LCU 1648 Class MSO 422 Class Naval vessels may display, as a MSO 508 Class means of indicating man overboard, PG 92 Class two pulsating, all round red lights in USS DOLPHIN (AGSS 555) the vertical line located on a mast SSN 594 Class SSN 637 Class from where they can best be seen. SSN 688 Class SSBN 616 Class § 707.3 Yard arm signaling lights. SSBN 627 Class SSBN 640 Class Naval vessels may display, as a SSBN 726 Class means of visual signaling, white all YFU (Ex-LCU 1466 Class) round lights at the ends of the yard [42 FR 36434, July 14, 1977, as amended at 55 arms. These lights will flash in varying FR 27818, July 9, 1990; 60 FR 22506, May 8, sequences to convey the intended sig- 1995] nal.
PART 707—SPECIAL RULES WITH RE- § 707.4 Aircraft warning lights. SPECT TO ADDITIONAL STATION Naval vessels may display, as a AND SIGNAL LIGHTS means of indicating the presence of an obstruction to low flying aircraft, one Sec. all round red light on each obstruction. 707.1 Purpose of regulations. 707.2 Man overboard lights. § 707.5 Underway replenishment con- 707.3 Yard arm signaling lights. tour lights. 707.4 Aircraft warning lights. Naval vessels may display, as a 707.5 Underway replenishment contour means of outlining the contour of the lights. delivery ship during nighttime under- 707.6 Minesweeping station keeping lights. way replenishment operations, either 707.7 Submarine identification light. 707.8 Special operations lights. red or blue lights at delivery-ship- 707.9 Convoy operations stern light. deck-edge extremities. 707.10 Wake illumination light. [42 FR 61596, Dec. 6, 1977, as amended at 44 707.11 Flight operations lights. FR 27991, May 14, 1979] 707.12 Amphibious operations lights.
AUTHORITY: 33 U.S.C. 182 and 1606, E.O. § 707.6 Minesweeping station keeping 11964. lights.
SOURCE: 42 FR 61596, Dec. 6, 1977, unless Naval vessels engaged in mine- otherwise noted. sweeping operations may display, as an aid in maintaining prescribed intervals § 707.1 Purpose of regulations. and bearings, two white lights in a All ships are warned that when U.S. vertical line visible from 070° through naval vessels are met in international 290° relative. and inland waters, some of the naviga- tional lights displayed by them may be § 707.7 Submarine identification light. special lights for naval purposes. When Submarines may display, as a dis- used, they may be displayed simulta- tinctive means of identification, an neously with the ordinary navigational intermittent flashing amber beacon lights required by the International with a sequence of operation of one Regulations for Preventing Collisions flash per second for three (3) seconds at Sea, 1972, or the Inland Navigational followed by a three (3) second off-pe- Rules. The lights are located and char- riod. The light will be located where it acterized in such a fashion that, as far can best be seen, as near as practicable, as possible, they cannot be mistaken all around the horizon. It shall not be
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located less than two (2) feet above or § 707.11 Flight operations lights. below the masthead lights. Naval vessels engaged in night flight [48 FR 4284, Jan. 31, 1983] operations may display various ar- rangements of light systems con- § 707.8 Special operations lights. taining combinations of different col- Naval vessels may dispay, as a means ored lights as a means of assisting in the launch and recovery of aircraft and of coordinating certain special oper- enhancing flight safety. These light ations, a revolving beam colored red, systems will be located at various green, or amber, located on either yard points on the vessels, depending on the arm or the mast platform from where vessel type and the nature of the flight it can best be seen all around the hori- operations being conducted. zon. § 707.12 Amphibious operations lights. § 707.9 Convoy operations stern light. Naval vessels engaged in night am- Naval vessels may display, during pe- phibious operations may display var- riods of convoy operations, a blue light ious arrangements of light systems located near the stern with the same containing combinations of different characteristics as, but in lieu of, the colored lights as a means of assisting normal white stern light. in the launch and recovery of assault craft and enhancing the safety of the § 707.10 Wake illumination light. amphibious operation. These light sys- Naval vessels may display a white tems will be located at various points spot light located near the stern to il- on the vessel, depending on the vessel luminate the wake. type and the nature of the amphibious operations being conducted.
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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, Reg- 716.3 Special situations. ular Marine Corps, Naval Reserve or 716.4 Eligible survivors. Marine Corps Reserve, and includes a 716.5 Delegation of authority. midshipman at the United States 716.6 Death occurring after active service. Naval 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 sur- vivors of the deceased member first [24 FR 7523, Sept. 16, 1959, as amended at 37 listed 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 mem- ber 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, ac- tive duty for training, on inactive duty (a) Pursuant to the authority con- training, if the Administrator of Vet- tained in title 10 U.S.C., section 1479, as erans’ 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 per- (3) Death resulted from injury in- sonnel, authority to certify for the curred or aggravated while on such in- payment 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 gra- (a) of this section. In view of this, com- tuity under the Servicemen’s and Vet- mands should insure that the medical erans’ 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 certifi- cation and voucher for the death gra- § 716.8 Payments excluded. tuity 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 (b) No payment will be made to a sur- will obtain the name, relationship, and vivor implicated in the homicide of the address of the eligible survivor from deceased in the absence of evidence the Service Record of the deceased. clearly absolving such survivor of any The Dependency Application/Record of felonious intent. Emergency Data (NAVPERS 1070/602) 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 sur- clearly not entitled thereto, and it is vivor named in block 5, complete equally clear that another person is en- blocks 2, 3, 4, and the check payment titled to the death gratuity, the Chief data portion 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 mar- guardianship must be provided for the ital 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 deter- mined 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 which maintains his service record is death gratuity be made upon receipt of in the immediate vicinity and certifi- the certification of beneficiary entitle- cates the beneficiary eligible to receive ment from the Chief of Naval Per- payment on the proper voucher (DD sonnel (Pers-732). Form 397). Otherwise the pay record (2) Navy Relief. In cases where there will be sent to the Army Finance Cen- is immediate need prior to receipt of ter, Air Force Finance Center, Com- the death gratuity, the Navy Relief So- mandant of the Marine Corps (Code ciety will be contacted by the Casualty CDB), the Navy Finance Center, of the Assistance Calls Program officer. Commandant, U.S. Coast Guard, as ap- (c) Action by the Chief of Naval Per- propriate. sonnel. (1) In all cases where death gra- tuity is not authorized to be paid lo- [24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25647, May 2, 1979; 45 FR 43165, June 26, cally and in cases where authority ex- 1980] ists to pay locally but entitlement is questionable (see paragraph (a)(2) of this section), the Chief of Naval Per- Subpart C—Provisions Applicable sonnel (Pers–732) will expedite adju- to the Marine Corps dication of claims. As indicated in § 716.11 Procedures. paragraph (b)(1) of this section CACP officers will refer cases of urgent finan- (a) Action. Commanding officers will cial need to the Chief of Naval Per- direct immediate payment of the gra- sonnel (Pers–732) by message for ac- tuity where the deceased member’s tion. spouse was, in fact, residing with the (2) If a minor is entitled to a death member on or near the station of duty gratuity under 10 U.S.C. 1477 not ex- at the time of the member’s death ceeding $1,000, such death gratuity may while on active duty, active duty for be paid to the father or mother as nat- training, or inactive-duty training. ural guardian on behalf of the minor, Every effort should be made to effect provided a legally appointed guardian such payment promptly (within 24 has not been appointed, upon substan- hours, if possible). In cases where the tiation by a sworn (notarized) state- eligible survivor residing with the ment of the natural guardian: member on or near the duty station is (i) That no legal guardian has been other than a spouse, commanding offi- appointed and that such an appoint- cers may direct the payment of death ment is not contemplated; gratuity when the case can be properly (ii) The relationship of the natural determined, and an urgent need exists guardian to the minor; for immediate payment. Proper deter- (iii) That the minor is in the actual mination is imperative. custody of the natural guardian; (b) Qualifications. (1) Where any doubt (iv) That an amount paid to the nat- exists as to the legal recipient of the ural guardian will be held for, or ap- gratuity, the case will be referred to plied to, the use and benefit of the the Commandant of the Marine Corps minor. (Code MSPA–1) for determination. If the death gratuity to which a minor (2) [Reserved] is entitled exceeds $1,000, the appoint- [24 FR 7523, Sept. 18, 1959, as amended at 44 ment of a legal guardian on behalf of FR 25648, May 2, 1979] 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
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of presumptive death is made by the to the expiration of 12 months when Secretary of the Navy when a survey of the evidence received is considered to 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 pay- able. 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 com- conclusive as to death or finding or manding officer at the receiving hos- death, as to any other status dealt with pital), missing for a period of 29 days or by the act, and as to any essential date more, interned in a foreign country, or including that upon which evidence or captured 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
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person’s application if injured, to such graphs (a) and (b) of this section who location as may have been determined may receive the effects or proceeds. 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 which transportation in kind is not then the child or children of the owner furnished, may be authorized, when and descendants of deceased children, such travel has been completed. by representation; if none of the above, (b) When the Secretary of the Navy the parents of the owner or the sur- or his designee determines that an vivor of them; or if none of the above, emergency exists and that such sale other persons determined to be eligible would be in the best interests of the under the laws of the domicile of the Government, he may provide for the owner. disposition of the motor vehicles and (2) Such determination should be re- other bulky items of such household garded as administrative rather than and personal effects of the person by legal, as the determination does not public or private sale. Prior to any vest title to effects or proceeds in the such sale, and if practicable, a reason- next of kin, heirs, or legal representa- able effort shall be made to determine tive to whom the effects are delivered. the desires of the interested persons. Therefore, delivery of the personal ef- The net proceeds received from such fects to other than the owner will be sale shall be transmitted to the owner, made subject to the following advisory next of kin, heir or legal representa- note which should be written on a copy tive, or other person determined in ac- of the inventory or in a letter: cordance 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 if such persons or their addresses are the Department of the Navy, does not in any not ascertainable within one year from way vest title to the effects in the recipient. the date of sale, the net proceeds may Delivery of the effects to the recipient is be covered into the Treasury as mis- made so that distribution may be made in cellaneous receipts. accordance with the laws of the state in (c) The Secretary of the Navy or his which the owner of the effects was legally designee is authorized to store the domiciled or to restore the effects to 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- position can be made. The cost of such (3) When it is impracticable to divide storage and transportation, including the personal effects of a person into packing, crating, drayage, temporary equal shares, and two or more persons storage, and unpacking of household within a class, as provided in 10 U.S.C. and personal effects, will be charged section 2771, are entitled to receive the against appropriations currently avail- effects but cannot agree among them- able. selves as to which one of them shall re- (d) The following provisions apply to ceive the effects, then all of the effects the determination of the ‘‘other per- will be retained by either the Personal son’’ or persons referred to in para- Effects Distribution Center at Norfolk,
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VA, or the Personal Effects Distribu- 719.155 Application under 10 U.S.C. 874(b) for tion Center at Oakland, CA, for a pe- the substitution of an administrative riod of two years from the date of form of discharge for a punitive dis- death of the member. At the expiration charge or dismissal. of the two-year period such effects will AUTHORITY: 3 U.S.C. 301; 5 U.S.C. 301; 10 be sold. U.S.C. 815, 5013, 5148; 32 CFR 700.206 and 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– 1015; Pub. L. 89–554, 80 Stat. 379 (5 U.S.C. 301) Subparts A–B [Reserved] [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 Per- to grant immunity, either trans- sonnel 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 prosecution for any offense or offenses [17 FR 5391, June 14, 1952, as amended at 19 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 immunity from the use, in aid of future PART 719—REGULATIONS SUPPLE- prosecution, of testimony or other in- MENTING THE MANUAL FOR formation compelled under an order to COURTS-MARTIAL testify (or any information directly or indirectly derived from such testimony Subparts A–B [Reserved] or other information). The authority to grant either transactional or testi- Subpart C—Trial Matters monial immunity to a witness is re- Sec. served to officers exercising general 719.112 Authority to grant immunity from court-martial jurisdiction. This au- prosecution. thority may be exercised in any case 719.113–719.114 [Reserved] whether or not formal charges have 719.115 Release of information pertaining to been preferred and whether or not the accused persons; spectators at judicial matter has been referred for trial. The sessions. approval of the Attorney General of the United States on certain orders to Subpart D [Reserved] testify may be required, as outlined Subpart E—Miscellaneous Matters below. (b) Procedure. The written rec- 719.138 Fees of civilian witnesses. ommendation that a certain witness be 719.139–719.141 [Reserved] granted either transactional or testi- 719.142 Suspension of counsel. monial immunity in consideration for 719.143 Petition for new trial under 10 U.S.C. testimony deemed essential to the Gov- 873. ernment or to the defense shall be for- 719.144 Application for relief under 10 U.S.C. 869, in cases which have been finally re- warded to an officer competent to con- viewed. vene a general court-martial for the 719.145–719.150 [Reserved] witness for whom immunity is re- 719.151 Furnishing of advice and counsel to quested, i.e., any officer exercising gen- accused placed in pretrial confinement. eral court-martial jurisdiction. Such
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recommendation will be forwarded by partment of Justice. See section 0126 of the trial counsel or defense counsel in the Manual of the Judge Advocate Gen- 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 identi- at a court-martial may be necessary in fying 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 (4) Date and place of birth, if known, issuance of an order to testify to such of the witness. civilian 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 (7) Whether the witness is currently Judge Advocate General (Code 20) in incarcerated, under what conditions, the form prescribed in paragraph (e) of and for what length of time. this section. (8) A brief resume of the background (d) Cases involving national security. In of the investigation or proceeding be- all cases involving national security or fore the agency or department. foreign relations of the United States, (9) A concise statement of the rea- the cognizant officer exercising general sons for the request, including: court-martial jurisdiction shall for- (i) What testimony the witness is ex- ward any proposed grant of immunity pected to give; to the Judge Advocate General for the (ii) How this testimony will serve the purpose of consultation with the De- public interest;
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(iii) Whether the witness: pating in the grant of immunity would (A) Has invoked the privilege against not 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 identi- §§ 719.113–719.114 [Reserved] fying 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 partici- tial. These regulations are applicable
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from the time of apprehension, the of the accused, including the time and 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 fol- taining to accused persons should not lowing information concerning a per- be initiated by persons in the naval son accused or suspected of an offense service. Information of this nature or offenses generally may not be re- should be released only upon specific leased, except as provided in paragraph request therefor, and, subject to the (a)(6) 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 (iii) The existence or contents of any should be taken to indicate that the in- confession, admission, statement, or dividual is alleged to have committed alibi given by the accused, or the re- or is suspected or accused of having fusal or failure of the accused to make committed an offense, as distinguished any statement. from stating or implying that the ac- (iv) The performance of any examina- cused has committed the offense or of- tion or test, such as polygraph exami- fenses. nations, chemical tests, ballistics (4) Information subject to release. On tests, etc., or the refusal or the failure inquiry, the following information con- of the accused to submit to an exam- cerning a person accused or suspected ination or test. of an offense or offenses may generally (v) The identity, testimony, or credi- be released except as provided in para- bility of possible witnesses, except as graph (6) of this section: authorized in paragraph (4)(iii), of this (i) The accused’s name, grade, age, section. unit, regularly assigned duties, duty (vi) The possibility of a plea of guilty station, and sex. to any offense charged or to a lesser of- (ii) The substance of the offenses of fense and any negotiation or any offer which the individual is accused or sus- to negotiate respecting a plea of guilty. pected. (vii) References to confidential (iii) The identity of the victim of any sources or investigative techniques or alleged or suspected offense, except the procedures. victim of a sexual offense. (viii) Any other matter when there is (iv) The identity of the apprehending a reasonable likelihood that the dis- and investigative agency, and the iden- semination of such matter will affect tity of accused’s counsel, if any. the deliberations of an investigative (v) The factual circumstances imme- body or the findings or sentence of a diately surrounding the apprehension 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 as- signed, 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 dis- public, which includes members of both bursing officer at or near the place the military and civilian communities. where the tribunal sits or where a dep- In order to maintain the dignity and osition is taken when such disbursing decorum of the proceedings or for other officer is presented a properly com- good cause, the military judge may pleted public voucher for such fees and reasonably limit the number of spec- mileage, signed by the witness and cer- tators in, and the means of access to, tified by 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 pro- (4) Recorder or junior member of a ceedings and radio or television broad- board to redress injuries to property, casting of proceedings from the court- or room shall not be permitted. The mili- (5) Military or civil officer before tary judge may, as a matter of discre- whom a deposition is taken. tion, permit contemporaneous closed– The public voucher must be accom- circuit video or audio transmission to panied by a subpoena or invitational permit viewing or hearing by an ac- orders (Joint Travel Regulations, vol. cused removed from the courtroom or 2, chap. 6), and by a certified copy of by spectators when courtroom facili- the order appointing the court-martial, ties are inadequate to accommodate a court of inquiry, or investigation. If, reasonable 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 con- nesses signed by mark must be wit- vening or appointing authority, or the nessed by two persons. disbursing officer nearest the place (i) Rates for civilian witnesses pre- where the witness is found, will, at scribed by law—(1) Civilian witnesses not once, provide any of the persons listed in Government employ. A civilian not in in paragraph (a) of this section, or any Government employ, who is compelled other officer or person designated for or required to testify as a witness be- the purpose, the required amount of fore a Naval tribunal at a specified money to be tendered or paid to the place or to appear at a place where his witness for mileage and fees for one deposition is to be taken for use before day of attendance. The person so re- a court or fact-finding body, will re- ceiving the money for the purpose ceive fees, subsistence, and mileage as named shall furnish the disbursing offi- provided in 28 U.S.C. 1821. Witness and cer concerned 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 quali- from his personal funds the necessary fying for subsistence entitles the wit- fees and mileage to a witness, taking a ness to payment for a full day. Fur- receipt therefor, he is entitled to reim- ther, nothing in this paragraph shall be bursement upon submitting to the dis- construed as authorizing the payment bursing officer such receipt, together of 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 employ- ment 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 na- ture 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 indi- cate of one of the officers listed in sub- cating 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 mis- conduct 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 exer- board. In all cases, a written copy of cising 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 affi- grounds of newly discovered evidence davit should set forth briefly the rel- or fraud on the court. If the accused’s evant facts within the personal knowl- case is pending before a Court of Mili- tary Review or before the Court of edge 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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would probably produce a substantially of the Judge Advocate General by the more favorable result for the accused. accused on or before the last day of the (2) No fraud on the court-martial two-year period beginning on the date warrants a new trial unless it had a the sentence is approved under section substantial contributing effect on a 860(c) of this title (article 60(c)), unless finding of guilty or the sentence ad- the accused establishes good cause for judged. failure to file within that time.’’ (f) Action on the petition. (1) The au- (b) Time Limitations. In order to be thority considering the petition may considered by the Judge Advocate Gen- cause such additional investigation to eral, an application for relief must be be made and such additional informa- placed in military channels if the ap- tion to be secured as that authority be- plicant is on active duty, or be depos- lieves appropriate. Upon written re- ited in the mail if the applicant is no quest, and in his discretion, the au- longer on active duty, on or before the thority considering the petition may last day of the two-year period begin- permit oral argument on the matter. ning on the date the sentence is ap- (2) When a petition is considered by proved by the convening authority. An the Judge Advocate General, any hear- application not filed in compliance ing may be before the Judge Advocate with these time limits may be consid- General or before an officer or officers ered if the Judge Advocate General de- designated by the Judge Advocate Gen- termines, in his or her sole discretion, eral. (3) If the Judge Advocate General be- that ‘‘good cause’’ for failure to file lieves meritorious grounds for relief within the time limits has been estab- under Article 74, Uniform Code of Mili- lished by the applicant. tary Justice have been established but (c) Submission procedures. Applica- that a new trial is not appropriate, the tions for relief may be submitted to the Judge Advocate General may act under Judge Advocate General by letter. If article 74, Uniform Code of Military the accused is on active duty, the ap- Justice, if authorized, or transmit the plication shall be submitted via the ap- petition and related papers to the Sec- plicant’s commanding officer, and the retary concerned with a recommenda- command that convened the court, and tion. the command that reviewed the case (4) The Judge Advocate may also, in under 10 U.S.C. 864(a) or (b). If the cases which have been finally reviewed original record of trail is held by the but have not been reviewed by a Court command that reviewed the case under of Military Review, act under article 10 U.S.C. 864(a) or (b), it shall be for- 69, Uniform Code of Military Justice. warded as a enclosure to the endorse- ment. If the original record of trial has [50 FR 23803, June 6, 1985] been filed in the National Personnel § 719.144 Application for relief under Records Center, the endorsement will 10 U.S.C. 869, in cases which have include all necessary retrieval data been finally reviewed. (accession number, box number, and (a) Statutory provisions. 10 U.S.C. 869 shelf location) obtained from the re- provides in pertinent part, ‘‘The find- ceipt returned from the National Per- ings or sentence, or both, in a court- sonnel Records Center to the sending martial case not reviewed under sub- activity. This endorsement shall also section (a) or under section 866 of this include information and specific com- title (article 66) may be modified or set ment on the grounds for relief asserted aside, in whole or in part, by the Judge in the application, and an opinion on Advocate General on the ground of the merits of the application. If the ap- newly discovered evidence, fraud on the plicant is no longer on active duty, the court, lack of jurisdiction over the ac- application may be submitted directly cused or the offense, error prejudicial to the Judge Advocate General. to the substantial rights of the ac- (d) Contents of applications. All appli- cused, or the appropriateness of the cations for relief shall contain: sentence. If such a case is considered (1) Full name of the applicant; upon application of the accused, the (2) Social Security number and application must be filed in the Office branch of service, if any;
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(3) Present grade if on active duty or cant’s spouse, next of kin, executor, retired, or ‘‘civilian’’ or ‘‘deceased’’ as guardian or other person with a proper applicable; interest in the matter. In this regard, (4) Address at time the application is one is considered incapable of making forwarded; application for purposes of this section (5) Date of trial; when unable to sign the application (6) Place of trial; under oath due to physical or mental (7) Command title of the organization incapacity. at which the court-martial was con- vened (convening authority); [50 FR 23804, June 6, 1985] (8) Command title of the officer exer- §§ 719.145–719.150 [Reserved] cising review authority in accordance with 10 U.S.C. 864 over the applicant at § 719.151 Furnishing of advice and the time of trial, if applicable; counsel to accused placed in pre- (9) Type of court-martial which con- trial confinement. victed the applicant, and sentence ad- The Department of the Navy Correc- judged; tions Manual, SECNAVINST 1640.9, re- (10) General grounds for relief which iterates the requirement of Article 10, must be one or more of the following: UCMJ, that, when a person is placed in (i) Newly discovered evidence; pretrial confinement, immediate steps (ii) Fraud on the court; should be taken to inform the confinee (iii) Lack of jurisdiction over the ac- of the specific wrong of which he is ac- cused or the offense; cused and try him or to dismiss the (iv) Error prejudicial to the substan- charges and release him. The Correc- tial rights of the accused; tions Manual requires that this infor- (v) Appropriateness of the sentence; mation normally will be provided with- (11) An elaboration of the specific in 48 hours along with advice as to the prejudice resulting from any error confinee’s right to consult with lawyer cited. (Legal authorities to support the counsel and his right to prepare for applicant’s contentions may be in- trial. Lawyer counsel may be either a cluded, and the format used may take civilian lawyer provided by the the form of a legal brief if the appli- confinee at his own expense or a mili- cant so desires.); tary lawyer provided by the Govern- (12) Any other matter which the ap- ment. If a confinee requests to confer plicant desires to submit; with a military lawyer, such lawyer (13) Relief requested; and should normally be made available for (14) Facts and circumstances to es- consultation within 48 hours after the tablish ‘‘good cause’’ for a failure to request is made. file the application within the time limits prescribed in paragraph (b) of [39 FR 18437, May 28, 1974] this section, if applicable; and (15) If the application is signed by a § 719.155 Application under 10 U.S.C. person other than the applicant pursu- 874(b) for the substitution of an ad- ant to subsection e, an explanation of ministrative form of discharge for a the circumstances rendering the appli- punitive discharge or dismissal. cant incapable of making application. (a) Statutory provisions. 10 U.S.C. The applicant’s copy of the record of 874(b) provides that the ‘‘Secretary trial will not be forwarded with the ap- concerned may, for good cause, sub- plication for relief, unless specifically stitute an administrative form of dis- requested by the Judge Advocate Gen- charge for a discharge or dismissal exe- eral. cuted in accordance with the sentence (e) Signatures on applications. Unless of a court-martial.’’ incapable of making application, the (b) Submission procedures. Applica- applicant shall personally sign the ap- tions for relief will be submitted to the plication under oath before an official Secretary using the following address: authorized to administer oaths. If the Secretary of the Navy (Judge Advocate applicant is incapable of making appli- General, Code 20), 200 Stovall Street, cation, the application may be signed Alexandria, VA 22332–2400. Except in under oath and submitted by the appli- unusual circumstances, applications
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will not normally be considered if re- the applicant, and must include the ad- ceived within five (5) years of the exe- dress of the affiant as well as specific cution of the punitive discharge or dis- reasons why the affiant believes the ap- missal, or within five (5) years of dis- plicant to be of good character. The af- approval of a prior request under 10 fidavits should discuss the applicant’s U.S.C. 874(b). character primarily as reflected in the (c) Contents of the application. All ap- civilian community subsequent to the plications shall contain: punitive discharge or dismissal which (1) Full name of the applicant; is the subject of the application); (2) Social Security Number, service (16) Any matters, other than the number (if different), and branch of character affidavits, supporting the service of the applicant; considerations described in subpara- (3) Present age and date of birth of graph (18) below; the applicant; (17) Any other relief sought within (4) Present residence of the applicant; (5) Date and place of the trial, and the Department of the Navy and out- type of court-martial which resulted in side the Department of the Navy in- the punitive discharge or dismissal; cluding dates of application and final (6) Command title of the convening dispositions; authority of the court-martial which (18) A statement by the applicant, resulted in the punitive discharge or setting forth the specific consider- dismissal; ations which the applicant believes (7) Offense(s) of which the applicant constitute ‘‘good cause,’’ so as to war- was convicted, and sentence finally ap- rant the substitution of an administra- proved from the trial which resulted in tive form of discharge for the punitive the punitive discharge or dismissal; discharge or dismissal previously exe- (8) Date the punitive discharge or dis- cuted. (In this connection, 10 U.S.C. missal was executed; 874(b) does not provide another regular (9) Applicant’s present marital sta- or extraordinary procedure for the re- tus, and number and ages of depend- view of a court-martial. Questions of ents, if any; guilt or innocence, or legal issues at- (10) Applicant’s civilian criminal tendant to the court-martial which re- record (arrest(s) with disposition, and sulted in the punitive discharge or dis- conviction(s)), both prior and subse- missal, are neither relevant nor appro- quent to the court-martial which re- priate for consideration under 10 U.S.C. sulted in the punitive discharge or dis- 874(b). As used in the statute, ‘‘good missal; cause’’ was envisioned by Congress to (11) Applicant’s entire court-martial encompass only Secretarial exercise of record (offense(s) of which convicted clemency and ultimate control of sen- and finally approved sentence(s)), and tence uniformity. Accordingly, in de- nonjudicial punishment record (includ- termining what constitutes ‘‘good ing offense(s) and punishment(s) award- cause’’ under 10 U.S.C. 874(b), the pri- ed); mary Secretarial concern will be with (12) Any military administrative dis- charge proceedings (circumstances and the applicant’s record in the civilian disposition) initiated against the appli- community subsequent to his or her cant; punitive separation. Material sub- (13) Applicant’s full employment mitted by the 10 U.S.C. 874(b) applicant record since the punitive discharge or should be consistent with the fore- dismissal was executed; going.) (14) The specific type and character (d) Signature on application. Unless in- of administrative discharge requested capable of making application himself pursuant to 10 U.S.C. 874(b) (a more fa- or herself, the applicant shall person- vorable administrative discharge than ally sign the application, under oath, that requested will not be approved); before a notary or other official au- (15) At least three but not more than thorized to administer oaths. If the ap- six character affidavits, (The character plicant is incapable of executing the affidavits must be notarized, must indi- application, the application may be cate the relationship of the affiant to signed under oath and submitted by
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the applicant’s spouse, next of kin, ex- Subpart B—Service of Process and ecutor, guardian and other person rec- Subpoenas Upon Personnel ognized as a personal representative by the law of the applicant’s domicile. 720.20 Service of process upon personnel. 720.21 Members or civilian employees sub- One is considered incapable of exe- poenaed as witnesses in State courts. cuting an application for purposes of 720.22 Members or civilian employees sub- this paragraph only when the applicant poenaed as witnesses in Federal courts. is unable to sign the application under 720.23 Naval prisoners as witnesses or par- oath due to physical or mental inca- ties in civilian courts. pacity. When an application is signed 720.24 Interviews and depositions in connec- by a person other than the applicant, tion with civil litigation in matters per- the circumstances rendering the appli- taining to official duties. cant incapable of making sworn appli- 720.25 Repossession of personal property. cation shall be set forth in the applica- 720.26–720.29 [Reserved] tion, with appropriate documentation. Subpart C—Production of Official Records (e) Privacy Act Statement. Disclosure of personal information requested by 720.30 Production of official records in re- paragraph (c) of this section is vol- sponse to court order. untary; however, failure to accurately 720.31 Production of official records in the provide all requested information may absence of court order. result in the application being denied 720.32 Certificates of full faith and credit. because of inadequate documentation Subpart D—Compliance With Court Orders of good cause. by Department of the Navy Members, [47 FR 49645, Nov. 2, 1982, as amended at 50 Employees, and Family Members Out- FR 23804, June 6, 1985] side the United States 720.40 Purpose. PART 720—DELIVERY OF PER- 720.41 Definitions. SONNEL; SERVICE OF PROCESS 720.42 Policy. AND SUBPOENAS; PRODUCTION 720.43 Points of contact. OF OFFICIAL RECORDS 720.44 Responsible officials. 720.45 Procedures. Subpart A—Delivery of Personnel 720.46 Overseas screening programs. 720.47 Report. Sec. AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031 and 720.1 Delivery of persons requested by State 5148; 32 CFR 700.206 and 700.1202. authorities in criminal cases. 720.2 Delivery when persons are within the territorial limits of the requesting State. Subpart A—Delivery of Personnel 720.3 Delivery when persons are beyond ter- ritorial limits of the requesting State. 720.4 Persons stationed outside the United SOURCE: 57 FR 5228, Feb. 13, 1992, unless States. otherwise noted. 720.5 Authority of the Judge Advocate Gen- eral and the General Counsel. § 720.1 Delivery of persons requested 720.6 Agreement required prior to delivery by State authorities in criminal to State authorities. cases. 720.7 Delivery of persons to Federal authori- Subpart A of this part deals with re- ties. quests by State authorities for the sur- 720.8 Delivery of persons to foreign authori- ties. render of members or civilians pursu- 720.9 Circumstances in which delivery is re- ant to arrest warrants or similar proc- fused. ess, generally in connection with a 720.10 Members released by civil authorities criminal prosecution. Responding to on bail or on their own recognizance. such requests by a State for delivery of 720.11 Interviewing servicemembers or civil- members or civilian employees in- ian employees by Federal civilian inves- volves balancing the Federal interest tigative agencies. in preserving sovereign immunity and 720.12 Request for delivery of members serv- ing sentence of court-martial. the productivity, peace, good order, 720.13 Request for delivery of members serv- and discipline of the installation ing sentence of a State court. against the right of the State to exer- 720.14–720.19 [Reserved] cise its jurisdiction. Additionally, by
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regulation, naval and Marine authori- directed to leave a classified area. All ties are limited in the extent to which should be done with minimum inter- they can directly assist such an act. ference to good order and discipline. Commands should respond to such re- quests as set out below, generally using § 720.3 Delivery when persons are be- the minimum authority necessary to yond territorial limits of the re- preserve the Federal interests without questing State. unduly restricting State jurisdiction. (a) General. When State civil authori- ties request delivery of any member of § 720.2 Delivery when persons are the Navy or Marine Corps for an al- within the territorial limits of the leged crime or offense punishable under requesting State. the law of the jurisdiction making the When the delivery of any member or request, and such member is not at- civilian is requested by local civil au- tached to a Navy or Marine Corps ac- thorities of a State for an offense pun- tivity within the requesting State or a ishable under the laws of that jurisdic- ship within the territorial waters tion, and such person is located at a thereof, the following action will be Navy or Marine Corps installation taken. Any officer exercising general within the requesting jurisdiction, or court-martial jurisdiction, or officer aboard a ship within the territorial wa- designated by him, or any commanding ters of such jurisdiction, commanding officer, after consultation with a judge officers are authorized to and normally advocate of the Navy or Marine Corps, will deliver such person when a proper is authorized (upon compliance with warrant is issued. In the case of a the provisions of this section and member, delivery will only be effected § 720.6, and subject to the exceptions in upon compliance with § 720.6, subject to § 720.9) to deliver such member to make the exceptions in § 720.9. A judge advo- the member amenable to prosecution. cate of the Navy or Marine Corps The member may be delivered upon should be consulted before delivery is formal or informal waiver of extra- effected. The rule discussed above ap- dition in accordance with § 720.3(b), or plies equally to civilian employees and upon presentation of a fugitive war- civilian contractors and their employ- rant, in which case the procedures of ees when located on a Navy or Marine § 720.3(c) apply. The rule discussed Corps installation, except that compli- above applies equally to civilian em- ance with § 720.6 and consideration of ployees and civilian contractors and § 720.9 are not required (for purposes of their employees when located on a De- this part, ‘‘State’’ includes the District partment of the Navy installation not of Columbia, territories, common- within the requesting State, except wealths, and all possessions or protec- that compliance with § 720.6 and consid- torates of the United States). Com- eration of § 720.9 are not required. mands should normally not become ac- (b) Waiver of extradition. (1) Any tively involved in civilian law enforce- member may waive formal extradition. ment. When a command has deter- A waiver must be in writing and be mined that a person is to be delivered witnessed. It must include a statement in response to a valid warrant, the fol- that the member signing it has re- lowing guidance should be considered. ceived counsel of either a military or If the person to be delivered is a mili- civilian attorney prior to executing the tary member, the member may be or- waiver, and it must further set forth dered to report to a location designated the name and address of the attorney by the commanding officer and surren- consulted. dered to civil authorities under Article (2) In every case where there is any 14, UCMJ (10 U.S.C. 814). If the person doubt as to the voluntary nature of a to be delivered is a civilian, the person waiver, such doubt shall be resolved may be invited to report to the des- against its use and all persons con- ignated space for delivery. If the civil- cerned will be advised to comply with ian refuses, the civilian authorities the procedures set forth in § 720.3(c). may be escorted to a place where the (3) Executed copies of all waivers will civilian is located in order that deliv- be mailed to the Judge Advocate Gen- ery may be effected. A civilian may be eral immediately after their execution.
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(4) When a member declines to waive (d) Members stationed outside the extradition, the nearest Naval Legal United States. When the member sought Service Office or Marine Corps staff by State authorities is not located judge advocate shall be informed and within the United States, see § 720.4. shall confer with the civil authorities as appropriate. The member concerned § 720.4 Persons stationed outside the shall not be transferred or ordered out United States. of the State in which he is then located (a) Persons desired by local U.S. au- without the permission of the Sec- thorities. When delivery of any member retary of the Navy (Judge Advocate in the Navy or Marine Corps, or any ci- General), unless a fugitive warrant is vilian employee or dependent, is de- obtained as set forth in § 720.3(c). sired for trial by state authorities and (c) Fugitive warrants. (1) A fugitive the individual whose presence is sought warrant, as used in this chapter, is a is stationed outside the United States, warrant issued by a State court of the provisions of subpart D of this part competent jurisdiction for the arrest of will be followed. In all such cases, the a member. Normally, a State request- nearest judge advocate of the Navy or ing delivery of a member from another Marine Corps shall be consulted before State will issue a fugitive warrant to any action is taken. the State where the member is then lo- (b) Members desired by U.S. Federal au- cated. thorities. When delivery of any member (2) Upon issuance of a fugitive war- of the Navy or Marine Corps is desired rant by the requesting State to the State in which the member is located, for trial in a Federal district court, the latter State will normally request upon appropriate representation by the delivery of the member to local State Department of Justice to the Secretary authorities. Delivery to local State au- of the Navy (Judge Advocate General), thorities should be arranged by Navy the member will be returned to the or Marine Corps officers designated in United States at the expense of the De- § 720.3(a), upon compliance with the partment of the Navy and held at a provisions of § 720.6, and subject to the military facility convenient to the De- conditions of §§ 720.9 and 720.3(c) (3) and partment of the Navy and to the De- (4). partment of Justice. Delivery may be (3) Upon receipt of a request for de- accomplished as set forth in § 720.7, sub- livery of a member under fugitive war- ject to the exceptions in § 720.9. rant to State authorities, if the mem- ber voluntarily waives extradition, the § 720.5 Authority of the Judge Advo- cate General and the General Coun- provisions of § 720.3(b) apply. If the sel. member is delivered to local authori- ties but refuses to waive extradition in (a) Authority of the Judge Advocate the courts of the State in which he is General. The Judge Advocate General, located. the Deputy Judge Advocate General, (4) No delivery of a member by Navy and the Assistant Judge Advocates or Marine Corps officers pursuant to a General are authorized to act for the fugitive warrant or waiver of extra- Secretary of the Navy in performance dition shall be effected without com- of functions under this chapter. pletion of the agreement required by (b) Authority of the General Counsel. § 720.6 and execution of such agreement The authority of the General Counsel either: of the Navy is prescribed by Navy Reg- (i) By authorities of both the request- ulation (32 CFR 700.203 (a) and (g)) and ing State and the State in which the by appropriate departmental directives member is located, or and instructions (e.g., SECNAVINST (ii) By authorities of the State in 5430.25D).1 The principal areas of re- which the member is located if such sponsibility of the Office of the General authorities, on behalf of the requesting State, accept the full responsibility for 1 Copies may be obtained if needed, from returning the number to a command the Commanding Officer, Naval Publication designated by the Department of the and Forms Center, 5801 Tabor Avenue, Phila- Navy. delphia, PA 19120.
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Counsel (OGC) are commerical law, in- naval or Marine Corps activity as set cluding maritime contract matters; ci- forth in the agreement; vilian employee law; real property law; (2) The member is provided cash to and Freedom of Information Act and cover incidental expenses en route Privacy Act matters as delineated in 32 thereto; and CFR part 701. The Office of the General (3) The Department of the Navy is so Counsel shares responsibility with the informed. Judge Advocate General for environ- As soon as practicable, a copy of the mental law cases. delivery agreement shall be forwarded (c) Points of contact. Commanding of- to the Judge Advocate General. ficers are advised to contact their local (b) Delivery under Interstate Agreement area judge advocates for assistance in on Detainers Act. Special forms are used referring matters to the appropriate of- when delivering prisoners under the fice of the Judge Advocate General or Interstate Agreement on Detainers General Counsel. Act. The Act is infrequently used and (d) Coordination with the Commandant most requests are pursuant to Article of the Marine Corps. Marine Corps com- 14, UCMJ. See § 720.12 for a detailed dis- mands shall inform the Commandant of cussion of the Detainers Act. the Marine Corps (CMC) of all matters § 720.7 Delivery of persons to Federal referred to the Judge Advocate General authorities. or the Office of General Counsel. Copies of all correspondence and documents (a) Authority to deliver. When Federal shall also be provided to CMC. The law enforcement authorities display Staff Judge Advocate to the Com- proper credentials and Federal war- mandant (CMC (JAR)) shall be advised rants for the arrest of members, civil- of all matters referred to the Judge Ad- ian employees, civilian contractors and vocate General. Counsel to the Com- their employees, or dependents resid- mandant shall be advised of matters re- ing at or located on a Department of ferred to the Office of General Counsel. the Navy installation, commanding of- ficers are authorized to and should § 720.6 Agreement required prior to allow the arrest of the individual delivery to State authorities. sought. The exceptions in § 720.9 may be applied to members. A judge advocate (a) Delivery under Article 14, UCMJ. of the Navy or Marine Corps should be When delivery of any member of the consulted before delivery is effected. Navy or Marine Corps to the civilian (b) Agreement not required of Federal authorities of a State is authorized, authorities. The agreement described in the member’s commanding officer § 720.6 is not a condition to the delivery shall, before making such delivery, ob- of members to Federal law enforce- tain from the Governor or other duly ment authorities. Regardless of wheth- authorized officer of such State a writ- er the member is convicted or acquit- ten agreement. The State official com- ted, after final disposition of the case, pleting the agreement must show that the member will be returned to the he is authorized to bind the State to Naval Service (provided that naval au- the terms of the agreement. When indi- thorities desire his return) and the nec- cating in the agreement the naval or essary expenses will be paid from an Marine Corps activity to which the appropriation under the control of the member delivered is to be returned by Department of Justice. the State, care should be taken to des- ignate the closest appropriate activity § 720.8 Delivery of persons to foreign (to the command to which the member authorities. is attached) that possesses special Except when provided by agreement court-martial jurisdiction. The Depart- between the United States and the for- ment of the Navy considers this agree- eign government concerned, com- ment substantially complied with manding officers are not authorized to when: deliver members or civilian employees (1) The member is furnished transpor- of the Department of the Navy, or their tation (under escort in cases of deliv- dependents residing at or located on a ery in accordance with § 720.12) to a naval or Marine Corps installation, to
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foreign authorities. When a request for State authorities and returns to his delivery of these persons is received in ship or station on bail, or on his own a country with which the United States recognizance, the commanding officer, has no agreement or when the com- upon verification of the attesting facts, manding officer is in doubt, advice date of trial, and approximate length of should be sought from the Judge Advo- time that should be covered by the ab- cate General. Detailed information sence, shall grant liberty or leave to concerning the delivery of members, ci- permit appearance for trial, unless this vilian employees, and dependents to would have a serious negative impact foreign authorities when a status of on the command. In the event that lib- forces agreement is in effect is con- erty or leave is not granted, a judge ad- tained in DoD Directive 5525.1 of 9 vocate of the Navy or Marine Corps April 1985 and SECNAVINST 5820.4F.2 should immediately be requested to act as liaison with the court. Nothing in § 720.9 Circumstances in which deliv- this section is to be construed as per- ery is refused. mitting the member arrested and re- (a) Disciplinary proceedings pending. leased to avoid the obligations of bond When disciplinary proceedings involv- or recognizance by reason of the mem- ing military offenses are pending, com- ber’s being in the military service. manding officers should obtain legal guidance from a judge advocate of the § 720.11 Interviewing servicemembers Navy or Marine Corps prior to delivery or civilian employees by Federal ci- of members to Federal or State au- vilian investigative agencies. thorities. Requests by the Federal Bureau of (b) When delivery may be refused. De- Investigation, Naval Investigative livery may be refused only in the fol- Service Command, or other Federal ci- lowing limited circumstances: vilian investigative agencies to inter- (1) Where the accused has been re- view members or civilian employees of tained for prosecution; or the Department of the Navy suspected (2) When the commanding officer de- or accused of crimes should be prompt- termines that extraordinary cir- ly honored. Any refusal of such a re- cumstances exist which indicate that quest shall be immediately reported to delivery should be refused. the Judge Advocate General, or the Of- (c) Delivery under Detainers Act. When fice of General Counsel, as appropriate, the accused is undergoing sentence of a by telephone, or by message if tele- court-martial, see § 720.12. phone is impractical. When the em- (d) Reports required. When delivery ployee in question is a member of an will be refused, the commanding officer exclusive bargaining unit, a staff judge shall report the circumstances to the advocate or General Counsel attorney Judge Advocate General by telephone, will be consulted to determine whether or by message if telephone is imprac- the employee has a right to have a bar- tical. The initial report shall be con- gaining unit representative present firmed by letter setting forth a full during the interview. statement of the facts. A copy of the report shall be forwarded to the re- § 720.12 Request for delivery of mem- gional coordinator. bers serving sentence of court-mar- tial. § 720.10 Members released by civil au- (a) General. Article 14, UCMJ (10 thorities on bail or on their own re- U.S.C. 814), provides authority to honor cognizance. requests for delivery of members serv- A member of the Navy or Marine ing a sentence of a court-martial. Al- Corps arrested by Federal or State au- though seldom utilized, additional au- thorities and released on bail or on his thority and mandatory obligation to own recognizance has a duty to return deliver such members are provided by to his parent organization. Accord- the Interstate Agreement on Detainers ingly, when a member of the Navy or Act (18 U.S.C. app. 9, hereinafter ‘‘the Marine Corps is arrested by Federal or Act’’), which applies to the Federal agency holding the prisoner. The De- 2 See footnote 1 of § 720.5(b). partment of the Navy, as an agency of
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the Federal Government, shall comply oner of the existence of any detainer with the Act. The Act is designed to and of the prisoner’s right to request avoid speedy-trial issues and to aid in disposition. The prisoner’s request is rehabilitation efforts by securing a directed to the custodial official who greater degree of certainty about a must forward it to the appropriate prisoner’s future. The Act provides a prosecuting official and court, with a way for a prisoner to be tried on certificate of prisoner status as pro- charges pending before State courts, ei- vided by Article III of the Act. ther at the request of the State where (c) Article 14, UCMJ. When a request the charges are pending or the pris- for custody does not invoke the Inter- oner’s request. When refusal of delivery state Agreement on Detainers Act, de- under Article 14, UCMJ, is intended, livery of custody shall be governed by comply with § 720.9(d). Article 14, UCMJ, and §§ 720.2 through (b) Interstate Agreement on Detainers 720.9. The request shall be honored un- Act. Upon request under the Act by ei- less, in the exercise of discretion, there ther State authorities or the prisoner, is an overriding reason for retaining the cognizant Navy or Marine Corps the accused in military custody, e.g., staff judge advocate, as appropriate, additional courts-martial are to be shall communicate with the appro- convened or the delivery would se- priate State officials, and monitor and verely prejudice the prisoner’s appel- ensure that the cognizant commander late rights. Execution of the agreement acts on all such requests. The Act pro- discussed in § 720.6 is a condition prece- vides that court-martial sentences con- dent to delivery to State authorities. It tinue to run during temporary custody. is not required before delivery to Fed- This section does not cover requests eral authorities. See § 720.7. Unlike de- between Federal authorities. The pro- livery under the Act, delivery of cus- cedure set forth in § 720.12(c) shall be tody pursuant to Article 14, UCMJ, applied in such cases. interrupts execution of the court-mar- (1) State request. State officials may request delivery of prisoners in mili- tial sentence. tary custody under section 2, Article § 720.13 Request for delivery of mem- IV, of the Act. Where a detainer has bers serving sentence of a State been lodged against the prisoner, and court. the prisoner is serving a sentence (re- gardless of whether an appeal is in (a) General. Ordinarily, members process), delivery is mandatory unless serving protracted sentences resulting the request is disapproved by the Di- from a State criminal conviction will rector of the Bureau of Prisons, Wash- be processed for administrative dis- ington, DC, 20537 as the designee of the charge by reason of misconduct. It Attorney General for this purpose. 28 may, however, be in the best interest of CFR 0.96(n). There has been no further the Naval Service to retain a member delegation to military authority. The charged with a serious offense, subject prisoner should be informed that he to military jurisdiction, to try the may request the Director of the Bureau member by court-martial. The Navy of Prisons, Washington, DC 20537, with- may obtain temporary custody of in- in 30 days after such request is re- carcerated members for prosecution ceived, to deny the request. Upon the with a request to the State under the expiration of such 30-day period or Interstate Agreement on Detainers upon the Director of the Bureau of Act. 18 U.S.C. app. 9. The Department Prisons’ denial of the prisoner’s re- of the Navy may use the Act in the quest, whichever occurs first, the pris- same manner in which State authori- oner shall be delivered to the request- ties may request members purusant to ing authority. § 720.12. (2) Prisoner request. The obligation to (b) Interstate Agreement on Detainers grant temporary custody under the Act Act. Military authorities may use the also applies to prisoners’ requests to be Act to obtain temporary custody of a delivered to State authority. Section 2, member incarcerated in a State insti- Article III(c) of the Act requires the tution, pursuant to conviction by a custodial official to inform the pris- State court, to resolve criminal
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charges against the member before a persons awaiting prosecution, except court-martial. for periods during which the prisoner (1) Detainer. If a command requests attends court or travels to or from any temporary custody under the Act, the place at which his presence may be re- commanding officer of the cognizant quired; naval legal service office or the Marine (iii) Return the prisoner to the send- Corps staff judge advocate, shall file a ing jurisdiction at the earliest prac- detainer with the warden, commis- tical time, but not before the charges sioner of corrections, or other State of- that underlie the request have been re- ficial having custody of the member. solved (prematurely returning the pris- The detainer shall identify the member oner will result in dismissal of the with particularity, enumerate the mili- charges); and tary charges pending, and request the (iv) Pay all costs of transporting, command be notified in advance of any caring for, keeping, and returning the intention to release the member from prisoner to the sending jurisdiction, confinement. unless the command and the State (2) Request for delivery. As soon as agree on some other allocation of the practical after filing the detainer, the costs or responsibilities. commanding officer of the cognizant naval legal service office or the Marine §§ 720.14–720.19 [Reserved] Corps staff judge advocate, shall pre- pare a written request for temporary custody of the member addressed to Subpart B—Service of Process and the State official charged with admin- Subpoenas Upon Personnel istration of the State penal system. The request shall designate the per- SOURCE: 57 FR 5232, Feb. 13, 1992, unless son(s) to whom the member is to be de- otherwise noted. livered and shall be transmitted via the military judge to whom the member’s § 720.20 Service of process upon per- case has been assigned. If the request is sonnel. properly prepared, the military judge (a) General. Commanding officers shall approve, record, and transmit the afloat and ashore may permit service request to the addressee official. The of process of Federal or State courts Act provides the State with a 30-day upon members, civilian employees, de- period after receipt of the request be- pendents, or contractors residing at or fore the request is to be honored. With- located on a naval installation, if lo- in that period of time, the governor of cated within their commands. Service the State may disapprove the request, will not be made within the command either unilaterally or upon the pris- without the commanding officer’s con- oner’s request. If the governor dis- sent. The intent of this provision is to approves the request, the command protect against interference with mis- should coordinate any further action sion accomplishment and to preserve with the Judge Advocate General. good order and discipline, while not un- (3) Responsibilities. The cognizant necessarily impeding the court’s work. command shall ensure that the respon- Where practical, the commanding offi- sibilities of a receiving jurisdiction, de- cer shall require that the process be lineated in section 2, Article IV of the served in his presence, or in the pres- Act, are discharged. In particular, the ence of a designated officer. In all Act requires that the receiving juris- cases, individuals will be advised to diction: seek legal counsel, either from a legal (i) Commence the prisoner’s trial assistance attorney or from personal within 120 days of the prisoner’s ar- counsel for service in personal matters, rival, unless the court, for good cause and from Government counsel for serv- shown during an Article 39(a), UCMJ, ice in official matters. The com- session, grants a continuance nec- manding officer is not required to act essary or reasonable to promote the as a process server. The action required ends of justice; depends in part on the status of the in- (ii) Hold the prisoner in a suitable dividual requested and which State jail or other facility regularly used for issued the process.
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(1) In-State process. When a process turned to the sender. Questions should server from a State or Federal court be referred to the staff judge advocate, from the jurisdiction where the naval command counsel, or the local naval station is located requests permission legal service office. to serve process aboard an installation, (b) Service of process arising from offi- the command ordinarily should not cial duties. (1) Whenever a member or prevent service of process so long as de- civilian employee of the Department of livery is made in accordance with rea- the Navy is served with process be- sonable command regulations and is cause of his official position, the Judge consistent with good order and dis- Advocate General or the Associate cipline. Withholding service may be General Counsel (Litigation), as appro- justified only in the rare case when the priate, shall be notified by telephone, individual sought is located in an area or by message if telephone is imprac- under exclusive Federal jurisdiction tical. Notification shall be confirmed not subject to any reservation by the by a letter report by the nearest appro- State of the right to serve process. priate command. The letter report Questions on the extent of jurisdiction shall include the detailed facts which should be referred to the staff judge ad- give rise to the action. vocate, command counsel, or local (2) Any member or civilian employee naval legal service office. If service is served with Federal or State court civil permitted, an appropriate location or criminal process or pleadings (in- should be designated (for example, the cluding traffic tickets) arising from ac- command legal office) where the proc- tions performed in the course of offi- ess server and the member or employee cial duties shall immediately deliver can meet privately in order that proc- all such process and pleadings to the ess may be served away from the work- commanding officer. The commanding place. A member may be directed to re- officer shall ascertain the pertinent port to the designated location. A civil- facts and notify the Judge Advocate ian may be invited to the designated General or Associate General Counsel location. If the civilian does not co- (Litigation), as appropriate, by tele- operate, the process server may be es- phone or by message if telephone is im- corted to the location of the civilian in practical, of the service and imme- order that process may be served. A ci- diately forward the pleadings and proc- vilian may be required to leave a clas- ess to the relevant office. The member sified area in order that the process or civilian employee will be advised of server may have access to the civilian. the right to remove civil or criminal If unusual circumstances require that proceedings from State to Federal the command not permit service, see court under 28 U.S.C. 1442, 1442a, rights § 720.20(e). under the Federal Employees Liability (2) Out-of-State process. In those cases Reform and Tort Compensation Act (28 where the process is to be served by au- U.S.C. 2679b), if applicable, and the thority of a jurisdiction other than right of a Federal employee to request that where the command is located, representation by Department of Jus- the person named is not required to ac- tice attorneys in Federal (civil) or cept process. Accordingly, the process State (civil or criminal) proceedings server from the out-of-State jurisdic- and in congressional proceedings in tion need not be brought face-to-face which that person is sued in an indi- with the person named in the process. vidual capacity, as delineated in 28 Rather, the process server should re- CFR 50.15. Requests for representation port to the designated command loca- shall be addressed to the Judge Advo- tion while the person named is con- cate General or Associate General tacted, apprised of the situation, and Counsel (Litigation), as appropriate, advised that he may accept service, but and shall be endorsed by the com- also may refuse. In the event that the manding officer, who shall provide all person named refuses service, the proc- necessary data relating to the ques- ess server should be so notified. If serv- tions of whether the person was acting ice of process is attempted from out-of- within the course of official duty or State by mail and refused, the refusal scope of employment at the time of the should be noted and the documents re- incident out of which the suit arose.
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(3) If the service of process involves a graphic limits of the jurisdiction of the potential claim against the Govern- court from which the process issued. In ment, see 32 CFR 750.12(a), 750.12(b), such cases, acceptance of the service is and 750.24. The right to remove to Fed- not compulsory, but service may be eral Court under 28 U.S.C. 1442 and voluntarily accepted in accordance 1442a must be considered where the with § 720.20(b). In exceptional cases outcome of the State court action may when the United States has agreed that influence a claim or potential claim service of process will be accepted by against the United States. Questions such persons when located outside the should be directed to the Judge Advo- geographic limits of the jurisdiction of cate General or the Associate General the court from which the process Counsel (Litigation). issued, the provisions of the agreement (c) Service of process of foreign courts. and of § 720.20(a) will govern. (1) Usually, the amenability of mem- (3) Under the laws of some countries bers, civilian employees, and their de- (such as Sweden), service of process is pendents stationed in a foreign coun- effected by the document, in original try, to the service of process from or certified copy, being handed to the courts of the host country will have person for whom the service is in- been settled by an agreement between tended. Service is considered to have the United States and the foreign coun- taken place even if the person refuses try concerned (for example, in the to accept the legal documents. There- countries of the signatory parties, fore, if a commanding officer or other amenability to service of civil process officer in the military service person- is governed by paragraphs 5(g) and 9 of ally hands, or attempts to hand, that Article VIII of the NATO Status of person the document, service is consid- Forces Agreement, TIAS 2846). When ered to have been effected, permitting service of process on a person described the court to proceed to judgment. Upon above is attempted within the com- receipt of foreign process with a re- mand in a country in which the United quest that it be served upon a person States has no agreement on this sub- described in § 720.20(c)(1), a com- ject, advice should be sought from the manding officer shall notify the person Judge Advocate General or the Asso- of the fact that a particular foreign ciate General Counsel (Litigation), as court is attempting to serve process appropriate. When service of process is and also inform that person that the upon the United States Government or process may be ignored or received. If one of its agencies or instrumentalities the person to be served chooses to ig- as the named defendant, the doctrine of nore the service, the commanding offi- sovereign immunity may allow the cer will return the document to the service of process to be returned to the embassy or consulate of the foreign court through diplomatic channels. country with the notation that the Service of process directed to an offi- commanding officer had the document, cial of the United States, on the other that the person chose to ignore it, and hand, must always be processed in ac- that no physical offer of service had cordance with the applicable inter- been made. The commanding officer national agreement or treaty, regard- will advise the Judge Advocate General less of whether the suit involves acts or the Associate General Counsel (Liti- performed in the course of official du- gation), as appropriate, of all requests ties. The Judge Advocate General or for service of process from a foreign the Associate General Counsel (Litiga- court and the details thereof. tion), as appropriate, will arrange (d) Leave or liberty to be granted per- through the Department of Justice for sons served with process. When members defense of the suit against the United or civilian employees are either served States or an official acting within the with process, or voluntarily accept scope of official duties, or make other service of process, in cases where the arrangements, and will issue instruc- United States is not a party to the liti- tions. gation, the commanding officer nor- (2) Usually, the persons described in mally will grant leave or liberty to the § 720.20(c)(1) are not required to accept person served to permit compliance service of process outside the geo- with the process, unless to do so would
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have an adverse impact on naval oper- criminal case, and such person is un- ations. When a member or civilian em- available because of an overseas as- ployee is a witness for a nongovern- signment, the command should imme- mental party because of performance diately contact the Judge Advocate of official duties, the commanding offi- General, or the Associate General cer may issue the person concerned Counsel (Litigation), as appropriate. permissive orders authorizing attend- ance at the trail at no expense to the § 720.22 Members or civilian employ- Government. The provisions of 32 CFR ees subpoenaed as witnesses in Fed- part 725 must also be considered in eral courts. such cases. Members or civilian em- (a) Witnesses on behalf of Federal Gov- ployees may accept allowances and ernment. When members or civilian em- mileage tendered; however, any fees ployees of the Department of the Navy tendered for testimony must be paid to are required to appear as witnesses in a the Department of the Navy unless the Federal Court to testify on behalf of member or employee is on authorized the Federal Government in cases in- leave while attending the judicial pro- volving Department of the Navy activi- ceeding. When it would be in the best ties, the Chief of Naval Personnel or interests of the United States Govern- the Commandant of the Marine Corps, ment (for example, in State criminal as appropriate, will issue temporary trails), travel funds may be used to additional duty orders to that person. provide members and civilian employ- The charges for such orders will be ees as witnesses as provided in the borne by the activity to which the re- Joint Federal Travel Regulations. Re- quired witness is attached. Payment to sponsibility for the payment of the witnesses will be as provided by the member’s mileage and allowances will Joint Federal Travel Regulations and be determined pursuant to the Joint U.S. Navy travel instructions. If the re- Federal Travel Regulations, Volume 1, quired witness is to appear in a case in paragraph M6300, subsections 1–3.3 which the activities of the Department (e) Report where service not allowed. of the Navy are not involved, the De- Where service of process is not per- partment of the Navy will be reim- mitted, or where the member or civil- bursed in accordance with the proce- ian employee is not given leave, lib- dures outlined in the Navy Comptroller erty, or orders to attend a judicial pro- Manual, section 046268. ceeding, a report of such refusal and (b) Witnesses on behalf of nongovern- the reasons therefor shall be made by mental parties—(1) Criminal actions. telephone, or message if telephone is When members or civilian employees impractical, to the Judge Advocate are served with a subpoena to appear as General or the Associate General Coun- a witness for a defendant in a criminal sel (Litigation), as appropriate. action and the fees and mileage re- quired by rule 17(d) of the Federal § 720.21 Members or civilian employ- Rules of Criminal Procedure are ten- ees subpoenaed as witnesses in dered, the commanding officer may State courts. issue the person subpoenaed permissive Where members or civilian employ- orders authorizing attendance at the ees are subpoenaed to appear as wit- trial at no expense to the Government, nesses in State courts, and are served unless the person’s absence would have as described in §§ 720.20, 720.20(d) ap- an adverse impact on naval operations. plies. If these persons are requested to In such a case, a full report of the cir- appear as witnesses in State courts cumstances will be made to the Judge when the interests of the Federal Gov- Advocate General or, in the case of ci- ernment are involved (e.g., Medical vilian employees, to the Associate Gen- Care Recovery Act cases), follow the eral Counsel (Litigation). In those procedures described in § 720.22. If State cases where fees and mileage are not authorities are attempting to obtain tendered as required by rule 17(d) of the the presence of a member or a civilian Federal Rules of Criminal Procedure, employee as a witness in a civil or but the person subpoenaed still desires to attend, the commanding officer also 3 See footnote 1 of § 720.5(b). may issue permissive orders at no cost
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to the Government. Such persons, how- State court, either as a party or as a ever, should be advised that an agree- witness, in private litigation pending ment as to reimbursement for any ex- before such a court. The deposition of a penses incident to travel, lodging, and naval prisoner may be taken in such a subsistence should be effected with the case, subject to reasonable conditions party desiring their attendance and or limitations imposed by the com- that no reimnbursement should be ex- mand concerned. pected from the Government. (2) Civil actions. When members or ci- § 720.24 Interviews and depositions in vilian employees are served with a sub- connection with civil litigation in poena to appear as a witness on the be- matters pertaining to official du- half of a nongovernmental party in a ties. civil action brought in a Federal court, Requests to interview, depose, or call the provisions of § 720.20 apply. as witnesses, current or former mem- § 720.23 Naval prisoners as witnesses bers or civilian employees of the De- or parties in civilian courts. partment of the Navy, regarding infor- (a) Criminal actions. When Federal or mation obtained in the course of their State authorities desire the attendance official duties, including expert testi- of a naval prisoner as a witness in a mony related thereto, shall be proc- criminal case, they should submit a essed in accordance with 32 CFR part written request for such person’s at- 725. tendance to the Judge Advocate Gen- eral. The civilian authority should in- § 720.25 Repossession of personal clude the following averments in its re- property. quest: Repossession of personal property, lo- (1) That the evidence to be derived cated on a Navy or Marine Corps in- from the prisoner’s testimony is un- stallation, belonging to a member or to available from any other source: any dependent residing at or located on (2) That the civilian authority will a Department of the Navy installation, provide adequate security arrange- may be permitted in the discretion of ments for the prisoner and assume re- the commanding officer of the installa- sponsibility for the prisoner while he is tion where the property is located, sub- in its custody; and ject to the following. The documents (3) that the civilian authority will as- purporting to authorize repossession sume all costs of transporting the pris- and the procedures for repossessing the oner from the brig, of maintaining that property must comply with State law. prisoner while in civilian custody, and Prior to permitting physical reposses- of returning the prisoner to the brig from which he was removed. sion of any property, the commanding officer shall cause an informal inquiry The civilian authority should also in- into the circumstances and then deter- clude in its request an estimate of the mine whether to allow the reposses- length of time the prisoner’s services sion. If repossession is to be allowed, will be required, and should specify the mode of transport by which it intends the person whose property is to be re- to return the prisoner. Upon receipt of possessed should be asked if he wishes such a request, authority by the Judge to relinquish the property voluntarily. Advocate General will be given, in a Repossession must be carried out in a proper case, for the production of the manner prescribed by the commanding requested naval prisoner in court with- officer. In the case of property owned out resort to a writ of habeas corpus ad by civilian employees of the Depart- testificandum (a writ which requires ment of the Navy or civilian contrac- the production of a prisoner to testify tors or their employees or dependents, before a court of competent jurisdic- the commanding officer should direct tion). that the disputed property be removed (b) Civil actions. The Department of from the installation until the com- the Navy will not authorize the attend- manding officer is satisfied that the ance of a naval prisoner in a Federal or dispute is resolved.
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§§ 720.26–720.29 [Reserved] consent to the production or if the pro- duction is otherwise authorized under Subpart C—Production of Official the Privacy Act and the Secretary of Records the Navy Instruction 5211.5 series. Whenever compliance with a court § 720.30 Production of official records order for production of Department of in response to court order. the Navy records is deemed inappro- (a) General. Where unclassified naval priate for any reason, such as when records are desired by or on behalf of they contain privileged or classified in- litigants, the parties will be informed formation, the records and subpoena that the records desired, or certified may be forwarded to the Secretary of copies thereof, may be obtained by for- the Navy (Judge Advocate General) for warding to the Secretary of the Navy, appropriate action, and the parties to Navy Department, Washington, DC, or the suit so notified. Any release of other custodian of the records, a court classified information for civil court order calling for the particular records proceedings (whether civil or criminal desired or copies thereof. Compliance in nature) must also be coordinated with such court order will be effected within the office of the Chief of Naval by transmitting certified copies of the Operations (OP–009D) in accordance records to the clerk of the court out of with the Chief of Naval Operations In- which the process issues. See the provi- struction 5510.1 series. sions in the Secretary of the Navy In- (b) Records in the custody of National struction 5211.5 series which set forth Personnel Records Center. Court orders, the additional requirement that rea- subpoenas duces tecum, and other legal sonable efforts be made to notify all in- documents demanding information dividuals to whom the record pertains from, or the production of, service or of (1) the disclosure, and (2) the nature medical records in the custody of the of the information provided, when the National Personnel Records Center in- court order has become a matter of volving former (deceased or discharged) public record and the record is con- Navy and Marine Corps personnel shall tained in a system of records as defined be served upon the General Services in the Secretary of the Navy Instruc- Administration, 9700 Page Boulevard; tion 5211.5 series. If an original record St. Louis, MO 63132, rather than the is produced by a naval custodian, it Department of the Navy. In the fol- will not be removed from the custody lowing situations, the request shall be of the person producing it, but copies forwarded to the Secretary of the Navy may be placed in evidence. Upon writ- (Judge Advocate General). ten request of one or more parties in (1) When the United States (Depart- interest or their respective attorneys, ment of the Navy) is one of the liti- records which would be produced in re- gants. sponse to a court order as set forth (2) When the case involves a person above may be furnished without court or persons who are or have been senior order when such records are not in a officers or officials within the Depart- ‘system of records’ as defined by the ment of the Navy; and Privacy Act (5 U.S.C. 552a) except as (3) In other cases considered to be of noted in paragraphs (b) and (c) of this special significance to the Judge Advo- section. In determining whether or not cate General or the Secretary of the a record contained in a ‘‘system of Navy. records’’ will be furnished in response (c) Exceptions. Where not in conflict to a written request for that record, with the foregoing restrictions relative consideration shall be given to the pro- to personal information, the release of visions of the Secretary of the Navy In- which would result in a clearly unwar- struction 5720.42 series. If the record is ranted invasion of personal privacy, in a ‘‘system of records,’’ it may be the production in Federal, State, terri- produced upon written request of one torial, or local courts of evidentiary or more parties in interest or their re- material from investigations con- spective attorneys in the absence of a ducted pursuant to this Manual, and court order only if the individuals to the service, employment, pay or med- whom the record pertains give written ical records (including medical records
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of dependents) of persons in the naval vacy) and SECNAVINST 5720.42 series service is authorized upon receipt of a (Freedom of Information). court order, without procuring specific (b) Release of JAG Manual Investiga- authority from the Secretary of the tions, Court-Martial Records, Articles 69 Navy. When the request for production and 73 Petitions, and Article 138 Com- involves material related to claims in plaints of Wrongs. Except as provided in favor of the Government, notification this section, only the Assistant Judge should be made to the affirmative Advocates General (Civil Law) and claims office at the naval legal service (Military Law) shall make determina- office having territorial responsibility tions concerning the release of the in the area. Where travel is involved, it records covered herein if less than a re- must be without expense to the Gov- lease of the complete requested record ernment. will result. In all other instances the (d) Medical and other records of civilian Deputy Assistant Judge Advocates employees. Production of medical cer- General, who have cognizance of the tificates or other medical reports con- record(s) in issue, may release such cerning civilian employees is con- records. Local record holders are re- trolled by the provisions of Executive minded that the authority to release Order 10561, 19 FR 5963, as implemented records does not necessarily include de- by Federal Personnel Manual, chapter nial authority. 294, and chapter 339.1–4 (reprinted in (1) JAG Manual Investigations (includ- MANMED article 23–255(6)). Records of ing enclosures). Any request for release civilian employees other than medical outside the Department of the Navy records may be produced upon receipt shall be forwarded to the Assistant of a court order without procuring spe- Judge Advocate General (Military Law) cific authority from the Secretary of for determination, except that Privacy the Navy, provided there is not in- Act requests for release shall be for- volved any classified or For-Official- warded to the Assistant Judge Advo- Use-Only information, such as loyalty cate General (Civil Law) for determina- or security records. Records relating to tion. compensation benefits administered by (2) Court-martial records and Articles 69 the Bureau of Employees’ Compensa- and 73 petitions. These are matters of tion may not be disclosed except upon public record and may be released by the written approval of that Bureau (20 any local holder. Court-martial records CFR 1.21). In case of doubt, the matter should be released only following prop- should be handled in accordance with er authentication. the provisions of subsection a above. (3) Article 138 Complaints of Wrongs. Where information is furnished here- Forward as in paragraph (b)(1) of this under in response to a court order, it is section. advisable that certified copies rather (c) Affirmative claims files. Affirmative than originals be furnished and that, claims files (including Medical Care where original records are to be pro- Recovery Act files), except to the ex- duced, the assistance of the U.S. Attor- tent that such files contain copies of ney or U.S. Marshal be requested so reports of investigations prepared that custody of the records may be under the Manual of the Judge Advo- maintained. cate General, or classified or privileged [38 FR 6021, Mar. 6, 1973, as amended at 48 FR information, may be released by local 4466, Feb. 1, 1983] holders to insurance companies to sup- port claims; to civilian attorneys rep- § 720.31 Production of official records resenting the injured party’s and the in the absence of court order. Government’s interests; and to other (a) General. Release of official records components of the Department of De- outside the Department of the Navy in fense, without the prior approval of the the absence of a court order is gov- Judge Advocate General, provided that erned by the Privacy Act (5 U.S.C. 552a) the amount of the claim is within the and the Freedom of Information Act (5 monetary settlement authority of the U.S.C. 552). The following sources per- releaser. When the request for produc- tain: SECNAVINST 5211.5 series (Pri- tion involves material related to
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claims in favor of the Government, no- § 720.41 Definitions. tification should be made to the af- Court. Any judicial body in the firmative claims office at the naval United States with jurisdiction to im- legal service office having territorial pose criminal sanctions on a Depart- responsibility for the area. ment of the Navy member, employee, (d) Accounting for disclosures of records or family member. from systems of records. When records lo- Employee. A civilian employed by the cated in a ‘‘system of records’’ are re- Department of the Navy or a compo- leased, the official responsible for re- nent service, including an individual leasing the records shall consult paid from non-appropriated funds, who SECNAVINST 5211.5 series regarding is a citizen or national of the United the requirement that accountings of States. the disclosures be maintained. Appen- Family member. A spouse, natural or dix A–3–a of the Manual of the Judge adopted child, or other lawful depend- Advocate General is recommended for ent of a Department of the Navy em- ployee or member accompanying the this purpose. Department of the Navy member or employee assigned to duty outside the (1 CFR 18.14, and part 21, subpart B) United States. [45 FR 8599, Feb. 8, 1980, as amended at 48 FR Felony. A criminal offense that is 4466, Feb. 1, 1983] punishable by incarceration for more than one year, regardless of the sen- § 720.32 Certificates of full faith and tence that is imposed for commission credit. of that offense. The Judge Advocate General, the Member. An individual on active duty Deputy Judge Advocate General, or in the Navy, Naval Reserve, Marine any Assistant Judge Advocate General Corps, or Marine Corps Reserve. is authorized to execute certificates of Request for return. Any request or full faith and credit certifying the sig- order received from a court, or from natures and authority of officers of the federal, state or local authorities con- cerning a court order, for the return to Department of the Navy. the United States of members, employ- [38 FR 6021, Mar. 6, 1973] ees, or family members, for any reason listed in § 720.42. Subpart D—Compliance With Respondent. A member, employee, or family member whose return to the Court Orders by Department United States has been requested, or of the Navy Members, Em- with respect to whom other assistance ployees, and Family Members has been requested under this instruc- Outside the United States tion. Responsible Official. Officials des- ignated in this instruction to act on a AUTHORITY: DoD Directive 5525.9, 54 FR 296, 32 CFR part 146. request to return, or take other action affecting, members, employees or fam- SOURCE: 55 FR 47876, Nov. 16, 1990, unless ily members to the United States otherwise noted. under this instruction. United States. The 50 states, the Dis- § 720.40 Purpose. trict of Columbia, Puerto Rico, Guam, This instruction: the Northern Mariana Islands, Amer- (a) Implements 32 CFR part 146. ican Samoa, and the Virgin Islands. (b) Establishes policy and procedures for requesting the return to the United § 720.42 Policy. States of, or other action affecting, De- (a) It is Department of the Navy pol- partment of the Navy (DON) personnel icy to cooperate, as prescribed in this and employees serving outside the instruction, with courts and federal, United States, and family members ac- state and local officials in enforcing companying them, in compliance with court orders. The Department of the court orders. Navy will cooperate with requests when such action is consistent with
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mission requirements (including oper- temptuous removal of a child from the ational readiness), the provisions of ap- jurisdiction of the court or the custody plicable international agreements, and of a parent or other person awarded ongoing Department of Defense (DoD) custody by a court order will normally investigations and courts-martial. have their command sponsorship re- (b) Every reasonable effort will be moved. Failure to comply with other made to resolve the matter without the court orders may also result in re- respondent returning to the United moval of command sponsorship, de- States, or other action being taken pending on the circumstances of the in- against the respondent under this in- dividual case. struction. (g) To facilitate prompt resolution of (c) Requests to return members for requests for return of members, mini- felonies or for contempt involving un- mize the burden on operating units, lawful or contemptuous removal of a and to provide consistency during ini- child from the jurisdiction of a court or tial implementation of this new pro- the custody of a parent or other person gram, a limited number of responsible awarded custody by a court order will officials, designated in § 720.44, will re- normally be granted, but only if the spond to requesting officials. member cannot resolve the issue with the court without return to the United § 720.43 Points of contact. States. When the member’s return is (a) Authorities issuing requests for inconsistent with mission require- return or for other action under this ments, applicable international agree- instruction may contact the following ments, or ongoing DoD investigations activities: or courts-martial, DoD approval of de- (1) Chief of Naval Personnel (Pers–14), nial will be requested. Washington, DC 20370–5000 (For Navy (d) For all other requests involving members and their family members). members, return will be based on the (2) Commandant, U.S. Marine Corps circumstances of the individual case as (Code JAR), Washington, DC 20380–0001 provided in this instruction. (For Marine Corps members and their (e) Members will normally be re- family members). turned on a temporary additional duty (TAD) basis unless there are compel- (3) Director, Office of Civilian Per- ling reasons the return should be a per- sonnel Management (Code OOL), 800 N. manent change of duty station (PCS). Quincy Street, Arlington, VA 22203–1998 (f) The involuntary return of employ- (For civilian personnel, including non- ees or family members in response to a appropriated fund employees and their request for return is not authorized. family members). However, the following action will be (b) Upon receipt of a request for ac- taken: tion under this instruction, the Office (1) Employees will be strongly urged of Civilian Personnel Management will to comply with court orders. Failure to forward the request to the appropriate comply with court orders involving responsible official for action in ac- felonies or contempt involving unlaw- cordance with § 720.44. ful or contemptuous removal of a child from the jurisdiction of the court or § 720.44 Responsible officials. the custody of a parent or other person The following officials are designated awarded custody by a court order will responsible officials for acting on re- normally require processing for adverse quests to return or to take other action action, up to and including removal affecting members, employees or fam- from federal service. Failure to comply ily members to the United States. with other court orders may require (a) The Chief of Naval Personnel adverse action, depending on the cir- (CHNAVPERS) for requests involving cumstances of the individual case. Navy members and their family mem- (2) Family members will be strongly bers who are not employees. The encouraged to comply with court or- CHNAVPERS may delegate this au- ders. Family members who fail to com- thority within his headquarters, not ply with court orders involving felonies below the 0–6 level for routine matters or contempt involving unlawful or con- and not lower than the flag officer
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level for decisions to deny the request agreements, or ongoing DoD investiga- for return. tions and courts-martial, the Depart- (b) The Commandant of the Marine ment of the Navy will ask DoD to ap- Corps (CMC) for requests involving Ma- prove denial of the request for the mili- rine Corps members and their family tary members’s return. To initiate this members who are not employees. The action, there must be an affirmative CMC may delegate this authority with- showing of articulable harm to the in his headquarters, not below the 0–6 unit’s mission or violation of an inter- level for routine matters and no lower national agreement. that the general officer level for deci- (d) When a responsible official has de- sions to deny the request for return. termined a request for return is appar- (c) The local commanding officer or officer in charge for requests involving ently based on an order issued by a employees and their family members court of competent jurisdiction, the re- who are not active duty military mem- sponsible official shall complete action bers. on the request for return within 30 days (d) The Assistant Secretary of the of receipt of the request for return by Navy (Manpower and Reserve Affairs) the responsible official, unless a delay (ASN(M&RA)) for requests not covered is authorized by the ASN(M&RA). by §§ 720.44 (a) through (c). (e) When a delay to complete the ac- tion is warranted, the ASN(M&RA) will § 720.45 Procedures. grant a 45 day delay, and provide a (a) If the request pertains to a felony copy of that approval to the Assistant or to contempt involving the unlawful Secretary of Defense (Force Manage- or contemptuous removal of a child ment & Personnel (ASD(FM&P)) and from the jurisdiction of a court or the the General Counsel, DoD. The 45 day custody of a parent or another person period begins upon request by the re- awarded custody by court order, and sponsible official of the request for re- the matter cannot be resolved with the turn. Conditions which, when accom- court without the respondent returning panied by full supporting justification, to the United States: will warrant the granting of the 45 day (1) For members: The responsible of- delay are: ficial shall direct the commanding offi- (1) Efforts are in progress to resolve cer or officer in charge to order the the matter to the satisfaction of the member to return to the United States. Failure to comply will normally be the court without the respondent’s return basis for disciplinary action against to the United States. the member. (2) To provide sufficient time for the (2) For employees, military and civil- respondent to provide evidence to show ian family members: The responsible legal efforts to resist the request or to official shall strongly encourage the show legitimate cause for noncompli- respondent to comply. Failure to com- ance. ply may subject employees to adverse (3) To provide commanding officers action, to include removal from the an opportunity to detail the specific ef- Federal service, and subject military fect on command mission and oper- and civilian family members to with- ational readiness anticipated from the drawal of command sponsorship. loss of the member or Department of (b) For all other requests when the the Navy employee, and to present matter cannot be resolved with the facts relating to any international court without returning the respondent agreement, or ongoing DoD investiga- to the United States, the responsible tion or courts-martial. official shall take the action described (f) A commanding officer or officer in in this instruction when deemed appro- charge who receives a request for the priate with the facts and cir- return of, or other action affecting, a cumstances of each particular case, fol- lowing consultation with legal staff. member, family member, or employee (c) When a member’s return is incon- not of his/her command will forward sistent with mission requirements, the the request to the appropriate com- provisions of applicable international manding officer or officer in charge,
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copy to the responsible official, and ad- state and a foreign host-nation, or be- vise both of them by message that a re- tween two different foreign nations, quest for return or other action has the matter shall be referred to the been forwarded to them. ASN(M&RA) on the first issue and to (g) A commanding officer or officer the Judge Advocate General (Code 10) in charge who receives a request for on the second and third issues. the return of, or other action affecting, (2) Encourage the respondent to at- a member, family member, or em- tempt to resolve the matter to the sat- ployee of his/her command will: isfaction of the court or other request- (1) Notify the respondent of the right ing authority without return of or to provide evidence to show legal ef- other action affecting the member, em- forts to resist the request, or to show ployee, or family member. legitimate cause for noncompliance for (3) When a delay to complete action inclusion in the submission to the re- under this section is warranted, re- sponsible official. quest the delay from ASN(M&RA) with (2) For members and their family full supporting justification. members who are not employees, for- (4) Examine all information the re- ward the request immediately to the spondent desires to provide to show appropriate responsible official, to- legal efforts to resist the request, or gether with: otherwise to show legitimate cause for (i) Any information the individual noncompliance. desires to provide to show legal efforts (5) Requests for exception from the to resist the request, or otherwise to requirements of this instruction shall show legitimate cause for noncompli- be submitted, with supporting jus- ance. tification, to the ASN(M&RA) for sub- (ii) Facts detailing the specific im- mission to the ASD(FM&P). pacts on command missions and readi- (6) If a member will be ordered to re- ness anticipated from loss of the mem- turn to the United States, determine if ber. the member will be ordered TAD or (iii) Facts relating to any inter- PCS and advise the member’s com- national agreements or ongoing DoD manding officer of the determination. investigations or courts-martial in- (7) If a member will be ordered to re- volving the respondent. turn to an appropriate port of entry to (iv) Information regarding conditions comply with a request, ensure: expected to interfere with a member’s (i) The requesting officer has given return to the command after comple- official notification to the responsible tion of proceedings. If, in the opinion of official that the requesting official or the commanding officer, there are com- other appropriate party will initiate pelling reasons for the member to be action with the receiving jurisdiction returned to the United States PCS, to secure the member’s delivery/extra- provide full justification to support dition, as appropriate, per chapter 6 of that recommendation to the cognizant the Manual of the Judge Advocate Gen- officer. eral, and provide for all costs incident (3) If a delay in processing is war- thereto, including any escort if desired. ranted under § 720.42 or § 720.45(e), make (ii) If applicable, the necessary ac- a recommendation with supporting jus- counting data are provided to the com- tification to the responsible official. manding officer of the member or or- (4) Monitor, and update as necessary, ders are issued. information provided to the respon- (iii) The member has arranged satis- sible official. factory foster care for any lawful (h) The responsible official shall: minor dependents who will be left un- (1) Determine whether the request is accompanied overseas upon the mem- based on an order issued by a court of ber’s return to the United States. apparent competent jurisdiction and if (8) Notify the requesting official at so, complete action on the request no least 10 days before the member’s re- later than 30 days after its receipt by turn to the selected port of entry. the responsible official. If a conflicts of (9) In the case of an employee or of a law issue is presented between com- family member, the commanding offi- peting state interests, or between a cer or officer in charge of the activity
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to which the family member’s sponsor PARTS 721–722 [RESERVED] is attached, or by which the employee is employed, will carry out the fol- lowing steps: PART 723—BOARD FOR (i) An employee shall be strongly en- CORRECTION OF NAVAL RECORDS couraged to comply with the court order or other request for return. Fail- Sec. ure to comply may be the basis for ad- 723.1 General provisions. verse action to include removal from 723.2 Establishment, function and jurisdic- tion of the Board. Federal service. Adverse action should 723.3 Application for correction. only be taken after coordination with 723.4 Appearance before the board; notice; the cognizant civilian personnel office counsel; witnesses; access to records. and legal counsel and in compliance 723.5 Hearing. with Civilian Personnel Instruction 723.6 Action by the Board. 752. 723.7 Action by the Secretary. (ii) If a family member of either a 723.8 Staff action. member or an employee is the subject 723.9 Reconsideration. of a request for return, the family 723.10 Settlement of claims. member shall be strongly encouraged 723.11 Miscellaneous provisions. to comply with the court order. Failure AUTHORITY: 10 U.S.C. 1034, 1552. to respond may be the basis for with- drawal of command sponsorship of the SOURCE: 62 FR 8166, Feb. 24, 1997, unless family member. otherwise noted. (10) Report promptly to the § 723.1 General provisions. ASN(M&RA) any actions taken under § 720.45 (a) or (b). This part sets up procedures for cor- (i) The ASN(M&RA): rection of naval and marine records by the Secretary of the Navy acting (1) May grant delays of up to 45 days through the Board for Correction of from the date of a request for delay in Naval Records (BCNR or the Board) to accordance with § 720.45(e). remedy error or injustice. It describes (2) Will report promptly all delays of how to apply for correction of naval requests for the return of members to and marine records and how the BCNR the ASD(FM&P) and to the General considers applications. It defines the Counsel of the Department of Defense. Board’s authority to act on applica- (3) Will request from the tions. It directs collecting and main- ASD(FM&P), when warranted, excep- taining information subject to the Pri- tion to the policies and procedures of vacy Act of 1974 authorized by 10 U.S.C. DoD Directive 5525.9 of December 27, 1034 and 1552. 1988. (4) Consolidate and forward reports of § 723.2 Establishment, function and ju- action taken under § 720.45 (a) or (b) to risdiction of the Board. the ASD(FM&P) and the General Coun- (a) Establishment and composition. sel, DoD as required by DoD Directive Under 10 U.S.C. 1034 and 1552, the Board 5525.9 of December 27, 1988. for Correction of Naval Records is es- § 720.46 Overseas screening programs. tablished by the Secretary of the Navy. The Board consists of civilians of the The Chief of Naval Operations (CNO) executive part of the Department of and the CMC shall incorporate proce- the Navy in such number, not less than dures requiring members and employ- three, as may be appointed by the Sec- ees to certify they have legal custody retary and who shall serve at the pleas- of all minor dependents accompanying ure of the Secretary. Three members them outside the United States into present shall constitute a quorum of service overseas screening programs. the Board. The Secretary of the Navy will designate one member as Chair. In § 720.47 Report. the absence or incapacity of the Chair, The report requirement in this in- an Acting Chair chosen by the Execu- struction is exempt from reports con- tive Director shall act as Chair for all trol by SECNAVINST 5214.2B. purposes.
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(b) Function. The Board is not an in- justice to excuse the failure to file the vestigative body. Its function is to con- application within the time prescribed. sider applications properly before it for (c) Acceptance of applications. An ap- the purpose of determining the exist- plication will be accepted for consider- ence of error or injustice in the naval ation unless: records of current and former members (1) The Board lacks jurisdiction. of the Navy and Marine Corps, to make (2) The Board lacks authority to recommendations to the Secretary or grant effective relief. to take corrective action on the Sec- (3) The applicant has failed to comply retary’s behalf when authorized. with the filing requirements of para- (c) Jurisdiction. The Board shall have graphs (a)(l), (a)(2), or (a)(3) of this sec- jurisdiction to review and determine tion. all matters properly brought before it, (4) The applicant has failed to ex- consistent with existing law. haust all available administrative rem- edies. § 723.3 Application for correction. (5) The applicant has failed to file an (a) General requirements. (1) The appli- application within 3 years after dis- cation for correction must be sub- covery of the alleged error or injustice mitted on DD 149 (Application for Cor- and has not provided a reason or rea- rection of Military Record) or exact sons why the Board should find it in facsimile thereof, and should be ad- the interest of justice to excuse the dressed to: Board for Correction of failure to file the application within Naval Records, Department of the the prescribed 3-year period. Navy, 2 Navy Annex, Washington, DC (d) Other proceedings not stayed. Fil- 20370–5100. Forms and other explana- ing an application with the Board shall tory matter may be obtained from the not operate as a stay of any other pro- Board upon request. ceedings being taken with respect to (2) Except as provided in paragraph the person involved. (a)(3) of this section, the application (e) Consideration of application. (1) shall be signed by the person request- Each application accepted for consider- ing corrective action with respect to ation and all pertinent evidence of his/her record and will either be sworn record will be reviewed by a three to or will contain a provision to the ef- member panel sitting in executive ses- fect that the statements submitted in sion, to determine whether to author- the application are made with full ize a hearing, recommend that the knowledge of the penalty provided by records be corrected without a hearing, law for making a false statement or or to deny the application without a claim. (18 U.S.C. 287 and 1001) hearing. This determination will be (3) When the record in question is made by majority vote. that of a person who is incapable of (2) The Board may deny an applica- making application, or whose where- tion in executive session if it deter- abouts is unknown, or when such per- mines that the evidence of record fails son is deceased, the application may be to demonstrate the existence of prob- made by a spouse, parent, heir, or legal able material error or injustice. The representative. Proof of proper interest Board relies on a presumption of regu- shall be submitted with the applica- larity to support the official actions of tion. public officers and, in the absence of (b) Time limit for filing application. Ap- substantial evidence to the contrary, plications for correction of a record will presume that they have properly must be filed within 3 years after dis- discharged their official duties. Appli- covery of the alleged error or injustice. cants have the burden of overcoming Failure to file within the time pre- this presumption but the Board will scribed may be excused by the Board if not deny an application solely because it finds it would be in the interest of the record was made by or at the direc- justice to do so. If the application is tion of the President or the Secretary filed more than 3 years after discovery in connection with proceedings other of the error or injustice, the applica- than proceedings of a board for the cor- tion must set forth the reason why the rection of military or naval records. Board should find it in the interest of Denial of an application on the grounds
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of insufficient evidence to demonstrate visions apply to cases processed under the existence of probable material the Military Whistleblower Protection error or injustice is final subject to the Act (10 U.S.C. 1034). provisions for reconsideration con- (b) Notice. (1) In each case in which a tained in § 723.9. hearing is authorized, the Board’s staff (3) When an original application or a will transmit to the applicant a writ- request for further consideration of a ten notice stating the time and place of previously denied application is denied hearing. The notice will be mailed to without a hearing, the Board’s deter- the applicant, at least 30 days prior to mination shall be made in writing and the date of hearing, except that an ear- include a brief statement of the lier date may be set where the appli- grounds for denial. cant waives his/her right to such notice (4) The brief statement of the in writing. grounds for denial shall include the (2) Upon receipt of the notice of hear- reasons for the determination that re- ing, the applicant will notify the Board lief should not be granted, including in writing at least 15 days prior to the the applicant’s claims of constitu- date set for hearing as to whether he/ tional, statutory and/or regulatory vio- she will be present at the hearing and lations that were rejected, together will indicate to the Board the name of with all the essential facts upon which counsel, if represented by counsel, and the denial is based, including, if appli- the names of such witnesses as he/she cable, factors required by regulation to intends to call. Cases in which the ap- be considered for determination of the plicant notifies the Board that he/she character of and reason for discharge. does not desire to be present at the Further the Board shall make a deter- hearing will be considered in accord- mination as to the applicability of the ance with § 723.5(b)(2). provisions of the Military Whistle- (c) Counsel. As used in this part, the blower Protection Act (10 U.S.C. 1034) if term ‘‘counsel’’ will be construed to in- it is invoked by the applicant or rea- clude members in good standing of the sonably raised by the evidence. At- federal bar or the bar of any state, ac- tached to the statement shall be any credited representatives of veterans’ advisory opinion considered by the organizations recognized by the Sec- Board which is not fully set out in the retary of Veterans Affairs under 38 statement. The applicant will also be advised of reconsideration procedures. U.S.C. 3402, or such other persons who, in the opinion of the Board, are consid- (5) The statement of the grounds for denial, together with all attachments, ered to be competent to present equi- shall be furnished promptly to the ap- tably and comprehensively the request plicant and counsel, who shall also be of the applicant for correction, unless informed that the name and final vote barred by law. Representation by coun- of each Board member will be furnished sel will be at no cost to the govern- or made available upon request. Classi- ment. fied or privileged material will not be (d) Witnesses. The applicant will be incorporated or attached to the Board permitted to present witnesses in his/ statement; rather, unclassified or non- her behalf at hearings before the privileged summaries of such material Board. It will be the responsibility of will be so used and written expla- the applicant to notify his/her wit- nations for the substitution will be nesses and to arrange for their appear- provided to the applicant and counsel. ance at the time and place set for hear- ing. Appearance of witnesses will be at § 723.4 Appearance before the board; no cost to the government. notice; counsel; witnesses; access to (e) Access to records. (1) It is the re- records. sponsibility of the applicant to procure (a) General. In each case in which the such evidence not contained in the offi- Board determines a hearing is war- cial records of the Department of the ranted, the applicant will be entitled to Navy as he/she desires to present in appear before the Board either in per- support of his/her case. son or by counsel of his/her selection or (2) Classified or privileged informa- in person with counsel. Additional pro- tion may be released to applicants only
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by proper authorities in accordance (c) Continuance. The Board may con- with applicable regulations. tinue a hearing on its own motion. A (3) Nothing in this part authorizes request for continuance by or in behalf the furnishing of copies of official of the applicant may be granted by the records by the Board. Requests for cop- Board if a continuance appears nec- ies of these records should be sub- essary to insure a full and fair hearing. mitted in accordance with applicable regulations governing the release of in- § 723.6 Action by the Board. formation. The BCNR can provide a re- (a) Deliberations, findings, conclusions, questor with information regarding and recommendations. (1) Only members procedures for requesting copies of of the Board and its staff shall be these records from the appropriate re- present during the deliberations of the tention agency. Board. (2) Whenever, during the course of its § 723.5 Hearing. review of an application, it appears to (a) Convening of board. The Board will the Board’s satisfaction that the facts convene, recess and adjourn at the call have not been fully and fairly disclosed of the Chair or Acting Chair. by the records or by the testimony and (b) Conduct of hearing. (1) The hearing other evidence before it, the Board may shall be conducted by the Chair or Act- require the applicant or military au- ing Chair, and shall be subject to his/ thorities to provide such further infor- her rulings so as to ensure a full and mation as it may consider essential to fair hearing. The Board shall not be a complete and impartial determina- limited by legal rules of evidence but tion of the facts and issues. shall maintain reasonable bounds of (3) Following a hearing, or where the competency, relevancy, and materi- Board determines to recommend that ality. the record be corrected without a hear- (2) If the applicant, after being duly ing, the Board will make written find- notified, indicates to the Board that ings, conclusions and recommenda- he/she does not desire to be present or tions. If denial of relief is rec- to be represented by counsel at the ommended following a hearing, such hearing, the Board will consider the written findings and conclusions will case on the basis of all the material be- include a statement of the grounds for fore it, including, but not limited to, denial as described in § 723.3(e)(4). The the application for correction filed by name and final vote of each Board the applicant, any documentary evi- member will be recorded. A majority dence filed in support of such applica- vote of the members present on any tion, any brief submitted by or in be- matter before the Board will constitute half of the applicant, and all available the action of the Board and shall be so pertinent records. recorded. (3) If the applicant, after being duly (4) Where the Board deems it nec- notified, indicates to the Board that essary to submit comments or rec- he/she will be present or be represented ommendations to the Secretary as to by counsel at the hearing, and without matters arising from but not directly good cause and timely notice to the related to the issues of any case, such Board, the applicant or representative comments and recommendations shall fails to appear at the time and place be the subject of separate communica- set for the hearing or fails to provide tion. Additionally, in Military Whistle- the notice required by § 723.4(b)(2), the blower Protection Act cases, any rec- Board may consider the case in accord- ommendation by the Board to the Sec- ance with the provisions of paragraph retary that disciplinary or administra- (b)(2) of this section, or make such tive action be taken against any Navy other disposition of the case as is ap- official based on the Board’s deter- propriate under the circumstances. mination that the official took reprisal (4) All testimony before the Board action against the applicant will not be shall be given under oath or affirma- made part of the Board’s record of pro- tion. The proceedings of the Board and ceedings or furnished the applicant but the testimony given before it will be will be transmitted to the Secretary as recorded verbatim. a separate communication.
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(b) Minority report. In case of a dis- retary or the Executive Director, war- agreement between members of the rant Secretarial review. Board a minority report will be sub- (3) The Executive Director after en- mitted, either as to the findings, con- suring compliance with this section, clusions or recommendation, including will announce final decisions on appli- the reasons therefor. cations decided under this section. (c) Record of proceedings. Following a hearing, or where the Board determines § 723.7 Action by the Secretary. to recommend that the record be cor- (a) General. The record of pro- rected without a hearing, a record of ceedings, except in cases finalized by proceedings will be prepared. Such the Board under the authority dele- record shall indicate whether or not a gated in § 723.6(e), and those denied by quorum was present, and the name and the Board without a hearing, will be vote of each member present. The forwarded to the Secretary who will di- record shall include the application for rect such action as he or she deter- relief, a verbatim transcript of any tes- mines to be appropriate, which may in- timony, affidavits, papers and docu- clude the return of the record to the ments considered by the Board, briefs Board for further consideration. Those and written arguments, advisory opin- cases returned for further consider- ions, if any, minority reports, if any, ation shall be accompanied by a brief the findings, conclusions and rec- statement setting out the reasons for ommendations of the Board, where ap- such action along with any specific in- propriate, and all other papers, docu- structions. If the Secretary’s decision ments, and reports necessary to reflect is to deny relief, such decision shall be a true and complete history of the pro- in writing and, unless he or she ex- ceedings. pressly adopts in whole or in part the (d) Withdrawal. The Board may per- findings, conclusions and recommenda- mit an applicant to withdraw his/her tions of the Board, or a minority re- application without prejudice at any port, shall include a brief statement of time before its record of proceedings is the grounds for denial. See § 723.3(e)(4). forwarded to the Secretary. (b) Military Whistleblower Protection (e) Delegation of authority to correct Act. The Secretary will ensure that de- certain naval records. (1) With respect to cisions in cases involving the Military all petitions for relief properly before Whistleblower Protection Act are it, the Board is authorized to take final issued 180 days after receipt of the case corrective action on behalf of the Sec- and will, unless the full relief re- retary, unless: quested is granted, inform applicants (i) Comments by proper naval author- of their right to request review of the ity are inconsistent with the Board’s decision by the Secretary of Defense. recommendation; Applicants will also be informed: (ii) The Board’s recommendation is (1) Of the name and address of the of- not unanimous; or ficial to whom the request for review (iii) It is in the category of petitions must be submitted. reserved for decision by the Secretary (2) That the request for review must of the Navy. be submitted within 90 days after re- (2) The following categories of peti- ceipt of the decision by the Secretary tions for relief are reserved for decision of the Navy. by the Secretary of the Navy: (3) That the request for review must (i) Petitions involving records pre- be in writing and include: viously reviewed or acted upon by the (i) The applicant’s name, address and Secretary wherein the operative facts telephone number; remained substantially the same; (ii) A copy of the application to the (ii) Petitions by former commis- Board and the final decision of the Sec- sioned officers or midshipmen to retary of the Navy; and change the character of, and/or the rea- (iii) A statement of the specific rea- son for, their discharge; or, sons the applicant is not satisfied with (iii) Such other petitions as, in the the decision of the Secretary of the determination of Office of the Sec- Navy.
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(4) That the request must be based on (3) Any minority reports; and the Board record; request for review (4) Any material prepared by the Sec- based on factual allegations or evi- retary as required in § 723.7. Moreover, dence not previously presented to the applicant shall also be informed that Board will not be considered under this the name and final vote of each Board paragraph but may be the basis for re- member will be furnished or made consideration by the Board under available upon request and that he/she § 723.9. may submit new and material evidence or other matter for further consider- § 723.8 Staff action. ation. (a) Transmittal of final decisions grant- ing relief. (1) If the final decision of the § 723.9 Reconsideration. Secretary is to grant the applicant’s After final adjudication, further con- request for relief the record of pro- sideration will be granted only upon ceedings shall be returned to the Board presentation by the applicant of new for disposition. The Board shall trans- and material evidence or other matter mit the finalized record of proceedings not previously considered by the to proper naval authority for appro- Board. New evidence is defined as evi- priate action. Similarly final decisions dence not previously considered by the of the Board granting the applicant’s Board and not reasonably available to request for relief under the authority the applicant at the time of the pre- delegated in § 723.6(e), shall also be for- vious application. Evidence is material warded to the proper naval authority if it is likely to have a substantial ef- for appropriate action. fect on the outcome. All requests for (2) The Board shall transmit a copy further consideration will be initially of the record of proceedings to the proper naval authority for filing in the screened by the Executive Director of applicant’s service record except where the Board to determine whether new the effect of such action would be to and material evidence or other matter nullify the relief granted. In such cases (including, but not limited to, any fac- no reference to the Board’s decision tual allegations or arguments why the shall be made in the service record or relief should be granted) has been sub- files of the applicant and all copies of mitted by the applicant. If such evi- the record of proceedings and any re- dence or other matter has been sub- lated papers shall be forwarded to the mitted, the request shall be forwarded Board and retained in a file maintained to the Board for a decision. If no such for this purpose. evidence or other matter has been sub- (3) The addressees of such decisions mitted, the applicant will be informed shall report compliance therewith to that his/her request was not considered the Executive Director. by the Board because it did not contain (4) Upon receipt of the record of pro- new and material evidence or other ceedings after final action by the Sec- matter. retary, or by the Board acting under § 723.10 Settlement of claims. the authority contained in § 723.6(e), the Board shall communicate the deci- (a) Authority. (1) The Department of sion to the applicant. The applicant is the Navy is authorized under 10 U.S.C. entitled, upon request, to receive a 1552 to pay claims for amounts due to copy of the Board’s findings, conclu- applicants as a result of corrections to sions and recommendations. their naval records. (b) Transmittal of final decisions deny- (2) The Department of the Navy is ing relief. If the final decision of the not authorized to pay any claim here- Secretary or the Board is to deny re- tofore compensated by Congress lief, the following materials will be through enactment of a private law, or made available to the applicant: to pay any amount as compensation for (1) A statement of the findings, con- any benefit to which the claimant clusions, and recommendations made might subsequently become entitled by the Board and the reasons therefor; under the laws and regulations admin- (2) Any advisory opinions considered istered by the Secretary of Veterans by the Board; Affairs.
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(b) Application for settlement. (1) Set- claimants involved of any claim tlement and payment of claims shall be against the United States on account made only upon a claim of the person of the correction of the record. whose record has been corrected or (d) Report of settlement. In every case legal representative, heirs at law, or where payment is made, the amount of beneficiaries. Such claim for settle- such payment and the names of the ment and payment may be filed as a payee or payees shall be reported to separate part of the application for cor- the Executive Director. rection of the record. (2) When the person whose record has § 723.11 Miscellaneous provisions. been corrected is deceased, and where (a) Expenses. No expenses of any na- no demand is presented by a duly ap- ture whatsoever voluntarily incurred pointed legal representative of the es- by the applicant, counsel, witnesses, or tate, payments otherwise due shall be by any other person in the applicant’s made to the surviving spouse, heir or behalf, will be paid by the Government. beneficiaries, in the order prescribed by the law applicable to that kind of (b) Indexing of decisions. (1) Docu- payment, or if there is no such law cov- ments sent to each applicant and coun- ering order of payment, in the order set sel in accordance with § 723.3(e)(5) and forth in 10 U.S.C. 2771; or as otherwise § 723.8(a)(4), together with the record of prescribed by the law applicable to the votes of Board members and all that kind of payment. other statements of findings, conclu- (3) Upon request, the applicant or ap- sions and recommendations made on plicants shall be required to furnish final determination of an application requisite information to determine by the Board or the Secretary will be their status as proper parties to the indexed and promptly made available claim for purposes of payment under for public inspection and copying at applicable provisions of law. the Armed Forces Discharge Review/ (c) Settlement. (1) Settlement of Correction Boards Reading Room lo- claims shall be upon the basis of the cated on the Concourse of the Pen- decision and recommendation of the tagon Building in Room 2E123, Wash- Board, as approved by the Secretary or ington, DC. his designee. Computation of the (2) All documents made available for amounts due shall be made by the ap- public inspection and copying shall be propriate disbursing activity. In no indexed in a usable and concise form so case will the amount found due exceed as to enable the public to identify the amount which would otherwise those cases similar in issue together have been paid or have become due with the circumstances under and/or under applicable laws had no error or reasons for which the Board and/or Sec- injustice occurred. Earnings received retary have granted or denied relief. from civilian employment, self employ- The index shall be published quarterly ment or any income protection plan for and shall be available for public inspec- such employment during any period for tion and distribution by sale at the which active duty pay and allowances Reading Room located on the Con- are payable will be deducted from the course of the Pentagon Building in settlement. To the extent authorized Room 2E123, Washington, DC. Inquiries by law and regulation, amounts found concerning the index or the Reading due may be reduced by the amount of Room may be addressed to the Chief, any existing indebtedness to the Gov- Micromation Branch/Armed Forces ernment arising from military service. Discharge Review/Correction Boards (2) Prior to or at the time of pay- Reading Room, Crystal Mall 4, 1941 Jef- ment, the person or persons to whom ferson Davis Highway, Arlington, Vir- payments are to be made shall be ad- ginia 22202. vised by the disbursing activity of the (3) To the extent necessary to pre- nature and amount of the various bene- vent a clearly unwarranted invasion of fits represented by the total settlement personal privacy, identifying details of and shall be advised further that ac- the applicant and other persons will be ceptance of such settlement shall con- deleted from the documents made stitute a complete release by the available for public inspection and
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copying. Names, addresses, social secu- 724.217 Limitation—Reconsiderations. rity numbers and military service 724.218 Limitation—Continuance and Post- numbers must be deleted. Deletions of ponements. other information which is privileged 724.219 Withdrawal of application. 724.220 Review on motion of the NDRB. or classified may be made only if a 724.221 Scheduling of discharge reviews. written statement of the basis for such 724.222 Personal appearance discharge hear- deletion is made available for public ing sites. inspection. 724.223 NDRB support and augmentation by regular and reserve activities. 724.224 Court-martial specifications, pre- PART 724—NAVAL DISCHARGE sumption concerning. REVIEW BOARD Subpart C—Director, Naval Council of Per- Subpart A—Definitions sonnel Boards and President Naval Discharge Review Board; Responsibil- Sec. 724.101 Naval Service. ities in Support of the Naval Discharge 724.102 Naval Discharge Review Board. Review Board 724.103 NDRB panel. 724.301 Mission. 724.104 NDRB Traveling Panel. 724.302 Functions: Director, Naval Council 724.105 President of the NDRB. 724.106 Presiding Officer, NDRB Panel. of Personnel Boards. 724.107 Discharge. 724.303 Functions: President, Naval Dis- 724.108 Administrative discharge. charge Review Board. 724.109 Types of administrative discharges. 724.304 Responsibility for Department of the 724.110 Reason/basis for administrative dis- Navy suppport of the Naval Discharge charge. Review Board. 724.111 Punitive discharge. 724.305 Functions of the CMC and CNO. 724.112 Clemency discharge. 724.306 Functions of the Commander, Naval 724.113 Application. Medical Command. 724.114 Applicant. 724.307 Functions of the Commander, Naval 724.115 Next of kin. Reserve Force. 724.116 Council/representative. 724.117 Discharge review. Subpart D—Principal Elements of the Navy 724.118 Documentary discharge review. Department Discharge Review System 724.119 Personal appearance discharge re- view. 724.401 Applicants. 724.120 National Capital Region (NCR). 724.402 Naval Discharge Review Board. 724.121 Decisional document. 724.403 President, Naval Discharge Review 724.122 Recorder, NDRB Panel. Board. 724.123 Complainant. 724.404 Director, Naval Council of Personnel Boards. Subpart B—Authority/Policy for 724.405 Commandant of the Marine Corps or Departmental Discharge Review the Commander, Naval Military Per- sonnel Command. 724.201 Authority. 724.406 Commander, Naval Medical Com- 724.202 Statutory/Directive Authority. mand. 724.203 Broad objectives of naval discharge 724.407 Commander, Naval Reserve Force. review. 724.408 Secretary of the Navy. 724.204 Eligibility for naval discharge re- view. Subpart E—Procedural Rights of the Appli- 724.205 Authority for review of naval dis- cant and Administrative Actions Pre- charges; jurisdictional limitations. liminary to Discharge Review 724.206 Jurisdictional determinations. 724.207 Disposition of applications for dis- 724.501 Procedural rights of the applicant. charge review. 724.502 Actions to be taken by the applicant 724.208 Implementation of NDRB decisions. preliminary to discharge review. 724.209 Evidence supporting applications. 724.503 NDRB response to application for 724.210 Review action in instances of un- discharge review. available records. 724.504 NDRB actions preliminary to dis- 724.211 Regularity of government affairs. charge review. 724.212 Availability of records. 724.213 Attendance of witnesses. Subpart F—Naval Discharge Review Board 724.214 Applicant’s expenses. Mission and Functions 724.215 Military representation. 724.216 Failure to appear at a hearing or re- 724.601 General. spond to a scheduling notice. 724.602 Mission.
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724.603 Functions. § 724.102 Naval Discharge Review Board. Subpart G—Organization of the Naval Discharge Review Board An administrative board, referred to as the ‘‘NDRB’’ established by the Sec- 724.701 Composition. retary of the Navy pursuant to title 10 724.702 Executive management. U.S.C., section 1553, for the review of 724.703 Legal counsel. discharges of former members of the Subpart H—Procedures of the Naval Naval Service. Discharge Review Board § 724.103 NDRB panel. 724.801 Matters to be considered in dis- An element of the NDRB, consisting charge review. of five members, authorized to review 724.802 Applicant’s responsibilities. 724.803 The decisional document. discharges. In plenary review session, 724.804 Decision process. an NDRB panel acts with the authority 724.805 Response to items submitted as delegated by the Secretary of the Navy issues by the applicant. to the Naval Discharge Review Board. 724.806 Decisional issues. 724.807 Record of NDRB proceedings. § 724.104 NDRB Traveling Panel. 724.808 Issuance of decisions following dis- charge review. An NDRB Panel that travels for the 724.809 Final disposition of the record of purpose of conducting personal appear- proceedings. ances discharge review hearings at lo- 724.810 Availability of Naval Discharge Re- cations outside of the National Capital view Board documents for public inspec- Region (NCR). tion and copying. 724.811 Privacy Act information. § 724.105 President of the NDRB. 724.812 Responsibilities of the Reading Room. A senior officer of the Naval Service 724.813 The recommendation of the NDRB designated by the Secretary of the president. Navy who is responsible for the direct 724.814 Secretarial Review Authority (SRA). supervision of the discharge review 724.815 Complaints. function within the Naval Service. (See Subpart I—Standards for Discharge Review subpart E). 724.901 Objective of discharge review. § 724.106 Presiding Officer, NDRB 724.902 Propriety of the discharge. Panel. 724.903 Equity of the discharge. The senior member of an NDRB APPENDIX A TO PART 724—POLICY STATEMENT Panel shall normally be the Presiding BY THE SECRETARY OF DEFENSE—AD- Officer. He/she shall convene, recess DRESSING CERTAIN CATEGORIES OF DIS- CHARGES and adjourn the NDRB Panel as appro- APPENDIX B TO PART 724—OATH OR AFFIRMA- priate. TION TO BE ADMINISTERED TO DISCHARGE REVIEW BOARD MEMBERS § 724.107 Discharge. APPENDIX C TO PART 724—SAMPLES OF FOR- In the context of the review function MATS EMPLOYED BY THE NAVAL DIS- prescribed by 10 U.S.C. 1553, a discharge CHARGE REVIEW BOARD APPENDIX D TO PART 724—VETERANS’ BENE- or dismissal is a complete separation FITS from the Naval Service, other than one pursuant to the sentence of a general AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 1553. court-martial. By reason of usage, the SOURCE: 50 FR 10943, Mar. 19, 1985, unless term ‘‘discharge’’ is predominantly ap- otherwise noted. plicable to the separation of enlisted personnel for any reason, and the term Subpart A—Definitions ‘‘dismissal’’ to the separation of offi- cers as a result of Secretarial or gen- § 724.101 Naval Service. eral court-martial action. In the con- The Naval Service is comprised of the text of the mission of the NDRB, the uniformed members of the United term ‘‘discharge’’ used here shall, for States Navy and the United States Ma- purpose of ease of expression, include rine Corps, including active and inac- any complete separation from the tive reserve components. naval service other than that pursuant
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to the sentence of general court-mar- (b) When characterization of service tial. The term ‘‘discharge’’ also in- as Honorable is clearly warranted by cludes the type of discharge and the the presence of unusual circumstances reason/basis for that discharge, e.g., including personal conduct and per- Other Than Honorable/Misconduct formance of naval duty and is approved (Civil Conviction). on a case-by-case basis by the Sec- retary of the Navy. This characteriza- § 724.108 Administrative discharge. tion will be considered when the mem- A discharge upon expiration of enlist- ber is separated by reason of Selected ment or required period of service, or Changes in Service Obligation, Conven- prior thereto, in a manner prescribed ience of the Government, or Disability. by the Commandant of the Marine (ii) With respect to administrative Corps or the Commander, Naval Mili- matters outside the administrative tary Personnel Command, but specifi- separation system that require a char- cally excluding separation by sentence acterization of service as Honorable or of a court-martial. General, an Entry Level Separation shall be treated as the required charac- § 724.109 Types of administrative dis- terization. In accordance with 1163 of charges. title 10, United States Code (1982), an (a) A determination reflecting a Entry Level Separation for a member member’s military behavior and per- of a Reserve component separated from formance of duty during a specific pe- the Delayed Entry Program is under riod of service. The three characteriza- honorable conditions. tions are: (b) [Reserved] (1) Honorable. A separation from the naval service with honor. The issuance [50 FR 10943, Mar. 19, 1985, as amended at 51 FR 44909, Dec. 15, 1986] of an Honorable Discharge is contin- gent upon proper military behavior and § 724.110 Reason/basis for administra- performance of duty. tive discharge. (2) Under Honorable Conditions (also The terms ‘‘reason for discharge’’ and termed General Discharge). A separa- tion from the naval service under hon- ‘‘basis for discharge’’ have the same orable conditions. The issuance of a meaning. The first is a Navy term and discharge under honorable conditions the second is a Marine Corps term. is contingent upon military behavior These terms identify why an adminis- and performance of duty which is not trative discharge was issued, e.g., Con- sufficiently meritorious to warrant an venience of the Government, Mis- Honorable Discharge. conduct. Reasons/basis for discharge are found in the Naval Military Per- (3) Under Other Than Honorable Condi- tions (formerly termed Undesirable Dis- sonnel Manual and Marine Corps Sepa- charge). A separation from the naval ration and Retirement Manual as well service under conditions other than as predecessor publications. honorable. It is issued to terminate the § 724.111 Punitive discharge. service of a member of the naval serv- ice for one or more of the reasons/basis A discharge awarded by sentence of a listed in the Naval Military Personnel court-martial. There are two types of Manual, Marine Corps Separation and punitive discharges: Retirement Manual and their prede- (a) Bad conduct. A separation from cessor publications. the naval service under conditions (4) Entry Level Separation. (i) A sepa- other than honorable. It may be ef- ration initiated while a member is in fected only as a result of the approved entry level status will be described as sentence of a general or special court- an Entry Level Separation except in martial. the following circumstances: (b) Dishonorable. A separation from (a) When characterization under the naval service under dishonorable Other Than Honorable Conditions is conditions. It may be effected only as a authorized and is warranted by the cir- result of the approved sentence of a cumstances of the case; or general court-martial.
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§ 724.112 Clemency discharge. (a) Whose case is considered by the NDRB at the request of the former (a) The clemency discharge was cre- member, of, if authorized under ated by the President on September 16, § 724.113, the surviving spouse, next-of- 1974, in his Proclamation 4313, ‘‘An- kin or legal representative, or nouncing a Program for the Return of Vietnam Era Draft Evaders and Mili- (b) Whose case is considered on the tary Deserters.’’ Upon issuance to indi- NDRB’s own motion. viduals who have an undesirable dis- § 724.115 Next of kin. charge or a punitive discharge, a clem- ency discharge serves as a written tes- The person or persons in the highest timonial to the fact that the individual category of priority as determined by has satisfied the requirements of the the following list (categories appear in President’s program, and has fully descending order of priority): Sur- earned his/her return to the main- viving legal spouse; children (whether stream of American society in accord- by current or prior marriage) age 18 ance with that program. years or older in descending precedence (b) The clemency discharge is a neu- by age; father or mother, unless by tral discharge, neither honorable nor court order custody has been vested in less than honorable. It does not effect a another (adoptive parent takes prece- change in the characterization of the dence over natural parent); siblings individual’s military service as havng (whole or half) age 18 years or older in been under other than honorable condi- descending precedence by age; grand- tion, nor does it serves to change, seal, father or grandmother; any other rel- erase or in any way modify the individ- ative (precedence to be determined in ual’s past military record. Therefore, if accordance with the civil law of de- the underlying discharge was issued as scent of the deceased former member’s a result of a general court-martial, the state of domicile at time of death). issuance of a Clemency Discharge does not subject the underlying character- § 724.116 Council/representative. ization to review under 10 U.S.C. 1553. An individual or agency designated Clemency discharges are issued by the by the applicant who agrees to rep- Commander, Naval Military Personnel resent the applicant in a case before Command or the Commandant of the the NDRB. It includes, but is not lim- Marine Corps when an individual has ited to: a lawyer who is a member of met the requirements of the Presi- the bar of a Federal Court or of the dential Proclamation. highest court of a State; an accredited representative designated by an organi- § 724.113 Application. zation recognized by the Administrator In the context of this Manual, a writ- of Veterans Affairs; a representative ten application to the NDRB for the re- from a State agency concerned with view of a discharge submitted by a veterans affairs; or a representative former member of the naval service or, from private organizations or local where a former member is deceased or Government agencies. incompetent, by spouse, next of kin or legal representative. Department of § 724.117 Discharge review. Defense Form 293 must be used for the A nonadversary administrative re- application. appraisal at the level of the Navy De- partment of discharges from the naval § 724.114 Applicant. service. The object of the reappraisal is A former member of the naval serv- to determine whether the discharge ice who has been discharged adminis- should be changed, and if so, the nature tratively in accordance with the direc- of the change. This reappraisal in- tives of the naval service or by sen- cludes the type and reason/basis for tence of a special court-martial under separation, the procedures followed in title 10 U.S.C. 801 et seq. (Uniform Code accomplishing separation, and the of Military Justice) and, in accordance characterization of service. This term with statutory and regulatory provi- includes determinations made under sions: the provisions of 38 U.S.C. 3103(2).
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§ 724.118 Documentary discharge re- § 724.123 Complainant. view. A former member of the Armed A formal session of the NDRB con- Forces (or the former member’s coun- vened for the purpose of reviewing, on sel) who submits a complaint under 32 the basis of documentary data, an ap- CFR Part 70 with respect to the plicant’s discharge. The Documentary decisional document issued in the data shall include the application to- former member’s own case; or a former gether with all information accom- member of the Armed Forces (or the panying that application, available former member’s counsel) who submits service and medical records, and any a complaint under reference (b) stating other information considered relevant that correction of the decisional docu- by the NDRB. ment will assist the former member in preparing for an administrative or judi- § 724.119 Personal appearance dis- cial proceeding in which the former charge review. member’s own discharge will be at A formal session of the NDRB con- issue. vened for the purpose of reviewing an applicant’s discharge on the basis of a Subpart B—Authority/Policy for personal appearance, as well as docu- Departmental Discharge Review mentary data. The personal appearance may be by the applicant or by a rep- § 724.201 Authority. resentative of the applicant, or both. The Naval Discharge Review Board, established pursuant to 10 U.S.C. 1553, § 724.120 National Capital Region is a component of the Naval Council of (NCR). Personnel Boards. By SECNAVINST The District of Columbia; Prince 5430.7L, the Assistant Secretary of the Georges and Montgomery Counties in Navy (Manpower and Reserve Affairs) Maryland; Arlington, Fairfax, is authorized and directed to act for Loudoun, and Prince William Counties the Secretary of the Navy within his in Virginia; and all cities and towns in- assigned area of responsibility and ex- cluded within the outer boundaries of ercises oversight over the Naval Coun- the foregoing counties. cil of Personnel Boards. SECNAVINST 5420.135C of July 15, 1983 states the or- § 724.121 Decisional document. ganization, mission, duties and respon- The written recordation of the appli- sibilities of the Naval Council of Per- cant’s summary of service, the issue or sonnel Boards to include the Naval Dis- issues presented together with any evi- charge Review Board. The Chief of dence offered in support of the applica- Naval Operations established the Office tion, the NDRB’s response to the issue of Naval Disability Evaluation and or issues, the votes of the members of Navy Council of Personnel Boards on 1 the panel, and any recommendations or October 1976 (OPNAVNOTE 5450 Ser responses by the President of the 09B26/535376 of 9 Sep 1976 (Canc frp: Apr NDRB or the Secretarial Reviewing 77)). The Chief of Naval Operations ap- Authority (SRA). The decisional docu- proved the change in name of the Of- ment is promulgated by the ‘‘en bloc fice of Naval Disability Evaluation and letter’’. Navy Council of Personnel Boards to Naval Council of Personnel Boards on 1 § 724.122 Recorder, NDRB Panel. February 1977 (OPNAVNOTE 5450 Ser A panel member responsible for brief- 09B26/32648 of 24 Jan 1977 (Canc frp: Jul ing an applicant’s case from the docu- 77)) with the following mission state- mentary evidence available prior to a ment: discharge review, presenting the brief To administer and supervise assigned to the panel considering the applica- boards and councils. tion, performing other designated func- tions during personal appearance dis- § 724.202 Statutory/Directive Author- charge hearings, and drafting the ity. decisional document subsequent to the The NDRB, in its conduct of dis- hearing. charge review, shall be guided by the
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applicable statutes, regulations, and session for the purpose of such use for manuals and directives of the Depart- those discharges executed as a result of ment of the Navy, and other written a case completed or in process on or be- public expressions of policy by com- fore July 7, 1971. (See appendix B). petent authority: (e) 32 CFR part 41. This prescribes pol- (a) 10 U.S.C. 1553, Review of discharge icy, standards and procedures which or dismissal: govern the administrative separation (1) ‘‘The Secretary concerned shall, of enlisted persons from the Armed after consulting the Administrator of Forces. Veterans’ Affairs, establish a board of review, consisting of five members, to § 724.203 Broad objectives of naval dis- review the discharge or dismissal charge review. (other than a discharge or dismissal by Naval discharge review shall have as sentence of a general court-martial) of its broad objectives: any former member of an armed force (a) The furtherance of good order and under the jurisdiction of his depart- discipline. ment upon its own motion or upon the (b) The correction of injustice or in- request of the former member or, if he equity in the discharge issued. is dead, his surviving spouse, next of (c) The correction of administrative kin, or legal representative. A motion or clerical errors. or request for review must be made within 15 years after the date of the § 724.204 Eligibility for naval dis- discharge or dismissal.’’ charge review. (2) A board established under this Any former member of the Naval section may, subject to review by the Service, eligible for review under ref- Secretary concerned, change a dis- erence (a) or surviving spouse, next of charge or dismissal, or issue a new dis- kin or legal representative, shall upon charge, to reflect its findings. submission of an application be af- (3) A review by the board established forded a review of the member’s dis- under this section shall be based on the charge from the Naval Service as pro- records of the armed forces concerned vided in §§ 724.205 and 724.206. Discharge and such other evidence as may be pre- review may also be initiated on the sented to the board. A witness may motion of the NDRB (See § 724.220). present evidence to the board in person or by affidavit. A person who requests § 724.205 Authority for review of naval a review under this section may appear discharges; jurisdictional limita- before the board in person or by coun- tions. sel or an accredited representative or an organization recognized by the Ad- (a) The Board shall have no authority ministrator of Veterans’ Affairs under to: title 38 U.S.C. 3401 et seq.’’. (1) Review a discharge or dismissal (b) Pub. L. 95–126. See appendix D. resulting from a general court-martial; (c) 32 CFR part 70. This provides for (2) Alter the judgment of a court- uniform standards and procedures for martial, except the discharge or dis- review of discharges from the military missal awarded may be changed for services of the Department of Defense. purposes of clemency; The provisions of 32 CFR part 70 are in- (3) Revoke any discharge or dis- corporated in this Manual. missal; (d) The Secretary of Defense memo- (4) Reinstate a person in the naval randa dated August 13, 1971 and April 28, service; 1972 (NOTAL). These directed a review (5) Recall a former member to active for recharacterization of (1) adminis- duty; trative discharges under other than (6) Change a reenlistment code; honorable conditions issued solely on (7) Make recommendations for reen- the basis of personal use of drugs or listment to permit entry in the naval possession of drugs for the purpose of service or any other branch of the such use, and (2) punitive discharges Armed Forces; and dismissals issued solely for convic- (8) Cancel or void enlistment con- tion of personal use of drugs and pos- tracts; or
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(9) Change the reason for discharge § 724.209 Evidence supporting applica- from or to a physical disability tions. (b) Review of naval discharges shall In the absence of law, evidence or not be undertaken in instances where policy to the contrary, naval dis- the elapsed time between the date of charges shall be considered just, equi- discharge and the date of receipt of ap- table and proper as issued. When hear- plication for review exceeds fifteen ings are scheduled, applicants must be years. prepared to present their case at the scheduled time. In the absence of any § 724.206 Jurisdictional determina- other evidence, naval discharge review tions. shall be undertaken by examination of The determination as to whether the available service and health records of NDRB has jurisdiction in any case the applicant. Normally, the responsi- shall be predicated on the policy stated bility for presenting evidence from out- in § 724.205. Decisions shall be made by side available service and health administrative action without referral records shall rest with the applicant. to the NDRB. Normally, they shall be Applications in which elements of rel- made by the Executive Secretary of the evant information are obviously omit- NDRB, or they may be referred to the ted will be returned for completion and President, NDRB. resubmission.
§ 724.207 Disposition of applications § 724.210 Review action in instances of for discharge review. unavailable records. One of three dispositions will be (a) In the event that Department of made of an application for review of a the Navy personnel or health records discharge: associated with a requested review of (a) The application may be rejected discharge are not located at the custo- for reason of: dial activity, the following action shall be taken by the NDRB prior to consid- (1) Absence of jurisdiction; eration of the request for discharge re- (2) Previous review on the same evi- view. dence; or (1) A certification that the records (b) The application may be with- are unavailable shall be obtained from drawn by the applicant; or the custodial activity. (c) The application may be accepted (2) The applicant shall be notified of and the discharge reviewed by the the situation and requested to provide NDRB, resulting in, such information and documents as (1) Change to the discharge, or may be desired in support of the re- (2) No change. quest for discharge review. A period of not less than 30 days shall be allowed § 724.208 Implementation of NDRB de- for such documents to be submitted. At cisions. the expiration of this time period, the The Commandant of the Marine review may be conducted with informa- Corps and the Chief of Naval Oper- tion available to the NDRB. ations are responsible for imple- (3) The presumption of regularity in menting Naval Discharge Review Board the conduct of government affairs may decisions within their respective serv- be applicable in instances of unavail- ices. The Commandant of the Marine able records depending on the cir- Corps shall be notified of decisions in cumstances of the case. (See § 724.211) each discharge review case and shall (b) [Reserved] implement the decisions within the Marine Corps. The Commander, Naval § 724.211 Regularity of government af- Military Personnel Command, acting fairs. for the Chief of Naval Operations and There is a presumption of regularity Chief of Naval Personnel, shall be noti- in the conduct of governmental affairs. fied of decisions in each discharge re- This presumption can be applied in any view case and shall implement the de- review unless there is substantial cred- cisions within the Navy. ible evidence to rebut the presumption.
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§ 724.212 Availability of records. fied and requested to provide such in- (a) Before applying for discharge re- formation and documents as may be view, potential applicants or their des- desired in support of the request for ignated representatives may obtain discharge review. A period of not less copies of their military personnel than 60 days shall be allowed for such records by submitting a General Serv- documents to be submitted. At the ex- ices Administration Standard Form piration of this period, the review may 180, ‘‘Request Pertaining to Military be conducted with information avail- Records,’’ to the National Personnel able to the NDRB. Records Center (NPRC), 9700 Page Bou- (d) The NDRB may take steps to ob- levard, St. Louis, MO 63132. Once the tain additional evidence that is rel- application for discharge review (DD evant to the discharge under consider- Form 293) is submitted, an applicant’s ation beyond that found in the official military records are forwarded to the military records or submitted by the NDRB where they cannot be repro- applicant, if a review of available evi- duced. Submission of a request for an dence suggests that it would be incom- applicant’s military records, including plete without the additional informa- a request under the Freedom of Infor- tion, or when the applicant presents mation Act (5 U.S.C. 552) or Privacy testimony or documents that require Act (5 U.S.C. 552a) after the DD Form additional information to evaluate 293 has been submitted, shall result properly. Such information shall be automatically in the temporary sus- made available to the applicant, upon pension of processing of the application request, with appropriate modifica- for discharge review until the re- tions regarding classified material. quested records are sent to an appro- (1) In any case heard on request of an priate location for copying, are copied, applicant, the NDRB shall provide the and are returned to the headquarters of applicant and counsel or representa- the NDRB. Processing of the applica- tive, if any, at a reasonable time before tion shall then be resumed at whatever initiating the decision process, a notice stage of the discharge review process is of the availability of all regulations practicable. Applicants are encouraged and documents to be considered in the to submit any request for their mili- tary records before applying for dis- discharge review, except for documents charge review rather than after sub- in the official personnel or medical mitting DD Form 293 to avoid delays in records and any documents submitted processing of applications and sched- by the applicant. The NDRB shall also uling of reviews. Applicants and their notify the applicant or counsel or rep- counsel may also examine their mili- resentative: (a) of the right to examine tary personnel records at the site of such documents or to be provided with their scheduled review before the hear- copies of the documents upon request; ing. The NDRB shall notify applicants (b) of the date by which such requests of the dates the records are available must be received; and (c) of the oppor- for examination in their standard tunity to respond within a reasonable scheduling information. period of time to be set by the NDRB. (b) If the NDRB is not authorized to (2) When necessary to acquaint the provide copies of documents that are applicant with the substance of a clas- under the cognizance of another gov- sified document, the classifying au- ernment department, office, or activ- thority, on the request of the NDRB, ity, applications for such information shall prepare a summary of or an ex- must be made by the applicant to the tract from the document, deleting all cognizant authority. The NDRB shall references to sources of information advise the applicant of the mailing ad- and other matters, the disclosure of dress of the government department, which, in the opinion of the classifying office, or activity to which the request authority, would be detrimental to the should be submitted. national security interests of the (c) If the official records relevant to United States. Should preparation of the discharge review are not available such summary be deemed impracti- at the agency having custody of the cable by the classifying authority, in- records, the applicant shall be so noti- formation from the classified source
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shall not be considered by the NDRB in prior, timely request for a continu- its review of the case. ation, postponement, or withdrawal. (e) Regulations of a military depart- (b) In such cases, the applicant shall ment may be obtained at many instal- be deemed to have waived the right to lations under the jurisdiction of the a hearing, and the NDRB shall com- Military Department concerned or by plete its review of the discharge. Fur- writing to the following address: DA ther request for a hearing shall not be Military Review Boards Agency, Atten- granted unless the applicant can dem- tion: SFBA (Reading Room), Room onstrate that the failure to appear or 1E520, The Pentagon, Washington, DC respond was due to circumstances be- 20310. yond the applicant’s control.
§ 724.213 Attendance of witnesses. § 724.217 Limitation—Reconsider- Arrangement for attendance of wit- ations. nesses testifying in behalf of the appli- A discharge review shall not be sub- cant at discharge review hearings is ject to reconsideration except: the responsibility of the applicant. The (a) When the only previous consider- NDRB is not authorized to subpoena or ation of the case was on the motion of otherwise require their presence. the NDRB; (b) When the original discharge re- § 724.214 Applicant’s expenses. view did not involve a personal hearing Unless otherwise specified by law or and a hearing is now desired, and the regulation, expenses incurred by the provisions of § 724.216 do not apply; applicant, witnesses, or counsel/rep- (c) When changes in discharge policy resentative will not be paid by the De- are announced after an earlier review partment of Defense. The NDRB is not of an applicant’s discharge, and the authorized to issue orders or other new policy is made expressly retro- process to enable the applicant to ap- active; pear in person. (d) When the NDRB determines that policies and procedures under which § 724.215 Military representation. the applicant was discharged differ in Military officers, except those acting material respects from policies and pursuant to specific detailing by appro- procedures currently applicable on a priate authorities desiring to act for or service-wide basis to discharges of the on behalf of an applicant in the presen- type under consideration, provided tation of a case before an NDRB Panel that such changes in policies or proce- are advised to consult legal counsel be- dures represent a substantial enhance- fore undertaking such representation. ment of the rights afforded an appli- Such representation may be prohibited cant in such proceedings; by 18 U.S.C. 205. (e) When an individual is to be rep- resented by counsel or representative, § 724.216 Failure to appear at a hear- and was not so represented in any pre- ing or respond to a scheduling no- vious consideration of the case by the tice. NDRB; (a) Except as otherwise authorized by (f) When the case was not previously the Secretary concerned, further op- considered under uniform standards portunity for a hearing shall not be published pursuant to Pub. L. 95–126 made available in the following cir- and such application is made within 15 cumstances to an applicant who has re- years after the date of discharge; or quested a hearing: (g) On the basis of presentation of (1) When the applicant has been sent new, substantial, relevant evidence not a letter containing the month and loca- available to the applicant at the time tion of a proposed hearing and fails to of the original review. The decision make a timely response; or whether evidence offered by an appli- (2) When the applicant, after being cant in support of a request for recon- notified by letter of the time and place sideration is in fact new, substantial, of the hearing, fails to appear at the relevant, and was not available to the appointed time, either in person or by applicant at the time of the original representative, without having made a review will be based on a comparison of
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such evidence with the evidence con- place. This notice shall normally be sidered in the previous discharge re- mailed thirty to sixty days prior to the view. If this comparison shows that the date of the hearing. If the applicant evidence submitted would have had a elects, this time limit may be waived probable effect on matters concerning and an earlier date set. the propriety or equity of the dis- (c) When an applicant requests a doc- charge, the request for reconsideration umentary review, the NDRB shall un- shall be granted. dertake the review as soon as prac- ticable. Normally, documentary re- § 724.218 Limitation—Continuance and views shall be conducted in the order in Postponements. which they are received. (a) A continuance of a discharge re- view hearing may be authorized by the § 724.222 Personal appearance dis- President of the NDRB or presiding of- charge hearing sites. ficer of the panel concerned, provided (a) The NDRB shall be permanently that such continuance is of reasonable located, together with its administra- duration and is essential to achieving a tive staff, in the NCR. The NDRB shall full and fair hearing. When a proposal routinely conduct personal appearance for continuance is indefinite, the pend- discharge reviews and documentary re- ing application shall be returned to the views at this, its permanent office. applicant with the option to resubmit (b) In addition, as permitted by avail- when the case is fully ready for review. (b) Postponements of scheduled re- able resources, NDRB Panels shall views normally shall not be permitted travel to other selected sites within other than for demonstrated good and the contiguous 48 states for the pur- sufficient reason set forth by the appli- pose of conducting reviews. The selec- cant in a timely manner or for the con- tion of sites and frequency of visits venience of the government. shall be predicated on the number of requests pending within a region and § 724.219 Withdrawal of application. the availability of resources. An applicant shall be permitted to § 724.223 NDRB support and aug- withdraw an application without preju- mentation by regular and reserve dice at any time before the scheduled activities. review, except that failure to appear for a scheduled hearing shall not be (a) When an NDRB Panel travels for construed or accepted as a withdrawal. the purpose of conducting hearings, it shall normally select Navy or Marine § 724.220 Review on motion of the Corps installations in the area visited NDRB. as review sites. Reviews of Naval discharges may be (b) The NDRB Traveling Board shall initiated by the NDRB on its own mo- normally consist of members from the tion (10 U.S.C. 1553) which includes re- NCPB and augmentees from regular views requested by the Veterans Ad- and reserve Navy and Marine Corps ministration under 38 U.S.C. 101, 3103 as sources, as required. amended by Pub. L. 95–126 of October 8, (c) Navy and Marine Corps activities 1977 (See Pub. L. 98–209). in the geographical vicinity of selected review sites shall provide administra- § 724.221 Scheduling of discharge re- tive support and augmentation to an views. NDRB Panel during its visit where (a) If an applicant requests a personal such assistance can be undertaken appearance discharge review, or to be without interference with mission ac- represented in absentia, the NDRB complishment. The NDRB shall coordi- shall provide a hearing in the NCR or nate requests for augmentees and ad- at another site within the forty-eight ministrative support through Com- contiguous states. mandant of the Marine Corps or the (b) The NDRB shall subsequently no- Chief of Naval Reserve, as appropriate. tify the applicant and representative (d) The administrative staff of the (if any) in writing of the proposed per- NCPB shall undertake all arrange- sonal appearance hearing time and ments for NDRB Traveling Panel visits
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and shall process associated review stated in the charge sheet; or that the documents. applicant/accused admitted guilt of the offense(s), then the presumption is § 724.224 Court-martial specifications, strengthened. In accordance with para- presumption concerning. graph B12f of enclosure (3) to 32 CFR (a) Relevant and material facts stat- part 70 the presumption may be rebut- ed in a court-martial specification, ted by ‘‘substantial credible evidence.’’ shall be presumed by the NDRB Panel as established facts. With respect to a discharge or dismissal adjudged by a Subpart C—Director, Naval Coun- court-martial case tried under the Uni- cil of Personnel Boards and form Code of Military Justice, the ac- President Naval Discharge Re- tion may extend only to change in the view Board; Responsibilities in discharge or dismissal for purposes of Support of the Naval Dis- clemency. This policy only applies to cases filed with the discharge review charge Review Board board after December 6, 1983. § 724.301 Mission. (b) Relevant and material facts stat- ed in a court-martial specification, in To administer and supervise assigned the face of which the applicant re- boards and councils within the Depart- quested a discharge for the good of the ment of the Navy. service to avoid trial by court-martial, shall be considered in accordance with § 724.302 Functions: Director, Naval the following: Council of Personnel Boards. (1) If the applicant/accused was re- (a) Make recommendations to the quired to admit the facts contained in Secretary of the Navy regarding orga- the charge sheet, or if the discharge nization, tasking and resources of the authority was required to find that the NDRB and its associated administra- stated facts were true, then the NDRB tive support. can presume the truth of such facts, unless there is a substantial credible (b) Submit recommendations to the evidence to rebut this presumption; or Secretary of the Navy regarding policy (2) If the discharge in lieu of court- and procedures for discharge review. martial only required a valid preferral, (c) Provide administrative and cler- the NDRB may presume that the signer ical support for NDRB. either had personal knowledge of, or (d) Inform the Secretary of the Navy had investigated the matters set forth, of matters of interest to him. and that the charges were true in fact (e) Maintain a system of records, in- to the best of the signer’s knowledge cluding as a minimum: and belief.1 The weight to be given this (1) Records specified for the NDRB as presumption in determining whether stipulated in the procedures prescribed the facts stated in the charge sheet are in subpart H of this Manual. true is a matter to be determined by (2) Records required for the adminis- the NDRB. To the extent that the dis- tration of military and civilian per- charge proceeding reflects an official determination that the facts stated in sonnel. the charge sheet are true; that the ap- (3) Files of correspondence received plicant/accused admitted the facts and issued. (f) Establish billet/position assign- 1 Charges may be preferred by any person ment criteria for the NDRB. subject to the Uniform Code of Military Jus- (g) Propose to the Secretary of the tice. The charges must be signed and sworn Navy, changes to this instruction. to before a commissioned officer authorized (h) Issue requisite precepts and re- to administer oaths, and shall state that the signer has personal knowledge of, or has in- move or add members to the NDRB vestigated the matters set forth therein; and from personnel detailed to serve on the that the charges are true in fact to the best Naval Council of Personnel Boards, or of the signer’s knowledge and belief. 10 from personnel otherwise made avail- U.S.C. 830 (1976) (Art. 30 Uniform Code of able. Military Justice).
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§ 724.303 Functions: President, Naval § 724.305 Functions of the CMC and Discharge Review Board. CNO. (a) Exercise primary cognizance In the case of Navy, CNMPC, under within the Department of the Navy for the CNP, shall discharge responsibil- matters relating to discharge review. ities of the CNO. (b) Supervise and direct the activi- (a) Provide and facilitate access by ties of the NDRB. the NDRB to service/health records and (c) Maintain appropriate liaison with other data associated with performance discharge review activities in other of duty of applicants. services (use Army Discharge Review (b) Advise the NDRB of developments Board as focal point for service coordi- in personnel management which may have a bearing on discharge review nation). judgments. (d) Maintain coordination with the (c) Implement the discharge review Commandant of the Marine Corps decisions of the NDRB and those of (Code M) and the Commander, Naval higher authority within respective Military Personnel Command in mat- areas of cognizance. ters associated with discharge review. (d) Include the record of NDRB pro- (e) In conformance with ceedings as a permanent part of the SECNAVINST 5211.5C, protect the pri- service record of the applicant in each vacy of individuals in connection with case. discharge review. (e) Where appropriate, recommend (f) Assure that NDRB functions are cases for the NDRB to review on its administered in accordance with the own motion. appropriate Secretary of the Navy in- (f) Provide qualified personnel as structions dealing with privacy and ac- NDRB members, recorders and admin- cess to information. istrative staff. (g) Convene the NDRB as authorized (g) Establish administrative proce- by the Secretary of the Navy. dures to ensure that if a member is sep- (h) Direct the movement of the arated from the Navy or the Marine NDRB Traveling Panel(s) on the basis Corps under other than fully honorable of regional hearing requests. conditions, the member is advised of: (i) Monitor the performance of the (1) The right to a review of his or her naval discharge review system. Make discharge under provisions of 10 U.S.C. recommendations for changes and im- 1553, and provements. Take action to avoid (2) The procedures for applying for such a review. delays in processing of individual dis- (h) Provide Navy and Marine Corps charge review actions. units and activities with information (j) Provide NDRB inputs for the on the mission of the Naval Discharge maintenance of a public reading file Review Board through entries in appro- and maintain associated NDRB indexes priate personnel administration direc- updated quarterly. tives.
§ 724.304 Responsibility for Depart- § 724.306 Functions of the Commander, ment of the Navy support of the Naval Medical Command. Naval Discharge Review Board. Under the CNO the The Commandant of the Marine COMNAVMEDCOM shall facilitate, as Corps; Commander, Naval Military required, access by the NDRB to health Personnel Command; Commander, records of applicants. Naval Reserve Force; Commander, Naval Medical Command; and chiefs of § 724.307 Functions of the Commander, other bureaus and offices of the De- Naval Reserve Force. partment of the Navy shall provide In the case of Navy, the support, as requested, to the Naval dis- COMNAVRESFOR shall discharge the charge review process. responsibilities of the CNO—
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(a) Upon request and within available Subpart E—Procedural Rights of resources, provide qualified inactive the Applicant and Administra- duty reservists to serve as members of tive Actions Preliminary to Dis- the NDRB. (b) Upon request, provide appropriate charge Review accommodations to the NDRB Trav- § 724.501 Procedural rights of the ap- eling Panels for purposes of conducting plicant. reviews at Naval and Marine Corps Re- serve Centers and aviation facilities. Each applicant has the following pro- cedural rights: (a) Within 15 years after the date of Subpart D—Principal Elements of discharge, to make a written request the Navy Department Dis- for review of the applicant’s discharge charge Review System if the discharge was other than the re- sult of a general court-martial. The re- § 724.401 Applicants. quest may include such other state- As defined in § 724.114. ments, affidavits, or documentation as desired. § 724.402 Naval Discharge Review (b) To have that review conducted by Board. the NDRB either in the NCR or other As defined in § 724.102. designated location, when a personal appearance discharge review is desired. § 724.403 President, Naval Discharge (c) To appear before the NDRB in per- Review Board. son, with or without counsel/represent- Supervises the Naval Discharge Re- ative; with counsel/representative con- view Board. (See subpart C). currence, to have counsel/representa- tive present the applicant’s case in the § 724.404 Director, Naval Council of absence of the applicant; or to have the Personnel Boards. review conducted based on records and Exercises adminstrative control and any additional documentation sub- oversight of the Naval discharge review mitted by the applicant or counsel/rep- process. (See subpart C). resentative. (d) To request copies of any docu- § 724.405 Commandant of the Marine ments or other evidence to be consid- Corps or the Commander, Naval ered by the NDRB in the review of the Military Personnel Command. applicant’s discharge or dismissal Personnel managers of the Marine other than the documents or evidence Corps and the Navy; responsible for contained in the official record or sub- providing limited support to the Naval mitted by the applicant prior to the Discharge Review Board and for imple- conduct of the formal review and to be mentation of departmental discharge afforded an opportunity to examine review decisions. (See subpart C). such other documents or evidence or to be provided with copies of them. § 724.406 Commander, Naval Medical (e) To withdrawn the request for dis- Command. charge review without prejudice at any Custodian of Navy and Marine Corps time prior to the scheduled review, ex- health records. (See subpart C). cept that failure to appear for a sched- uled hearing shall not be construed or § 724.407 Commander, Naval Reserve accepted as a withdrawal. Force. (f) To request a continuance of the Manages Naval Reserve resources. review when the continuance is of a Responsible for providing limited sup- reasonable duration and essential to port to the Naval Discharge Review achieving a full and fair hearing. The Board. (See subpart C). request must indicate the reason why the continuance is required. § 724.408 Secretary of the Navy. (g) To request postponement of the The final authority within the De- discharge review for good and suffi- partment of the Navy in discharge re- cient reason set forth in a timely man- view. ner.
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(h) To request reconsideration of the ized individual as discussed in § 724.113 discharge review under the conditions of this Manual. set forth in § 724.217. (b) The application is to be accom- (i) To have access to the information panied by: to be considered by the NDRB prior to (1) A copy of the certificate of dis- the actual review of the applicant’s charge, if available; case. (2) A copy of the Armed Forces of the (j) To have the applicant’s right to United States Report of Transfer or privacy protected in any review con- Discharge (DD–214), if available; ducted by the NDRB. (3) Certification of death, incom- (k) When appearing personally before petency and evidence of relationship in the NDRB: applicable cases (§ 724.113); (1) To introduce witnesses, docu- (4) Other statements, affidavits, ments, and sworn or unsworn testi- depositions, documents and informa- mony. tion desired by the applicant to be con- (2) To present oral or written argu- sidered by the NDRB. ments personally or through counsel/ (c) Correspondence relating to review representative. of naval discharges should be addressed to: (l) To submit documents, affidavits, briefs or arguments in writing. When Naval Discharge Review Board, Suite 905— the counsel/representative appears in 801 North Randolph Street, Arlington, VA person before the NDRB, arguments 22203 may be presented orally. (d) NDRB telephone number is (202) (m) To state clearly and specifically 696–4881. the issue or issues which the applicant desires the NDRB to answer in writing. § 724.503 NDRB response to applica- These must be presented in writing on tion for discharge review. DD Form 293 by the applicant or coun- (a) The NDRB shall acknowledge re- sel/representative. ceipt of the application. (n) To have the applicant’s discharge (b) In the event a documentary re- reviewed under the standards of equity view is requested, the applicant shall and propriety outlined in subpart I. normally receive no further commu- (o) To be provided with a written de- nication from the NDRB until notified cision on the applicant’s review. of the decision in the case. (p) If the case is to be forwarded for (c) In the event a personal appear- Secretarial review, to present a timely ance discharge review is requested, the statement rebutting any findings, con- applicant shall be notified of the pro- clusions, or reasons of the NDRB or the posed time and place of this review and President, NDRB, which are alleged to shall be advised of the availability of be erroneous on the facts, against the the official documents to be considered substantial weight of the evidence, or by the NDRB. contrary to law or governing regula- (d) A copy of NDRB correspondence tion, prior to that Secretarial review. to an applicant shall be sent to the rep- resentative of record, if any. § 724.502 Actions to be taken by the applicant preliminary to discharge § 724.504 NDRB actions preliminary to review. discharge review. (a) Application for Review of Discharge (a) When each application for dis- or Dismissal from the Armed Forces of the charge review is received by the NDRB, United States, DD Form 293 must be the service record and health record of used in requesting a discharge review. the applicant will be requested from DD Form 293 is available at most mili- the appropriate record custodian. tary installations and regional offices (b) Upon receipt, each record of serv- of the Veterans Administration. This ice will be reviewed to determine form is to be signed personally by the whether or not the applicant appears applicant. In the event the discharged to have been discharged under cir- individual is deceased or incompetent, cumstances which might act as a bar the form must be signed by an author- to Veterans’ Administration benefits
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under 38 U.S.C. 3103. These cir- cated on the number of pending appli- cumstances of discharge are: cations accumulated from a given geo- (1) Discharge or dismissal by reason graphical area and the resources avail- of the sentence of a general court-mar- able to support distant personal ap- tial. pearance reviews. The NDRB does not (2) Discharge as a conscientious ob- maintain facilities other than at its jector who refused to perform military NCR offices. The primary sites of NCR duty, to wear the uniform or otherwise are: Chicago, IL; Dallas, TX; and San to comply with lawful orders of com- Francisco, CA. petent military authority. (3) Discharge as a deserter. § 724.602 Mission. (4) Discharge on the basis, or as part To decide, in accordance with stand- of the basis, of an absence without au- ards of naval law and discipline and the thority from active duty for a contin- standards for discharge review set uous period of at least 180 days, if such forth in subpart I, whether a discharge discharge was under conditions other or dismissal from the naval service is than honorable. Additionally, such ab- proper and equitable, or whether it sence is computed without regard to should be changed. the applicant’s normal or adjusted ex- piration of term of service. § 724.603 Functions. (5) Discharge or dismissal of an offi- cer based on acceptance of the officer’s (a) Meet as frequently as necessary resignation for the good of the service. to provide expeditious review of naval (6) Discharge, on his/her own applica- discharges. tion, during a period of hostilities, as (b) Meet at locations within the 48 an alien. contiguous states as determined appro- (c) If it appears that the applicant priate on the basis of the number of was discharged under one or more of discharge review applications received the circumstances outlined in from various geographical areas and of § 724.504b, a written notification will be available resources and facilities. sent which informs the applicant that: (c) Review applications for review of (1) An initial service record review discharges. reveals that the discharge may have (d) In consonance with directives of been awarded under circumstances higher authority and the policies set which make the applicant ineligible for forth in this Manual, grant or deny receipt of VA benefits regardless of any change of discharges. action taken by the NDRB. (e) Promulgate decisions in a timely (2) Separate action by the Board for manner. Correction of Naval Records (BCNR) (f) Maintain a system of records. and/or the VA, in case of 180 days con- (g) Maintain liaison in discharge re- secutive UA disqualification, may con- view matters with: fer eligibility for VA benefits. Instruc- (1) General Counsel of the Navy. tions for making application to the (2) Commandant of the Marine Corps. BCNR and for contacting the VA are (3) Chief of Naval Operations. provided. (i) Commander, Naval Reserve Force. (ii) Commander, Naval Medical Com- Subpart F—Naval Discharge Re- mand. view Board Mission and Func- (iii) Commander, Naval Military Per- tions sonnel Command, under the Chief of Naval Personnel. § 724.601 General. (4) Judge Advocate General of the The NDRB is a component of the Navy. Naval Council of Personnel Boards and (5) Veterans’ service organizations. has its offices located in the NCR. The (6) Discharge review boards of the NDRB conducts documentary reviews other services, using the Army Dis- and personal appearance reviews in the charge Review Board as the focal point NCR and, on a traveling basis, at se- for service coordination. lected sites within the 48 contiguous (h) Protect the privacy of individuals states. Regional site selection is predi- whose records are reviewed.
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(i) Maintain for public access a read- NDRB may request advisory opinions ing file and associated index of records from staff offices of the Department of of NDRB proceedings in all reviews un- the Navy, including, but not limited to dertaken subsequent to July 1, 1975. the General Counsel and the Judge Ad- vocate General. Subpart G—Organization of the Naval Discharge Review Board Subpart H—Procedures of Naval Discharge Review Board § 724.701 Composition. The NDRB acting in plenary review § 724.801 Matters to be considered in session shall be composed of five mem- discharge review. bers. Normally the members shall be In the process of its review of dis- career military officers, assigned to charges, the NDRB shall examine the Naval Council of Personnel Boards available records and pertinent regula- or otherwise made available; inactive tions of the Department of the Navy, duty officers of the Navy and Marine together with such information as may Corps Reserve may serve as members be presented by the applicant and/or when designated to do so by the Presi- representative, which will normally in- dent, NDRB. clude: (a) Presiding officers of the NDRB (a) The application for discharge re- shall normally be Navy or Marine view; Corps officers in the grade of Captain/ (b) Statements, affidavits or docu- Colonel or above. mentation, if any, accompanying the (b) The remaining NDRB membership application or presented during hear- shall normally be not less than the ings; grade of Lieutenant Commander/Major (c) Testimony, if any, presented dur- with preference being given to senior ing hearings; grades. (d) Service and health records; (c) At least three of the five members (e) A brief of pertinent facts ex- of the NDRB shall belong to the service tracted from the service and health from which the applicant whose case is records, prepared by the NDRB re- under review was discharged. corder. (d) Individual membership in the NDRB may vary within the limitations § 724.802 Applicant’s responsibilities. of the prescribed composition. (a) Request for change of discharge. An (e) Any member of a panel of the applicant may request a change in the NDRB other than the presiding officer character of or reason for discharge (or may act as recorder for cases assigned. both). The recorder will participate as a vot- (1) Character of discharge. Block 7 of ing member of the panel. DD Form 293 provides an applicant an opportunity to request a specific § 724.702 Executive management. change in character of discharge (for The administrative affairs of the example, General Discharge to Honor- NDRB shall be managed by the Execu- able Discharge; Other than Honorable tive Secretary. This responsibility Discharge to General or Honorable Dis- shall include schedules, records, cor- charge). A person separated on or after respondence and issuance of NDRB de- 1 October 1982 while in an entry level cisions. status may request a change from Other Than Honorable Discharge to § 724.703 Legal counsel. Entry Level Separation. A request for Normally, the NDRB shall function review from an applicant who does not without the immediate attendance of have an Honorable Discharge will be legal counsel. In the event that a legal treated as a request for a change to an advisory opinion is deemed appropriate Honorable Discharge unless the appli- by the NDRB, such opinion shall be ob- cant requests a specific change to an- tained routinely by reference to the other character of discharge. senior Judge Advocate assigned to the (2) Reason for discharge. Block 7 of DD Office of the Director, Naval Council of Form 293 provides an applicant an op- Personnel Boards. In addition, the portunity to request a specific change
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in the reason for discharge. If an appli- those matters that, in the option of the cant does not request a specific change applicant, provide a basis for changing in the reason for discharge, the NDRB the discharge; will presume that the request for re- (B) Assists the NDRB in focusing on view does not involve a request for those matters considered to be impor- change in the reason for discharge. tant by an applicant; Under its responsibility to examine the (C) Assists the NDRB in distin- propriety and equity of an applicant’s guishing between a matter submitted discharge, the NDRB will change the by an applicant in the expectation that reason for discharge if such a change is it will be treated as a decisional issue, warranted. and those matters submitted simply as (3) The applicant must ensure that background or supporting materials; issues submitted to the NDRB are con- (D) Provides the applicant with sistent with the request for change in greater rights in the event that the ap- discharge set forth in block 7 of the DD plicant later submits a complaint con- Form 293. If an ambiguity is created by cerning the decisional document; a difference between and applicant’s (E) Reduces the potential for dis- issue and the request in block 7, the agreement as to the content of an ap- NDRB will respond to the issue in the plicant’s issue. context of the action requested in (iv) Incorporation by reference. If the block 7. In the case of a personal ap- applicant makes an additional written pearance hearing, the NDRB will at- submission, such as a brief, in support tempt to resolve the ambiguity under of the application, the applicant may § 724.802(c). incorporate by reference specific issues (b) Request for consideration of specific set forth in the written submission in issues. An applicant may request the accordance with the guidance on DD Board to consider specific issues which, Form 293. The reference shall be spe- in the opinion of the applicant, form a cific enough for the NDRB to identify basis for changing the character of or clearly the matter being submitted as reason for discharge, or both. In addi- an issue. At a minimum, it shall iden- tion to the guidance set forth in this tify the page, paragraph, and sentence section, applicants should consult the incorporated. Because it is to the appli- other sections in this manual before cant’s benefit to bring such issues to submitting issues for consideration by the NDRB’s attention as early as pos- the Board. sible in the review, applicants who sub- (1) Submission of issues on DD Form mit a brief are strongly urged to set 293. Issues must be provided to the forth all such issues as a separate item NDRB on DD Form 293 (82 Nov) before at the beginning of the brief. If it rea- the NDRB closes the review process for sonably appears that the applicant in- deliberation. advertently failed expressly to incor- (i) Issues must be clear and specific. An porate an issue which the applicant issue must be stated clearly and spe- clearly identifies as an issue to be ad- cifically in order to enable the NDRB dressed by the NDRB, the NDRB shall to understand the nature of the issue respond to such an issue. (See §§ 724.805 and its relationship to the applicant’s and 724.806.) discharge. (v) Effective date of the new Form DD (ii) Separate listing of issues. Each 293. With respect to applications pend- issue submitted by an applicant should ing (before November 1982, the effective be listed separately. Submission of a date of the new DD Form 293), the separate statement for each issue pro- NDRB shall consider issues clearly and vides the best means of ensuring that specifically stated in accordance with the full import of the issue is conveyed the rules in effect at the time of sub- to the NDRB. mission. With respect to applications (iii) Use of DD Form 293. DD Form 293 received after November 1982, if the ap- provides applicants with a standard plicant submits an obsolete DD Form format for submitting issues to the 293, the NDRB shall accept the applica- NDRB, and its use: tion, but shall provide the applicant (A) Provides a means for an applicant with a copy of the new form and advise to set forth clearly and specifically the applicant that it will only respond
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to issues submitted on the new form in quately of the basis for the applicant’s accordance with this instruction. position. (2) Relationship of issues to character of (iii) The applicant’s identification of an or reason for discharge. If the applica- issue. The applicant is encouraged, but tion applies to both character of and not required, to specify that each issue reason for discharge, the applicant is pertains to the propriety or the equity encouraged, but not required, to iden- of the discharge. This will assist the tify the issue as applying to either the NDRB in assessing the relationship of character of or the reason for discharge the issue to propriety or equity. (or both). Unless the issue is directed (4) Citation of matter from decisions. at the reason for discharge expressly or The primary function of the NDRB in- by necessary implication, the NDRB volves the exercise of discretion on a will presume that it applies solely to case-by-case basis. Applicants are not the character of discharge. required to cite prior decisions as the (3) Relationship of issues to the stand- basis for a change in discharge. If the ards for discharge review. The NDRB re- views discharges on the basis of issues applicant wishes to bring the NDRB’s of propriety and equity. The standards attention to a prior decision as back- used by the NDRB are set forth in ground or illustrative material, the ci- § 724.804. The applicant is encouraged to tation should be placed in a brief or review those standards before submit- other supporting documents. If, how- ting any issue upon which the appli- ever, it is the applicant’s intention to cant believes a change in discharge submit an issue that sets forth specific should be based. principles and facts from a specific (i) Issues concerning the equity of the cited decision, the following require- discharge. An issue of equity is a mat- ments with respect to applications re- ter that involves a determination ceived on or after November 27, 1982 whether a discharge should be changed apply: under the equity standards of this part. (i) The issue must be set forth or ex- This includes any issue, submitted by pressly incorporated in the ‘‘Appli- the applicant in accordance with cant’s Issue’’ portion of DD Form 293. § 724.802(b)(1), that is addressed to the (ii) If an applicant’s issue cites a discretionary authority of the NDRB. prior decision (of the NDRB, another (ii) Issues concerning the propriety of a Board, an agency, or a court), the ap- discharge. An issue of propriety is a plicant shall describe the specific prin- matter that involves a determination ciples and facts that are contained in whether a discharge should be changed the prior decision and explain the rel- under the propriety standards of this evance of cited matter to the appli- part. This includes an applicant’s issue, cant’s case. submitted in accordance with § 724.802(b)(1), in which the applicant’s (iii) To ensure timely consideration position is that the discharge must be of principles cited from unpublished changed because of an error in the dis- opinions (including decisions main- charge pertaining to a regulation, stat- tained by the Armed Forces Discharge ute, constitutional provision, or other Review Board/Corrective Board Read- source of law (including a matter that ing Room), applicants must provide the requires a determination whether, NDRB with copies of such decisions or under the circumstances of the case, of the relevant portion of the treatise, action by military authorities was ar- manual or similar source in which the bitrary, capricious, or an abuse of dis- principles were discussed. At the appli- cretion). Although a numerical ref- cant’s request, such materials will be erence to the regulation or other returned. sources of law alleged to have been vio- (iv) If the applicant fails to comply lated is not necessarily required, the with requirements in § 724.802(b)(4), the context of the regulation or a descrip- decisional document shall note the de- tion of the procedures alleged to have fect, and shall respond to the issue been violated normally must be set without regard to the citation. forth in order to inform the NDRB ade-
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(c) Identification by the NDRB of issues (a) The circumstances and character submitted by an applicant. The appli- of the applicant’s service as extracted cant’s issues shall be identified in ac- from available service records, includ- cordance with this section after a re- ing health records, and information view of the materials noted under provided by other government authori- § 924.803, is made. ties or the applicant, such as, but not (1) Issues on DD Form 293. The NDRB limited to: shall consider all items submitted as (1) Information concerning the dis- issues by an applicant on DD Form 293 charge under review, including: (or incorported therein). (i) Date (YYMMDD) of discharge; (2) Amendment of issues. The NDRB (ii) Character of discharge; shall not request or instruct an appli- (iii) Reason for discharge; cant to amend or withdraw any matter (iv) The specific regulatory authority submitted by the applicant. Any under which the discharge was issued; amendment or withdrawal of an issue (v) Date (YYMMDD) of enlistment; by an applicant shall be confirmed in (vi) Period of enlistment; writing by the applicant. Nothing in (vii) Age at enlistment; this provision: (viii) Length of service; (i) Limits the NDRB’s authority to (ix) Periods of unauthorized absence; question an applicant as to the mean- (x) Conduct and efficiency ratings ing of such matter; (numerical or narrative); (ii) Precludes the NDRB from devel- (xi) Highest rank achieved; oping decisional issues based upon such (xii) Awards and decorations; questions; (xiii) Educational level; (iii) Prevents the applicant from (xiv) Aptitude test scores; amending or withdrawing such matter (xv) Incidents of punishment pursu- any time before the NDRB closes the ant to Article 15, Uniform Code of Mili- review process for deliberation; or tary Justice (including nature and date (iv) Prevents the NDRB from pre- (YYMMDD) of offense or punishment); senting an applicant with a list of pro- (xvi) Convictions by court-martial; posed decisional issues and written in- (xvii) Prior military service and type formation concerning the right of the of discharge received. applicant to add to, amend, or with- (2) Any other matters in the appli- draw the applicant’s submission. The cant’s record which pertains to the dis- written information will state that the charge or the issues, or provide a clear- applicant’s decision to take such ac- er picture of the overall quality of the tion (or decline to do so) will not be applicant’s service. used against the applicant in the con- (b) A list of the type of documents sideration of the case. submitted by or on behalf of the appli- (3) Additional issues identified during a cant (including written briefs, letters hearing. The following additional pro- of recommendation, affidavits con- cedure shall be used during a hearing cerning the circumstances of the dis- in order to promote the NDRB’s under- charge, or other documentary evi- standing of an applicant’s presen- dence), if any. tation. If, before closing the case for (c) A statement whether the appli- deliberation, the NDRB believes that cant testified, and a list of the type of an applicant has presented an issue not witnesses, if any , who testified on be- listed on DD Form 293, the NDRB may half of the applicant. so inform the applicant, and the appli- (d) A notation whether the applica- cant may submit the issue in writing tion pertained to the character of dis- or add additional written issues at that charge, the reason for discharge, or time. This does not preclude the NDRB both. from developing its own decisional (e) A list of the items submitted as issues. issues on DD Form 293 or expressly in- corporated therein and such other § 724.803 The decisional document. items submitted as issues by the appli- A decisional document shall be pre- cant that are identified as inadvert- pared for each review. At a minimum, ently omitted. If the issues are listed this document shall contain: verbatim on DD Form 293, a copy of the
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relevant portion of the form may be at- review. The presiding officer shall con- tached. Issues that have been with- vene, recess, and adjourn the NDRB drawn or modified with the written panel as appropriate and shall main- consent of the applicant need not be tain an atmosphere of dignity and de- listed. corum at all times. (f) The response to the items sub- (c) Each NDRB member shall act mitted as issues by the applicant. under oath or affirmation requiring (g) A list of decisional issues and a careful, objective consideration of the discussion of such issues. application. NDRB members are re- (h) NDRB’s conclusions on the fol- sponsible for eliciting all facts nec- lowing: essary for a full and fair review. They (1) Whether the character of or rea- shall consider all information pre- son for discharge should be changed. sented to them by the applicant. In ad- (2) The specific changes to be made, dition, they shall consider available if any. military service and health records, to- (i) A record of the voting, including: gether with other records that may be (1) The number of votes for the in the files of the military department NDRB’s decision and the number of concerned and relevant to the issues votes in the minority, if any. before the NDRB, and any other evi- (2) The NDRB members’ names and dence obtained in accordance with this votes. The copy provided to the appli- Manual. cant may substitute a statement that (d) The NDRB shall identify and ad- the names and votes will be made dress issues after a review of the fol- available to the applicant at the appli- cant’s request. lowing material obtained and presented (j) Advisory opinions, including those in accordance with this Manual and containing factual information, when any implementing instructions of the such opinions have been relied upon for NDRB: available official records, docu- final decision or have been accepted as mentary evidence submitted by or on a basis for rejecting any of the appli- behalf of an applicant, presentation of cant’s issues. Such advisory opinions a hearing examination, testimony by or relevant portions that are not fully or on behalf of an applicant, oral or set forth in the discussion of decisional written arguments presented by or on issues or otherwise in response to behalf of an applicant, and any other items submitted as issues by the appli- relevant evidence. cant shall be incorporated by reference. (e) If an applicant who has requested A copy of opinions incorporated by ref- a hearing does not respond to a notifi- erence shall be appended to the deci- cation letter or does not appear for a sion and included in the record of pro- scheduled hearing, the NDRB may ceedings. complete the review on the basis of ma- (k) The recommendation of the terial previously submitted and avail- NDRB president when required. able service records. (l) The addendum of the SRA when (f) Application of standards. (1) When required. the NDRB determines that an appli- (m) Index entries for each decisional cant’s discharge was improper, the issue under appropriate categories list- NDRB will determine which reason for ed in the index of decisions. discharge should have been assigned (n) An authentication of the docu- based upon the facts and circumstances ment by an appropriate official. before the discharge authority, includ- ing the service regulations governing § 724.804 Decision process. reasons for discharge at the time the (a) The NDRB or the NDRB panel, as applicant was discharged. Unless it is appropriate, shall meet in plenary ses- also determined that the discharge was sion to review discharges and exercise inequitable, the provisions as to the its discretion on a case-by-case basis in characterization in the regulation applying the standard set forth in sub- under which the applicant should have part I. been discharged will be considered in (b) The presiding officer is respon- determining whether further relief is sible for the conduct of the discharge warranted.
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(2) When the NDRB determines that (1) When the NDRB decides that a an applicant’s discharge was inequi- change in discharge should be granted, table, any change will be based on the and the NDRB bases its decision in evaluation of the applicant’s overall whole or in part on the applicant’s record of service and relevant regula- issue; or tions of the service of which the appli- (2) When the NDRB does not provide cant was a member. the applicant with the full change in (g) Voting shall be conducted in discharge requested, and the decision is closed session, a majority of the votes based in whole or in part on the of the five members constituting the NDRB’s disagreement on the merits NDRB decision. with an issue submitted by the appli- (h) Details of closed session delibera- cant. tions of the NDRB are priviledged in- (c) Response to items not addressed as formation and shall not be divulged. decisional issues. (1) If the applicant re- (i) There is no requirement for a ceives the full change in discharge re- statement of minority views in the quested (or a more favorable change), event of a split vote. that fact shall be noted and the basis shall be addressed as a decisional issue. (j) The NDRB may request advisory No further response is required to opinions from appropriate staff officers other issues submitted by the appli- of the naval service. These opinions are cant. advisory in nature and are not binding (2) If the applicant does not receive on the NDRB in its decision-making the full change in discharge requested process. with respect to either the character of (k) The preliminary determinations or reason for discharge (or both), the required by 38 U.S.C. 3103(e) shall be NDRB shall address the items sub- made upon majority vote of the NDRB mitted by the applicant under § 724.806, concerned on an expedited basis. Such (Decisional Issues) unless one of the determination shall be based upon the following responses is applicable: standards set forth in this Manual. (i) Duplicate issues. The NDRB may state that there is a full response to § 724.805 Response to items submitted as issues by the applicant. the issue submitted by the applicant under a specified decisional issue. This (a) General guidance. (1) If any issue response may be used only when one submitted by an applicant contains issue clearly duplicates another or the two or more clearly separate issues, issue clearly requires discussion in con- the NDRB should respond to each issue junction with another issue. under the guidance of this paragraph as (ii) Citations without principles and if it had been set forth separately by facts. The NDRB may state that the ap- the applicant. plicant’s issue, which consists of a cita- (2) If an applicant uses a ‘‘building tion to a decision without setting forth block’’ approach (that is, setting forth any principles and facts from the deci- a series of conclusions on issues that sion that the applicant states are rel- lead to a single conclusion purportedly evant to the applicant’s case, does not warranting a change in the applicant’s comply with the requirements of discharge), normally there should be a § 724.802(b)(4). separate response to each issue. (iii) Unclear issues. The NDRB may (3) Nothing in this paragraph pre- state that it cannot respond to an item cludes the NDRB from making a single submitted by the applicant as an issue response to multiple issues when such because the meaning of the item is un- action would enhance the clarity of the clear. An issue is unclear if it cannot decisional document, but such response be understood by a reasonable person must reflect an adequate response to familiar with the discharge review each separate issue. process after a review of the materials (b) Decisional issues. An item sub- considered. mitted as an issue by an applicant in (iv) Nonspecific issues. The NDRB may accordance with this Manual shall be state that it cannot respond to an item addressed as a decisional issue in the submitted by the applicant as an issue following circumstances: because it is not specific. A submission
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is considered not specific if a reason- as a matter of law), the NDRB shall able person familiar with the discharge consider the issue solely as a matter of review process after a review of the propriety. Except as provided in materials considered cannot determine § 724.806(a)(3)(d), the NDRB is not re- the relationship between the appli- quired to consider such an issue under cant’s submission and the particular the equity standards. circumstances of the case. This re- (iii) If the applicant’s issue contends sponse may be used only if the submis- that the NDRB is required as a matter sion is expressed in such general terms of law to follow a prior decision by set- that no other response is applicable. ting forth an issue of propriety from For example, if the NDRB disagrees the prior decision and describing its re- with the applicant as to the relevance lationship to the applicant’s case, the of matters set forth in the submission, issue shall be considered under the pro- the NDRB normally will set forth the priety standards and addressed under nature of the disagreement with re- § 724.806 (a) or (b). spect to decisional issues, or it will re- (iv) If the applicant’s issue sets forth ject the applicant’s position. If the ap- principles of equity contained in a plicant’s submission is so general that prior NDRB decision, describes the re- none of those provisions is applicable, lationship to the applicant’s case, and then the NDRB may state that it can- contends that the NDRB is required as not respond because the item is not a matter of law to follow the prior specific. case, the decisional document shall § 724.806 Decisional issues. note that the NDRB is not bound by its discretionary decisions in prior cases. (a) General. Under the guidance in However, the principles cited by the this section, the decisional document applicant, and the description of the shall discuss the issues that provide a relationship of the principles to the ap- basis for the decision whether there plicant’s case, shall be considered and should be a change in the character of addressed under the equity standards. or reason for discharge. In order to en- (v) If the applicant’s issue cannot be hance clarity, the NDRB should not ad- identified as a matter of propriety or dress matters other than issues relied equity, the NDRB shall address it as an upon in the decision or raised by the issue of equity. applicant. (1) Partial change. When the decision (b) Change of discharge: issues of pro- changes a discharge, but does not pro- priety. If a change in the discharge is vide the applicant with the full change warranted under the propriety stand- in discharge requested, the decisional ards, the decisional document shall document shall address both the issues state that conclusion and list the er- upon which change is granted and the rors of expressly retroactive changes in issues upon which the NDRB denies the policy or violations of regulations that full change requested. provide a basis for the conclusion. The (2) Relationship of issue of character of decisional document shall cite the or reason for discharge. Generally, the facts in the record that demonstrate decisional document should specify the relevance of the error or change in whether a decisional issue applies to policy to the applicant’s case. If the the character of or reason for discharge change in discharge does not constitute (or both), but it is not required to do the full change requested by the appli- so. cant, the reasons for not granting the (3) Relationship of an issue to propriety full change shall be set forth. or equity. (i) If an applicant identifies (c) Denial of the full change requested: an issue as pertaining to both pro- issues of propriety. (1) If the decision re- priety and equity, the NDRB will con- jects the applicant’s position on an sider it under both standards. issue of propriety, of if it is otherwise (ii) If an applicant identifies an issue decided on the basis of an issue of pro- as pertaining to the propriety of the priety that the full change in discharge discharge (for example, by citing a pro- requested by the applicant is not war- priety standard or otherwise claiming ranted, the decisional document shall that a change in discharge is required note that conclusion.
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(2) The decisional document shall list plies in addition to the guidance in reasons for its conclusion on each issue § 724.806(c)(2) (a) and (b): of propriety under the following guid- (A) The NDRB may reject the appli- ance: cant’s position by explaining why it (i) If a reason is based in whole or in disagrees with the principles set forth part upon a regulation, statute, con- in the applicant’s issue (including prin- stitutional provision, judicial deter- ciples derived from cases cited by the mination, or other source of law, the applicant in accordance with NDRB shall cite the pertinent source of § 724.802(b)(4). law and the facts in the record that (B) The NDRB may reject the appli- demonstrate the relevance of the cant’s position by explaining why the source of law to the particular cir- principles set forth in the applicant’s cumstances in the case. issue (including principles derived from (ii) If a reason is based in whole or in cases cited by the applicant in accord- part on a determination as to the oc- ance with § 724.802(b)(4)) are not rel- currence or nonoccurrence of an event evant to the applicant’s case. or circumstances, including a factor re- (C) The NDRB may reject an appli- quired by applicable service regula- cant’s position by stating that the ap- tions to be considered for determina- plicant’s issue of propriety is not a tion of the character of and reason for matter upon which the NDRB grants a the applicant’s discharge, the NDRB change in discharge, and by providing shall make a finding of fact for each an explanation for this position. When such event or circumstance. the applicant indicates that the issue (A) For each such finding, the is to be considered in conjunction with decisional document shall list the spe- one or more other specified issues, the cific source of the information relied explanation will address all such speci- upon. This may include the presump- fied issues. tion of regularity in appropriate cases. (D) The NDRB may reject the appli- If the information is listed in the serv- cant’s position on the grounds that ice record section of the decisional doc- other specified factors in the case pre- ument, a citation is not required. clude granting relief, regardless of (B) If a finding of fact is made after whether the NDRB agreed with the ap- consideration of contradictory evi- plicant’s position. dence in the record (including informa- (E) If the applicant take the position tion cited by the applicant or other- that the discharge must be changed be- wise identified by members of the cause of an alleged error in a record as- NDRB), the decisional document shall sociated with the discharge, and the set forth the conflicting evidence and record has not been corrected by the explain why the information relied organization with primary responsi- upon was more persuasive than the in- bility for corrective action, the NDRB formation that was rejected. If the pre- may respond that it will presume the sumption of regularity is cited as the validity of the record in the absence of basis for rejecting such information, such corrective action. If the organiza- the decisional document shall explain tion empowered to correct the record is why the contradictory evidence was in- within the Department of Defense, the sufficient to overcome the presump- NDRB should provide the applicant tion. In an appropriate case, the expla- with a brief description of the proce- nation as to why the contradictory evi- dures for requesting correction of the dence was insufficient to overcome the record. If the NDRB on its own motion presumption of regularity may consist cites this issue as a decisional issue on of a statement that the applicant failed the basis of equity, it shall address the to provide sufficient corroborating evi- issue. dence, or that the NDRB did not find (F) When an applicant’s issue con- the applicant’s testimony to be suffi- tains a general allegation that a cer- ciently credible to overcome the pre- tain course of action violated his or her sumption. constitutional rights, the NDRB may (iii) If the NDRB disagrees with the respond in appropriate cases by noting position of the applicant on an issue of that the action was consistent with propriety, the following guidance ap- statutory or regulatory authority, and
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by citing the presumption of constitu- tion on the issue of equity in the appli- tionality that attaches to statutes and cant’s case. regulations. If, on the other hand, the (ii) If a reason is based in whole or in applicant makes a specific challenge to part on a determination as to the oc- the constitutionality of the action by currence or nonoccurrence of an event challenging the application of a stat- or circumstance, including a factor re- ute or regulation in a particular set of quired by applicable service regula- circumstances, it is not sufficient to tions to be considered for determina- respond solely by citing the presump- tion of the character of and reason for tion of constitutionality of the statute the applicant’s discharge, the NDRB or regulation when the applicant is not shall make a finding of fact for each challenging the constitutionality of such event or circumstance. the statute or regulation. Instead, the (A) For each such finding, the response must address the specific cir- decisional document shall list the spe- cumstances of the case. cific source of the information relied (d) Denial of the full change in dis- upon. This may include the presump- charge requested when propriety is not at tion of regularity in appropriate cases. issue. If the applicant has not sub- If the information is listed in the serv- mitted an issue of propriety and the ice record section of the decisional doc- NDRB has not otherwise relied upon an ument, a citation is not required. issue of propriety to change the dis- (B) If a finding of fact is made after charge, the decisional document shall consideration of contradictory evi- contain a statement to that effect. The dence in the record (including informa- NDRB is not required to provide any tion cited by the applicant or other- further discussion as to the propriety wise indentified by members of the of the discharge. NDRB), the decisional document shall (e) Change of discharge: issues of eq- set forth the conflicting evidence and uity. If the NDRB concludes that a explain why the information relied change in the discharge is warranted upon was more persuasive than the in- under the equity standards, the formation that was rejected. If the pre- decisional document shall list each sumption of regularity is cited as the issue of equity upon which this conclu- basis for rejecting such information, sion is based. The NDRB shall cite the the decisional document shall explain facts in the record that demonstrate why the contradictory evidence was in- the relevance of the issue to the appli- sufficient to overcome the presump- cant’s case. If the change in discharge tion. In an appropriate case, the expla- does not constitute the full change re- nation as to why the contradictory evi- quested by the applicant, the reasons dence was insufficient to overcome the for not giving the full change requested presumption of regularity may consist shall be discussed. of a statement that the applicant failed (f) Denial of the full change in dis- to provide sufficient corroborating evi- charge requested: issues of equity. (1) If dence, or that the NDRB did not find the NDRB rejects the applicant’s posi- the applicant’s testimony to be suffi- tion on an issue of equity, or if the de- ciently credible to overcome the pre- cision otherwise provides less than the sumption. full change in discharge requested by (iii) If the NDRB disagrees with the the applicant, the decisional document postion of the applicant on an issue of shall note that conclusion. equity, the following guidance applies (2) The NDRB shall list reasons for in addition to the guidance in para- its conclusion on each issue of equity graphs above: under the following guidance: (A) The NDRB may reject the appli- (i) If a reason is based in whole or in cant’s position by explaining why it part upon a regulation, statute, con- disagrees with the principles set forth stitutional provision, judicial deter- in the applicant’s issue (including prin- mination, or other source of law, the ciples derived from cases cited by the NDRB shall cite the pertinent source of applicant). law and the facts in the record that (B) The NDRB may reject the appli- demonstrate the relevance of the cant’s position by explaining why the source of law to the exercise of discre- principles set forth in the applicant’s
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issue (including principles derived from service record portion of the decisional cases cited by the applicant) are not document. relevant to the applicant’s case. (C) The NDRB may reject an appli- § 724.807 Record of NDRB proceedings. cant’s position by explaining why the (a) When the proceedings in any re- applicant’s issue is not a matter upon view have been concluded, a record which the NDRB grants a change in thereof will be prepared. Records may discharge as a matter of equity. When include written records, electro- the applicant indicates that the issue magnetic records, audio and/or video- is to be considered in conjunction with tape recordings, or a combination. other specified issues, the explanation (b) At a minimum, the record will in- will address all such specified issues. clude the following: (D) The NDRB may reject the appli- (1) The application for review; cant’s position on the grounds that (2) A record of the testimony in ei- other specified factors in the case pre- ther verbatim, summarized, or re- clude granting relief, regardless of corded form at the option of the NDRB; whether the NDRB agrees with the ap- (3) Documentary evidence or copies, plicant’s position. other than the military service record (E) If the applicant takes the posi- considered by the NDRB; tion that the discharge should be (4) Briefs and arguments submitted changed as a matter of equity because by or on behalf of the applicant; of an alleged error in a record associ- (5) Advisory opinions considered by the NDRB, if any: ated with the discharge, and the record (6) The findings, conclusions, and rea- has not been corrected by the organiza- sons developed by the NDRB; tion with primary responsibility for (7) Notification of the NDRB’s deci- corrective action, the NDRB may re- sion to the cognizant custodian of the spond that it will presume the validity applicant’s records, or reference to the of the record in the absence of such notification document; corrective action. However, the NDRB (8) A copy of the decisional docu- will consider whether it should exercise ment. its equitable powers to change the dis- charge on the basis of the alleged error. § 724.808 Issuance of decisions fol- If it declines to do so, it shall explain lowing discharge review. why the applicant’s position did not The applicant and counsel or rep- provide a sufficient basis for the resentative, if any, shall be provided change in the discharge requested by with a copy of the decisional document the applicant. and of any further action in review. (iv) When NDRB concludes that ag- Final notification of decisions shall be gravating factors outweigh mitigating issued to the applicant with a copy to factors, the NDRB must set forth rea- the counsel or representative, if any, sons such as the seriousness of the of- and to the service manager concerned. fense, specific circumstances sur- (a) Notification to applicants, with rounding the offense, number of of- copies to counsel or representatives, fenses, lack of mitigating cir- shall normally be made through the cumstances, or similar factors. The U.S. Postal Service. Such notification NDRB is not required however, to ex- shall consist of a notification of deci- plain why it relied on any such factors sion, together with a copy of the unless the applicability or weight of decisional document. such a factor is expressly raised as an (b) Notification to the service man- issue by the applicant. ager shall be for the purpose of appro- (v) If the applicant has not submitted priate action and inclusion of review any issues and the NDRB has not oth- matter in personnel records. Such noti- erwise relied upon an issue of equity fication shall bear appropriate certifi- for a change in discharge, the cation of completeness and accuracy. decisional document shall contain a (c) Actions on review by superior au- statement to that effect, and shall note thority, when occurring, shall be pro- that the major factors upon which the vided to the applicant and counsel or discharge was based are set forth in the representative in the same manner as
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to the notification of the review deci- counsel or representative and made sion. available for public inspection. It is not intended that the statement be so § 724.809 Final disposition of the detailed as to reveal the nature of the record of proceedings. withheld material. The original decisional document and (d) NDRB documents made available all appendices thereto, shall in all for public inspection and copying shall cases be incorporated in the military be located in the Armed Forces Dis- service record of the applicant and the charge Review/Correction Board Read- service record shall be returned to the ing Room. The documents shall be in- custody of the appropriate record hold- dexed in a usable and concise form so ing facility. If a portion of the original as to enable the public, and those who record of proceedings cannot be stored represent applicants before the NDRB, with the service record, the service to isolate from all these decisions that record shall contain a notation as to are indexed, those cases that may be the place where the record is stored. similar to an applicant’s case and that Other copies including any electro- indicate the circumstances under or magnetic records, audio and/or video- reasons for (or both) which the NDRB tape recordings or any combination or the Secretary concerned granted or thereof shall be filed in the NDRB case denied relief. folder and disposed of in accordance (1) The reading file index shall in- with appropriate naval regulations. clude, in addition to any other item de- termined by the NDRB, the case num- § 724.810 Availability of Naval Dis- ber, the date, character of, reason and charge Review Board documents authority for the discharge. It shall for public inspection and copying. also include the decisions of the NDRB (a) A copy of the decisional document and reviewing authority, if any, and prepared in accordance with subpart H the issues addressed in the statement of this enclosure shall be made avail- of findings, conclusions, and reasons. able for public inspection and copying (2) The index shall be maintained at promptly after a notice of final deci- selected permanent locations through- sion is sent to the applicant. out the United States. This ensures (b) To prevent a clearly unwarranted reasonable availability to applicants at invasion of personal privacy, identi- least 30 days before a traveling panel fying details of the applicant and other review. A list of these locations shall persons will be deleted from documents be published in the FEDERAL REGISTER made available for public inspection by the Department of the Army. The and copying. index shall also be made available at (1) Names, addresses, social security sites selected for traveling panels or numbers, and military service numbers hearing examinations for such periods must be deleted. Written justification as the NDRB is present and in oper- shall be made for all other deletions ation. An applicant who has requested and shall be available for public inspec- a traveling panel review shall be ad- tion. vised, in the notice of such review, of (2) The NDRB shall ensure that there the permanent index locations. is a means for relating a decisional (3) The Armed Forces Discharge Re- document number to the name of the view/Corrections Board Reading Room applicant to permit retrieval of the ap- shall publish indexes quarterly for all plicant’s records when required in proc- DRBs. The NDRB shall be responsible essing a complaint. for timely submission to the Reading (c) Any other privileged or classified Room of individual case information material contained in or appended to required for update of the indexes. In any documents required by this Man- addition, the NDRB shall be respon- ual to be furnished the applicant and sible for submission of new index cat- counsel or representative or made egories based upon published changes available for public inspection and in policy, procedures, or standards. copying may be deleted only if a writ- These indexes shall be available for ten statement on the basis for the dele- public inspection or purchase (or both) tions is provided the applicant and at the Reading Room. When the NDRB
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has accepted an application, informa- prepared under the guidance in tion concerning the availability of the § 724.813b. index shall be provided in the NDRB’s (b) Format for recommendation. If a response to the application. recommendation is provided, it shall contain the president’s view whether § 724.811 Privacy Act information. there should be a change in the char- Information protected under the Pri- acter of or reason for discharge (or vacy Act is involved in the discharge both). If the president recommends review functions. The provisions of such a change, the particular change to SECNAVINST 5211.5C shall be observed be made shall be specified. The rec- throughout the processing of a request ommendation shall set forth the presi- for review of discharge or dismissal. dent’s position on decisional issues and issues submitted by the applicant § 724.812 Responsibilities of the Read- under the following guidance: ing Room. (1) Adoption of the NDRB’s decisional (a) Copies of decisional documents document. The recommendation may will be provided to individuals or orga- state that the president has adopted nizations outside the NCR in response the decisional document prepared by to written requests for such docu- the majority. The president shall en- ments. Although the Reading Room sure that the decisional document shall try to make timely responses to meets the requirements of this enclo- such requests, certain factors such as sure. the length of a request, the volume of (2) Adoption of the specific statements other pending requests, and the impact from the majority. If the President of other responsibilities of the staff as- adopts the views of the majority only signed to such duties may cause some in part, the recommendation shall cite delays. A fee may be charged for such the specific matter adopted from the documents under appropriate DOD and majority. If the president modifies a Department of the Army directives and statement submitted by the majority, regulations. The manual that accom- the recommendation shall set forth the panies the index of decisions shall no- modification. tify the public that if an applicant in- (3) Response to issues not included in dicates that a review is scheduled for a matter adopted from the majority. The specific date, an effort will be made to recommendation shall set forth the fol- provide requested decisional docu- lowing if not adopted in whole or in ments before that date. The individual part from the majority: or organization will be advised if that (i) The issues on which the presi- cannot be accomplished. dent’s recommendation is based. Each (b) Correspondence relating to mat- such decisional issue shall be addressed ters under the cognizance of the Read- by the president. ing Room (including requests for pur- (ii) The president’s response to items chase of indexes) shall be addressed to: submitted as issues by the applicant. (iii) Reasons for rejecting the conclu- DA Military Review Board Agency, Atten- sion of the majority with respect to the tion: SFBA (Reading Room), Room 1E520, decisional document which, if resolved The Pentagon, Washington, DC 20310. in the applicant’s favor, would have re- sulted in greater relief for the appli- § 724.813 The recommendation of the cant than that afforded by the presi- NDRB president. dent’s recommendation. Such issues (a) General. The president of the shall be addressed under the principles NDRB may forward cases for consider- in § 724.806. ation by the Secretarial Review Au- thority (SRA). There is no requirement § 724.814 Secretarial Review Authority that the president submit a rec- (SRA). ommendation when a case is forwarded (a) Review by the SRA. The Secre- to the SRA. If the president makes a tarial Review Authority (SRA) is the recommendation with respect to the Secretary concerned or the official to character of or reason for discharge, whom Secretary’s discharge review au- however, the recommendation shall be thority has been delegated.
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(1) The SRA may review the fol- and shall be appended as an addendum lowing types of cases before issuance of to the decisional document under the the final notification of a decision: guidance in this subsection. (i) Any specific case in which the (1) The SRA’s decision. The addendum SRA has an interest. shall set forth the SRA’s decision (ii) Any specific case that the presi- whether there will be a change in the dent of the NDRB believes is of signifi- character of or reason for discharge (or cant interest to the SRA. both); if the SRA concludes that a (2) Cases reviewed by the SRA shall change is warranted, the particular be considered under the standards set change to be made shall be specified. If forth in this part. the SRA adopts the decision rec- (b) Processing the decisional document. ommended by the NDRB or the NDRB (1) The decisional document shall be president, the decisional document transmitted by the NDRB president shall contain a reference to the matter under § 724.813. adopted. (2) The following guidance applies to (2) Discussion of issues. In support of cases that have been forwarded to the the SRA’s decision, the addendum shall SRA except for cases reviewed on the set forth the SRA’s position on NDRB’s own motion, without the par- decisional issues, items submitted as ticipation of the applicant or the appli- issues by an applicant and issues raised cant’s counsel: by the NDRB and the NDRB president (i) The applicant and counsel or rep- in accordance with the following guid- resentative, if any, shall be provided ance: with a copy of the proposed decisional (i) Adoption of the NDRB president’s document, including the NDRB presi- recommendation. The addendum may dent’s recommendation to the SRA, if state that the SRA has adopted the any. Classified information shall be NDRB president’s recommendation. summarized. (ii) The applicant shall be provided (ii) Adoption of the NDRB’s proposed with a reasonable period of time, but decisional document. The addendum may not less than 25 days, to submit a re- state that the SRA has adopted the buttal to the SRA. Any issue in rebut- proposed decisional document prepared tal consists of a clear and specific by the NDRB. statement by the applicant in support (iii) Adoption of specific statements of or in opposition to the statements of from the majority or the NDRB president. the NDRB or NDRB president on If the SRA adopts the views of the decisional issues and other clear and NDRB or the NDRB president only in specific issues that were submitted by part, the addendum shall cite the spe- the applicant. The rebuttal shall be cific statements adopted. If the SRA based solely on matters in the record modifies a statement submitted by the before the NDRB closed the case for de- NDRB or the NDRB president, the ad- liberation or in the president’s rec- dendum shall set forth the modifica- ommendation. tion. (c) Review of the decisional document. (iv) Response to issues not included in If corrections in the decisional docu- matter adopted from the NDRB or the ment are required, the decisional docu- NDRB president. The addendum shall ment shall be returned to the NDRB set forth the following if not adopted in for corrective action. The corrected whole or in part from the NDRB or the decisional document shall be sent to NDRB president: the applicant (and counsel, if any), but (A) A list of the issues on which the a further opportunity for rebuttal is SRA’s decision is based. Each such not required unless the correction pro- decisional document issue shall be ad- duces a different result or includes a dressed by the SRA. This includes rea- substantial change in the decision by sons for rejecting the conclusion of the the NDRB (or NDRB president) of the NDRB or the NDRB president with re- issues raised by the majority or the ap- spect to decisional issues which, if re- plicant. solved in the applicant’s favor, would (d) The addendum of the SRA. The de- have resulted in a change to the dis- cision of the SRA shall be in writing charge more favorable to the applicant
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than that afforded by the SRA’s deci- which aid in determining whether the sion. Such issues shall be addressed standards are met shall be consistent under the principles in § 724.806(f). with historical criteria for determining (B) The SRA’s response to items sub- honorable service. No factors shall be mitted as issues by the applicant. established that require automatic (3) Response to the rebuttal. (i) If the change or denial of a change in a dis- SRA grants the full change in dis- charge. Neither the NDRB nor the Sec- charge requested by the applicant (or a retary of the Navy shall be bound by more favorable change), that fact shall any methodology of weighting of the be noted, the decisional issues shall be factors in reaching a determination. In addressed and no further response to each case, the NDRB shall give full, the rebuttal is required. fair, and impartial consideration to all (ii) If the SRA does not grant the full applicable factors before reaching a de- change in discharge requested by the cision. An applicant may not receive a applicant (or a more favorable change), less favorable discharge than that the addendum shall list each issue in issued at the time of separation. This rebuttal submitted by an applicant in does not preclude correction of clerical accordance with this section, and shall errors. set forth the response of the SRA under the following guidance: § 724.902 Propriety of the discharge. (A) If the SRA rejects an issue in re- (a) A discharge shall be deemed to be buttal, the SRA may respond in ac- proper unless, in the course of dis- cordance with the principals in charge review, it is determined that: § 724.806. (1) There exists an error of fact, law, (B) If the matter adopted by the SRA procedure, or discretion associated provides a basis for the SRA’s rejection with the discharge at the time of of the rebuttal material, the SRA may issuance; and that the rights of the ap- note that fact and cite the specific plicant were prejudiced thereby (such matter adopted that responds to the error shall constitute prejudicial error issue in rebuttal. if there is substantial doubt that the (C) If the matter submitted by the discharge would have remained the applicant does not meet the require- same if the error had not been made); ments for rebuttal material, that fact or shall be noted. (2) A change in policy by the military (4) Index entries. Appropriate index service of which the applicant was a entries shall be prepared for the SRA’s member, made expressly retroactive to actions for matters that are not adopt- the type of discharge under consider- ed from the NDRB’s proposed ation, requires a change in the dis- decisional document. charge. (b) When a record associated with the § 724.815 Complaints. discharge at the time of issuance in- A complaint is any correspondence in volves a matter in which the primary which it is alleged that a decisional responsibility for corrective action document issued by the NDRB or the rests with another organization (for ex- SRA contains a specifically indentified ample, another Board, agency, or violation of 32 CFR part 70 or any ref- court) the NDRB will recognize an erences thereto. Complaints will be re- error only to the extent that the error viewed pursuant to 32 CFR part 70. has been corrected by the organization with primary responsibility for cor- Subpart I—Standards for recting the record. Discharge Review (c) The primary function of the NDRB is to exercise its discretion on § 724.901 Objective of discharge re- issues of equity by reviewing the indi- view. vidual merits of each application on a The objective of a discharge review is case-by-case basis. Prior decisions in ot examine the propriety and equity of which the NDRB exercised its discre- the applicant’s discharge and to effect tion to change a discharge based on changes, if necessary. The standards of issues of equity (including the factors the review and the underlying factors cited in such decisions or the weight
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given to factors in such decisions) do of discipline in the military service of not bind the NDRB in its review of sub- which the applicant was a member. sequent cases because no two cases (c) In the course of a discharge re- present the same issues of equity. view, it is determined that relief is (d) The following applies to appli- warranted based upon consideration of cants who received less than fully hon- the applicant’s service record and other orable administrative discharges be- evidence presented to the NDRB viewed cause of their civilian misconduct in conjunction with the factors listed while in an inactive duty status in a in this paragraph and the regulations reserve component and who were dis- under which the applicant was dis- charged or had their discharge re- charged, even though the discharge was viewed on or after April 20, 1971: the determined to have been otherwise eq- NDRB shall either recharacterize the uitable and proper at the time of discharge to Honorable without any ad- issuance. Areas of consideration in- ditional proceedings or additional pro- clude, but are not limited to: ceedings shall be conducted in accord- (1) Quality of service, as evidenced by ance with the Court’s Order of Decem- factors such as: ber 3, 1981, in Wood v. Secretary of De- (i) Service history, including date of fense to determine whether proper enlistment, period of enlistment, high- grounds exist for the issuance of a less est rank achieved, conduct and pro- than honorable discharge, taking into ficiency ratings (numerical and nar- account that: rative); (1) An other than honorable (for- (ii) Awards and decorations; merly undesirable) discharge for an in- (iii) Letters of commendation or rep- active duty reservist can only be based rimand; upon civilian misconduct found to have (iv) Combat service; affected directly the performance of (v) Wounds received in action; military duties; (vi) Records of promotions and demo- (2) A general discharge for an inac- tions; tive duty reservist can only be based (vii) Level of responsibility at which upon civilian misconduct found to have the applicant served; had an adverse impact on the overall effectiveness of the military, including (viii) Other acts of merit that may military morale and efficiency. not have resulted in formal recognition through an award or commendation; § 724.903 Equity of the discharge. (ix) Length of service during the A discharge shall be deemed to be eq- service period which is the subject of uitable unless: the discharge review; (a) In the course of a discharge re- (x) Prior military service and type of view, it is determined that the policies discharge received or outstanding post and procedures under which the appli- service conduct to the extent that such cant was discharged differ in material matters provide a basis for a more respects from policies and procedures thorough understanding of the per- currently applicable on a service-wide formance of the applicant during the basis to discharges of the type under period of service which is the subject of consideration, provided that: the discharge review; (1) Current policies or procedures rep- (xi) Convictions by court-martial; resent a substantial enhancement of (xii) Records of nonjudicial punish- the rights afforded a respondent in ment; such proceedings; and (xiii) Convictions by civil authorities (2) There is substantial doubt that while a member of the service, re- the applicant would have received the flected in the discharge proceedings or same discharge, if relevant current otherwise noted in the service records; policies and procedures had been avail- (xiv) Records of periods of unauthor- able to the applicant at the time of the ized absence; discharge proceedings under consider- (xv) Records relating to a discharge ation. in lieu of court-martial. (b) At the time of issuance, the dis- (2) Capability to serve, as evidenced charge was inconsistent with standards by factors such as:
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(i) Total capabilities. This includes an will be in accordance with 10 United States evaluation of matters such as age, edu- Code 1553. cational level, and aptitude scores. ‘‘This policy shall apply to those service members whose cases are finalized or in Consideration may also be given as to process on or before July 7, 1971’’. whether the individual met normal Secretary of Defense memorandum of April military standards of acceptability for 28, 1972, to Secretaries of the Military De- military service and similar indicators partments, Chairman, Joint Chiefs of Staff; of an individual’s ability to serve satis- Subject: Review of Punitive Discharges factorily, as well as ability to adjust to Issued to Drug Users: military service. ‘‘Reference is made to Secretary Packard’s memorandum of July 7, 1971, concerning re- (ii) Family and personal problems. This habilitation and treatment of drug users, includes matters in extenuation or and my memorandum of August 13, 1971, sub- mitigation of the reason for discharge ject: ‘Review of Discharges Under Other that may have affected the applicant’s Than Honorable Conditions Issued to Drug ability to serve satisfactorily. Users.’ (iii) Arbitrary or capricious actions. ‘‘My August 13, 1971 memorandum estab- lished the current Departmental policy that This includes actions by individuals in administrative discharges under other than authority which constiute a clear honorable conditions issued solely on the abuse of such authority and that, al- basis of personal use of drugs or possession of though not amounting to prejudicial drugs for the purpose of such use will be re- error, may have contributed to the de- viewed for recharacterization to under hon- cision to discharge the individual or orable conditions. unduly influence the characterization ‘‘It is my desire that this policy be ex- panded to include punitive discharges and of service. dismissals resulting from approved sentences (iv) Discrimination. This includes un- of courts-martial issed solely for conviction authorized acts as documented by of personal use of drugs or possession of records or other evidence. drugs for the purpose of such use. ‘‘Review and recharacterization are to be APPENDIX A TO PART 724—POLICY effected, upon the application of former serv- STATEMENT BY THE SECRETARY OF ice members, utilizing the procedures and authority set forth in Title 10, United States DEFENSE—ADDRESSING CERTAIN Code, sections 874(b), 1552 and 1553. CATEGORIES OF DISCHARGES ‘‘This policy is applicable only to dis- charges which have been executed on or be- Secretary of Defense memorandum of Au- fore July 7, 1971, or issued as a result of a gust 13, 1971, to the Secretaries of the Mili- case in process on or before July 7, 1971. tary Departments, The Chairman, Joint ‘‘Former service members requesting a re- Chiefs of Staff; Subject: Review of Dis- view will be notified of the results of the re- charges Under Other Than Honorable Condi- view. The Veterans’ Administration will also tions Issued to Drug Users: be notified of the names of former service ‘‘Consistent with Department of Defense members whose discharges are recharacter- Directive 1300.11, October 23, 1970, and my ized.’’ memorandum of July 7, 1971, concerning re- habilitation and treatment of drug users, ad- APPENDIX B TO PART 724—OATH OR AF- ministrative discharges under other than FIRMATION TO BE ADMINISTERED TO honorable conditions issued solely on the DISCHARGE REVIEW BOARD MEMBERS basis of personal use of drugs or possession of drugs for the purpose of such use will be re- Prior to undertaking duties as a Board viewed for recharacterization. member, each person assigned to such duties ‘‘Accordingly, each Secretary of a Military in the precept of the Board shall execute the Department, acting through his Discharge following oath or affirmation which shall Review Board, will consider applications for continue in effect throughout service with such review from former service members. the Board. Each Secretary is authorized to issue a dis- charge under honorable conditions upon es- Oath/Affirmation tablishment of facts consistent with this pol- I, ——————, do swear or affirm that I icy. Former service members will be notified will faithfully and impartially perform all of the results of the review. The Veterans’ the duties incumbent upon me as a member Administration will also be notified of the of the Naval Discharge Review Board; that I names of former service members whose dis- will fully and objectively inquire into and charges are recharacterized. examine all cases coming before me; that I ‘‘The statute of limitations for review of will, without regard to the status of the indi- discharges within the scope of this policy vidual in any case, render my individual
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judgment according to the facts, my con- of title 10’’ before the period at the end of science and the law and regulations applica- such subsection; and ble to review of naval discharges, so help me (2) Adding at the end of such section the God. following new subsection: ‘‘(e)(1) Notwithstanding any other provi- APPENDIX C TO PART 724—SAMPLES OF sion of law, (A) no benefits under laws ad- FORMATS EMPLOYED BY THE NAVAL ministered by the Veterans’ Administration DISCHARGE REVIEW BOARD shall be provided, as a result of a change in or new issuance of a discharge under section Attach- 1553 of title 10, except upon a case-by-case re- ment Form Title view by the board of review concerned, sub- ject to review by the Secretary concerned, 1 Letter ...... En Block Notification of Decision to under such section, of all the evidence and Commander, Naval Military Per- factors in each case under published uniform sonnel Command (No Change). 2 ...... do ...... En Block Notification of Decision to standard (which shall be historically con- Commander, Naval Military Per- sistent with criteria for determining honor- sonnel Command (Change). able service and shall not include any cri- 3 ...... do ...... En Block Notification of Decision to terion for automatically granting or denying Commandant, Marine Corps (No such change or issuance) and procedures gen- Change). erally applicable to all persons administra- 4 ...... do ...... En Block Notification of Decision to tively discharged or released from active Commandant, Marine Corps military, naval, or air service under other (Change). than honorable conditons: and (B) any such person shall be afforded an opportunity to NOTE: The Forms appearing in appendix C apply for such review under such section 1553 are not carried in the Code of Federal Regu- for a period of time terminating not less lations. than one year after the date on which such uniform standards and procedures are pro- APPENDIX D TO PART 724—VETERANS’ mulgated and published. BENEFITS ‘‘(2) Notwithstanding any other provision of law— 91 Stat. 1106 ‘‘(A) No person discharged or released from Pub. L. 95–126, Oct. 8, 1977 active military, naval, or air service under 95th Congress other than honorable conditions who has An Act been awarded a general or honorable dis- charge under revised standards for the re- To deny entitlement to veterans’ benefits view of discharges, (i) as implemented by the to certain persons who would otherwise be- President’s directive of January 19, 1977, ini- come so entitled solely by virtue of the ad- tiating further action with respect to the ministrative upgrading under temporarily President’s Proclamation 4313 of September revised standards of other than honorable 16, 1974, (ii) as implemented on or after April discharges from service during the Vietnam 5, 1977, under the Department of Defense’s era; to require case-by-case review under special discharge review program, or (iii) as uniform, historically consistent, generally implemented subsequent to April 5, 1977, and appli cable standards and procedures prior to not made applicable to all persons adminis- the award of veterans’ benefits to persons ad- tratively discharged or released from active ministratively discharged under other than military, naval, or air service under other honorable conditions from active military, than honorable conditions, shall be entitled naval, or air service; and for other purposes. to benefits under laws administered by the Be it enacted by the Senate and the House Veterans’ Administration except upon a de- of Representatives of the United States of termination, based on a case-by-case review, America in Congress assembled, That (a) sec- under standards (meeting the requirements tion 3103 of Title 38, United States Code, is of paragraph (1) of this subsection) applied amended by— by the board of review concerned under sec- (1) Inserting ‘‘or on the basis of an absence tion 1553 of title 10, subject to review by the without authority from active duty for a Secretary concerned, that such person would continuous period of at least one hundred be awarded an upgraded discharged under and eighty days if such person was dis- such standards; charged under conditions other than honor- ‘‘(B) Such determination shall be made by able unless such person demonstrates to the such board, (i) on an expedited basis after no- satisfaction of the Administrator that there tification by the Veterans’ Administration are compelling circumstances to warrant to the Secretary concerned that such person such prolonged unauthorized absence.’’ after has received, is in receipt of, or has applied ‘‘deserter,’’ in subsection (a), and by insert- for such benefits or after a written request is ing a coma and ‘‘notwithstanding any action made by such person or such determination, subsequent to the date of such discharge by (ii) on its own initiative within one year a board established pursuant to section 1553 after the date of enactment of this paragraph
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in any case where a general or honorable dis- and related benefits authorized to be pro- charge has been awarded on or prior to the vided under chapter 17 of title 38, United date of enactment of this paragraph under States Code, for any disability incurred or revised standards referred to in clause (A) (i), aggravated during active military, naval, or (ii), or (iii) of this paragraph, or (iii) on its air service in line of duty by a person other own initiative at the time a general or hon- than a person barred from receiving benefits orable discharge is so awarded in any case by section 3103(a) of such title, but shall not where a general or honorable discharge is provide such health care and related benefits awarded after such enactment date. pursuant to this section for any disability ‘‘If such board makes a preliminary deter- incurred or aggravated during a period of mination that such person would not have service from which such person was dis- been awarded an upgraded discharge under charged by reason of a bad conduct dis- standards meeting the requirements of para- charge. graph (1) of this subsection, such personal Section 3. Paragraph (18) of section 101 of shall be entitled to an appearance before the Title 38, United States Code, is amended to board, as provided for in section 1553(c) of read as follows: title 10, prior to a final determination on ‘‘(18) The term ‘discharge or release’ in- such question and shall be given written no- cludes, (A) retirement from the active mili- tice by the board of such preliminary deter- tary, naval, or air service, and (B) the satis- mination and of his or her right to such ap- factory completion of the period of active pearance. The Administrator shall, as soon military, naval, or air service for which a as administratively feasible, notify the ap- person was obligated at the time of entry propriate board of review of the receipt of into such service in the case of a person who, benefits under laws administered by the Vet- due to enlistment or reenlistment, was not erans’ Administration, or the application for awarded a discharge or release from such pe- such benefits, by any person awarded an up- riod of service at the time of such comple- graded discharge under revised standards re- tion thereof and who, at such time, would ferred to in clause (A) (i), (ii), or (iii) of this otherwise have been eligible for the award of paragraph with respect to whom a favorable a discharge or release under conditions other determination has not been made under this than dishonorable.’’ paragraph.’’. Section 4. In promulgating, or making any (b)(1) The Secretary of Defense shall fully revisions of or amendments to, regulations inform each person awarded a general or governing the standards and procedures by honorable discharge under revised standards which the Veterans’ Administration deter- for the review of discharges referred to in mines whether a person was discharged or re- section 3103(e)(2)(A) (i), (ii), or (iii) of title 38, leased from active military, naval, or air United States Code, as added by subsection service under conditions other than dishon- (a)(2) of this section of his or her right to ob- orable, the Administrator of Veterans’ Af- tain an expedited determination under sec- fairs shall, in keeping with the spirit and in- tion 3103(e)(2)(B)(i) of such title and of the tent of this Act, not promulgate any such implications of the provisions of this Act for regulations or revise or amend any such reg- each such person. ulations for the purpose of, or having the ef- (2) Notwithstanding any other provision of fect of, (1) providing any unique or special law, the Secretary of Defense shall inform advantage to veterans awarded general or each person who applies to a board of review honorable discharges under revised standards under section 1553 of title 10, United States for the review of discharges described in sec- Code, and who appears to have been dis- tion 3103(e)(2)(A) (i), (ii), or (iii) of title 38, charged under circumstances which might United States Code, as added by section constitute a bar to benefits under section 1(a)(2) of this Act, or (2) otherwise making 3103(a), of title 38, United States Code, (A) any special distinction between such vet- that such person might possibly be adminis- erans and other veterans. tratively found to be entitled to benefits Section 5. This Act shall become effective under laws administered by the Veterans’ on the date of its enactment, except that— Administration only through the action of a (1) Section 2 shall become effective on Oc- board for the correction of military records tober 1, 1977, or on such enactment date, under section 1552 of such title 10 or the ac- whichever is later; and tion of the Administrator of Veterans’ Af- (2) The amendments made by section 1(a) fairs under section 3103 of such title 38, and shall apply retroactively to deny benefits (B) of the procedures for making application under laws administered by the Veterans’ to such section 1552 board for such purpose Administration, except that, notwith- and to the Administrator of Veterans’ Af- standing any other provision of law. fairs for such purpose (including the right to (A) With respect to any person who, on proceed concurrently under such sections such enactment date is receiving benefits 3103, 1552 and 1553). under laws administered by the Veterans’ Section 2. Notwithstanding any other pro- Administration, (i) such benefits shall not be vision of law, the Administrator of Veterans’ terminated under paragraph (2) of section Affairs shall provide the type of health care 3103(e) of title 38, United States Code, as
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added by section 1(a)(2) of this Act, until, (I) § 725.1 Purpose. the day on which a final determination not favorable to the person concerned is made on This instruction implements 32 CFR an expedited basis under paragraph (2) of part 97 regarding the release of official such section 3103(e), (II) the day following Department of the Navy (DON) infor- the expiration of ninety days after a prelimi- mation and provision of testimony by nary determination not favorable to such DON personnel for litigation purposes, person is made under such paragraph, or (III) and prescribes conduct of DON per- the day following the expiration of one hun- sonnel in response to a litigation re- dred and eighty days after such enactment quest or demand. It restates the infor- date, whichever day is the earliest, and (ii) mation contained in Secretary of the the United States shall not make any claim Navy Instruction 5820.8A of 27 August to recover the value of any benefits provided 19911, and is intended to conform in all to such person prior to such earliest day; respects with the requirements of that (B) With respect to any person awarded a general or honorable discharge under revised instruction. standards for the review of discharges re- ferred to in clause (A) (i), (ii), or (iii) of such § 725.2 Policy. paragraph who has been provided any such (a) It is DON policy that official fac- benefits prior to such enactment date, the tual information, both testimonial and United States shall not make any claim to documentary, should be made reason- recover the value of any benefits so provided; ably available for use in Federal and courts, state courts, foreign courts, (C) The amendments made by clause (1) of and other governmental proceedings section 1(a) shall apply, (i) retroactively unless that information is classified, only to persons awarded general or honor- privileged, or otherwise protected from able discharges under such revised standards and to persons who, prior to the date of en- public disclosure. actment of this Act, had not attained gen- (b) DON personnel, as defined in eral eligibility to such benefits by virtue of § 725.4(b), however, shall not provide (I) a change in or new issuance of a discharge such official information, testimony, under section 1553 of title 10, United States or documents, submit to interview, or Code, or (II) any other provision of law, and permit a view or visit, without the au- (ii) prospectively (on and after such enact- thorization required by this part. ment date) to all other persons. (c) DON personnel shall not provide, with or without compensation, opinion PART 725—RELEASE OF OFFICIAL or expert testimony concerning official INFORMATION FOR LITIGATION DON or Department of Defense (DOD) PURPOSES AND TESTIMONY BY information, subjects, personnel, or ac- tivities, except on behalf of the United DEPARTMENT OF THE NAVY PER- States or a party represented by the SONNEL Department of Justice, or with the written special authorization required Sec. by this part. 725.1 Purpose. (d) Section 725.2(b) and (c) constitute 725.2 Policy. a regulatory general order, applicable 725.3 Authority to act. to all DON personnel individually, and 725.4 Definitions. need no further implementation. A vio- 725.5 Applicability. lation of those provisions is punishable 725.6 Authority to determine and respond. under the Uniform Code of Military 725.7 Contents of a proper request or de- Justice for military personnel and is mand. the basis for appropriate administra- 725.8 Considerations in determining to grant or deny a request. tive procedures with respect to civilian 725.9 Action to grant or deny a request. employees. Moreover, violations of this 725.10 Response to requests or demands in instruction by DON personnel may, conflict with this instruction. under certain circumstances, be ac- 725.11 Fees. tionable under 18 U.S.C. 207.
AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 113, 5013; 1 31 U.S.C. 9701 and 32 CFR part 97. Copies may be obtained, if needed, from the Naval Publications and Forms Direc- SOURCE: 57 FR 2463, Jan. 22, 1992, unless torate, Attn: Code 301, 5801 Tabor Avenue, otherwise noted. Philadelphia, PA 19120-5099.
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(e) Upon a showing by a requester of to grant or deny a litigation request. exceptional need or unique cir- In all cases in which the United States cumstances, and that the anticipated is, or might reasonably become, a testimony will not be adverse to the in- party, or in which expert testimony is terests of the DON, DOD, or the United requested, the Judge Advocate General States, the General Counsel of the or the General Counsel of the Navy, de- Navy, the Judge Advocate General of pending on the subject matter of the the Navy, or their respective delegates request, will act as determining au- may, in their sole discretion, and pur- thority. In all other cases, the respon- suant to the guidance contained in this sibility to act as determining author- instruction, grant such written special ity has been delegated to all officers authorization for DON personnel to ap- exercising general court-martial con- pear and testify as expert or opinion vening authority, or to their subordi- witnesses at no expense to the United nate commands, and to other com- States. mands and activities indicated in § 725.6. § 725.3 Authority to act. (b) DON personnel. Active duty and (a) The General Counsel of the Navy, former military personnel of the naval the Judge Advocate General of the service including retirees; personnel of Navy, and their respective delegates other DOD components serving with a [hereafter ‘‘determining authorities’’ DON component; Naval Academy mid- described in § 725.4(a), shall respond to shipmen; present and former civilian litigation requests or demands for offi- employees of the DON including non- cial DOD information or testimony by appropriated fund activity employees; DON personnel as witnesses. non-U.S. nationals performing services (b) If required by the scope of their overseas for the DON under provisions respective delegations, determining au- of status of forces agreements; and thorities’ responses may include: con- other specific individuals or entities sultation and coordination with the hired through contractual agreements Department of Justice or the appro- by or on behalf of DON, or performing priate United States Attorney as re- services under such agreements for quired; referral of matters proprietary DON (e.g., consultants, contractors and to another DOD component to that their employees and personnel). component; determination whether of- (c) Factual and expert or opinion testi- ficial information originated by the mony. DON policy favors disclosure of Navy may be released in litigation; and factual information if disclosure does determination whether DOD personnel not violate the criteria stated in § 725.8. assigned to or affiliated with the Navy The distinction between factual mat- may be interviewed, contacted, or used ters, and expert or opinion matters as witnesses concerning official DOD (where DON policy favors non-disclo- information or as expert or opinion sure), is not always clear. The consid- witnesses. Following coordination with erations set forth below pertain. the appropriate commander, a response (1) Naval personnel may merely be may further include whether installa- percipient witnesses to an incident, in tions, facilities, ships, or aircraft may which event their testimony would be be visited or inspected; what, if any, purely factual. On the other hand, they conditions will be imposed upon any re- may be involved with the matter only lease, interview, contact, testimony, through an after-the-event investiga- visit, or inspection; what, if any, fees tion (e.g., JAGMAN investigation). De- shall be charged or waived for access scribing the manner in which they con- under the fee assessment consider- ducted their investigation and asking ations set forth in § 725.11; and what, if them to identify factual conclusions in any, claims of privilege, pursuant to their report would likewise constitute this instruction, may be invoked before factual matters to which they might any tribunal. testify. In contrast, asking them to adopt or reaffirm their findings of fact, § 725.4 Definitions. opinions, and recommendations, or (a) Determining authority. The cog- asking them to form or express any nizant DON or DOD official designated other opinion—particularly one based
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upon matters submitted by counsel or while such personnel were employed by going to the ultimate issue of causa- or on behalf of the DOD or on active tion or liability—would clearly con- duty with the United States Armed stitute precluded testimony under the Forces (determining whether ‘‘official above policy. information’’ is sought, as opposed to (2) Naval personnel, by virtue of their non-DOD information, rests with the training, often form opinions because determining authority identified in they are required to do so in the course § 725.6, rather than the requester). of their duties. If their opinions are (f) Request or demand (legal process). formed prior to, or contemporaneously Subpoena, order, or other request by a with, the matter in issue, and are rou- federal, state, or foreign court of com- tinely required of them in the course of petent jurisdiction, by any administra- the proper performance of their profes- tive agency thereof, or by any party or sional duties, they constitute essen- other person (subject to the exceptions tially factual matters (i.e., the opinion stated in § 725.5) for production, disclo- they previously held). Opinions formed sure, or release of official DOD infor- after the event in question, including mation or for appearance, deposition, responses to hypothetical questions, or testimony of DON personnel as wit- generally constitute the sort of opinion nesses. or expert testimony which this instruc- tion is intended to severely restrict. § 725.5 Applicability. (3) Characterization of expected tes- (a) This instruction applies to all timony by a requester as fact, opinion, present and former civilian and mili- or expert is not binding on the deter- tary personnel of the DON whether em- mining authority. When there is doubt ployed by, or assigned to, DON tempo- as to whether or not expert or opinion rarily or permanently. Affected per- (as opposed to factual) testimony is sonnel are defined more fully in being sought, advice may be obtained § 725.4(b). informally from, or the request for- (b) This instruction applies only to warded, to the Deputy Assistant Judge situations involving existing or reason- Advocate General (General Litigation) ably anticipated litigation, as defined or the Associate General Counsel (Liti- in § 725.4(d), when DOD information or gation) for resolution. witnesses are sought, whether or not (d) Litigation. All pretrial, trial, and the United States, the DOD, or its com- post-trial stages of all existing or rea- ponents are parties thereto. It does not sonably anticipated judicial or admin- apply to formal or informal requests istrative actions, hearings, investiga- for information in other situations. tions, or similar proceedings before ci- (c) This instruction provides guid- vilian courts, commissions, boards (in- ance only for DON operation and ac- cluding the Armed Services Board of tivities of its present and former per- Contract Appeals), or other tribunals, sonnel in responding to litigation re- foreign and domestic. This term in- quests. It is not intended to, does not, cludes responses to discovery requests, and may not be relied upon to, create depositions, and other pretrial pro- any right or benefit, substantive or ceedings, as well as responses to formal procedural, enforceable at law or eq- or informal requests by attorneys or uity against the United States, DOD, others in situations involving, or rea- or DON. sonably anticipated to involve, civil or (d) This instruction is not intended criminal litigation. to infringe upon or displace the respon- (e) Official information. All informa- sibilities committed to the Department tion of any kind, however stored, in the of Justice in conducting litigation on custody and control of the DOD and its behalf of the United States. components including the DON; relat- (e) This instruction does not super- ing to information in the custody and sede or modify existing laws, DOD or control of DOD or its components; or DON regulations, directives, or instruc- acquired by DOD personnel or its com- tions governing testimony of DON per- ponent personnel as part of their offi- sonnel or release of official DOD or cial duties or because of their official DON information during grand jury status within DOD or its components, proceedings.
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(f) This instruction does not control determined to intervene in the litiga- release of official information in re- tion or has declined to intervene; sponse to requests unrelated to litiga- (4) As part of the assistance required tion or under the Freedom of Informa- by the Defense Industrial Personnel Se- tion Act (FOIA), 5 U.S.C. 552, or the curity Clearance Review Program Privacy Act, 5 U.S.C. 552a. This in- under DOD Directive 5220.62; struction does not preclude treating (5) Release of copies of Manual of the any written request for DON records as Judge Advocate General (JAGMAN) in- a request under the FOIA or Privacy vestigations, to the next of kin (or Acts. Activities are encouraged to their representatives) of deceased or treat such requests for documents incompetent naval personnel; under the FOIA or the Privacy Act if (6) Release of information by DON they are invoked by the requestor ei- personnel to counsel retained on their ther explicitly or by fair implication. behalf for purposes of litigation, unless See 32 CFR 701.3(a), 701.10(a). Activities that information is classified, privi- are reminded that such treatment does leged, or otherwise protected from dis- not absolve them of the responsibility closure (in the latter event, compliance to respond in a timely fashion to legal with 32 CFR part 97 and this part is re- process. In any event, if the official in- quired); formation requested pertains to a liti- (7) Cases involving garnishment or- gation matter which the United States ders for child support and/or alimony. is a present or potential party, the re- The release of official information in lease authority should notify the dele- these cases is governed by 5 CFR 581 gate of the General Counsel or the and SECNAVINST 7200.163, or; Judge Advocate General, under § 725.6. (8) Release of information to Federal, (g) This part does not apply to re- state, and local prosecuting and law lease of official information or testi- enforcement authorities, in conjunc- mony by DON personnel in the fol- tion with an investigation conducted lowing situations: by a DOD component or DON criminal (1) Before courts-martial convened by investigative organization. any DOD component, or in administra- (h) This part does not preclude offi- tive proceedings conducted by, or on cial comment on matters in litigation behalf of, such component; in appropriate cases. (2) Under administrative proceedings (i) The DOD General Counsel may no- conducted by, or on behalf of, the tify DOD components that DOD will as- Equal Employment Opportunity Com- sume primary responsibility for coordi- mission (EEOC) or the Merit Systems nating all litigation requests for de- Protection Board (MSPB), the Federal mands for official DOD information or Labor Relations Authority, the Federal testimony of DOD personnel in litiga- Services Impasse Panel, or under a ne- tion involving terrorism, espionage, gotiated grievance procedure under a nuclear weapons, and intelligence collective bargaining agreement to sources or means. Accordingly, deter- which the Government is a party; mining officials who receive requests (3) In response to requests by Federal pertaining to such litigation shall no- Government counsel, or counsel rep- tify the Associate General Counsel resenting the interests of the Federal (Litigation) or the Deputy Assistant Government, in litigation conducted, Judge Advocate General (International in whole or in part, on behalf of the Law or General Litigation) who shall United States (e.g., Medical Care Re- consult and coordinate with DOD Gen- covery Act claims, affirmative claims, eral Counsel prior to any response to or subpoenas issued by, or concurred in such requests. by, Government counsel when the (j) Relationship with Federal Rules of United States is a party), but the regu- Procedure. The requirements imposed lation does apply to an action brought by this instruction are intended, under the qui tam provisions of the among other things, to provide ade- False Claims Act in which a private quate notice to DON regarding the party brings an action in the name of the United States but in which the De- 2 See footnote 1 to § 725.1. partment of Justice either has not yet 3 See footnote 1 to § 725.1.
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scope of proposed discovery. This will (c) Litigation matters to which the assure that certain DON information, United States is, or might reasonably be- which properly should be withheld, is come, a party. Examples of such in- not inadvertently released in response stances include suits under the Federal to a litigation request or demand, in- Tort Claims Act, Freedom of Informa- cluding a subpoena or other request for tion Act, Medical Care Recovery Act, discovery issued under Federal rules of Tucker Act, and suits against Govern- procedure. When the United States is a ment contractors where the contractor party to Federal litigation and the may interplead the United States or party opponent uses discovery methods seek indemnification from the United (e.g., request for interrogatories and States for any judgment paid, e.g., admissions, depositions) set forth in aviation contractors or asbestos mat- Federal rules of procedure, the Judge ters. Generally, a suit in which the Advocate General or General Counsel, plaintiff is representing the interests of in consultation with representatives of the United States under the Medical the Department of Justice or the cog- Care Recovery Act is not a litigation nizant United States Attorney, may matter to which the United States is, determine whether the requirement for or might reasonably become, a party. a separate written request in accord- Determining authorities, if in doubt ance with § 725.7 should be waived. Even whether the United States is likely to if this requirement is waived, however, become a party to the litigation, DON personnel who are subpoenaed to should seek guidance from representa- testify still will be required to obtain tives of the Offices of the Judge Advo- the written permission described in cate General or General Counsel. The § 725.2. Judge Advocate General and the Gen- eral Counsel have the authority to de- § 725.6 Authority to determine and re- termine whether a litigation request spond. should be forwarded to them, or re- tained by a determining authority, for (a) Matters proprietary to DON. If a resolution. litigation request or demand is made of (1) Litigation requests regarding DON personnel for official DON or DOD matters assigned to the Judge Advo- information or for testimony con- cate General of the Navy under Navy cerning such information, the indi- Regulations, art. 0331 (1990)4, shall be vidual to whom the request or demand referred to the Deputy Assistant Judge is made will immediately notify the Advocate General (DAJAG) for General cognizant DON official designated in Litigation, 200 Stovall Street, Alexan- § 725.6(c) and (d), who will determine dria, VA 22332-2400, who will respond availability and respond to the request for the Judge Advocate General or or demand. transmit the request to the appropriate (b) Matters proprietary to another DOD Deputy Assistant Judge Advocate Gen- component. If a DON activity receives a eral for response. litigation request or demand for offi- (2) Litigation requests regarding cial information originated by another matters assigned to the General Coun- DOD component or for non-DON per- sel of the Navy under Navy Regs., art. sonnel presently or formerly assigned 0327 (1990)5, shall be referred to the cog- to another DOD component, the DON nizant Command Counsel under, and activity will forward appropriate por- subject to, limitations set forth in tions of the request or demand to the § 725.6(d)(2). That Command Counsel DOD component originating the infor- may either respond or refer the matter mation, to the components where the for action to another office. Requests personnel are assigned, or to the com- involving asbestos litigation shall be ponents where the personnel were for- referred to the Office of Counsel, Naval merly assigned, for action under 32 Sea Systems Command Headquarters, CFR part 97. The forwarding DON ac- Personnel and Labor Law Section tivity will also notify the requester (Code 00LD), Washington, DC 20362-5101. and court (if appropriate) or other au- thority of its transfer of the request or 4 See footnote 1 to § 725.1. demand. 5 See footnote 1 to § 725.1.
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Matters not clearly within the purview the circumstances to determine the of a particular command counsel shall matter and respond, but the requester be referred to Associate General Coun- shall be notified of the referral. Fur- sel (Litigation), who may either re- ther, each determining authority speci- spond or refer the matter for action to fied in this paragraph may further del- another office. egate his or her decisional authority to (3) Matters involving the Armed a principal staff member, staff judge Services Board of Contract Appeals advocate, or legal advisor. shall be forwarded to these respective (D) In the alternative, the requester counsel except where the determina- may forward the request to the Deputy tion may involve the assertion of the Assistant Judge Advocate General deliberative process privilege before (General Litigation), who may refer that Board. In such an event, the mat- the matter to another determining au- ter shall be forwarded for determina- thority for response, and so notify the tion to the Associate General Counsel requester. (Litigation). (ii) Visits and views. A request to visit (d) Litigation matters in which the a DON activity, ship, or unit, or to in- United States is not, and is reasonably spect material or spaces located there not expected to become, a party—(1) Mat- will be forwarded to one of the authori- ters within the cognizance of the Judge ties stated in § 725.6(d)(1)(i), who will Advocate General—(i) Fact witnesses. Re- respond on behalf of the Judge Advo- quests to interview, depose, or obtain cate General. Action taken by that au- testimony of any present or former thority will be coordinated with the DON personnel as defined in § 725.4(b) commanding officer of the activity, about purely factual matters shall be ship, or unit at issue, or with his or her forwarded to the Navy or Marine Corps staff judge advocate (if applicable). The officer exercising general court-martial military mission of the unit shall nor- jurisdiction (OEGCMJ) in whose chain mally take precedence over any visit of command the prospective witness or or view. The commanding officer may requested documents lie. That deter- independently prescribe reasonable mining authority will respond for the conditions as to time, place, and cir- Judge Advocate General under criteria cumstances to protect against com- set forth in § 725.8. promise of classified or privileged ma- (A) If the request pertains to per- terial, intrusion into restricted spaces, sonnel assigned to the Office of the and unauthorized photography. Chief of Naval Operations, the Office of the Vice Chief of Naval Operations, or (iii) Documents. 10 U.S.C. 7861 pro- an Echelon 2 command located in the vides that the Secretary of the Navy Washington, DC, area, it shall be for- has custody and charge of all DON warded to that office which will like- books, records, and property. Under 6 wise respond for the Judge Advocate DOD Directive 5530.1 , the Secretary of General under the criteria set forth in the Navy’s sole delegate for service of § 725.8. process is the General Counsel of the (B) If a request pertains to Marine Navy. See 32 CFR 257.5(c). All process Corps personnel assigned to Head- for such documents shall be served quarters Battalion, Headquarters Ma- upon the General Counsel at the De- rine Corps, or to other Marine Corps partment of the Navy, Washington, DC, commands located in the Washington, 20350-1000, who will refer the matter to DC, area, it shall be forwarded to the the proper delegate for action. Matters Commandant of the Marine Corps referred to the Judge Advocate General (JAR), Headquarters, U.S. Marine will normally be provided to the deter- Corps, Washington, DC 20380-0001, mining authorities described in which will respond for the Judge Advo- § 725.6(c) and (d). That authority will cate General under criteria set forth in respond per criteria in § 725.8. Process § 725.8. not properly served on the General (C) Nothing here shall prevent a de- Counsel is insufficient to constitute a termining authority from referring re- legal demand and shall be processed as quests or demands to another deter- mining authority better suited under 6 See footnote 1 to § 725.1.
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a request by counsel. Requests for doc- appropriate authority to respond to the uments maintained by the National request. Personnel Records Center will be deter- mined by the official provided in § 725.7 Contents of a proper request or § 725.8(b)(2)(iii). demand. (iv) Expert or opinion requests. Any re- (a) Routine requests. If official infor- quest for expert or opinion consulta- mation is sought, through testimony tions, interviews, depositions, or testi- or otherwise, a detailed written request mony will be referred to the Deputy must be submitted to the appropriate Assistant Judge Advocate General determining authority far enough in (General Litigation) who will respond advance to assure an informed and for the Judge Advocate General, or timely evaluation of the request, and transmit the request to the appropriate prevention of adverse effects on the DAJAG for response. Matters not mission of the command or activity clearly within the purview of a par- that must respond. The determining ticular Deputy Assistant Judge Advo- cate General will be retained by the authority shall decide whether suffi- Deputy Assistant Judge Advocate Gen- cient information has been provided by eral (General Litigation), who may ei- the requester. Absent independent in- ther respond or refer the matter to an- formation, the following data is nec- other determining authority for re- essary to assess a request. sponse. (1) Identification of parties, their coun- (2) Matters within the cognizance of the sel and the nature of the litigation. (i) General Counsel of the Navy—(i) Matters Caption of case, docket number, court. not involving issues of Navy policy. Such (ii) Name, address, and telephone matters shall be forwarded for deter- number of all counsel. mination to the respective counsel for (iii) The date and time on which the Naval Sea Systems Command, Naval documents, information, or testimony Air Systems Command, Naval Supply sought must be produced; the requested Systems Command, Naval Facilities location for production; and, if applica- Engineering Command, Space and ble, the estimated length of time that Naval Warfare Command, Office of the attendance of the DON personnel will Navy Comptroller, Commandant of the be required. Marine Corps, Office of the Chief of (2) Identification of information or doc- Naval Research, Military Sealift Com- uments requested. (i) A description, in as mand, Office of Civilian Personnel Pol- much detail as possible, of the docu- icy, or to the Assistant General Coun- ments, information, or testimony sel (Acquisition), depending upon who sought, including the current military has cognizance over the information or service, status (active, separated, re- personnel at issue. tired), social security number, if (ii) Matters involving issues of Navy known, of the subject of the requested policy. Such matters shall be forwarded pay, medical, or service records; for determination to the General Coun- (ii) The location of the records, in- sel of the Navy via the Associate Gen- cluding the name, address, and tele- eral Counsel (Litigation). phone number, if known, of the person (iii) Matters involving asbestos litiga- from whom the documents, informa- tion. Such matters shall be forwarded tion, or testimony is sought; and to the Office of Counsel, Naval Sea Sys- tems Command Headquarters, Per- (iii) A statement of whether factual, sonnel and Labor Law Section (Code opinion, or expert testimony is re- 00LD), Washington, DC 20362-5101. quested (see §§ 725.4(c) and (3) Matters not clearly within the cog- 725.8(b)(3)(ii)). nizance of either the Judge Advocate Gen- (3) Description of why the information eral or the General Counsel. Such mat- is needed. (i) A brief summary of the ters may be sent to the Deputy Assist- facts of the case and the present pos- ant Judge Advocate General (General ture of the case. Litigation) or the Associate General (ii) A statement of the relevance of Counsel (Litigation), who will, in con- the matters sought to the proceedings sultation with the other, determine the at issue.
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(iii) If expert or opinion testimony is video tape, if not prohibited by applica- sought, an explanation of why excep- ble rules of court; tional need or unique circumstances (7) An agreement that if the local exist justifying such testimony, includ- rules of procedure controlling the liti- ing why it is not reasonably available gation so provide, the witness will be from any other source. given an opportunity to read, sign, and (b) Additional considerations. The cir- correct the deposition at no cost to the cumstances surrounding the under- witness or the Government; lying litigation, including whether the (8) A statement of understanding United States is a party, and the na- that the United States reserves the ture and expense of the requests made right to have a representative present by a party may require additional in- at any interview or deposition; and formation before a determination can (9) A statement that counsel for be made. Providing the following infor- other parties to the case will be pro- mation or stipulations in the original vided with a copy of all correspondence request may expedite review and elimi- originated by the determining author- nate the need for additional cor- ity so they may have the opportunity respondence with the determining au- to submit any related litigation re- thority. quests and participate in any dis- (1) A statement of the requester’s covery. willingness to pay in advance all rea- (c) Response to deficient requests. A sonable expenses and costs of searching letter request that is deficient in pro- for and producing documents, informa- tion, or personnel, including travel ex- viding necessary information may be penses and accommodations (if applica- returned to the requester by the deter- ble); mining authority with an explanation (2) In cases in which deposition testi- of the deficiencies and a statement mony is sought, a statement of wheth- that no further action will be taken er attendance at trial or later deposi- until they are corrected. If a subpoena tion testimony is anticipated and re- has been received for official informa- quested. A single deposition normally tion, counsel should promptly deter- should suffice; mine the appropriate action to take in (3) An agreement to notify the deter- response to the subpoena. See § 725.9(g). mining authority at least 10 working (d) Emergency requests. Written re- days in advance of all interviews, depo- quests are generally required by 32 sitions, or testimony. Additional time CFR part 97. for notification may be required where (1) The determining authority, iden- the witness is a DON health care pro- tified in § 725.6, has discretion to waive vider or where the witness is located that requirement in the event of a bona overseas; fide emergency, under conditions set (4) An agreement to conduct the dep- forth here, which were not anticipated osition at the location of the witness, in the course of proper pretrial plan- unless the witness and his or her com- ning and discovery. Oral requests and manding officer or cognizant superior, subsequent determinations should be as applicable, stipulate otherwise; reserved for instances where factual (5) In the case of former DON per- matters are sought, and compliance sonnel, a brief description of the length with the requirements of a proper writ- and nature of their duties while in DON ten request would result in the effec- employment, and a statement of tive denial of the request and cause an whether such duties involved, directly injustice in the outcome of the litiga- or indirectly, the information or mat- tion for which the information is ters as to which the person will testify; sought. No requester has a right to (6) An agreement to provide free of make an oral request and receive a de- charge to any witness a signed copy of termination. Whether to permit such any written statement he or she may an exceptional procedure is a decision make, or, in the case of an oral deposi- within the sole discretion of the deter- tion, a copy of that deposition tran- mining authority, unless overruled by script, if taken by a stenographer, or a the General Counsel or the Judge Ad- video tape copy, if taken solely by vocate General, as appropriate.
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(2) If the determining authority con- (7) Whether disclosure, except when cludes that the request, or any portion in camera (i.e., before the judge alone) of it, meets the emergency test, he or and necessary to assert a claim of she will require the requester to agree privilege, would reveal information to the conditions set forth in § 725.7(a). properly classified under the DOD In- The determining authority will then formation Security Program under orally advise the requester of the de- DOD 5200.1-R7, withholding of unclassi- termination, and seek a written con- fied technical data from public disclo- firmation of the oral request. There- sure following OPNAVINST 5510.161; after, the determining authority will privileged Naval Aviation Safety Pro- make a written record of the disposi- gram information (OPNAVINST 3750.6Q tion of the oral request including the (NOTAL))8, or other matters exempt grant or denial, circumstances requir- from unrestricted disclosure under 5 ing the procedure, and conditions to U.S.C. 552, 552a; which the requester agreed. (8) Whether disclosure would unduly (3) The emergency procedure should interfere with ongoing law enforcement not be utilized where the requester re- proceedings, violate constitutional fuses to agree to the appropriate condi- rights, reveal the identity of an intel- tions set forth in § 725.7(a) or indicates ligence source or source of confidential unwillingness to abide by the limits of information, conflict with U.S. obliga- the oral grant, partial grant, or denial. tions under international agreement, or be otherwise inappropriate under § 725.8 Considerations in determining the circumstances; to grant or deny a request. (9) Whether attendance of the re- quested witness at deposition or trial (a) General considerations. In deciding will unduly interfere with the military whether to authorize release of official mission of the command; and information, or the testimony of DON (10) Whether, in a criminal case, re- personnel concerning official informa- quiring disclosure by a defendant of de- tion (hereafter referred to as ‘‘the dis- tailed information about the relevance closure’’ under a request conforming of documents or testimony as a condi- with the requirements of § 725.7, the de- tion for release would conflict with the termining authority shall consider the defendant’s constitutional rights. following factors: (b) Specific considerations—(1) Docu- (1) The DON policy regarding disclo- ments, interviews, depositions, testimony, sure in § 725.2; and views (where the United States is, or (2) Whether the request or demand is may become, a party). All requests per- unduly burdensome or otherwise inap- taining to such matters shall be for- propriate under applicable court rules; warded to the Judge Advocate General (3) Whether disclosure, including re- or the General Counsel, as appropriate lease in camera (i.e., to the judge or under § 725.6(c). court alone), is appropriate under pro- (2) Documents (where the United States cedural rules governing the case or is not, and is reasonably not expected to matter in which the request or demand become a party)—(i) Unclassified Navy arose; and Marine Corps records. Where parties (4) Whether disclosure would violate or potential parties desire unclassified or conflict with a statute, executive naval records in connection with a liti- order, regulation, directive, instruc- gation matter, the subpoena duces tion, or notice; tecum or court order will be served, (5) Whether disclosure, in the absence under 32 CFR 257.5(c), upon the General of a court order or written consent, Counsel of the Navy, along with a writ- would violate 5 U.S.C. 552, 552a; ten request complying with § 725.7. (6) Whether disclosure, including re- (A) If the determining authority to lease in camera, is appropriate or nec- whom the matter is referred deter- essary under the relevant substantive mines to comply with the order or sub- law concerning privilege (e.g., attor- poena, compliance will be effected by ney-client, attorney work-product, or physician-patient in the case of civil- 7 See footnote 1 to § 725.1. ian personnel); 8 See footnote 1 to § 725.1.
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transmitting certified copies of records manding information from, or produc- to the clerk of the court from which tion of, service or medical records of process issued. If, because of an un- former Navy and Marine Corps per- usual circumstance, an original record sonnel in the custody of the National must be produced by a naval custodian, Personnel Records Center will be it will not be removed from the cus- served upon the Director, National Per- tody of the person producing it, but sonnel Records Center, 9700 Page Bou- copies may be placed in evidence. levard, St. Louis, MO 63132. If records (B) Upon written request of one or responsive to the request are identified more parties in interest or their re- and maintained at the National Per- spective attorneys, records which sonnel Records Center, that Center would be produced in response to a shall make appropriate certified (au- court order signed by a judge as set thenticated) copies of the information forth above may be furnished without a requested. These copies will then be court order, but only upon a request forwarded, along with the request, in complying with § 725.7 and only when the case of Navy personnel, to Chief, such records are not in a ‘‘system of Bureau of Naval Personnel (Pers-06), records’’ as defined by the Privacy Act Washington, DC 20370-5000, or his dele- (5 U.S.C. 552a). In determining whether gate, who will respond. In the case of a record not contained in a ‘‘system of Marine Corps personnel, the copies and records’’ will be furnished in response request will be sent to the Com- to a Freedom of Information Act mandant of the Marine Corps (MMRB- (FOIA) request, SECNAVINST 5720.42E9 10), Quantico, VA 22134-0001, who will controls. respond. Those requests that do not (C) Generally, a record in a Privacy constitute legal demands will be re- Act ‘‘system of records’’ may not be re- fused by the Director, National Per- leased under a litigation request except sonnel Records Center, and written with the written consent of the person guidance provided to the requester. to whom the record pertains or in re- (iv) Medical and other records of civil- sponse to a court order signed by a ian employees. Production of medical judge. See SECNAVINST 5211.5C10 and 5 certificates or other medical reports U.S.C. 552, 552a for further guidance. concerning civilian employees is con- (D) Whenever compliance with a trolled by Federal Personnel Manual, court order or subpoena duces tecum chapter 294 and chapter 339.1-4.12 for production of DON records is denied Records of civilian employees, other for any reason, the subpoena or court than medical records, may be produced order and complete copies of the re- upon receipt of a court order and a re- quested records will be forwarded to quest complying with § 725.7, provided the appropriate Deputy Assistant no classified or for official use only in- Judge Advocate General (General Liti- formation, such as loyalty or security gation) or the Associate General Coun- records, are involved. Disclosure of sel (Litigation) for action, and the par- records relating to compensation bene- ties to the suit notified in accordance fits administered by the Office of with this part. Workers’ Compensation Programs of (ii) Classified Navy and Marine Corps the Department of Labor are governed records. Any consideration of release of by Secretary of the Navy Instruction classified information for litigation 5211.5C (Privacy Act implementation) purposes, within the scope of this in- and Secretary of the Navy Instruction struction, must be coordinated within 5720.42E (Freedom of Information Act the Office of the Chief of Naval Oper- implementation), as appropriate. ations (OP-09N) per OPNAVINST Where information is furnished per this 5510.1H.11 subparagraph in response to a court (iii) Records in the custody of the Na- order and proper request, certified cop- tional Personnel Records Center. Court ies rather than originals should be fur- orders or subpoenas duces tecum de- nished. Where original records must be produced because of unusual cir- 9 See footnote 1 to § 725.1. cumstances, they may not be removed 10 See footnote 1 to § 725.1. 11 See footnote 1 to § 725.1. 12 See footnote 1 to § 725.1.
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from the custody of the official pro- land Center, Anthony J. Celebrezze ducing them, but copies may be placed Federal Building, Cleveland, OH 44199- on the record. 2055. Official pay records of active- (v) JAGMAN investigations (other than duty, reserve, retired, or former Ma- to next of kin). The Deputy Assistant rines should be requested from Direc- Judge Advocate General having cog- tor, Defense Finance and Accounting nizance over the records at issue for Service, Kansas City Center (Code G), litigation or prospective litigation pur- Kansas City, MO 64197-0001. poses may release the records if a com- (3) Interviews, depositions, and testi- plete release will result. The Assistant mony (where the United States is not, and Judge Advocate General (Civil Law) is reasonably not expected to become, a will make determinations concerning party)—(i) Factual matters. DON policy the release of the records specified in favors disclosure of factual matters this subparagraph if a release of less when disclosure does not violate the than the complete requested record criteria stated in this section. Distin- will result. A release to next of kin of guishing between factual matters and incompetent or deceased DON per- expert or opinion matters (where DON sonnel or their representatives is ex- policy favors non-disclosure) requires empt from these requirements and this careful analysis. Opinion matters are part. defined at § 725.4(c). (vi) Affirmative claims files. Affirma- (ii) Expert, opinion, or policy matters. tive claims files (including Medical Such matters are to be determined, Care Recovery Act files), except to the under the delegation in § 725.6, by the extent they contain copies of JAGMAN cognizant Deputy Assistant Judge Ad- investigations prepared under the Man- vocate General or by General Counsel. ual of the Judge Advocate General, or General considerations to identify ex- classified or privileged information, pert or opinion testimony are in may be released by the commanding of- § 725.4(c). DON personnel shall not pro- ficer of the Naval Legal Service Office vide, with or without compensation, having cognizance over the claim at opinion or expert testimony concerning issue, without compliance with this in- official information, subjects, or ac- struction, to: insurance companies to tivities, except on behalf of the United support claims; to civilian attorneys States or a party represented by the representing injured service persons, Department of Justice. Upon a showing their dependents, and the Govern- by the requester of exceptional need or ment’s interests; and to other DOD unique circumstances, and that the an- components. When a request for pro- ticipated testimony will not be adverse duction involves material related to to the interests of the DOD or the claims in favor of the Government, ei- United States, the appropriate DON of- ther the cognizant Command Counsel ficial designated in § 725.6, may grant, or the Naval Legal Service Office hav- in writing, special authorization for ing territorial responsibility for the DON personnel to appear and testify at area should be notified. no expense to the United States. In de- (vii) Accounting for disclosures from termining whether exceptional need or ‘‘systems of records.’’ When compliance unique circumstances exist, the deter- with a litigation request or demand for mining official should consider wheth- production of records is appropriate, or er such expert or opinion testimony is when release of records is otherwise au- available to the requester from any thorized, and records contained in a other source. The burden of dem- ‘‘system of records,’’ are released, the onstrating such unavailability, if any, releasing official will consult Sec- is solely upon the requester. retary of the Navy Instruction 5211.5C (iii) Visits and views (where the United regarding disclosure accounting re- States is not, and is reasonably not ex- quirements. pected to become, a party). Such disclo- (viii) Pay records. Official pay records sures are normally factual in nature of active-duty, reserve, retired, or and should not be accompanied by former Navy members should be re- interviews of personnel unless sepa- quested from Director, Defense Finance rately requested and granted. The au- and Accounting Service (DFAS), Cleve- thority of the commanding officer of
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the activity, ship, or unit at issue is struction 5370.2H), or disclose properly not limited by this part. Accordingly, classified or privileged information. he or she may prescribe appropriate (c) A determination to grant or deny conditions as to time, place, and cir- should be made as expeditiously as pos- cumstances (including proper restric- sible to provide the requester and the tions on photography). court with the matter at issue or with (iv) Non-DOD information. A request a statement of the reasons for denial. for disclosure under this part, particu- The decisional period should not ex- larly through the testimony of a wit- ceed 10 working days from receipt of a ness, may involve both official infor- complete request complying with the mation and non-DOD information (e.g., requirements of § 725.7, absent excep- in the case of a person who has ac- tional or particularly difficult cir- quired additional and separate knowl- cumstances. The requester should also edge or expertise wholly apart from be informed promptly of the referral of Government employment). Deter- any portion of the request to another mining whether or not official informa- authority for determination. tion is at issue is within the purview of (d) Except as provided in § 725.7(d), a the determining authority, not the re- determination to grant or deny shall be quester. A requester’s contention that in writing. only non-DOD information is at issue (e) The determination letter should is not dispositive. The requester must respond solely to the specific disclo- still comply with this instruction to sures requested, stating a specific de- support that contention. If non-DOD termination on each particular re- information is at issue in whole or in quest. When a request is denied in part, the determining authority shall whole or in part, a statement of the so state in the written determination reasons for denial should be provided to described in § 725.9. He or she shall fully inform a court of the reasons un- make no other determination regard- derlying the determination if it is chal- lenged. ing that non-DOD information. (f) A copy of any denial, in whole or § 725.9 Action to grant or deny a re- in part, of a request, should be for- quest. warded to the cognizant Deputy Assist- ant Judge Advocate General or the As- (a) The process of determining sociate General Counsel (Litigation), whether to grant or deny a request is as appropriate. Such notification is not an adversary proceeding. This part likewise appropriate when the litiga- provides guidance for the operation of tion request has been treated under 5 DON only and is not intended to, does U.S.C. 552, 552a and § 725.5(f). Tele- not, and may not be relied upon to, cre- phonic notification is particularly ap- ate any right or benefit, substantive or propriate where a judicial challenge or procedural, enforceable at law against contempt action is anticipated. the United States, DOD, or DON. (g) In cases in which a subpoena has (b) 32 CFR part 97 and this part apply been received and the requester refuses to testimony by former naval per- to pay fees or otherwise comply with sonnel and former civilian employees the guidance and requirements imposed of DON. A proper request must be by this part, or if the determining au- made, under § 725.7, to obtain testi- thority declines to make some or all of mony by former personnel regarding the subpoenaed information available, official DOD information. However, or if the determining authority has had this part is not intended to place un- insufficient time to complete its deter- reasonable restraints upon the post- mination as to how to respond to the employment conduct of such personnel. request, the determining authority Accordingly, requests for expert or must promptly notify the General Liti- opinion testimony by such personnel gation Division of the Office of the will normally be granted unless that Judge Advocate General or the Navy testimony would constitute a violation Litigation Office of the Office of the of the U.S. Code (e.g., 18 U.S.C. 201 et General Counsel, which offices will de- seq.), conflict with pertinent regula- termine, in consultation with the De- tions (e.g., Secretary of the Navy In- partment of Justice, the appropriate
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response to be made to the tribunal under § 725.10(b), or if such court or which issued the subpoena. Because the other authority orders that the request Federal Rules of Civil Procedure re- or demand must be complied with, not- quire that some objections to sub- withstanding the final decision of the poenas must be made either within 10 appropriate DON official, the DON per- days of service of the subpoena or on or sonnel upon whom the request or de- before the time for compliance, which- mand was made will, if time permits, ever first occurs, and because this will notify the determining authority of require consultation with the Depart- such ruling or order. That authority ment of Justice, timely notice is essen- will notify the Deputy Assistant Judge tial. Advocate General or the Associate § 725.10 Response to requests or de- General Counsel (Litigation) having mands in conflict with this instruc- cognizance over the matter. After due tion. consultation and coordination with the (a) Except as otherwise provided in Department of Justice, as required by this paragraph, DON personnel, includ- the Manual of the Judge Advocate Gen- ing former military personnel and ci- eral, that official will determine vilian employees, shall not produce, whether the individual is required to disclose, release, comment upon, or comply with the request or demand and testify concerning any official DOD in- will notify the requester, the court, or formation in response to a litigation other authority accordingly. The wit- request or demand without prior writ- ness shall, if directed by the appro- ten approval of the appropriate DON priate DON official, respectfully de- official designated in § 725.6. If a re- cline to comply with the demand. quest has been made, and granted, in Legal counsel for the command con- whole or in part, per 32 CFR part 97 and cerned should accompany and advise this part, DON personnel may only DON personnel during any court pro- produce, disclose, release, comment ceedings involving the foregoing cir- upon, or testify concerning those mat- cumstances. ters specified in the request and prop- (d) It is expected that all DON ac- erly approved by the determining au- tions in the foregoing paragraphs will thority designated in § 725.6. See United be taken only after active consultation States ex rel. Touhy v. Ragen, 340 U.S. with the appropriate component of the 462 (1951). (b) If, after DON personnel have re- Department of Justice. Generally, DON ceived a litigation request or demand personnel will be instructed to decline and have in turn notified the appro- to comply with a court order only if priate determining authority described the Department of Justice commits to in § 725.6, a response to the request or represent the DON personnel in ques- demand is required before instructions tion. from the responsible official have been received, the responsible authority des- § 725.11 Fees. ignated in § 725.6 shall notify the Dep- (a) Generally. Except as provided uty Assistant Judge Advocate General below, determining authorities shall or Associate General Counsel (Litiga- charge reasonable fees and expenses to tion) who has cognizance over the mat- parties seeking official DON informa- ter. That official will furnish the re- tion or testimony under this instruc- quester, the court, or other authority tion. Pursuant to 32 CFR 288.4, 288.10, that the request or demand is being re- these fees should include all costs of viewed in accordance with this part processing a request for information, and seek a stay of the request or de- including time and material expended. mand pending a final determination. Travel for active duty members sum- (c) If a court of competent jurisdic- moned as witnesses is governed by tion or other appropriate authority de- clines to stay the effect of the request Joint Travel Regulations, Vol. I, Chap. or demand in response to action taken 7, pt. E. and Navy Travel Instructions,
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Chap. 6, pt. E.13 Travel for civilian per- and per diem for civilian employees is sonnel summoned as witnesses is gov- authorized. erned by the Joint Travel Regulations, (b) Special circumstances—(1) Refusal Vol. II, Chap. 4, pt. E.14 to pay fees. In cases in which a sub- (1) When DON is a party. No fees nor- poena has been received and the re- mally shall be charged when the DON quester refuses to pay appropriate fees, is a party to the proceedings, and the it may become necessary to request the activity holding the requested informa- Department of Justice to take appro- tion or employing the witness shall priate legal action before the court bear the expense of complying with the issuing the subpoena. Determining au- request. thorities should consult promptly with (2) When another federal agency is a the OJAG General Litigation Division party. No fees shall be charged to the or the Navy Litigation Office of the requesting agency. Travel and per diem General Counsel if this course of action expenses may be paid by the requesting appears necessary, because some objec- agency, or by the Navy activity to tions to subpoenas must be made either which the requested witness is as- within ten days of service of the sub- signed, subject to reimbursement from poena or on or before the time for com- the requesting agency. pliance, whichever first occurs, and be- (3) When neither DON nor another fed- cause this will require timely consulta- eral agency is a party. Fees shall be tion with the Department of Justice. If charged to the requester for time taken no subpoena has been issued, the deter- from official duties by DON personnel mining authority must decide whether who are authorized to be interviewed, to deny the request or, if appropriate, give testimony, or escort persons on waive the fees. views and visits of installations. At the (2) Waiver or reduction of fees. The de- discretion of the cognizant command, termining authority may waive or re- DON personnel need not be made avail- duce fees pursuant to 32 CFR 288.4, able during duty hours unless directed 288.9, provided such waiver or reduction by subpoena. Time which DON per- is in the best interest of the DON and sonnel spend in court testifying, or the United States. Fee waivers and re- waiting to testify on factual matters ductions shall not be routinely grant- shall not be charged. Fees should be ed, or granted under circumstances charged, however, for expert or opinion which might create the appearance testimony based upon the witness’s that DON favors one party over an- education, training, or experience. Tes- other. timony by a treating physician called (3) Witness fees required by the court. to testify about his personal knowledge Witness fees required by the rules of of a specific case is considered fact not the applicable court shall be paid di- expert testimony. Fees are payable to rectly to the witness by the requester. the Treasurer of the United States for Such amounts are to defray the cost of deposit in the Treasury’s miscellaneous travel and per diem. In a case where receipts. Rates for uniformed personnel the Government has paid the cost of are published in NAVCOMPT Notice travel and per diem, the witness shall 7041 series.15 Pursuant to 32 CFR 288.4, turn over to his or her supervisor any charges for civilian personnel should payment received from a private party include the employee’s hourly rate of to defray the cost of travel that, when pay, as well as allowances and benefits. added to amounts paid by the Govern- Except as provided in § 725.11(b)(4), no ment, exceed the actual cost of travel. funds may be expended for travel or per The supervisor shall forward the diem of active duty members when an amount turned over by the witness to agency of the Federal Government is the Office of the Comptroller of the not a party. The requesting party is re- Navy for appropriate action. sponsible for travel arrangements and (4) Exceptional cases. If neither the funding. Government funding of travel DON, nor an agency of the Federal Government is a party, appropriated 13 See footnote 1 to § 725.1. funds may be used to pay, without re- 14 See footnote 1 to § 725.1. imbursement, travel and per diem of 15 See footnote 1 to § 725.1. DON personnel who are witnesses in
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criminal or civil proceedings, provided, training) or on the retired list of the the case is directly related to the Navy or Marine Corps; and Armed Services, or its members, and (2) Members of the Fleet Reserve or the Armed Services have a genuine and Fleet Marine Corps Reserve. compelling interest in the outcome. § 726.3 Authority to appoint trustees. PART 726—PAYMENTS OF The Judge Advocate General or his AMOUNTS DUE MENTALLY IN- designee is authorized to act for the COMPETENT MEMBERS OF THE Secretary of the Navy to appoint trust- NAVAL SERVICE ees to receive and administer Federal monies for members and to carry out Sec. the provisions of this chapter. 726.1 Purpose. 726.2 Scope. § 726.4 Procedures for convening com- 726.3 Authority to appoint trustees. petency boards. 726.4 Procedures for convening competency (a) Competency Board. (1) The com- boards. manding officer of the cognizant naval 726.5 Procedures for designation of a trust- medical facility will convene a board of ee. 726.6 Travel orders. not less than three medical officers or 726.7 Status of pay account. physicians, one of whom will be a psy- 726.8 Emergency funds. chiatrist, when there is evidence that a 726.9 Reports and supervision of trustees. member who is a patient in the naval AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031, and medical facility may be incapable of 5148; 37 U.S.C. 601-604, and 1001; 32 CFR 700.206 handling his affairs. The board will be and 700.1202. convened in accordance with chapter SOURCE: 56 FR 55088, Oct. 24, 1991, unless 18, Manual of the Medical Department. otherwise noted. The board may include members of the NOTE: This part 726 is chapter XIV, of the Reserve components on active or inac- Manual of the Judge Advocate General of the tive duty. When active duty Navy or Navy. Marine corps members are hospitalized in nonnaval medical facilities, the re- § 726.1 Purpose. gional Naval Office of the Medical/Den- This part explains the procedures for tal Affairs will ensure compliance with convening competency boards and how chapter 18. to appoint trustees for members of the (2) The Judge Advocate General or Naval service who have been deter- his designee may direct the com- mined to be mentally incompetent in manding officer of any naval medical accordance with title 11 of chapter 37, facility, or request the commanding of- United States Code. ficer of another service medical facility or administrator of a Department of § 726.2 Scope. Veterans Affairs medical facility, to (a) The Secretary of the Navy has au- convene a board in accordance with thority to designate a trustee in the this section to determine the mental absence of notice that a legal com- capability of a member to manage his mittee, guardian, or other legal rep- affairs. resentative has been appointed by a (3) A finding of restoration of com- State court of competent jurisdiction. petency or capability to manage per- 37 U.S.C. 601-604. Trustees receive the sonal and financial affairs may be ac- active duty pay and allowances, complished in the same manner speci- amounts due for accrued or accumu- fied in chapter 18, Manual of the Med- lated leave, and retired pay or retainer ical Department, except that the board pay, that are otherwise payable to a may consist of one or two medical offi- member found by competent medical cers or physicians, one of whom must authority to be mentally incapable of be a psychiatrist. managing his affairs. (4) At least one officer on the board, (b) Member as used in this chapter re- preferably the psychiatrist, will per- fers to: sonally observe the member and ensure (1) Members of the Navy or Marine that the member’s medical record, par- Corps on active duty (other than for ticularly that portion concerning his
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mental health, is accurate and com- as directed by the Judge Advocate Gen- plete. eral or his designee; (5) The requirement for the com- (2) Ascertain that the prospective petency board is in addition to and sep- trustee is willing to execute an affi- arate from the medical board proce- davit acknowledging that all monies dures. Each board member will sign the will be applied to the use and benefit of report of the board and will certify the member and his legal dependents whether the member is or is not men- and that no fee, commission, or charge, tally capable of managing his affairs. for any service performed by the trust- After approval by the convening au- ee, except for payment of the required thority, the original board report is bond, will be paid from Federal monies forwarded to the Judge Advocate Gen- received by the trustee. eral. (3) Forward recommendations to the (b) Records. (1) The convening author- Judge Advocate General for appro- ity will forward the original of each priate action. board report to the Judge Advocate § 726.6 Travel orders. General, Department of the Navy, 200 Stovall Street, Alexandria, VA 22332- The Chief of Naval Personnel or the 2400. Director, Personnel Management Divi- sion, Headquarters, Marine Corps, may (2) In the case of a finding that a issue travel orders to a member to ap- member is not mentally capable of pear before an examining board con- managing his affairs, the forwarding vened to determine whether the mem- endorsement will set forth the name, ber is mentally capable of managing relationship, address, and telephone his affairs. In the case of permanently number(s), of the member’s next of kin retired members, however, travel for and any other data to help identify a an appearance before a board convened prospective trustee. pursuant to section 1404, above, will be at no cost to the Government unless § 726.5 Procedures for designation of a trustee. the Judge Advocate General or his des- ignee determines that unusual hard- (a) Upon receipt of a report of a board ship exists and requests that appro- convened under section 1404 that a priate authority fund the travel ex- member has been found mentally in- penses. capable of managing his affairs, the Judge Advocate General or his designee § 726.7 Status of pay account. will initiate action to appoint a trust- (a) Upon notification by the com- ee, provided no notice of appointment manding officer of the medical facility of a committee, guardian, or other preparing the incapacitation deter- legal representative by a State court of mination that a member has been de- competent jurisdiction has been re- clared mentally incompetent to man- ceived by the Judge Advocate General. age his affairs, the cognizant dis- The Judge Advocate General or his des- bursing officer will take appropriate ignee may direct any Navy or Marine action and immediately send the mem- Corps activity to appoint an officer to ber’s personal financial record to the interview a prospective trustee and appropriate finance center following make recommendations concerning the guidelines in the Department of suitability. The Judge Advocate Gen- Defense Military Pay and Allowances eral will provide the interviewing offi- Entitlements Manual, Part Four, chap- cer with complete instructions per- ter 2. The Judge Advocate General or taining to the interview of the prospec- his designee will then direct the appro- tive trustee, including the forms re- priate finance center to suspend the quired to be completed by the prospec- member’s pay. Thereafter, the Judge tive trustee that will be returned by Advocate General or his designee will the interviewing officer to the Judge direct payment of monies to: Advocate General. (1) The appointed trustee; (b) The interviewing officer will: (1) (2) The legal representative ap- Determine whether the prospective pointed by a State court of competent trustee can obtain an appropriate bond jurisdiction; or
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(3) Directly to the member following § 726.9 Reports and supervision of a determination that the member is ca- trustees. pable of managing his affairs. (a) Accounting reports. The trustee (b) The Commanding Officer, Navy designated under this chapter will sub- Finance Center, or Commanding Offi- mit accounting reports annually or at cer, Marine Corps Finance Center, will such other times as the Judge Advo- notify the Judge Advocate General of cate General or his designee directs. any fact affecting the pay of a member The Judge Advocate General will pro- mentally incapable of managing his af- vide forms to be used by trustees for fairs. This includes waiver of retired the required accounting report. The re- pay in favor of Veterans Administra- port will account for all funds received tion compensation; death of the mem- from the Navy or Marine Corps on be- ber; death of the trustee; or, notice of half of the member. When payments to appointment of a legal representative a trustee are terminated for any rea- by a State court of competent jurisdic- son, the trustee will submit a final ac- tion. At the request of the Judge Advo- counting report to the Judge Advocate cate General or his designee, the appro- General. Upon approval of the final ac- priate finance center will report all counting report, the trustee and the disbursements from the member’s ac- surety will be discharged from liabil- count. ity. (c) The Navy or Marine Corps Fi- (b) Failure to submit a report and de- nance Center will seek direction from fault. If an accounting report is not re- the Judge Advocate General when in- ceived by the date designated by the formation from other sources indicates Judge Advocate General or his des- a member is not competent to manage ignee, or an accounting is unsatisfac- his affairs. tory, the Judge Advocate General or his designee will notify the trustee in § 726.8 Emergency funds. writing. If a satisfactory accounting is not received by the Judge Advocate (a) Until a trustee is appointed, the General within the time specified, the Judge Advocate General or his designee trustee will be declared in default of may appoint the member’s com- the trustee agreement and will become manding officer or other appropriate liable for all unaccounted trustee official to receive emergency funds up funds. If a trustee is declared in default to $1,000.00 from the pay account of the of the trustee agreement, the appro- member without bond. The money will priate finance center will be directed be used for the benefit of the member to terminate payments to the trustee and his legal dependents. and, if necessary, a successor trustee (b) The commanding officer of any may be appointed. The trustee and sur- naval medical facility may designate ety will be notified in writing by the an officer of the command to receive Judge Advocate General or his designee and account for up to $35.00 per month of the declaration of default. The noti- for the health and comfort of a member fication will state the reasons for de- who is found mentally incapable of fault, the amount of indebtedness to handling his affairs and who is a pa- the Government, and will demand pay- tient at the naval medical facility, if: ment for the full amount of indebted- (1) A trustee has not been designated ness. If payment in full is not received under this chapter and a committee, by the Judge Advocate General within guardian, or other legal representative an appropriate period of time from no- has not been appointed by a State tification of default, the account may court of competent jurisdiction; be forwarded to the Department of Jus- (2) The member has no other funds tice for recovery of funds through ap- available for use in his own behalf; and propriate civil action. (3) The funds are necessary for the purchase of items necessary for the PART 727—LEGAL ASSISTANCE health and comfort of the member. (c) This section will be cited on the Sec. pay voucher as authority for payment 727.1 Purpose. and receipt of such funds. 727.2–727.4 [Reserved]
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727.5 Persons eligible for assistance. § 727.6 Functions of legal assistance of- 727.6 Functions of legal assistance officers. ficers. 727.7 Limitations on service provided. 727.8 Confidential and privileged character (a) Basic duties. A legal assistance of- of service provided. ficer, while performing legal assistance 727.9 Referrals to civilian lawyers. duties, in addition to performing any 727.10 Fees, compensation, solicitation, and other duties which may be assigned to representation in civilian courts. him/her: 727.11 Supervision. (1) Shall counsel, advise, and assist 727.12 Communications. 727.13 Reports. persons eligible for assistance in con- 727.14 Files and records. nection with their personal legal prob- 727.15 Liberal construction of part. lems, or refer such persons to a civilian lawyer as provided in § 727.9. AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031 and 5148; 32 CFR 700.206 and 700.1202. (2) Shall serve as advocate and coun- sel for persons eligible for assistance in SOURCE: 38 FR 6026, Mar. 6, 1973, unless oth- connection with their personal legal erwise noted. problems and may prepare and sign § 727.1 Purpose. correspondence on behalf of a client, negotiate with another party or his A legal assistance program providing lawyer, and prepare all types of legal needed legal advice and assistance to documents, including pleadings, as are military personnel and their depend- appropriate. ents has been in operation in the naval (3) Shall, in appropriate cases and service since 1943. The program has im- under guidelines prescribed in the Man- proved the morale of personnel and re- ual of the Judge Advocate General con- duced disciplinary problems since its templating agreements or liaison with inception. The purpose of this part is appropriate civilian bar officials, serve to provide guidelines for the continu- as advocate and counsel for, and pro- ation of the program. vide full legal representation including representation in court to, persons eli- §§ 727.2–727.4 [Reserved] gible for assistance in connection with § 727.5 Persons eligible for assistance. their personal legal problems. (4) Shall, subject to the direction of Legal assistance shall be available to the senior legal assistance officer of members of the Armed Forces of the the command, establish contact and United States and their dependents, maintain liaison with local bar organi- and military personnel of allied na- zations, lawyer referral services, legal tions serving in the United States, its aid societies, and other local organiza- territories or possessions. Legal assist- tions through which the services of ci- ance is intended primarily for the ben- vilian lawyers may be made available efit of active duty personnel during ac- to military personnel and their depend- tive service, including reservists (and ents. members of the National Guard) on ac- (5) Shall supervise the personnel and tive duty for 30 days or more. As re- operation of the legal assistance office sources permit, legal assistance may be in accordance with good legal practice extended to retired military personnel, and the policies and guidance provided their dependents, survivors of members by the Judge Advocate General. of the Armed Forces who would be eli- (6) Shall advise persons with com- gible were the service member alive, plaints of discrimination on policies reservists on active duty for single pe- and procedures under the Civil Rights riods of 29 days or less, and in overseas Act of 1964 and pertinent Navy instruc- areas, to civilians, other than local- tions. hire employees, who are in the employ (b) Nature of assistance. Legal assist- of, serving with, or accompanying the ance officers and administrative and U.S. Armed Forces, and their depend- clerical personnel assigned to legal as- ents, when and if the workload of the sistance offices perform legal assist- office renders such service feasible, and ance duties as official duties in the ca- other persons authorized by the Judge pacity of an officer or an employee of Advocate General of the Navy. the United States. Persons performing [65 FR 26748, May 9, 2000] legal assistance duties, however,
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should not mislead those with whom of a trial counsel, defense counsel, or they may deal into believing that their other officer involved in the processing views or opinions are the official views of courts-martial, nonjudicial punish- or opinions of, approved by, or binding ment, administrative boards or pro- on, the Department of the Navy or the ceedings, investigations, or other offi- United States. cial military matters. Frequently, a (c) Duty to client. A legal assistance service member accused or suspected of officer should exercise his independent an offense or conduct leading to an ad- professional judgment on behalf of his ministrative proceeding will request client within the standards promul- advice from the legal assistance offi- gated in the Code of Professional Re- cer. In such a case, the service member sponsibility and the specific limita- should be advised of the proper proce- tions imposed in this part. dures for obtaining counsel or advice. (d) Professional legal advice. Legal as- This limitation does not prevent the sistance is authorized for personal assignment of the same officer to per- legal affairs only, as contrasted with form the functions of a legal assistance military justice problems, business officer and the functions of a defense ventures, or matters that are not of a counsel, counsel for respondent, or personal nature. Legal assistance du- counsel for a party. ties are separate and apart from re- sponsibilities of trial counsel, defense (b) Domestic-relations cases. In domes- counsel, or others involved in proc- tic-relations cases, a legal assistance essing courts-martial, nonjudicial pun- officer may provide advice concerning ishments, administrative boards or the legal and practical implications of proceedings, and investigations. Only divorce, legal separation, annulment, legal assistance officers are authorized custody, and paternity. Assistance and to render services that call for the pro- advice in domestic violence cases will fessional judgment of a lawyer. The be consistent with the Department of legal assistance officer may delegate the Navy family advocacy program. If tasks to clerks, secretaries, and other two or more eligible persons with con- lay personnel provided the officer flicting interests seek legal assistance maintains a direct relationship with from the same office on the same mat- the client, supervises the delegated ter, the party first establishing an at- work, and has complete professional re- torney-client relationship will be pro- sponsibility for the work product. vided representation. Other parties Services that call for the professional shall be advised that they are also eli- judgment of a lawyer include, but are gible for assistance, but that it must be not limited to, the preparation of wills obtained from another source, with the and powers of attorney, advising per- assistance of and referral by the first sonnel with respect to legal rights and office. relationships, negotiating contracts, (c) Nonlegal advice. The legal assist- and other matters requiring an edu- ance officer, while giving legal advice, cated ability to relate the general body may also determine that the client and philosophy of law to a specified needs or desires advice on related legal problem of a client. Guidance in nonlegal matters. The legal assistance this matter may be had from various officer should provide legal advice official sources including the ethical only, or defer giving such advice, and considerations under the Code of Pro- refer the client to an appropriate per- fessional Responsibility of the Amer- son or agency for such nonlegal coun- ican Bar Association. seling. The legal assistance officer should establish and maintain a work- [41 FR 26863, June 30, 1976, as amended at 47 FR 41561, Sept. 21, 1982; 65 FR 26748, May 9, ing relationship with those individuals 2000] who are qualified to provide nonlegal counseling services. § 727.7 Limitations on service pro- (d) Proceedings involving the United vided. States. A legal assistance officer shall (a) Assistance in official military mat- not advise on, assist in, or become in- ters. Legal Assistance duties are sepa- volved with, individual interests op- rate and apart from the responsibilities posed to or in conflict with the United
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States without the specific approval of fices shall maintain the confidential the Judge Advocate General. nature of matters handled. (e) Telephone inquiries. In the absence [42 FR 35957, July 13, 1977, as amended at 65 of unusual or compelling cir- FR 26749, May 9, 2000] cumstances, legal advice should not be given over the telephone. This does not § 727.9 Referrals to civilian lawyers. prohibit appropriate follow-up tele- (a) General. If it is determined that phone discussions between the legal as- the legal assistance requested is be- sistance attorney and the client. yond the scope of this part, or if no [41 FR 26863, June 30, 1976, as amended at 65 available legal assistance officer is FR 26749, May 9, 2000] qualified to give the assistance re- quested, the client should be referred § 727.8 Confidential and privileged to a civilian lawyer. When the client character of service provided. does not know of a lawyer whom he All information and files pertaining wishes to represent him, his case may to the persons served will be treated as be referred to an appropriate bar orga- confidential and privileged in the legal nization, lawyer referral service, legal sense as outlined in the Code of Profes- aid society, or other local organization sional Responsibility, as opposed to for assistance in obtaining reliable, confidential in the military sense of se- competent, and sympathetic counsel, curity information. These privileged or to a civilian lawyer designated by matters may not be disclosed to any- such organization. one by personnel rendering the service, (b) Fees charged by civilian lawyers. except upon the specific permission of Legal assistance clients being referred the person concerned, and disclosure to a civilian lawyer should be advised thereof may not be lawfully ordered by that, even when the fee to be charged is superior military authority. This re- set by statute or subject to court ap- striction does not prohibit providing proval, it should be one of the first the nonprivileged statistical data re- items discussed to avoid later mis- quired by § 727.13 of this part. Protec- understandings and eliminate uncer- tion of the confidences of a legal assist- tainty. Legal assistance officers should ance client is essential to the proper exercise caution in discussing possible functioning of the legal assistance pro- fees to be charged by civilian lawyers gram in order to assure all military so as to avoid embarrassment or mis- personnel, regardless of grade, rank, or understanding between the client and position, that they may disclose frank- his civilian lawyer. ly and completely all material facts of their problem to those rendering the § 727.10 Fees, compensation, solicita- service without fear that their con- tion, and representation in civilian fidence will be abused or used against courts. them in any way. While case files are (a) General. Active duty military per- not subject to the control of the De- sonnel and civilian employees of the partment of the Navy and therefore do Navy and Marine Corps are prohibited not constitute a ‘‘system of records’’ from accepting or receiving, directly or within the meaning of the Privacy Act indirectly, any fee or compensation of of 1974 (5 U.S.C. 552a), no information any nature, in cash or otherwise, for which identifies an individual legal as- legal services rendered to any person sistance client by name or any other entitled to legal assistance under this particular, such as social security part whether or not the service ren- number, shall be extracted from the dered is normally provided or available case files and incorporated into any to such person under this part and file or index system aside from or in whether or not the service is rendered addition to the information contained during duty hours as part of official du- on the legal assistance form (NAVJAG ties. Reserve judge advocates on inac- 5801/9) or locally used equivalent. tive duty are prohibited from accepting Strict adherence to the foregoing will or receiving any fee or compensation of ensure compliance with the Privacy any nature, in cash or otherwise, for Act. Administrative and clerical per- legal services rendered to any person sonnel assigned to legal assistance of- entitled to legal assistance under this
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part with respect to matters about ices are made available to all eligible which they consulted or advised said personnel within their areas. The person in an official capacity. Judge Advocate General will collabo- (b) Solicitation. Active duty military rate with the American Bar Associa- personnel, civilian employees of the tion, the Federal Bar Association, and Navy and Marine Corps, and inactive other civilian bar organizations as he reservists, acting in an official capac- may deem necessary or advisable in the ity, are prohibited from soliciting, or accomplishment of the objectives and advising that any person entitled to purposes of the legal assistance pro- legal assistance under this part retain, gram. consult, or seek legal services from themselves in their private capacities, [42 FR 35957, July 13, 1977] or from any attorney who is a partner § 727.12 Communications. or associate of a law firm of which they are partners or associates, or from any (a) Legal assistance officers are au- attorney with whom they share office thorized to communicate directly with spaces; Provided that nothing herein the Judge Advocate General, with each shall prevent such person from being other, and with other appropriate orga- referred to civilian counsel as provided nizations and persons concerning legal in § 727.9. assistance matters. (c) Representation before civilian courts (b) The use of a legal assistance of- or agencies. No active duty Navy or Ma- fice letterhead within the Department rine Corps judge advocate may appear of the Navy is authorized as an excep- as counsel on behalf of any person enti- tion to the standard letterhead require- tled to legal assistance, except as pro- ments contained in Department of De- vided in paragraph (a)(3) of § 727.6, or fense Instructions. Naval Legal Service the Expanded Legal Assistance Pro- Offices and other commands having au- gram, or under guidelines prescribed in thorized legal assistance officers are the Manual of the Judge Advocate Gen- authorized to print and use letterheads eral, before any civil court, civil ad- without seal or official command des- ministrative tribunal, civil regulatory ignation in those matters in which the body, or civil governmental agency, in correspondence pertains solely to legal any proceeding, whether or not a fee or assistance matters. Legal assistance other compensation is accepted or re- officers are directed to ensure that ceived, without prior written approval their correspondence does not imply of the Judge Advocate General, the ad- United States Navy or command spon- ministrator of the applicable program, sorship or approval of the substance of or the Commander, Naval Legal Serv- the correspondence. Such correspond- ice Command, as appropriate. Requests ence is considered a private matter for such permission may be in the form arising from the attorney-client rela- prescribed in the Manual of the Judge tionship as indicated in § 727.8. Advocate General. [42 FR 35958, July 13, 1977, as amended at 65 [47 FR 41561, Sept. 21, 1982, as amended at 65 FR 26749, May 9, 2000] FR 26749, May 9, 2000] § 727.13 Reports. § 727.11 Supervision. Each legal assistance office shall, by The Judge Advocate General will ex- the 10th day of October of each year, ercise supervision over all legal assist- prepare and submit to the Judge Advo- ance activities in the Department of cate General one copy of the Legal As- the Navy. Subject to the supervision of sistance Report (NAVJAG 5801/3 Rev. the Judge Advocate General, officers in 12–78)) covering the preceding fiscal charge of Naval Legal Service Offices, year. A final report shall be submitted and all Marine Corps commanders exer- on the disestablishment of the legal as- cising general court-martial authority, sistance office. Special reports shall be acting through their judge advocates, submitted when requested by the Judge shall exercise supervision over all legal Advocate General. Information copies assistance activities within their re- of all reports shall be furnished to the spective areas of responsibility and supervising commander referred to in shall ensure that legal assistance serv- § 727.11. Reports symbol JAG–5801–1 is
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assigned for this reporting require- 728.25 Army and Air Force National Guard ment. personnel. [38 FR 6026, Mar. 6, 1973, as amended at 47 FR Subpart D—Retired Members and 41561, Sept. 21, 1982] Dependents of the Uniformed Services § 727.14 Files and records. 728.31 Eligible beneficiaries and health ben- efits authorized. (a) Case files. The material contained 728.32 Application for care. in legal assistance case files is nec- 728.33 Nonavailability statement (DD 1251). essarily limited to private unofficial 728.34 Care beyond the capabilities of a matters and such material is privileged naval MTF. and protected under the attorney-cli- 728.35 Coordination of benefits—third party ent relationship. Each legal assistance payers. office should therefore maintain only 728.36 Pay patients. such files as are necessary for the prop- Subpart E—Members of Foreign Military er operation of the office. Services and Their Dependents (b) [Reserved] 728.41 General provisions. [38 FR 6026, Mar. 6, 1973, as amended at 43 FR 728.42 NATO. 17355, Apr. 24, 1978] 728.43 Members of other foreign military services and their dependents. § 727.15 Liberal construction of part. 728.44 Members of security assistance train- The provisions of this part are in- ing programs, foreign military sales, and tended to be liberally construed to aid their ITO authorized dependents. in accomplishing the mission of legal 728.45 Civilian components (employees of foreign military services) and their de- assistance. pendents. 728.46 Charges and collection. PART 728—MEDICAL AND DENTAL CARE FOR ELIGIBLE PERSONS AT Subpart F—Beneficiaries of Other Federal NAVY MEDICAL DEPARTMENT Agencies FACILITIES 728.51 General provisions—the ‘‘Economy Act.’’ Subpart A—General 728.52 Veterans Administration bene- ficiaries (VAB). Sec. 728.53 Department of Labor, Office of Work- 728.1 Mission of Navy Medical Department ers’ Compensation Programs (OWCP) facilities. beneficiaries. 728.2 Definitions. 728.54 U.S. Public Health Service (USPHS), 728.3 General restrictions and priorities. other than members of the uniformed 728.4 Policies. services. 728.55 Department of Justice beneficiaries. Subpart B—Members of the Uniformed 728.56 Treasury Department beneficiaries. Services on Active Duty 728.57 Department of State and associated agencies. 728.11 Eligible beneficiaries. 728.58 Federal Aviation Agency (FAA) bene- 728.12 Extent of care. ficiaries. 728.13 Application for care. 728.59 Peace Corps beneficiaries. 728.14 Pay patients. 728.60 Job Corps and Volunteers in Service to America (VISTA) beneficiaries. Subpart C—Members of Reserve Compo- 728.61 Medicare beneficiaries. nents, Reserve Officers’ Training Corps, Subpart G—Other Persons Navy and Marine Corps Officer Can- didate Programs, and National Guard 728.71 Ex-service maternity care. Personnel 728.72 Applicants for enrollment in the Sen- ior Reserve Officers’ Training Program. 728.21 Navy and Marine Corps reservists. 728.73 Applicants for enlistment or reenlist- 728.22 Members of other reserve components ment in the Armed Forces, and appli- of the uniformed services. cants for enlistment in the reserve com- 728.23 Reserve Officers’ Training Corps ponents. (ROTC). 728.74 Applicants for appointment in the 728.24 Navy and Marine Corps Officer Can- regular Navy or Marine Corps and re- didate Programs. serve components, including members of
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the reserve components who apply for ac- rectives. These authorizations also pro- tive duty. vide that Navy Medical Department fa- 728.75 Applicants for cadetship at service cilities may be called upon to furnish academies and applicants for the Uni- formed Services University of Health medical and dental care, under laws of Sciences (USUHS). humanity or principles of international 728.76 Naval Home residents. courtesy, to civilians and to other per- 728.77 Secretarial designees. sons not otherwise entitled to medical 728.78 American Red Cross representatives and dental care. and their dependents. 728.79 Employees of Federal contractors and subcontractors. § 728.2 Definitions. 728.80 U.S. Government employees. Unless otherwise qualified in this 728.81 Other civilians. part, the following terms, when used 728.82 Individuals whose military records are being considered for correction. throughout, are defined as follows: 728.83 Persons in military custody and non- (a) Active duty. Full-time duty in the military Federal prisoners. active military service of the United States. This includes full-time training Subpart H—Adjuncts to Medical Care duty; annual training duty; and attend- 728.91 General. ance, while in the active military serv- 728.92 Policy. ice, at a school designated as a service 728.93 Chart of adjuncts. school by law or by the Secretary of Subpart I—Reservists—Continued Treat- the military department concerned. It ment, Return to Limited Duty, Separa- does not include full-time National tion, or Retirement for Physical Dis- Guard duty. ability (b) Active duty for training. A tour of active duty for reserves for training 728.101 General. under orders that provide for auto- 728.102 Care from other than Federal sources. matic reversion to non-active status when the specified period of active Subpart J—Initiating Collection Action on duty is completed. It includes annual Pay Patients training, special tours, and the initial tour performed by enlistees without 728.111 General. 728.112 Responsibilities. prior military service. 728.113 Categories of pay patients. (c) CHAMPUS. Civilian Health and AUTHORITY: 5 U.S.C. 301 and 8101; 10 U.S.C. Medical Program of the Uniformed 1071–1095, 1201–1221, 2104, 2107, 2109, 2110, 5031, Services. 5537, 6011, 6201–6203; 22 U.S.C. 1158, 2357, 2504, (d) Catchment area. A specified geo- 2505, 2507, 2522; 24 U.S.C. 15, 34, 35; 31 U.S.C. graphic area surrounding each Uni- 1535; 42 U.S.C. 249, 253; and 32 CFR 700.1202. formed Services Medical Treatment SOURCE: 52 FR 33718, Sept. 4, 1987, unless Facility (USMTF) or designated Uni- otherwise noted. formed Services Treatment Facility (USTF). In the United States, Subpart A—General catchment areas are defined by zip codes and are based on an area of ap- § 728.1 Mission of Navy Medical De- proximately 40 miles in radius for inpa- partment facilities. tient care and 20 miles in radius for The primary mission of Navy Medical ambulatory care. Zip codes designating Department facilities is to provide such areas in the United States are medical and dental care for members of specified in Volumes I and II of the the Navy and Marine Corps and for Military Health Services System members of the other uniformed serv- (MHSS) Catchment Area Directory. ices who may be sick, injured, or dis- Catchment areas for facilities outside abled. In addition, Navy Medical De- partment facilities may provide med- the United States are defined in Vol- ical and dental care to dependents of ume III of the MHSS Catchment Area military personnel, to members not on Directory. These directories exclude active duty, and to such other persons certain areas because of geographic as authorized by law, U.S. Navy regula- barriers. tions, and Department of Defense di- 287
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(e) Chronic condition. Any medical or ficiary must also meet the eligibility surgical condition marked by long du- criteria in § 728.31(b) and § 728.31(c). ration or frequent recurrence—or like- (k) Designated USTFs. The following ly to be so marked—which, in light of former U.S. Public Health Service medical information available, will or- (USPHS) facilities operate as ‘‘des- dinarily resist efforts to eradicate it ignated USTFs’’ for the purpose of ren- completely; a condition which needs dering medical and dental care to ac- health benefits to achieve or maintain tive duty members and to all stability that can be provided safely CHAMPUS-eligible individuals. only by, or under the supervision of, (1) Sisters of Charity of the Incarnate physicians, nurses, or persons author- Word Health Care System, 6400 ized by physicians. Lawndale, Houston, TX 77058 (713) 928– (f) Civilian employee. Under 5 U.S.C. 2931 operates the following facilities: 2105, a nonmilitary individual (1) ap- (i) St. John Hospital, 2050 Space Park pointed in the civil service, (2) engaged Drive, Nassau Bay, TX 77058, telephone in the performance of a Federal func- (713) 333–5503. Inpatient and outpatient tion, or (3) engaged in the performance services. of his or her duties while subject to the (ii) St. Mary’s Hospital Outpatient supervision of The President, a Member Clinic, 404 St. Mary’s Boulevard, Gal- or Members of Congress, or the Con- veston, TX 77550, telephone (409) 763– gress, a member of a uniformed service, 5301. Outpatient services only. an individual who is an employee under (iii) St. Joseph Hospital Ambulatory 5 U.S.C. 2105, the head of a Government Care Center, 1919 La Branch, Houston, controlled corporation, or an adjutant TX 77002, telephone (713) 757–1000. Out- general designated by the Secretary patient services only. concerned under section 709c of title 32. (iv) St. Mary’s Hospital Ambulatory Included are justices and judges of the Care Center, 3600 Gates Boulevard, United States, appointed and engaging Port Arthur, TX 77640 (409) 985–7431. in the performance of duties per 5 Outpatient services only. U.S.C. 2104. (2) Inpatient and outpatient services. (i) (g) Cooperative care. Medical services Wyman Park Health System, Inc., 3100 and supplies for which CHAMPUS will Wyman Park Drive, Baltimore, MD share in the cost under circumstances 21211, telephone (301) 338–3693. specified in § 728.4(z), even though the (ii) Alston-Brighton Aid and Health patient remains under the primary Group, Inc., Brighton Marine Public control of a USMTF. Health Center, 77 Warren Street, Bos- (h) Cooperative care coordinator. Des- ton, MA 02135, telephone (617) 782–3400. ignated individual in a CHAMPUS con- (iii) Bayley Seton Hospital, Bay tractor’s office who serves as the point Street and Vanderbilt Avenue, Staten of contact for health benefits advisors Island, NY 10304, telephone (718) 390– on all matters related to supplemental- 5547 or 6007. cooperative care or services provided (iv) Pacific Medical Center, 1200 12th or ordered for CHAMPUS-eligible bene- Avenue South, Seattle, WA 98144, tele- ficiaries by USMTF providers. phone (206) 326–4100. (i) Dental care. Treatment which will (3) Outpatient services only. (i) Coastal prevent or remedy diseases, disabil- Health Service, 331 Veranda Street, ities, and injuries to the teeth, jaws, Portland, ME 04103, telephone (207) 774– and related structures and thereby con- 5805. tribute to maintenance or restoration (ii) Lutheran Medical Center, Down- of the dental health of an individual. town Health Care Services, 1313 Supe- (j) Dependent. A spouse, an rior Avenue, Cleveland, OH 44113, tele- unremarried widow or widower, a child, phone (216) 363–2065. or a parent who bears that legal rela- (l) Disability retirement or separation. tionship to his or her sponsor. For the Temporary or permanent retirement or purpose of rendering care under title separation for physical disability as 10, U.S.C., chapter 55, this category provided in title 10, U.S.C., 1201–1221. may also include an unremarried (m) Elective care. Medical, surgical, or former spouse. However, each bene- dental care desired or requested by the
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individual or recommended by the phy- erate amount of treatment on an out- sician or dentist which, in the opinion patient basis, may be considered as of other cognizant professional author- having attained maximum hospital ity, can be performed at another place benefit. or time without jeopardizing life, limb, (t) Medical care. Treatment required health, or well-being of the patient, to maintain or restore the health of an e.g., surgery for cosmetic purposes and individual. Medical care may include, nonessential dental prosthetic appli- but is not limited to, the furnishing of ances. inpatient treatment, outpatient treat- (n) Emergency care. Medical treat- ment, nursing service, medical exami- ment of patients with severe, life- nations, immunizations, drugs, subsist- threatening, or potentially disabling ence, transportation, and other ad- conditions that require immediate juncts such as prosthetic devices, spec- intervention to prevent undue suffering tacles, hearing aids, orthopedic foot- or loss of life or limb and dental treat- wear, and other medically indicated ment of painful or acute conditions. appliances or services. (o) Health benefits advisors (HBA). (u) Medically inappropriate. A situa- Designated individuals at naval facili- tion arising when denial of a Nonavail- ties who are responsible for advising ability Statement could result in sig- and assisting beneficiaries covered in nificant risk to the health of a patient this part concerning medica1 and den- or significant limitation to the pa- tal benefits in uniformed services fa- tient’s reasonable access to needed cilities and under CHAMPUS. They health care. also provide information regarding (v) Medically necessary. The level of Veterans’ Administration, Medicare, services and supplies (i.e., frequency, MEDICAID, and such other local extent, and kinds) adequate for the di- health programs known to be available agnosis and treatment of illness or in- to beneficiaries (see § 728.4(n)). jury, including maternity care. Medi- (p) Hospitalization. Inpatient care in a cally necessary, includes the concept of medical treatment facility. appropriate medical care. (q) Inactive duty training. Duty pre- (w) Medical treatment facility (MTF). scribed for Reserves by the Secretary Any duly authorized medical depart- concerned under section 206 of title 37, ment center, hospital, clinic, or other U.S.C. or any other provision of law. facility that provides medical, sur- Also includes special additional duties gical, or dental care. authorized for Reserves by an author- (x) Member or former member. Includes: ity designated by the Secretary con- (1) Members of the uniformed serv- cerned and performed on a voluntary ices ordered to active duty for more basis in connection with the prescribed than 30 days. training or maintenance activities of (2) Retired members as defined in the units to which they are assigned. It § 728.2(bb). includes those duties when performed (3) Members of a uniformed service by Reserves in their status as members ordered to active duty for more than 30 of the National Guard. days who died while on that duty. (r) Legitimate care. Those medical and (4) Deceased retired members. dental services under the cooperative/ (y) Military patient. A member of a supplemental care program of United States uniformed service on ac- CHAMPUS that are legally performed tive duty, active duty for training, or and not contrary to governing statutes. inactive duty training, or an active (s) Maximum hospital benefit. That duty member of the armed forces of a point during inpatient treatment when foreign government who is receiving the patient’s progress appears to have inpatient or outpatient care. stabilized and it can be anticipated (z) Occupational health services. In- that additional hospitalization will not cludes medical examinations and tests directly contribute to any further sub- related to preemployment, stantial recovery. A patient who will preplacement, periodic, and continue to improve slowly over a long pretermination; tests required for pro- period without specific therapy or med- tecting the health and safety of naval ical supervision, or with only a mod- personnel; job-related immunizations
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and chemoprophylaxis; education and for: Examination, diagnosis, treat- training related to occupational ment, evaluation, consultation, coun- health; and other services provided to seling, or medical advice; or treatment avoid lost time or to improve effective- of an eligible beneficiary in quarters; ness of employees. The latter will in- and a signed and dated entry is made in clude the furnishing of emergency the patient’s health record. Specifi- treatment of illnesses or injuries oc- cally excluded are personnel in an in- curring at work. Furnish such health patient status at the time of such a services to both active duty military visit. personnel and naval civilian employees per current directives. § 728.3 General restrictions and prior- (aa) Retired member. A member or ities. former member of a uniformed service (a) Restrictions. (1) Naval MTFs pro- who is entitled to retired or retainer vide care to all eligible beneficiaries pay, or equivalent pay, as a result of subject to the capabilities of the pro- service in a uniformed service. This in- fessional staff and the availability of cludes a member or former member space and facilities. who is: (1) Retired for length of service; (2) Hospitalization and outpatient (2) permanently or temporarily retired services may be provided outside the for physical disability; (3) on the emer- continental limits of the United States gency officers’ retired list and is enti- and in Alaska to officers and employ- tled to retired pay for physical dis- ees of any department or agency of the ability; or (4) otherwise in receipt of re- Federal Government, to employees of a tired pay under chapter 67 of title 10. contractor with the United States or (bb) Routine care. Medica1 and dental the contractor’s subcontractor, to ac- care necessary to maintain health or companying dependents of such per- dental functions other than care of an sons, and in emergencies to such other emergency or elective nature. persons as the Secretary of the Navy (cc) Supplemental care or services. may prescribe: Provided, such services When medical or dental management is are not otherwise available in reason- retained by a naval MTF and required ably accessible and appropriate non- care is not available at the facility re- Federal facilities. Hospitalization of taining management, any additional such individuals in a naval MTF is lim- material, professional diagnostic or ited to the treatment of acute medical consultative services, or other personal and surgical conditions, exclusive of services ordered by qualified uniformed nervous, mental, or contagious dis- service providers, and obtained for the eases, or those requiring domiciliary care of that patient are supplemental. care. Routine dental care, other than See § 728.12 concerning the management dental prosthesis or orthodontia, may of active duty member patients. be rendered on a space available basis (dd) Uniformed services. The Navy, outside the continental limits of the Marine Corps, Air Force, Army, Coast United States and in Alaska, Provided, Guard, Commissioned Corps of the Pub- such services are not otherwise avail- lic Health Service, and the Commis- able in reasonably accessible and ap- sioned Corps of the National Oceanic propriate non-Federal facilities. and Atmospheric Administration. (b) Priorities. When care cannot be (ee) USMTF. Uniformed services med- rendered to all eligible beneficiaries, ical treatment facility. the priorities in the following chart (ff) Visit, outpatient. Appearance by will prevail. Make no distinction as to an eligible beneficiary at a separate, the sponsoring uniformed service when organized clinic or specialty service providing care or deciding priorities.
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PRIORITIES FOR THE VARIOUS CATEGORIES OF PERSONNEL ELIGIBLE FOR CARE IN NAVY MEDICAL DEPARTMENT FACILITIES
Pri- ority Category Degree of entitlement
1 ...... A. Members of the uniformed services on active duty (including active duty See subpart B. for training and inactive duty training) and comparable personnel of the NATO nations meeting the conditions prescribed in this part. B. Members of a Reserve Component of the Armed Forces and National See subpart C. Guard personnel under orders. 2 ...... Dependents of active duty members of the uniformed services, dependents See subparts D and E. of persons who died while in such a status, and the dependents of active duty members of NATO nations meeting the conditions prescribed in sub- part E of this part. 3 ...... Members ot the Senior Reserve Officers' Training Corps of the Armed See § 728.23. Forces. 4 ...... Retired members of the uniformed services and their dependents and de- See subpart D. pendents of deceased retired members. 5 ...... Civilian employees of the Federal Government under the limited cir- See § 728.80. cumstances covered by the Federal Employees' Health Service program. 6 ...... All others, including ex-service maternity eligibles ...... See subparts F and G.
§ 728.4 Policies. active duty members under medical (a) Admissions to closed psychiatric care when such persons are not yet fit wards. Admit patients to closed psy- for duty, may be granted by a mem- chiatric wards only when they have a ber’s commanding officer (CO) or the psychiatric or emotional disorder hospital’s CO per the following: which renders them dangerous to (1) Unless otherwise indicated, grant themselves or others, or when a period such leave only when recommended by of careful closed psychiatric observa- COMNAVMEDCOM through action tion is necessary to determine whether taken upon a report by a medical such a condition exists. When a patient board, or the recommended findings of is admitted to a closed psychiatric a physical evaluation board or higher ward, the reason for admission must be authority. clearly stated in the patient’s clinical (2) Member’s commanding officer record by the physician admitting the (upon advice of attending physician); patient to the ward. These same poli- commanding officers of Navy, Army, or cies apply equally in those instances Air Force medical facilities; com- when it becomes necessary to place a manders of regional medical commands patient under constant surveillance for persons hospitalized in designated while in an open ward. USTFs or in civilian facilities within (b) Absence from the sick list. See their respective areas of authority; and § 728.4 (d), (x), and (y). managers of Veterans Administration (c) Charges and collection. Charges for hospitals within the 50 United States services rendered vary and are set by or in puerto Rico may grant convales- the Office of the Assistant Secretary of cent leave to active duty naval pa- Defense (Comptroller) and published in tients, with or without reference to a a yearly NAVMEDCOMNOTE 6320, medical board, physical evaluation (Cost elements of medical, dental, sub- sistence rates, and hospitalization board, or higher authority provided bills). Billing and collection actions the: also vary according to entitlement or (i) Convalescent leave is being grant- eligibility and are governed by the pro- ed subsequent to a period of hos- visions of NAVMED P-5020, Resource pitalization. Management Handbook. See subpart J (ii) Member is not awaiting discipli- on the initiation of collection action nary action or separation from the on pay patients. service for medical or administrative (d) Convalescent leave. Convalescent reasons. leave, a period of authorized absence of (iii) Medical officer in charge:
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(A) Considers the convalescent leave tial for jeopardy to physical or mental beneficial to the patient’s health. health of an individual. (B) Certifies that the patient is not (2) Commanding officers will mon- fit for duty, will not need hospital itor, control, and assure compliance treatment during the contemplated with the following cosmetic surgery convalescent leave period, and that policy: such leave will not delay final disposi- (i) Certain cosmetic procedures are a tion of the patient. necessary part of training and reten- (3) When considered necessary by the tion of skills to meet the requirements attending physician and approved on of certification and recertification. an individual basis by the commander (ii) Insofar as they meet minimum of the respective geographic regional requirements and serve to improve the medical command, convalescent leave skills and techniques needed for recon- in excess of 30 days may be granted. structive surgery, the following cos- The authority to grant convalescent metic procedures may be performed as leave in excess of 30 days may not be low priority surgery on active duty redelegated to hospital commanding members only when time and space are officers. Member’s permanent com- available. mand must be notified of such exten- (A) Cosmetic facial rhytidectomies sions (see MILPERSMAN 3020360). (face lifts) will be a part of all training programs required by certifying (4) Exercise care in granting con- boards. valescent leave to limit the duration of (B) Cosmetic augmentation such leave to that which is essential in mammaplasties will be done only by relation to diagnosis, prognosis, esti- properly credentialed surgeons and mated duration of treatment, and pa- residents within surgical training pro- tient’s probable final disposition. grams to meet requirements of certi- (5) Upon return from convalescent fying boards. leave; (f) Cross-utilization of uniformed serv- (i) Forward one copy of original or- ices facilities. To provide effective cross- ders of officers, bearing all endorse- utilization of medical and dental facili- ments, to the Commander, Naval Mili- ties of the uniformed services, eligible tary Personnel Command persons, regardless of service affili- (COMNAVMILPERSCOM) (NMPC–4) or ation, will be given equal opportunity the Commandant of the Marine Corps for health benefits. Catchment areas (CMC), as appropriate. have been established by the Depart- (ii) Make an entry on the administra- ment of Defense for each USMTF (see tive remarks page (page 13 for Navy § 728.2(d)). Eligible beneficiaries resid- personnel) of the service records of en- ing within such a catchment area are listed personnel indicating that con- expected to use that inpatient facility valescent leave was granted and the for care. Make provisions to assure dates of departure and return. that: (6) lf considered beneficial to the pa- (1) Eligible beneficiaries residing in a tient’s health, commanding officers of catchment area served by a USMTF hospitals may grant convalescent leave not of the sponsor’s own service may as a delay in reporting back to the par- obtain care at that facility or at a fa- ent command. cility of the sponsor’s service located (e) Cosmetic surgery. (1) Defined as in another catchment area. that surgery which is done to revise or (2) If the facility to which an eligible change the texture, configuration, or beneficiary applies cannot furnish relationship of contiguous structures needed care, the other facility or facili- of any feature of the human body ties in overlapping catchment areas are which would be considered by the aver- contacted to determine whether care age prudent observer to be within the can be provided thereat. broad range of ‘‘normal’’ and accept- (g) Disengagement. Discontinuance of able variation for age or ethnic origin, medical management by a naval MTF and in addition, is performed for a con- for only a specific episode of care. dition which is judged by competent (1) General. Disengagement is accom- medical opinion to be without poten- plished only after alternative sources
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of care (i.e., transfer to another mentation of counseling are appro- USMTF, a USTF, or other Federal priately accomplished. Complete a source via the aeromedical evacuation NAVMED 6320/30. Disengagement for system, if appropriate) and attendant Civilian Medical Care, to document costs, if applicable, have been fully ex- that all appropriate disengagement plained to patient or responsible fam- procedures have been accomplished. ily member. Counselors may arrange (iii) After obtaining the signature of for counseling by other appropriate the patient or responsible family mem- sources when the patient is or may be ber, the counselor will file a copy of eligible for VA, Medicare, MEDICAID, the DD 2161 and the original of the etc. benefits. With the individual’s per- NAVMED 6320/30 in the patient’s mission, counselors may also contact Health Record. State programs, local health organiza- (3) Patients other than active duty or tions, or health foundations to deter- CHAMPUS-eligible individuals—(i) Cat- mine if care is available for the condi- egories of patients. The following are tion upon which disengagement is categories of individuals who also may based. After the disengagement deci- be disengaged: sion is made, the patient to be dis- (A) Medicare-eligible individuals. engaged or the responsible family (B) MEDICAID-eligible individuals. member should be advised to return to (C) Civilians (U.S. and foreign) ad- the naval MTF for any care required mitted or treated as civilian humani- subsequent to receiving the care that tarians. necessitated disengagement. (D) Secretarial designees. (2) CHAMPUS-eligible individuals. (i) (E) All other individuals, with or Issue a Nonavailability Statement (DD without private insurance, who are not 1251) per § 728.33, when appropriate, to eligible for care at the expense of the patients released to civilian sources for Government. total care (disengaged) under (ii) Disengagement decision. Disengage CHAMPUS. CHAMPUS-eligible pa- such individuals when: tients disengaged for total care, who do (A) Required services are beyond the not otherwise require a DD 1251 (re- capability of the MTF, and services leased for outpatient care or those re- necessary for continued treatment in leased whose residence is outside the the MTF cannot be appropriately pro- inpatient catchment area of all vided by another USMTF, a USTF, or USMTFs and USTFs) will be given the another Federal source. (Explore alter- original of a properly completed DD native sources, for individuals eligible 2161, Referral For Civilian Medical for care from these sources, before Care, which clearly indicates that the making the disengagement decision.) patient is released for total care under (B) The MTF cannot, within the fa- CHAMPUS. CHAMPUS-eligible bene- cility’s capability, effectively provide ficiaries will be disengaged for services required care or manage the overall under CHAMPUS when: course of treatment even if augmented (A) Required services are beyond by services procured from other Gov- your capability and these services can- ernment sources or through procure- not be appropriately provided through ment from civilian sources using sup- one of the alternatives listed in plemental care funding. § 728.4(z), or (iii) Counseling. The initial step in (B) You cannot effectively provide re- the disengagement process is appro- quired services or manage the overall priate counseling and documentation. course of care even if augmented by In an emergency, or when the indi- services procured from other Govern- vidual cannot be appropriately coun- ment or civilian sources using naval seled prior to leaving the MTF, estab- MTF operation and maintenance funds lish procedures to ensure counseling as authorized in subpart § 728.4(z). and documentation are accomplished (ii) When a decision is made to dis- during the next working day. Such engage a CHAMPUS-eligible indi- ‘‘follow-up’’ counseling may be in per- vidual, commanding officers (CO) or of- son or via a witnessed telephone con- ficers-in-charge (OIC) are responsible versation. In either instance, the coun- for assuring that counseling and docu- selor will document counseling on a
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NAVMED 6320/30, Disengagement for sible family member refuses to ac- Civilian Medical Care. The disengage- knowledge receipt of counseling by ment decision making authority must signing the form, state this fact on the assure the accomplishment of coun- bottom of the form and have it wit- seling by personally initiating this nessed by an officer. Give the patient service or by referring the patient or or responsible family member a copy responsible family member to the HBA and immediately file the original in for counseling. As a minimum, coun- the patient’s Health Record. seling will consist of: (4) Active duty members. When an ac- (A) Explaining that the patient is tive duty member seeks care at a being disengaged from treatment at USMTF, that USMTF retains some re- the facility and the reason therefor. sponsibility (e.g., notification, medical Assure that the individual understands the meaning of ‘‘disengagement’’ by ex- cognizance, supplemental care, etc.) for plaining that the MTF is unable to pro- that member even when the member vide for the patient’s present needs and must be transferred to another facility must therefore relinquish medical for care. Therefore, relinquishment of management of the patient to a health total management of an active duty care provider of the individual’s choice. member (disengagement) cannot be ac- (B) Assuring the individual that the complished. disengagement action is taken to pro- (h) Domiciliary/custodial care. The vide for the patient’s immediate med- type of care designed essentially to as- ical needs. Also assure that the indi- sist an individual in meeting the nor- vidual understands that the disengage- mal activities of daily living, i.e., serv- ment is not indicative of whether care ices which constitute personal care is or will be available in the MTF for such as help in walking and getting in other aspects of past, current, or future or out of bed, help in bathing, dressing, medical conditions. feeding, preparation of special diets, (C) Explaining Medicare, MEDICAID, and supervision over medications or other known programs as they re- which can usually be self-administered late to the particular circumstance of and which does not entail or require the patient, including cost-sharing, the continuing attention of trained deductibles, allowable charges, partici- medical or paramedical personnel. The pating and authorized providers, physi- essential characteristics to be consid- cians accepting assignment, claim fil- ered are the level of care and medical ing procedures, etc. Explain that once disengagement is accomplished, the supervision that the patient requires, Navy, is not responsible for any costs rather than such factors as diagnosis, for care received from a health care type of condition, or the degree of func- provider of the patient’s or responsible tional limitation. Such care will not be family member’s choice. provided in naval MTFs except when (iv) Documentation. Commanding offi- required for active duty members of cers are responsible for ensuring that the uniformed services. proper documentation procedures are (i) Emergency care. Treat patients au- started and that providers and coun- thorized only emergency care and selors under their commands are ap- those admitted as civilian emergencies prised of their individual responsibil- only during the period of the emer- ities for counseling and documenting gency. Initiate action to effect appro- each disengagement. Failure to prop- priate disposition of such patients as erly counsel and document counseling soon as the emergency period ends. may result in the naval MTF having to (j) Evaluation after admission. Evalu- absorb the cost of the entire episode of ate each patient as soon as possible care. Document counseling on a after admission and continue reevalua- NAVMED 6320/30. Disengagement for tion until disposition is made. Antici- Civilian Medical Care. Completion of pate each patient’s probable type and all items on the form assures docu- date of disposition. Necessary proc- mentation and written acknowledge- ment of appropriate disengagement and essing by the various medical and ad- counseling. If the patient or respon- ministrative entities will take place
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concurrently with treatment of the pa- istrative reasons or for medical condi- tient. Make the medical disposition de- tions which can be treated on a clinic cision as early as possible for U.S. mili- basis will be provided quarters and tary patients inasmuch as immediate messing facilities, where practicable, transfer to a specialized VA center or separately from those hospitalized. to a VA spinal cord injury center may Provide medical care for such patients be in their best interest (see on a periodic clinic appointment basis NAVMEDCOMINST 6320.1.2). Make dis- (see § 728.4(p) for handling enlisted con- position decisions for military per- valescent patients). Make maximum sonnel of NATO nations in conform- use of administrative versus medical ance with § 728.42(d). personnel in the supervision of such pa- (k) Extent of care. Subject to the re- tients. strictions and priorities in § 728.3, eligi- (n) Health benefits advising—(1) Gen- ble persons will be provided medical eral. A Health Benefits Advising pro- and dental care to the extent author- gram must be started at all shore com- ized, required, and available. When an mands having one or more medical offi- individual is accepted for care, all care cers. While health benefits advisors are and adjuncts thereto, such as non- not required aboard every ship with a standard supplies, as determined by the medical officer, the medical depart- CO to be necessary, will be provided ment representative can usually pro- from resources available to the CO un- vide services to personnel requiring less specifically prohibited elsewhere help. The number of health benefits ad- in this part. When a patient has been visors (HBAs) of a command will be accepted and required care is beyond commensurate with counseling and as- the capability of the accepting MTF, sistance requirements. The program the CO thereof will arrange for the re- provides health benefits information quired care by one of the means shown and counseling to beneficiaries of the below. The method of choice will be Uniformed Services Health Benefits based upon professional considerations Program (USHBP) and to others who and travel economy. may or may not qualify for care in (1) Transfer the patient per USMTFs. Office location of HBAs, their § 728.4(bb). names, and telephone numbers will be (2) Procure from civilian sources the widely publicized locally. If additional necessary material or professional per- help is required, contact MEDCOM–333 sonal services required for the patient’s on AUTOVON 294–1127 or commercial proper care and treatment. (202) 653–1127. In addition to the duties (3) Care authorized in § 728.4(k)(2) will described in § 728.4(n)(2), HBAs will: normally be accomplished in the naval MTF. However, when such action is not (i) Maintain a depository of up-to- feasible, supplementation may be ob- date officially supplied health benefits tained outside the facility. Patients information for availability to all may be sent to other Federal or civil- beneficiaries. ian facilities for specific treatment or (ii) Provide information and guidance services under § 728.4(k)(3) provided they to beneficiaries and generally support remain under medical management of the medical and dental staff by pro- the CO of the sending facility during viding help to eligible beneficiaries the entire period of care. seeking or obtaining services from (l) Family planning services. Provide USMTFs, civilian facilities, VA facili- family planning services following the ties, Medicare, MEDICAID, and other provisions of SECNAVINST 6300.2A. health programs. (m) Grouping of patients. Group hos- (iii) Assure that when a referral or pitalized patients according to their re- disengagement is required, patients or quirements for housing, medical, or responsible family members are: dental care. Provide gender identified (A) Fully informed that such action quarters, facilities, and professional su- is taken to provide for their immediate pervision on that basis when appro- medical or dental requirements and priate. Individuals who must be re- that the disengagement or referral has tained under limited medical super- no bearing on whether care may be vision (medical hold) solely for admin- available in the naval MTF for other
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aspects of current or other future med- 2161 and explain that CHAMPUS con- ical conditions. tractors will return claims submitted (B) Provided the services and coun- without a required DD 2161. Obtain sig- seling outlined in § 728.4(n)(2) or nature of patient or responsible family § 728.3(g)(3)(ii), as appropriate, prior to member on the form. their departure from the facility when (v) Arrange for counseling from ap- such beneficiaries are referred or dis- propriate sources when the patient is engaged because care required is be- eligible for VA, Medicare, or MED- yond the naval MTF’s capability. In an ICAID benefits. emergency, or when the patient or (vi) Serve as liaison between civilian sponsor cannot be seen by the HBA providers and naval MTF on adminis- prior to leaving, provide these benefits trative matters related to the referral as soon thereafter as possible. and disengagement process. (2) Counseling and assisting (vii) Serve as liaison between naval CHAMPUS-eligible individuals. HBAs, as MTF and cooperative care coordinators a minimum, will: on matters relating to care provided or (i) Explain alternatives available to recommended by naval MTF providers, the patient. as appropriate. (ii) If appropriate, explain CHAMPUS (viii) Explain why the patient is as it relates to the particular cir- being disengaged and, per § 728.4(g)(2), cumstance, including the cost-sharing provide a DD 1251, Nonavailability provisions applicable to the patient, al- Statement, or DD 2161, Referral For Ci- lowable charges, provider participa- tion, and claim filing procedures. Fully vilian Medical Care, as appropriate. inform the patient or responsible fam- (o) Immunizations. Administer immu- ily member that when a patient is dis- nizations per BUMED INST 6230.1H. engaged for care under CHAMPUS or (p) Medical holding companies. Medical when cooperative care is to be consid- holding companies (MHC) have been es- ered for payment under the provisions tablished at certain activities to facili- of § 728.4(z) (5) and (6), the naval MTF is tate handling of enlisted convalescent not responsible for monetary amounts patients whose medical conditions are above the CHAMPUS-determined al- such that, although they cannot be re- lowable charge or for charges turned to full duty, they can perform CHAMPUS does not allow. light duty ashore commensurate with (iii) Explain why the naval MTF is their condition while completing their paying for the supplemental care, if ap- medical care on an outpatient basis. propriate (see § 728.4(z) (3) and (4)), and Where feasible, process such patients how the bill will be handled. Then: for transfer. (A) Complete a DD 2161, Referral For (q) Notifications. The interests of the Civilian Medical Care, marking the ap- Navy, Marine Corps, and DOD have propriate source of payment with the been adversely affected by past proce- concurrence of the naval MTF com- dures which emphasized making notifi- manding officer or CO’s designee. cations only when an active duty mem- (B) If referred for a specified proce- ber’s condition was classed as either se- dure with a consultation report to be riously ill or injured or classed as very returned to the naval MTF retaining seriously ill or injured. However, even medical management, annotate the DD temporary disabilities which preclude 2161 in the consultation report section communication with the next of kin to state this requirement. Advise pa- have generated understandable concern tient or responsible family member to and criticism, especially when emer- arrange for a completed copy of the DD gency hospitalization has resulted. Ac- 2161 to be returned to the naval MTF cordingly, naval MTFs will effect pro- for payment, if appropriate, and inclu- cedures to make notifications required sion in patient’s medical record. in § 728.4(q) (2), (3), and (4) upon admis- (iv) Brief patient or responsible fam- sion or diagnosis of individuals speci- ily member on the use of the DD 2161 in fied. The provisions of § 728.4(q) supple- USMTF payment procedures and ment articles 1810520 and 4210100 of the CHAMPUS claims processing, as appro- Naval Military Personnel Manual and priate. Provide sufficient copies of DD chapter 1 of Marine Corps Order
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P3040.4B, Marine Corps Casualty Proce- officer under the conditions listed dures Manual; they do not supersede below. Make COMNAVMILPERS COM them. or CMC, as appropriate, information (1) Privacy Act. The right to privacy addressees on their respective per- of individuals for whom hospitalization sonnel: reports and other notifications are (A) Direct admissions. Upon direct ad- made will be safeguarded as required mission of an active duty member, by the Privacy Act, implemented in with or without orders regardless of ex- the Department of the Navy by pected length of stay. The patient ad- SECNAVINST 5211.5C, U.S. Navy Regu- ministration department (administra- lations, the Manual of the Judge Advo- tive watch officer after hours) is re- cate General, the Marine Corps Cas- sponsible for preparation, per ualty Procedures Manual, and the Man- § 728.4(q)(4), and release of these mes- ual of the Medical Department. sages. If the patient is attached to a (2) Active duty flag or general officers local command (CO’s determination), and retired Marine Corps general officers. initial notification may be made tele- Upon admission of subject officers, phonically. Record the name, grade or make telephonic contact with rate, and position of the person receiv- MEDCOM–33 on AUTOVON 294–1179 or ing the call at the member’s command commercial (202) 653–1179 (after duty on the back of the NAVMED 6300/5, In- hours, contact the command duty offi- patient Admission/Disposition Record cer on AUTOVON 294–1327 or commer- and include the name and telephone cial (202) 653–1327) to provide the fol- number of the MTF’s point of contact lowing information: as given to the patient’s command. (i) Initial. Include in the initial re- (B) Change in medical condition. Upon port: becoming aware of any medical condi- (A) Officer’s name, grade, social secu- tion, including pregnancy, which will rity number, and designator. now or in the foreseeable future result (B) Duty assignment in ship or sta- in the loss of a member’s full duty tion, or other status. services in excess of 72 hours. Transmit (C) Date of admission. this information in a message, pre- (D) Present condition, stating if seri- ous or very serious. pared per § 728.4(q)(4), marked ‘‘Com- (E) Diagnosis, prognosis, and esti- manding Officer’s Eyes Only.’’ mated period of hospitalization. To (ii) Notification of next of kin (NOK)— prevent possible invasion of privacy, (A) Admitted members. As part of the ad- report the diagnosis only in Inter- mission procedure, encourage all pa- national Classification of Diseases—9th tients to communicate expeditiously Edition (ICD–9–CM) code designator. and regularly with their NOK. When an (ii) Progress reports. Call frequency active duty member’s incapacity and content will be at the discretion of makes timely personal communication the commanding officer. However, impractical, i.e., fractures, burns, eye promptly report changes in condition pathology, psychiatric or emotional or status. disorders, etc., MTF personnel will ini- (iii) Termination report. Make a termi- tiate the notification process. Do not nation of hospitalization report to pro- start the process if the patient specifi- vide appropriate details for informa- cally declines such notification or it is tional purposes. clear that the NOK already has knowl- (iv) Additional commands to apprise. edge of the admission (commands The geographic naval medical region should develop a local form for such pa- serving the hospital and, if different, tients to sign attesting their desire or the one serving the officer’s command refusal to have their NOK notified). will also be apprised of such admis- Once notification has been made, the sions. facility will make progress reports, at (3) Active duty members—(i) Notifica- least weekly, until the patient is again tion of member’s command. The com- able to communicate with the NOK. manding officer of naval medical treat- (1) Navy personnel. Upon admission of ment facilities has responsibility for Navy personnel, effect the following notifying each member’s commanding notification procedures.
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(i) In the contiguous 48 states. Patient (iii) In and outside the United States. In administration department personnel life-threatening situations, the Com- will notify the NOK in person, by tele- mandant of the Marine Corps desires phone, telegraph, or by other expedi- and encourages medical officers to tious means. Included are notifications communicate with the next of kin. In of the NOK upon arrival of all Navy pa- other circumstances, request that the tients received in the medical air-evac- Marine Corps member communicate uation system. with the NOK if able. If unable, the (ii) Outside the contiguous 48 states. If medical officer should communicate the next of kin has accompanied the with the NOK after personal notifica- patient on the tour of duty and is in tion has been effected. the immediate area, hospital personnel (B) Terminally ill patients. As soon as will notify the next of kin in person, by a diagnosis is made and confirmed (on telephone, telegraph, or by other expe- inpatients or outpatients) that a Navy ditious means. If the next of kin is lo- member is terminally ill, cated in the 48 contiguous United MILPERSMAN 4210100 requires notifi- States, use telegraphic means to notify cation of the primary and secondary COMNAVMILPERSCOM who will pro- next of kin. Accomplish notification vide notification to the NOK. the same as for Navy members admit- (2) Marine Corps personnel. When Ma- ted as seriously or very seriously ill or rine Corps personnel are admitted, ef- injured, i.e., by priority message to the fect the following notification proce- Commander, Naval Military Personnel Command and to the Casualty Assist- dures. ance Calls/Funeral Honors Support (i) In the contiguous 48 states. The Program Coordinator, as appropriate, commander of the unit or activity to who has cognizance over the geo- which the casualty member is assigned graphical area in which the primary is responsible for initiating notifica- and secondary NOK resides (see tion procedures to the NOK of seriously OPNAVINST 1770.1). Submit followup or very seriously ill or injured Marine reports when appropriate. See Corps personnel. Patient administra- MILPERSMAN 4210100 for further am- tion department personnel will assure plification and for information address- that liaison is established with the ap- ees. propriate command or activity when (1) In the contiguous 48 states. Notifi- such personnel are admitted. Patient cation responsibility is assigned to the administration personnel will notify USMTF making the diagnosis and to the Marine’s command by telephone the member’s duty station if diagnosed and request that cognizance be as- in a civilian facility. sumed for in-person initial notification (2) Outside the contiguous 48 states. No- of the NOK of Marine Corps patients tification responsibility is assigned to admitted with an incapacity that the naval medical facility making the makes personal and timely commu- diagnosis. When diagnosed in nonnaval nication impractical and for those ar- facilities or aboard deployed naval ves- riving via the medical air-evacuation sels, notification responsibility belongs system. If a member’s command is un- to the Commander, Naval Military Per- known or cannot be contacted, inform sonnel Command. CMC (MHP–10) on AUTOVON 224–1787 (C) Other uniformed services patients. or commercial (202) 694–1787. Establish liaison with other uniformed (ii) Outside the contiguous 48 states. services to assure proper notification Make casualty notification for Marine upon admission or diagnosis of active Corps personnel hospitalized in naval duty members of other services. MTFs outside the contiguous 48 States (D) Nonactive duty patients. At the to the individual’s command. If the discretion of individual commanding command is unknown or not located in officers, the provisions of § 728.4(q)(3)(ii) close proximity to the MTF, notify on providing notification to the NOK CMC (MHP–10). When initial notifica- may be extended to admissions or diag- tion to the individual’s command is nosis of nonactive duty patients; e.g., made via message, make CMC (MHP– admission of dependents of members on 10) an information addressee. duty overseas.
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(4) Messages—(i) Content. Phrase con- naval MTFs will not be provided for tents of messages (and telephonic noti- U.S. military patients who are unlikely fications) in lay terms and provide suf- to return to duty. The time at which a ficient details concerning the patient’s patient should be processed for dis- condition, prognosis, and diagnosis. ability separation must be determined Messages will also contain the name on an individual basis, taking into con- and telephone number of the facility’s sideration the interests of the patient point of contact. When appropriate for as well as those of the Government. A addressal, psychiatric and other sen- long-term patient roster will be main- sitive diagnoses will be related with tained and updated at least once discretion. When indicated, also in- monthly to enable commanding offi- clude specific comment as to whether cers and other appropriate staff mem- the presence of the next of kin is medi- bers to monitor the progress of all pa- cally warranted. NOTE: In making noti- tients with 30 or more continuous days fication to the NOK of patients diag- of hospitalization. Include on the ros- nosed as having Acquired Immune Defi- ter basic patient identification data ciency Syndrome (AIDS) or Human Im- (name, grade or rate, register number, munodeficiency Virus (HIV), use one of ward or absent status, clinic service, the symptoms of the disease as the di- and whether assigned to a medical agnosis (e.g., pneumonia) rather than holding company), projected disposi- ‘‘HIV’’, ‘‘AIDS’’, or the diagnostic code tion (date, type, and profile), diagnosis, for AIDS. and cumulative hospital days (present (ii) Information addressees. Make the facility and total). commander of the geographic naval (u) Remediable physical defects of ac- medical region servicing the member’s tive duty members—(1) General. When a command and the one servicing the medical evaluation reveals that a Navy hospital, if different, information ad- or Marine Corps patient on active duty dressees on all messages. For Marine has developed a remediable defect Corps personnel, also include CMC while on active duty, the patient will (MHP–10) and the appropriate Marine be offered the opportunity of operative Corps district headquarters as informa- repair or other appropriate remediable tion addressees, COMNAVMEDCOM treatment, if medically indicated. WASHINGTON DC requires informa- tion copies of messages only when a pa- (2) Refusal of treatment. Per MANMED tient has been placed on the seriously art. 18–15, when a member refuses to ill or injured or very seriously ill or in- submit to recommended therapeutic jured list or diagnosed as terminally measures for a remediable defect or ill. condition which has interfered with the (r) Outpatient care. Whenever pos- member’s performance of duty and fol- sible, perform diagnostic procedures lowing prescribed therapy, the member and provide preoperative and post oper- is expected to be fit for full duty, the ative care, surgical care, convales- following procedures will apply: cence, and followup observations and (i) Transfer the member to a naval treatment on an outpatient basis. MTF for further evaluation and appear- (s) Performance of duties while in an ance before a medical board. After inpatient status. U.S. military patients counseling per MANMED art. 18–15, may be assigned duties in and around any member of the naval service who naval MTFs when such duties will be, refuses to submit to recommended in the judgement of the attending phy- medical, surgical, dental, or diagnostic sician, of a therapeutic value. Physical measures, other than routine treat- condition, past training, and other ac- ment for minor or temporary disabil- quired skills must all be considered be- ities, will be asked to sign a completed fore assigning any patient a given task. NAVMED 6100/4, Medical Board Certifi- Do not assign patients duties which are cate Relative to Counseling on Refusal not within their capabilities or which of Surgery and/or Treatment, attesting require more than a very brief period of to the counseling. orientation. (ii) The board will study all pertinent (t) Prolonged definitive medical care. information, inquire into the merits of Prolonged definitive medical care in the individual’s refusal to submit to
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treatment, and report the facts with (viii) Also advise the patient that: appropriate recommendations. (A) Title 10 U.S.C. 1207 precludes dis- (iii) As a general rule, refusal of position under chapter 61 of 10 U.S.C. if minor surgery should be considered un- such a member’s disability is due to in- reasonable in the absence of substan- tentional misconduct, willful neglect, tial contraindications. Refusal of or if it was incurred during a period of major surgical operations may be rea- unauthorized absence. A member’s re- sonable or unreasonable, according to fusal to complete a recommended ther- the circumstances, The age of the pa- apy regimen or diagnostic procedure tient, previous unsuccessful operations, may be interpreted as willful neglect. existing physical or mental contra- (B) Benefits from the Veterans Ad- indications, and any special risks ministration will be dependent upon a should all be taken into consideration. finding that the disability was incurred (iv) Where surgical procedures are in- in line of duty and is not due to the volved, the board’s report will contain member’s willful misconduct. answers to the following questions: (ix) The Social Security Act contains (A) Is surgical treatment required to special provisions relating to benefits relieve the incapacity and restore the for ‘‘disabled’’ persons and certain pro- individual to a duty status, and may it visions relating to persons disabled ‘‘in be expected to do so? line of duty’’ during service in the (B) Is the proposed surgery an estab- Armed Forces. In many instances per- lished procedure that qualified and ex- sons deemed to have ‘‘remediable’’ dis- perienced surgeons ordinarily would orders have been held not ‘‘disabled’’ recommend and undertake? within the meaning of that term as (C) Considering the risks ordinarily used in the statute, and Federal courts associated with surgical treatment, the have upheld that interpretation. One patient’s age and general physical con- who is deemed unreasonably to have dition, and the member’s reason for re- refused to undergo available surgical fusing treatment, is the refusal reason- procedures may be deemed both ‘‘not able or unreasonable? (Fear of surgery or religious scruples may be consid- disabled’’ and to have incurred the con- ered, along with all the other evidence, dition ‘‘not in the line of duty.’’ for whatever weight may appear appro- (x) Forward the board’s report di- priate.) rectly to the Central Physical Evalua- (v) If a member needing surgery is tion Board with a copy to MEDCOM–25 mentally competent, do not perform except in those instances when the con- surgery over the member’s protesta- vening authority desires referral of the tion. medical board report for Departmental (vi) In medical, dental, or diagnostic review. situations, the board should show the (xi) Per MANMED art. 18–15, a mem- need and risk of the recommended pro- ber who refuses medical, dental, or sur- cedure(s). gical treatment for a condition that ex- (vii) If a medical board decides that a isted prior to entry into the service diagnostic, medical, dental, or surgical (EPTE defect), not aggravated by a pe- procedure is indicated, these findings riod of active service but which inter- must be made known to the patient. feres with the performance of duties, The board’s report will show that the should be processed for reason of phys- patient was afforded an opportunity to ical disability, convenience to the Gov- submit a written statement explaining ernment, or enlisted in error rather the grounds for refusal. Forward any than under the refusal of treatment statement with the board’s report. Ad- provisions. Procedures are delineated vise the patient that even if the dis- in BUMEDINST 1910.2G and ability originally arose in line of duty, SECNAVINST 1910.4A. its continuance may be attributable to (3) Other uniformed services patients. the member’s unreasonable refusal to When a patient of another service is cooperate in its correction; and that found to have a remediable physical de- the continuance of the disability fect developed in the military service, might, therefore, result in the mem- refer the matter to the nearest head- ber’s separation without benefits. quarters of the service concerned.
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(v) Responsibilities of the commanding ination, personnel medically unfit for officer. In connection with the provi- duty will be admitted to an MTF or sions of this part, commanding officers placed sick in quarters; personnel not of naval MTFs will: admitted or placed sick in quarters (1) Determine which persons within will be given such treatment as is the various categories authorized care deemed necessary. When excused from in a facility will receive treatment in, duty for medical reasons which do not be admitted to, and be discharged from require hospitalization, military per- that specific facility. sonnel may be authorized to remain in (2) Supervise care and treatment, in- quarters, not to exceed 72 hours. cluding the employment of recognized (x) Sicklist—authorized absence from. professional procedures. Commanding officers of naval MTFs (3) Provide each patient with the best may authorize absences of up to 72 possible care in keeping with accepted hours for dependents and retired per- professional standards and the assigned sonnel without formal discharge from primary mission of the facility. the sicklist. When absences are author- (4) Provide for counseling patients ized in excess of 24 hours, subsistence and naval MTF providers when care re- charges or dependent’s rate, as applica- quired is beyond the naval MTF’s capa- ble, for that period will not be col- bility. This includes: lected and the number of reportable oc- (i) Establishing training programs to cupied bed days will be appropriately acquaint naval MTF providers and reduced. Prior to authorizing such ab- HBAs with the uniformed services’ re- sences, the attending physician will ad- ferral for supplemental/cooperative vise patients of their physical limita- care or services policy outlined in tions and of any necessary safety pre- § 728.4(z). cautions, and will annotate the clinical (ii) Implementing control measures record that patients have been so ad- to ensure that: vised. For treatment under the Medical (A) Providers requesting care under Care Recovery Act, make reporting the provisions § 728.4(z) are qualified to consistent with § 728.4(aa). maintain physician case management (y) Subsisting out. A category in when required. (B) Care requested under the supple- which officer and enlisted patients on mental/cooperative care criteria is the sicklist of a naval MTF may be medically necessary, legitimate, and placed when their daily presence is not otherwise permissible under the terms required for treatment nor examina- of that part of the USHBP under which tion, but who are not yet ready for re- it will be considered for payment. turn to duty. As a general rule, pa- (C) Providers explain to patients the tients placed in this category should reason for a referral and the type of re- reside in the area of the facility and ferral being made. should be examined by the attending (D) Attending physicians properly physician at least weekly. Enlisted per- refer beneficiaries to the HBA for coun- sonnel in a subsisting out status should seling and services per § 728.4(n). be granted commuted rations. (E) Uniform criteria are applied in (1) Granting of subsisting out privi- determining cooperative care situa- leges is one of many disposition alter- tions without consideration of rate, natives; however, recommend that grade, or uniformed service affiliation. other avenues (medical holding com- (F) All DD 2161’s are properly com- pany, convalescent leave, limited duty, pleted and approved by the com- etc.) be considered before granting this manding officer or designee. privilege. (G) A copy of the completed DD 2161 (2) Naval MTF patients in a sub- is returned to the naval MTF for inclu- sisting out status should not be con- sion in the medical record of the pa- fused with those enlisted personnel in a tient. rehabilitation program who are grant- (w) Sick call. A regularly scheduled ed liberty and are drawing commuted assembly of sick and injured military rations, but are required to be present personnel established to provide rou- at the treating facility during normal tine medical care. Subsequent to exam- working hours. These personnel are not
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subsisting out and must have a bed as- chotherapeutic service, yet have the signed at the naval MTF. remainder of required medical care (3) Naval MTF patients who are re- provided by the naval MTF. quired to report for examinations or (v) Forms and documentation. A DD treatment more often than every 48 2161, Referral For Civilian Medical hours should not be placed in a sub- Care, will be provided to each patient sisting out status. who is to receive supplemental or coop- (z) Supplemental/cooperative care or erative care or services. When supple- services—(1) General. When such serv- mental care is required under the pro- ices as defined in § 728.2(cc) are ren- visions of § 728.4(z) (3) and (4), the provi- dered to other than CHAMPUS-eligible sions of § 728.4(z)(3)(iii) apply. When co- individuals, the cost thereof is charge- operative care or services are required able to operation and maintenance under the provisions of § 728.4(z) (5) and funds available for operation of the fa- (6), the provisions of § 728.4(z)(5)(iv) cility requesting care or services. Co- apply. operative care applies to CHAMPUS-el- (vi) Clarification of unusual cir- igible patients receiving inpatient or cumstances. Commanding officers of outpatient care in a USMTF who re- naval MTFs will submit requests for quire care or services beyond the capa- clarification of unusual circumstances bility of that USMTF. The following to OCHAMPUS or CHAMPUS contrac- general principles apply to such tors via the Commander, Naval Med- CHAMPUS-eligible patients: ical Command (MEDCOM–33) for con- (i) Cooperation of uniformed services sideration. physicians. USMTF physicians are re- (2) Care beyond a naval MTF’s capa- quired to cooperate in providing bility. When, either during initial eval- CHAMPUS contractors and uation or during the course of treat- OCHAMPUS additional medical infor- ment of CHAMPUS-eligible bene- mation. SECNAVINST 5211.5C delin- ficiaries, required services are beyond eates policies, conditions, and proce- the capability of the naval MTF, the dures that govern safeguarding, using, accessing, and disseminating personal commanding officer will arrange for information kept in a system of the services from an alternate source records. Providing information to in the following order, subject to re- CHAMPUS contractors and strictions specified. The provisions of OCHAMPUS will be governed thereby. § 728.4(z)(2)(i) through (iii) must be fol- (ii) Physician case management. Where lowed before either supplemental care, required by NAVMEDCOMINST 6320.18 authorized in § 728.4(z)(4), is considered (CHAMPUS Regulation; implementa- for payment from Navy Operations and tion of), uniformed services physicians Maintenance funds, or cooperative are required to provide case manage- care, authorized in § 728.4(z)(6), is to be ment (oversight) as would an attending considered for payment under the or supervising civilian physician. terms of CHAMPUS. (iii) CHAMPUS-authorized providers. (i) Obtain from another USMTF or CHAMPUS contractors are responsible other Federal MTF the authorized care for determining whether a civilian pro- necessary for continued treatment of vider is CHAMPUS-authorized and for the patient within the naval MTF, providing such information, upon re- when such action is medically feasible quest, to USMTFs. and economically advantageous to the (iv) Phychiatric or psychotherapeutic Government. services. If psychiatric care is being ren- (ii) When the patient is a retired dered by a psychiatric or clinical social member or dependent, transfer per worker, a psychiatric nurse, or a mar- § 728.4(bb)(3) (i), (ii), (iii), or (iv), in that riage and family counselor, and the order. When the patient is a dependent uniformed services facility has made a of a member of a NATO nation, trans- determination that it does not have fer per § 728.4(bb)(4) (i), (ii), or (iii), in the professional staff competent to pro- that order. vide required physician case manage- (iii) With the patient’s permission, ment, the patient may be (partially) the naval MTF may contact State pro- disengaged for the psychiatric or psy- grams, local health agencies, or health
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foundations to determine if benefits (i) All specialty consultations for the are available. purpose of establishing or confirming (iv) Obtain such supplemental care or diagnoses or recommending a course of services as delineated in § 728.4(z)(4) treatment. from a civilian source using local oper- (ii) All diagnostic tests, diagnostic ation and maintenance funds, or examinations, and diagnostic proce- (v) Obtain such cooperative care or dures (including genetic tests and CAT services as delineated in § 728.4(z)(6) scans), ordered by qualified USMTF from a civilian source under the terms providers. of CHAMPUS. (iii) Prescription drugs and medical (3) Operation and maintenance funds. supplies. When local operation and maintenance (iv) Civilian ambulance service or- funds are to be used to obtain supple- dered by USMTF personnel. mental care or services, the following (5) CHAMPUS funds. When payment guidelines are applicable: is to be considered under the terms of CHAMPUS for cooperative care, even (i) Care or services must be legiti- though the beneficiary remains under mate, medically necessary, and ordered naval MTF control, the following by a qualified USMTF provider. guidelines are applicable: (ii) The naval MTF must make the (i) Process charges for care under the necessary arrangements for obtaining terms of CHAMPUS. required care or services from a spe- (A) If the charge for a covered service cific source of care. or supply is above the CHAMPUS-de- (iii) Upon approval of the naval MTF termined reasonable charge, the direct commanding officer or designee, pro- care system will not assume any liabil- vide the patient or sponsor with a prop- ity on behalf of the patient where a ci- erly completed DD 2161, Referral For vilian provider is concerned, although Civilian Medical Care. The DD 2161 will a USMTF physician recommended or be marked by the health benefits advi- prescribed the service or supply. sor or other designated individual to (B) Payment consideration for all show the naval MTF as the source of care or services meeting cooperative payment. Forward a copy to the MTF’s care criteria will be under the terms of contracting or supply officer who is the CHAMPUS and payment for such care point of contact for coordinating obli- or services will not be made from naval gations with the comptroller and thus MTF funds. Conversely, any care or is responsible for assuring proper proc- services meeting naval MTF supple- essing for payment. mental care or services payment cri- (iv) Authorize care on an inpatient or teria will not be considered under the outpatient basis for the minimum pe- terms of CHAMPUS. riod necessary for the civilian provider (ii) Care must be legitimate and oth- to perform the specific test, procedure, erwise permissible under the terms of treatment, or consultation requested. CHAMPUS and must be ordered by a Patients receiving inpatient services in qualified USMTF provider. civilian medical facilities will not be (iii) Provide assistance to bene- counted as an occupied bed in the naval ficiaries referred or disengaged under MTF, but will be continued on the CHAMPUS. Although USMTF per- naval MTF’s inpatient census. Con- sonnel are not authorized to refer bene- tinue to charge pay patients the ficiaries to a specific civilian provider USMTF inpatient rate appropriate for for care under CHAMPUS, health bene- their patient category. fits advisors are authorized to contact (v) Naval MTF physicians will main- the cooperative care coordinator of the tain professional contact with civilian appropriate CHAMPUS contractor for providers. aid in determining authorized pro- (4) Care and services authorized. Use viders with the capability of rendering local operation and maintenance funds required services. Such information to defray the cost of the following may be given to beneficiaries. Also en- when CHAMPUS-eligible patients are courage beneficiaries to obtain re- referred to civilian sources for the fol- quired services only from providers lowing types of care or services; willing to participate in CHAMPUS.
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Subject to the availability of space, fa- of care. USMTF physicians exercising cilities, and capabilities of the staff, physician case management responsi- USMTFs may provide consultative and bility will maintain professional con- such other ancillary aid as required by tact with civilian providers of care. the civilian provider selected by the (6) Care and services authorized. Refer beneficiary. CHAMPUS-eligible patients to civilian (iv) Provide a properly completed DD sources for the following under the 2161, Referral For Civilian Medical terms of CHAMPUS: Care, to patients who are referred (i) Authorized nondiagnostic medical (versus disengaged) to civilian sources services such as physical therapy, under the terms of CHAMPUS for coop- speech therapy, radiation therapy, and erative care. (A Nonavailability State- private duty (special) nursing. ment (DD 1251) may also be required. (ii) Preauthorized (by OCHAMPUS) Provide this form when required under adjunctive dental care, including or- § 728.33.) The DD 2161 will be marked by thodontia related to surgical correc- the health benefits advisor, or other tion of cleft palate. designated individual, to show (iii) Durable medical equipment. CHAMPUS as the source of payment (CHAMPUS payment will be considered consideration. All such DD 2161’s must only if the equipment is not available be approved by the commanding officer on a loan basis from the naval MTF.) or designee. Give the patient sufficient (iv) Prosthetic devices (limited ben- copies to ensure a copy of the DD 2161 efit), orthopedic braces and appliances. accompanies each CHAMPUS claim. (v) Optical devices (limited benefit). Advise patients that CHAMPUS con- (vi) Civilian ambulance service to a tractors will return claims received USMTF when service is ordered by without the DD 2161. Also advise pa- other than direct care personnel. tients to arrange for return of a com- (vii) All CHAMPUS Program for the pleted copy of the DD 2161 to the naval Handicapped care. MTF for inclusion in their medical (viii) Psychotherapeutic or psy- record. chiatric care. (v) Such patients receiving inpatient (ix) Except for those types of care or or outpatient care or services will pay services delineated in § 728.4(z)(4), all the patient’s share of the costs as spec- other CHAMPUS authorized medical ified under the terms of CHAMPUS for services not available in the naval their beneficiary category. Patients re- MTF (for example, neonatal intensive ceiving inpatient services will not be care). continued on the naval MTF’s census (aa) Third party liability case. Per and will not be charged the USMTF in- chapter 24, section 2403, JAG Manual, patient rate. use the following guidelines to com- (vi) Certain ancillary services au- plete and submit a NAVJAG 5890/12, thorized under CHAMPUS require phy- Hospital and Medical Care, 3rd Party sician case management during the Liability Case, when a third party may course of treatment. USMTF physi- be liable for the injury or disease being cians will manage the provision of an- treated: cillary services by civilian providers (1) Preparation. All naval MTFs will when such services are obtained under use the front of NAVJAG 5890/12 to re- the terms of CHAMPUS. Examples in- port the value of medical care fur- clude physical therapy, private duty nished to any patient when (i) a third (special) nursing, rental or lease/pur- party may be legally liable for causing chase of durable medical equipment, the injury or disease, or (ii) when a and services under the CHAMPUS Pro- Government claim is possible under gram for the Handicapped. USMTF pro- workmen’s compensation, no-fault in- viders exercising physician case man- surance (see responsibilities for appris- agement responsibility for ancillary ing the insurance carrier in services under CHAMPUS are subject § 728.4(aa)(5)), uninsured motorist insur- to the same benefit limitations and ance, or under medical payments insur- certification of need requirements ap- ance (e.g., in all automobile accident plicable to civilian providers under the cases). Block 4 of this form requires an terms of CHAMPUS for the same types appended statement of the patient or
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an accident report, if available. Prior (C) U.S. Coast Guard. Commandant to requesting such a statement from a (G–K–2). U.S. Coast Guard, Washington, patient, the person preparing the front DC 20593–0001. side of NAVJAG 5890/12 will show the (D) Department of Labor. The appro- patient the Privacy Act statement priate Office of Workers’ Compensation printed at the bottom of the form and Programs (OWCP). have the patient sign his or her name (E) Veterans Administration. Director beneath the statement. of the Veterans Administration hos- (2) Submission—(i) Naval patients. For pital responsible for medical care of naval patients, submit the completed the patient being provided treatment. front side of the NAVJAG 5890/12 to the (F) Department of Health and Human appropriate action JAG designee listed Services (DHHS). Regional attorney’s in section 2401 of the JAG Manual at office in the area were the incident oc- the following times: curred. (A) Initial. Make an initial submis- (3) Supplementary documents. An SF sion as soon as practicable after a pa- 502 should accompany the final submis- tient is admitted for any period of in- sion in all cases involving inpatient patient care, or if it appears that more care. Additionally, when Government than 7 outpatient treatments will be care exceeds $1,000, inpatient facilities furnished. This submission should not should complete and submit the back be delayed pending the accumulation side of NAVJAG 5890/12 to the action of all potential charges from the treat- JAG designee. On this side of the form, ing facility. This submission need not the determination of ‘‘patient status’’ be based upon an extensive investiga- may be used on local hospital usage. tion of the cause of the injury or dis- (4) Health record entries. Retain copies ease, but it should include all known of all NAVJAG 5890/12’s in the Health facts. Statements by the patient, po- Record of the patient. Immediately no- lice reports, and similar information (if tify action JAG designees when a pa- available), should be appended to the tient receives additional treatment form. subsequent to the issuance of a final (B) Interim. Make an interim submis- NAVJAG 5890/12 if the subsequent sion every 4 months after the initial treatment is related to the condition submission until the patient is trans- which gave rise to the claim. ferred or released from the facility, or (5) No-fault insurance. When no-fault changed from an inpatient status to an insurance is or may be involved, the outpatient status. naval legal service office at which the (C) Final. Make a final submission JAG designee is located is responsible upon completion of treatment or upon for apprising the insurance carrier that transfer of the patient to another facil- the Federal payment for the benefits of ity. The facility to which the patient is this part is secondary to any no-fault transferred should be noted on the insurance coverage available to the in- form. Report control symbol NAVJAG jured individual. 5890–1 is assigned to this report. (6) Additional guidance. Chapter 24 of (ii) Nonnaval patients. When care is the JAG Manual and BUMEDINST provided to personnel of another Fed- 5890.1A contain supplemental informa- eral agency or department, that agency tion. or department generally will assert (bb) Transfer of patients—(1) General. any claim in behalf of the United Treat all patients at the lowest echelon States. In such instances, submit the equipped and staffed to provide nec- NAVJAG 5890/12’s (initial, interim, and essary care; however, when transfer to final) directly to the appropriate of the another MTF is considered necessary, following: use Government transportation when (A) U.S. Army. Commanding general available. Accomplish medical regu- of the Army or comparable area com- lating per the provisions of mander in which the incident occurred. OPNAVINST 4630.25B and BUMEDINST (B) U.S. Air Force. Staff judge advo- 6320.1D. cate of the Air Force installation near- (2) U.S. military patients. Do not re- est the location where the initial med- tain U.S. military patients in acute ical care was provided. care MTFs longer than the minimum
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time necessary to attain the mental or tient’s choice under the terms of Medi- physical state required for return to care, if the patient is entitled. Bene- duty or separation from the service. ficiaries entitled to Medicare, Part A, When required care is not available at because they are 65 years of age or the facility providing area inpatient older or because of a disability or care, transfer patients to the most chronic renal disease, lose CHAMPUS readily accessible USMTF or des- eligibility but remain eligible for care ignated USTF possessing the required in USMTFs and designated USTFs. capability. Transportation of the pa- (v) If the patient is authorized bene- tient and a medical attendant or at- fits under CHAMPUS, disengage from tendants, if required, is authorized at medical management and issue a Non- Government expense. Since the VA is availability Statement (DD 1251) per staffed and equipped to provide care in the provisions of § 728.33, for care under the most expeditious manner, follow CHAMPUS. This step should only be the administrative procedures outlined taken after due consideration is made in NAVMEDCOMINST 6320.12 when: of the supplemental/cooperative care (i) A patient has received the max- policy addressed in § 728.4(z). imum benefit of hospitalization in a (4) Dependents of members of NATO na- naval MTF but requires a protracted tions. When a dependent, as defined in period of nursing home type care. The § 728.41, of a member of a NATO nation VA can provide this type care or ar- requires care beyond the capabilities of range for it from a civilian source for a facility and a transfer is necessary, individuals so entitled. the commanding officer of that facility (ii) Determined that there is or may may: be spinal cord injury necessitating im- (i) Arrange for transfer to another mediate medical and psychological at- USMTF or designated USTF with re- tention. quired capability if either is located in (iii) A patient has sustained an ap- an overlapping inpatient catchment parently severe head injury or has been area of the transferring facility. blinded necessitating immediate inter- vention beyond the capabilities of (ii) If the patient or sponsor agrees, naval MTFs. arrange for transfer to the nearest (iv) A determination has been made USMTF or designated USTF with re- by the Secretary concerned that a quired capability, regardless of its lo- member on active duty has an alcohol cation. or drug dependency or drug abuse dis- (iii) Effect disposition per § 728.42(d). ability. (5) Others—(i) Medical care. Section 34 (3) Retired members and dependents. of title 24, United States Code, provides When a retired member of a dependent that hospitalization and outpatient requires care beyond the capabilities of services may be provided outside the a facility and a transfer is necessary, continental limits of the United States the commanding officer of that facility and in Alaska to officers and employ- may: ees of any department or agency of the (i) Arrange for transfer to another Federal Government, to employees of a USMTF or designated USTF located in contractor with the United States or an overlapping inpatient catchment the contractor’s subcontractor, to de- area of the transferring facility if ei- pendents of such persons, and in emer- ther has the required capability. gencies to such other persons as the (ii) If the patient or sponsor agrees, Secretary of the Navy may prescribe: arrange for transfer to the nearest Provided, such services are not other- USMTF or designated USTF with re- wise available in reasonably accessible quired capability, regardless of its lo- and appropriate non-Federal facilities. cation. Hospitalization of such persons in a (iii) Arrange for transfer of retired naval MTF is further limited by 24 members to the Veterans Administra- U.S.C. 35 to the treatment of acute tion MTF nearest the patient’s resi- medical and surgical conditions, exclu- dence. sive of nervous, mental, or contagious (iv) Provide aid in releasing the pa- diseases, or those requiring domiciliary tient to a civilian provider of the pa- care.
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(ii) Dental care. Section 35 of title 24 (B) Mailing address including com- provides for space available routine plete zip code (zip + 4) and unit identi- dental care, other than dental pros- fication code (UIC). Include this infor- thesis and orthodontia, for the cat- mation for all facilities listed in egories of individuals enumerated in § 728.4(cc)(1)(iii)(A). § 728.4(bb)(5)(i): Provided, that such (C) Name, grade, and corps of the services are not otherwise available in DEERS project officer designated. reasonably accessible and appropriate (D) Position title within parent facil- non-Federal facilities. ity. (iii) Transfer. Accomplish transfer (E) AUTOVON and commercial tele- and subsequent treatment of individ- phone numbers. uals in § 728.4(bb)(5)(i) per the provi- (2) DEERS and the identification card. sions of law enumerated in § 728.4(bb)(5) This subpart includes DEERS proce- (i) and (ii). dures for eligibility verification checks (cc) Verification of patient eligibility— to be used in conjunction with the (1) DEERS. (i) The Defense Enrollment identification card system as a basis Eligibility Reporting System (DEERS) for verifying eligibility for medical and was implemented by OPNAVINST dental care in USMTFs and uniformed 1750.2. Where DEERS has been started services dental treatment facilities at naval medical and dental treatment (USDTFs). For other than emergency facilities, commanding officers will ap- care, certain patients are required to point, in writing, a DEERS project offi- have a valid ID card in their possession cer to perform at the base level. The and, under the circumstances described project officer’s responsibilities and in § 728.4(cc)(3), are also required to functions include coordinating, exe- meet DEERS criteria before treatment cuting, and maintaining base-level or services are rendered. Although DEERS policies and procedures; pro- DEERS and the ID card system are viding liaison with line activities, interrelated, there will be instances base-level personnel project officers, where a beneficiary is in possession of and base-level public affairs project of- an apparently valid ID card and the ficers; meeting and helping the con- DEERS verification check shows that tractor field representative on site vis- eligibility has terminated or vice its to each facility under the project versa. Eligibility verification via an ID officer’s cognizance; and compiling and card does not override an indication of submitting reports required within the ineligibility in DEERS without some command and by higher authority. other collateral documentation. De- (ii) Commanding officers of afloat pendents (in possession of or without and deployable units are encouraged to ID cards) who undergo DEERS check- appoint a unit DEERS medical project ing will be considered ineligible for the officer as a liaison with the hospital reasons stated in § 728.4(cc)(4)(v) (A) project officer providing services to through (G). For problem resolution, local medical and dental treatment fa- refer dependents of active duty mem- cilities. Distribute notice of such ap- bers to the personnel support detach- pointments to all concerned facilities. ment (PSD) servicing the sponsor’s (iii) When a DEERS project officer command; refer retirees, their depend- has been appointed by a naval MTF or ents, and survivors to the local PSD. DTF, submit a message (report control (3) Identification cards and procedures. symbol MED 6320–42) to All individuals, including members of COMNAVMEDCOM, with information uniformed services in uniform, must copies to appropriate chain of com- provide valid identification when re- mand activities, no later than 10 Octo- questing health benefits. Although the ber annually, and situationally when most widely recognized and acceptable changes occur. As a minimum, the re- forms of identification are DD 1173, DD port will provide: 2, Form PHS–1866–1, and Form PHS– (A) Name of reporting facility. If the 1866–3 (Ret), individuals presenting for project officer is responsible for more care without such identification may than one facility, list all such facili- be rendered care upon presentation of ties. other identification as outlined in this
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part. Under the circumstances indi- sor sign a statement that the indi- cated, the following procedures will be vidual requiring care has a valid ID followed when individuals present card or that an application has been without the required ID card. submitted for a renewal DD 1173. In the (i) Children under 10. Although a DD latter instance, include in the state- 1173 (Uniformed Services Identification ment the allegation that: (1) The bene- and Privilege Card) may be issued to ficiary is dependent upon the service children under 10 years of age, under member for over one-half of his or her normal circumstances they are not. support, and (2) that there has been no Accordingly, certification and identi- material change in the beneficiary’s fication of children under 10 years of circumstances since the previous deter- age are the responsibility of the mem- mination of dependency and issuance of ber, retired member, accompanying the expired card. Place the statement parent, legal guardian, or acting guard- in the beneficiary’s medical record. In- ian. Either the DD 1173 issued the form the patient or sponsor that if eli- spouse of a member or former member gibility is not verified by presentation or the identification card of the mem- of a valid ID card to the patient admin- ber or former member (DD 2, DD 2 istration department within 30 cal- (Ret), Form PHS–1866–1, or Form PHS– endar days, the facility will initiate ac- 1866–3 (Ret)) is acceptable for the pur- tion to recoup the cost of care. If indi- pose of verifying eligibility of a child cated, billing action for the cost of under 10 years of age. treatment will then proceed following (ii) Indefinite expiration. The fact that NAVMED P–5020. the word ‘‘indefinite’’ may appear in (B) When recent accessions, National the space for the expiration date on a Guard, reservists, or Reserve units are member’s card does not lessen its ac- called to active duty for a period great- ceptability for identification of a child. er than 30 days and neither the mem- See § 728.4(cc)(3)(iii) for dependent’s bers nor their dependents are at yet in cards with an indefinite expiration receipt of their identification cards, date. satisfactory collateral identification (iii) Expiration date. To be valid, a de- may be accepted in lieu thereof, i.e., of- pendent’s DD 1173 must have an expira- ficial documents such as orders, along tion date. Do not honor a dependent’s with a marriage license, or birth cer- DD 1173 with an expiration date of ‘‘in- tificate which establish the individ- definite’’. Furthermore, such a card ual’s status as a dependent of a mem- should be confiscated, per ber called to duty for a period which is NAVMILPERSCOMINST 1750.1A, and not specified as 30 days or less. For a forwarded to the local PSD. The PSD child, the collateral documentation may then forward it to the Com- must include satisfactory evidence mander, Naval Military Personnel that the child is within the age lim- Command, (NMPC (641D)/Pers 7312), De- iting criteria outlined in § 728.31(b)(4). partment of the Navy, Washington, DC An eligible dependent’s entitlement, 20370–5000 for investigation and final under the provisions of this subpart, disposition. Render necessary emer- starts on the first day of the sponsor’s gency treatment to such a person. The active service and ends as of midnight patient administration department on the last day of active service. must determine such a patient’s bene- (4) DEERS checking. Unless otherwise ficiary status within 30 calendar days indicated, all DEERS verification pro- and forward such determination to the cedures will be accomplished in con- fiscal department. If indicated, billing junction with possession of a valid ID action for treatment will then proceed card. following NAVMED P–5020. (i) Prospective DEERS processing—(A) (iv) Without cards or with expired Appointments. To minimize difficulties cards. (A) When parents or parents-in- for MTFs, DTFs, and patients, DEERS law (including step-parents and step- checks are necessary for prospective parents-in-law) request care in naval patients with future appointments MTFs or DTFs without a DD 1173 in made through a central or clinic ap- their possession or with expired DD pointment desk. Without advance 1173’s, render care if they or their spon- DEERS checking, patients could arrive
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at a facility with valid ID cards but (B) One hundred percent of all admis- may fail the DEERS check, or may ar- sions. rive without ID cards but be identified (C) One hundred percent of all dental by the DEERS check as eligible. visits at all DTFs for other than active Records, including full social security duty members, retired members, and numbers, of central and clinic appoint- dependent. ment systems will be passed daily to (1) Active duty members are exempt the DEERS representative for a pro- from DEERS eligibility verification spective DEERS check. This enables checking at DTFs. appointment clerks to notify individ- (2) Retired members will receive a uals with appointments of any appar- DEERS vertification check at the ini- ent problem with the DEERS or ID tial visit to any DTF and annually card system and refer those with prob- thereafter at time of treatment at the lems to appropriate authorities prior same facility. To qualify for care as a to the appointment. result of the annually performed (B) Prescriptions. Minimum checking verification check, the individual per- requirements of the program require forming the eligibility check will make prospective DEERS checks on all indi- a notation to this effect on an SF 603, viduals presenting prescriptions of ci- Health Record—Dental. Include in the vilian providers (see notation the date and result of the § 728.4(cc)(4)(iv)(D)). check. (ii) Retrospective DEERS processing. (3) Dependents will have a DEERS Pass daily logs (for walk-in patients, eligibility verification check upon ini- patients presenting in emergencies, or patients replacing last minute appoint- tial presentation for evaluation or ment cancellations) to the DEERS rep- treatment. This check will be valid for resentative for retrospective batch up to 30 days if, when the check is con- processing if necessary for the facility ducted, the period of eligibility re- to meet the minimum checking re- quested is 30 days. A 30-day eligibility quirements in § 728.4(cc)(4)(iv). For check may be accomplished online or DEERS processing, the last four digits via telephone by filling in or request- of a social security number are insuffi- ing the operator to fill in a 30 day pe- cient. Accordingly, when retrospective riod in the requested treatment dates processing is necessary, the full social on the DEERS eligibility inquiry security number of each patient must screen. Each service or clinic is ex- be included on daily logs. pected to establish auditable proce- (iii) Priorities. With the following ini- dures to trace the date of the last eligi- tial priorities, conduct DEERS eligi- bility verification on a particular de- bility checks using a CRT terminal, pendent. single-number dialer telephone, or 800 (D) One hundred percent of pharmacy number access provided for the specific outpatients presenting new prescrip- purpose of DEERS checking to: tions written by a civilian provider. (A) Determine whether a beneficiary Prospective DEERS checks are re- is enrolled. quired for all patients presenting pre- (B) Verify beneficiary eligibility. scriptions of civilian providers. A Eastablishment of eligibility is under DEERS check is not required upon the cognizance of personnel support ac- presentation of a request for refill of a tivities and detachments. prescription of a civilian provider if (C) Identify any errors on the data the original prescription was filled by a base. USMTF within the past 120 days. (iv) Minimum checking requirements. (E) One hundred percent of all indi- Process patients presenting at viduals requesting treatment without a USMTFs and DTFs in the 50 States for valid ID card if they represent them- DEERS eligibility verification per the selves as individuals who are eligible to following minimum checking require- be included in the DEERS data base. ments. (v) Ineligibility determinations. When a (A) Twenty five percent of all out- DEERS verification check is performed patient visits. and eligibility cannot be verified for
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any of the following reasons, deny rou- 9, Dependent’s Eligibility for Medical tine nonemergency care unless the ben- Care, is signed by the member, patient, eficiary meets the criteria for a patient’s parent, or patient’s legal or DEERS eligibility override as noted in acting guardian. This form attests the § 728.4(cc)(4)(viii). fact that eligibility has been estab- (A) Sponsor not enrolled in DEERS. lished per appropriate directives and (B) Dependent not enrolled in includes the reason a valid ID card is DEERS. not in the prospective patient’s posses- (C) ‘‘End eligibility date’’ has passed. sion. Apprise the aforementioned re- Each individual in the DEERS data sponsible individual of the provisions base has a date assigned on which eligi- on the form NAVMED 6320/9 now re- bility is scheduled to end. quiring presentation of a valid ID card (D) Sponsor has separated from ac- within 30 calendar days. Deny treat- tive duty and is no longer entitled to benefits. ment or admission in physician deter- (E) Spouse has a final divorce decree mined nonemergency situations of per- from sponsor and is not entitled to con- sons refusing to sign the certification tinued eligibility as a former spouse. on the NAVMED 6320/9. For persons (F) Dependent child is married. rendered treatment, patient adminis- (G) Dependent becomes an active tration department personnel must de- duty member of a uniformed service. termine their eligibility status within (Applies only to CHAMPUS benefits 30 calendar days and forward such de- since the former dependent becomes termination to the fiscal department. entitled to direct care benefits in his or If indicated, billing action for treat- her own right as an active duty mem- ment will then proceed following ber and must enroll in DEERS.) NAVMED P–5020. (vi) Emergency situations. When a phy- (viii) DEERS overrides. Possession of sician determines that emergency care an ID card alone does not constitute is necessary, initiate treatment. If ad- sufficient proof of eligibility when the mitted after emergency treatment has DEERS check does not verify eligi- been provided, a retrospective DEERS bility. What constitutes sufficient check is required. If an emergency ad- proof will be determined by the reason mission or emergency outpatient treat- the patient failed the DEERS check. ment is accomplished for an individual For example, groups most expected to whose proof of eligibility is in ques- fail DEERS eligibility checks are re- tion, the patient administration de- cent accession members and their de- partment must determine the individ- ual’s beneficiary status within 30 cal- pendents, Guard or Reserve members endar days of treatment and forward recently activated for training periods such determination to the fiscal de- of greater than 30 days and their de- partment. Eligibility verifications will pendents, and parents and parents-in- normally consist of presentation of a law with expired ID cards. Upon pres- valid ID card along with either a posi- entation of a valid ID card, the fol- tive DEERS check or a DEERS over- lowing are reasons to ‘‘override’’ a ride as noted in § 728.4(cc)(4)(viii). If in- DEERS check either showing the indi- dicated, billing action for treatment vidual as ineligible or when an indi- will then proceed per NAVMED P–5020. vidual does not appear in the DEERS (vii) Eligibility verification for non- data base. emergency care. When a prospective pa- (A) DD 1172. Patient presents an tient presents without a valid ID card original of a copy of a DD 1172, Applica- and: tion for Uniformed Services Identifica- (A) DEERS does not verify eligi- tion and Privilege Card, which is also bility, deny nonemergency care. Care used to enroll beneficiaries in DEERS. denial will only be accomplished by su- If the original is used, the personnel pervisory personnel designated by the support detachment (PSD) furnishing commanding officer. the original will list the telephone (B) The individual is on the DEERS number of the verifying officer to aid data base, do not provide non- in verification. Any copy presented emergency care until a NAVMED 6320/
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must have an original signature in sec- the 50 United States or assigned to a tion III; printed name of verifying offi- duty station with an FPO or APO ad- cer, his or her grade, title, and tele- dress as long as the sponsor appears on phone number; and the date the copy the DEERS data base. Before initiating was issued. For treatment purposes, nonemergency care, request collateral this override expires 120 days from the documentation showing relationship to date issued. sponsor when the relationship is or (B) Recently issued identification may be in doubt. cards—(1) DD 1173. Patient presents a (G) Survivors. Dependents of deceased recently issued DD 1173, Uniformed sponsors when the deceased sponsor Services Identification and Privilege failed to enroll in or have his or her de- Card. Examples are spouses recently pendents enrolled in DEERS. This situ- married to sponsor, newly eligible step- ation will be evidenced when an eligi- children, family members of sponsors recently entering on active duty for a bility check on the surviving widow or period greater than 30 days, parents or widower (or other dependent) finds that parents-in-law, and unremarried the sponsor does not appear (screen spouses recently determined eligible. shows ‘‘Sponsor SSN Not Found’’) or For treatment purposes, this override the survivor’s name appears as the expires 120 days from the date issued. sponsor but the survivor is not listed (2) Other ID cards. Patient presents separately as a dependent. In any of any of the following ID cards with a these situations, if the survivor has a date of issue within the previous 120 valid ID card, treat the individual on days: DD 2, DD 2 (Ret), Form PHS 1866– the first visit and refer him or her to 1, or Form PHs 1866–3 (Ret). When these the local personnel support detachment ID cards are used for the purpose of for correction of the DEERS data base. verifying eligibility for a child, collat- For second and subsequent visits prior eral documentation is necessary to en- to appearance on the DEERS data base, sure the child is actually the alleged require survivors to present a DD 1172 sponsor’s dependent and in determining issued per § 728.4(cc)(4)(viii)(A). whether the child is within the age (H) Patients not eligible for DEERS en- limiting criteria outlined in rollment. (1) Secretarial designees are § 728.31(b)(4). not eligible for enrollment in DEERS. (C) Active duty orders. Patient or Their eligibility determination is sponsor presents recently issued orders verified by the letter, on one of the to active duty for a period greater than service Secretaries’ letterhead, of au- 30 days. Copies of such orders may be thorization issued. accepted up to 120 days of their issue date. (2) When it becomes necessary to (D) Newborn infants. Newborn infants make a determination of eligibility on for a period of 1 year after birth pro- other individuals not eligible for entry vided the sponsor presents a valid ID on the DEERS data base, patient ad- card. ministration department personnel (E) Recently expired ID cards. If the will obtain a determination from the DEERS data base shows an individual purported sponsoring agency, if appro- as ineligible due to an ID card that has priate. When necessary to treat or expired within the previous 120 days admit a person who cannot otherwise (shown on the screen as ‘‘Elig with present proof of eligibility for care at valid ID card’’), care may be rendered the expense of the Government, do not when the patient has a new ID card deny care based only on the fact that issued within the previous 120 days. the individual is not on the DEERS (F) Sponsor’s duty station has an FPO data base. In such instances, follow the or APO number or sponsor is stationed procedures in NAVMED P–5020 to mini- outside the 50 United States. Do not deny mize, to the fullest extent possible, the care to bona fide dependents of spon- write-off of uncollectible accounts. sors assigned to a duty station outside
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Subpart B—Members of the Uni- treatment and services upon applica- formed Services on Active tion to a naval MTF whose mission in- Duty cludes the rendering of the care re- quired. This entitlement provides that § 728.11 Eligible beneficiaries. when required care and services are be- (a) A member of a uniformed service, yond the capabilities of the facility to as defined in subpart A, who is on ac- which the member applies, the com- tive duty is entitled to and will be pro- manding officer of that facility will ar- vided medical and dental care and ad- range for care from another USMTF, juncts thereto. For the purpose of this designated USTF, or other Federal part, the following are also considered source or will authorize and arrange on active duty: for direct use of supplemental services (1) Members of the National Guard in and supplies from civilian non-Federal active Federal service pursuant to a sources out of operation and mainte- ‘‘call’’ under 10 U.S.C. 3500 or 8500. nance funds. (2) Midshipmen of the U.S. Naval (i) Necessary hospitalization and Academy. other medical care. (3) Cadets of the U.S. Military Acad- (ii) Occupational health services as emy. defined in § 728.2(z). (4) Cadets of the Air Force Academy. (iii) Necessary prosthetic devices, (5) Cadets of the Coast Guard Acad- prosthetic dental appliances, hearing emy. aids, spectacles, orthopedic footwear, (b) The following categories of per- and other orthopedic appliances (see sonnel who are on active duty are enti- subpart H). When these items need re- tled to and will be provided medical pair or replacement and the items were and dental care and adjuncts thereto to not damaged or lost through neg- the same extent as is provided for ac- ligence, repair or replacement is au- tive duty members of the Regular serv- thorized at Goverment expense. ice (except reservists when on active (iv) Routine dental care. duty for training as delineated in § 728.21). (2) When a USMTF, with a mission of (1) Members of the Reserve compo- providing the care required, releases nents. the medical management of an active (2) Members of the Fleet Reserve. duty member of the Navy, Marine (3) Members of the Fleet Marine Corps, Army, Air Force, or a commis- Corps Reserve. sioned corps member of USPHS or (4) Members of the Reserve Officers’ NOAA, the resulting civilian health Training Corps. care costs will be paid by the referring (5) Members of all officer candidate facility. programs. (3) The member’s uniformed service (6) Retired members of the uniformed will be billed for care provided by the services. civilian facility only when the refer- ring MTF is not organized nor author- § 728.12 Extent of care. ized to provide needed health care (see Members who are away from their part 732 of this chapter for naval mem- duty stations or are on duty where bers). Saturation of service or facilities there is no MTF of their own service does not fall within this exception. may receive care at the nearest avail- When a naval MTF retains medical able Federal MTF (including des- management, the costs of supplemental ignated USTFs) with the capability to care obtained from civilian sources is provide required care. Care will be pro- paid from funds available to operate vided without regard to whether the the MTF which manages care of the pa- condition for which treatment is re- tient. When it becomes necessary to quired was incurred or contracted in refer a USPHS or NOAA commissioned line of duty. corps member to a non-Federal source (a) All uniformed services active duty of care, place a call to the Department members. (1) All eligible beneficiaries of Health and Human Services (DHHS), covered in this subpart are entitled to Chief, Patient Care Services on (301) and will be rendered the following 443–1943 or FTS 443–1943 if DHHS is to
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assume financial responsibility. Pa- (c) Reserve and National Guard per- tient Care Services is the sole source sonnel. In addition to those services for providing authorization for non- covered in paragraphs (a) and (b) of Federal care at DHHS expense. this section, Reserve and National (b) Maternity episode for active duty fe- Guard personnel are authorized the fol- male members. A pregnant active duty lowing under conditions set forth. (See member who lives outside the MHSS § 728.25 for additional benefits for Na- inpatient catchment area of all tional Guard personnel.) USMTFs is permitted to choose wheth- (1) Personnel whose units have an ac- er she wishes to deliver in a closer ci- tive Army mission of manning missile vilian hospital or travel to the USMTF sites are authorized spectacle inserts for delivery. If such a member chooses for protective field masks. to deliver in a naval MTF, makes ap- (2) Personnel assigned to units des- plication, and presents at that facility ignated for control of civil disturb- at the time for delivery, the provisions ances are authorized spectacle inserts of paragraph (a) of this section apply for protective field masks M17. with respect to the furnishing of need- ed care, including routine newborn care § 728.13 Application for care. (i.e., nursery, newborn examination, PKU test, etc.); arrangements for care Possession of an ID card (a green col- beyond the facility’s capabilities; or ored DD 2 (with letter suffix denoting the expenditure of funds for supple- branch of service), Armed Forces Iden- mental care or services. Pay expenses tification Card; a green colored PHS incurred for the infant in USMTFs or 1866–1, Identification Card; or a red col- civilian facilities (once the mother has ored DD 2 Res (Reservists on active been admitted to the USMTF) from duty for training)) alone does not con- funds available for care of active duty stitute sufficient proof of eligibility. members, unless the infant becomes a Accordingly, make a DEERS check, per patient in his or her own right either § 728.4(cc), before other than emergency through an extension of the birthing care is rendered to the extent that may hospital stay because of complications, be authorized. subsequent transfer to another facility, or subsequent admission. If the Gov- § 728.14 Pay patients. ernment is to assume financial respon- Care is provided on a reimbursable sibility for: basis to: Coast Guard active duty offi- (1) Care of pregnant members resid- cers, enlisted personnel, and academy ing within the MHSS inpatient cadets; Public Health Service Commis- catchment area of a uniformed services sioned Corps active duty officers; and hospital or in the inpatient catchment Commissioned Corps active duty offi- area of a designated USTF, such mem- cers of the National Oceanic and At- bers are required to: mospheric Administration. Accord- (i) Make application to that facility ingly, patient administration personnel for care, or will initiate the collection action proc- (ii) Obtain authorization, per part 732 ess in subpart J in each instance of in- of this chapter, for delivery in a civil- patient or outpatient care provided to ian facility. these categories of patients. (2) Non-Federal care of pregnant members residing outside inpatient Subpart C—Members of Reserve catchment areas of USMTFs and Components, Reserve Offi- USTFs, the member must request and receive authorization per part 732 of cers’ Training Corps, Navy this chapter. Part 732 of this chapter and Marine Corps Officer also provides for cases of precipitious Candidate Programs, and Na- labor necessitating emergency care. tional Guard Personnel OPNAVINST 6000.1, Management of Pregnant Servicewomen, contains med- § 728.21 Navy and Marine Corps re- ical-administrative guidelines on man- servists. agement prior to admission and after (a) Scope. This section applies to re- discharge from admission for delivery. servists, as those terms are defined in
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§ 728.2, ordered to active duty for train- titlement Manual for allowable con- ing or inactive duty training for 30 structive travel times.) days or less. Reservists serving under (e) Treatment and services authorized. orders specifying duty in excess of 30 In addition to those services delineated days, such as Sea and Air Mariners above, the following may be rendered (SAMS) while on initial active duty for under circumstances outlined: training, will be provided care as mem- (1) Prosthetic devices, including den- bers of the Regular service per subpart tal appliances, hearing aids, spectacles, B. and orthopedic appliances that are lost (b) Entitlement. Per 10 U.S.C. 1074a(a), or have become damaged during train- reservists who incur or aggravate an ing duty, not through negligence of the injury, illness, or disease in line of individual, may be repaired or replaced duty while on active duty for training at Government expense. or inactive duty training for a period of (2) Reservists covered by this subpart 30 days or less, including travel to and may be provided the following only if from that duty, are entitled to medical approved by the appropriate OMA or and dental care appropriate for the ODA, or by the Commander, Naval treatment of that injury, disease, or Medical Command (MEDCOM–33 for illness until the resulting disability medical and MEDCOM–06 for dental) cannot be materially improved by fur- prior to initiation of services. ther hospitalization or treatment. Care (i) Treatment for acute exacerbations is authorized for such an injury, ill- of conditions that existed prior to a re- servist’s period of training duty. Limit ness, or disease beyond the period of care to that necessary for the preven- training to the same extent as care is tion of pain or undue suffering until authorized for members of the Regular the patient can reasonably return to service (see subpart B) subject to the control of the member’s private physi- provisions of § 728.21(e). cian or dentist. (c) Questionable circumstances. If the (A) Remediable physical defects and circumstances are questionable, refer- remediable treatment for other condi- ral to the OMA or ODA is appropriate. tions. If necessary, make referral to the (B) Elective surgery. Naval Medical Command (MEDCOM–33 (ii) All dental care other than emer- for medical and MEDCOM–06 for den- gency treatment and that necessary to tal) on determinations of entitlements. correct an injury incurred in the line of (d) Line of duty. For the purpose of duty. providing treatment under laws enti- (f) Authorization for care. (1) Reserv- tling reservists to care, an injury, ill- ists covered by this subpart may be ness, or disease which is incurred, ag- provided inpatient or outpatient care gravated, or becomes manifest while a during a period of training duty with- reservist is employed in the perform- out written authorization. ance of active duty for training or in- (2) Except in emergencies or when in- active duty training (including author- patient care initiated during a period ized leave, liberty and travel to and of training duty extends beyond such from either duty) will be considered to period, reservists will be required to have been incurred in line of duty furnish written official authorization (LOD) unless the condition was in- from their unit commanding officer, or curred as a result of the reservist’s own higher authority, incident to receiving misconduct or under other cir- inpatient or outpatient care beyond cumstances enumerated in JAG Man- the period of training duty. The letter ual, chapter VIII. While the LOD inves- of authorization will include name, tigation is being conducted, such re- grade or rate, social security number, servists remain entitled to care. If the and organization of the reservist; type investigation determines that the in- of training duty being performed or jury or illness was not incurred in line that was being performed when the of duty, the civilian humanitarian non- condition manifested; diagnosis (if indigent rate is applicable if further known); and a statement that the con- care is required in naval MTFs. (See dition was incurred in line of duty and DOD Military Pay and Allowances En- that the reservist is entitled to care. If
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the reservist has been issued a notice (3) Medical, dental, pharmacy, veteri- of eligibility (NOE) (subpart I), the nary or science allied to medicine stu- NOE may then be accepted in lieu of dents who are commissioned officers of the letter of authorization. When au- a reserve component of an Armed thorization has not been obtained be- Force who have been admitted to and forehand, care may be provided on a ci- training in a unit of a Senior Reserve vilian humanitarian basis (see subpart Officers’ Training Corps. G) pending final determination of eligi- (b) Extent of care. (1) While attending bility. or en route to or from field training or practice cruises: § 728.22 Members of other reserve (i) Medical care for a condition in- components of the uniformed serv- ices. curred without reference to line of duty. (a) Members of reserve components of (ii) Routine dental care. the Coast Guard may be provided care (iii) Prosthetic devices, including the same as Navy and Marine Corps re- dental appliances, hearing aids, spec- servists. tacles, and orthopedic appliances that (b) Members of reserve components of have become damaged or lost during the Army and Air Force may be pro- training duty, not through negligence vided care in naval MTFs to the same of the individual, may be repaired or extent that they are eligible for such replaced as necessary at government care in MTFs of their respective serv- expense. ices. Consult current Army Regulation (iv) Care of remediable physical de- 40–3, Medical, Dental, and Veterinary fects, elective surgery or other remedi- Care, or Air Force Regulation 168–6, able treatment for conditions that ex- Persons Authorized Medical Care, as isted prior to a period of training duty appropriate, for particular eligibility are not authorized without approval requirements or contact the nearest from the appropriate OMA or ODA, or appropriate service facility. from the Commander, Naval Medical (c) When the service directive re- Command (MEDCOM–33 for medical quires written authorization, obtain and MEDCOM–06 for dental). such authorization from the reservist’s unit commanding officer or other ap- (v) Medical examinations and immu- propriate higher authority. nizations. (d) Naval MTFs in the United States (vi) ROTC members are authorized are authorized to conduct physical ex- continued medical care, including hos- aminations of and administer immuni- pitalization, upon expiration of their zations to inactive reserve Public field training or practice cruise period, Health Service commissioned officers the same as reservists in § 728.21(b) and upon presentation of a written request § 728.22. from the Commissioned Personnel Op- (2) While attending a civilian edu- erations Division, OPM/OAM, 5600 Fish- cational institution: ers Lane, Rockville, MD 20852. (i) Medical care in naval MTFs, in- cluding hospitalization, for a condition § 728.23 Reserve Officers’ Training incurred in line of duty while at or Corps (ROTC). traveling to or from a military instal- (a) Eligible beneficiaries. (1) Members lation for the purpose of undergoing of the Senior Reserve Officers’ Train- medical or other examinations or for ing Corps of the Armed Forces includ- purposes of making visits of observa- ing students enrolled in the 4-year Sen- tion, including participation in service- ior ROTC Program or the 2-year Ad- sponsored sports, recreational, and vanced Training Senior ROTC Pro- training activities. gram. (ii) Medical examinations, including (2) Designated applicants for mem- hospitalization necessary for the prop- bership in the Navy, Army, and Air er conduct thereof. Force Senior ROTC Programs during (iii) Required immunizations, includ- their initial 6-weeks training period ing hospitalization for severe reactions (practice cruises or field training). therefrom.
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(c) Authorization. The individual’s from that duty. The authorizing letter commanding officer will prepare a let- will include name, social security num- ter of authorization addressed to the ber, grade, and organization of the commanding officer of the MTF con- member; type and period of duty in cerned. which engaged (or in which engaged (d) ROTC members as beneficiaries of when the injury or illness occurred); di- the Office of Workers’ Compensation Pro- agnosis (if known); and will indicate grams (OWCP). Under circumstances that the injury suffered or disease con- described therein, render care as out- tracted was in line of duty and that the lined in § 728.53 to members of the individual is entitled to medical or ROTC as beneficiaries of OWCP. dental care. Limit care to that appro- priate for the injury. disease, or illness § 728.24 Navy and Marine Corps Offi- until the resulting disability cannot be cer Candidate Programs. materially improved by further hos- Members of the Reserve Officers Can- pitalization or treatment. didate Program and Platoon Leaders (b) Physical examinations. AR 40–3 and Class are entitled to the same medical AFR 168–6 also authorize physical ex- and dental benefits as are provided aminations for National Guard per- members of the Navy and Marine Corps sonnel. Accordingly, when requested by Reserve Components. Accordingly, the an Army or Air Force National Guard provisions of § 728.21 are applicable for unit’s commanding officer, naval MTFs such members. Additionally, can- may perform the requested physical ex- didates for, or persons enrolled in such amination per the appropriate service programs are authorized access to directive, subject to the availability of naval MTFs for the purpose of con- space, facilities, and the capabilities of ducting special physical examination the staff. procedures which have been requested by the Commander, Naval Medical Subpart D—Retired Members and Command to determine their physical Dependents of the Uniformed fitness for appointment to, or continu- Services ation in such a program. Upon a re- quest from the individual’s com- § 728.31 Eligible beneficiaries and manding officer, the officer in charge health benefits authorized. of cognizant Navy and Marine Corps re- (a) Retired members of the uniformed cruiting stations, or officer selection services. Retired members, as defined in officer, naval MTFs are authorized to § 728.2(aa), are authorized the same admit such persons when, in the opin- medical and dental benefits as active ion of the cognizant officer, hos- duty members subject to the avail- pitalization is necessary for the proper ability of space and facilities, capabili- conduct of the special physical exami- ties of the professional staff, and the nations. Hospitalization should be kept priorities in § 728.3, except that: to a minimum and treatment other (1) Periodic medical examinations for than for humanitarian reasons, except members on the Temporary Disability as provided in this part, is not author- Retired List, including hospitalization ized. in connection with the conduct thereof, will be furnished on the same priority § 728.25 Army and Air Force National basis as care to active duty members. Guard personnel. (2) When vision correction is re- (a) Medical and dental care. Upon quired, one pair of standard issue spec- presentation of a letter of authoriza- tacles, or one pair of nonstandard spec- tion, render care as set forth in AR 40– tacles, are authorized when required to 3 (Medical, Dental, and Veterinary satisfy patient needs. Two pairs of Care) and AFR 168–6 (Persons Author- spectacles may be furnished only when ized Medical Care) to members of the professionally determined to be essen- Army and Air Force National Guard tial by the examining officer. Military who contract a disease or become ill in ophthalmic laboratories will not fur- line of duty while on full-time National nish occupational type spectacles, such Guard duty, (including leave and lib- as aviation, industrial safety, double erty therefrom) or while traveling to or segment, and mask insert, to retired
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military personnel (7) An unremarried former spouse of (NAVMEDCOMINST 6810.1 refers). a member or former member who does (b) Dependents of members of former not have medical coverage under an members. Include: employer-sponsored health plan, and (1) The spouse. who: (2) The unremarried widow. (i) On the date of the final decree of (3) The unremarried widower. divorce, dissolution, or annulment, had (4) An unmarried legitimate child, in- been married to the member or former cluding an adopted child or a stepchild, member at least 20 years during which who either— period the member of former member performed at least 20 years of service (i) Has not passed his or her 21st creditable in determining that mem- birthday; ber’s or former member’s eligibility for (ii) Is incapable of self-support be- retired or retainer pay, or equivalent cause of a mental or physical inca- pay. pacity that existed before the 21st (ii) Had been married to the member birthday and is, or was at the time of of former member at least 20 years, at the member’s or former member’s least 15 of which were during the period death, in fact dependent on the mem- the member of former member per- ber for over one-half of his or her sup- formed service creditable in deter- port; or mining the member’s eligibility for re- (iii) Has not passed the 23rd birthday, tired or retainer pay, or equivalent is enrolled in a full-time course of pay. The former spouse’s sponsor must study in an institution of higher learn- have performed at least 20 years of ing approved by the administering Sec- service creditable in determining the retary and is, or was at the time of the sponsor’s eligibility for retired or re- member’s or former member’s death, in tainer pay, or equivalent pay. fact dependent on the member for over (A) Eligibility for such former one-half of his or her support. (If such spouses continue until remarriage if a child suffers a disabling illness or in- the final decree of divorce, dissolution, jury and is unable to return to school, or annulment occurred before 1 April the child remains eligible for benefits 1985. until 6 months after the disability is (B) Eligibility terminates the later removed, or until the 23rd birthday is of: Either 2 years from the date of the reached, whichever comes first.) final decree of divorce, dissolution, or (5) An unmarried illegitimate child annulment; or 1 April 1988 for such or illegitimate step-child who is, or former spouses whose final decree was at the time of sponsor’s death, de- occured on or after 1 April 1985. pendent on the sponsor for more than (iii) An unremarried former spouse of one-half of his or her support; residing a deceased member of former member with or in a home provided by the who meets the requirements of sponsor or the sponsor’s spouse, as ap- § 728.31(b)(7)(i) or (ii) may be provided plicable, and is— medical and dental care as a dependent (i) Under 21 years of age; or when the sponsor: (ii) Twenty-one years of age or older (A) Died before attaining age 60. but incapable of self-support because of (B) At the time of death would have a mental or physical incapacity that been eligible for retired pay under 10 existed prior to the individual’s 21st U.S.C. 1331–1337 except that the sponsor birthday; or was under 60 years of age; but the (iii) Twenty-one or 22 years of age former spouse is not eligible for care and pursuing a full-time course of edu- until the date the sponsor would have cation that is approved per attained age 60; § 728.31(b)(4)(iii). (C) Whether or not the sponsor elect- (6) A parent or parent-in-law, who is, ed participation in the Survivor Ben- or was at the time of the member’s or efit Plan of 10 U.S.C. 1447–1455. former member’s death, in fact depend- (c) Eligibility factors. Care that may ent on the member for over one-half of be rendered to all dependents in this such parent’s support and residing in subpart D is subject to the availability the sponsor’s household. of space and facilities, capabilities of
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the professional staff, and priorities in by the remarriage of the divorced § 728.3. Additionally: spouse maintaining custody unless the (1) Members of the uniformed serv- marriage is to an eligible service mem- ices must be serving under orders ber. specifying active duty for more than 30 (6) A stepchild relationship does not days before their dependents are au- cease upon death of the member step- thorized benefits delineated in parent but does cease if the natural § 728.31(d). parent subsequently remarries. (2) A dependent’s eligibility begins on (7) A child of an active duty or re- the date the member enters on active tired member, adopted after that mem- duty and ends as of midnight of the ber’s death, retains eligibility for date the sponsor’s period of active duty ends for any reason other than retire- health benefits. However, the adoption ment or death. Dependents lose eligi- of a child of a living member (other bility as of midnight of the date a than by a person whose dependents are member is officially place in a deserter eligible for health benefits at USMTFs) status. Eligibility is restored on the terminates the child’s eligibility. date a deserter is returned to military (8) If a member’s child is married be- control. fore reaching age 21 to a person whose (3) A dependent (other than a former dependents are not eligible for health spouse) of a member or former member benefits in USMTFs, eligibility ceases who died before attaining age 60 and at as of midnight on the date of marriage. the time of death— Should the marriage be terminated, (i) Would have been eligible for re- the child again becomes eligible for tired pay under chapter 67 of title 10 benefits as a dependent child if other- U.S.C. but for the fact that the member wise eligible. of former member was under 60 years of (d) Health benefits authorized. (1) Inpa- age, and tient care including services and sup- (ii) Had elected to participate in the plies normally furnished by the MTF. Survivor Benefit Plan, may not be ren- (2) Outpatient care and services. dered medical or dental care under the (3) Drugs (see chapter 21, MANMED). sponsor’s entitlement until the date on which such member of former member (i) Prescriptions written by officers would have attained age 60. of the Medical and Dental Corps, civil- (4) A spouse, not qualifying as a ian physicians and dentists employed former spouse, who is divorced from a by the Navy, designated officers of the member loses eligibility for benefits as Medical Service Corps and Nurse Corps, of midnight of the date the divorce be- independent duty hospital corpsmen, comes final. This includes loss of ma- and others designated to write pre- ternity care benefits for wives who are scriptions will be filled subject to the pregnant at the time a divorce becomes availability of pharmaceuticals, and final. A spouse does not lose eligibility consistent with control procedures and through issuance of an interlocutory applicable laws. decree of divorce even when a property (ii) Prescriptions written by civilian settlement has been approved which re- physicians and dentists (non-Navy em- leases the member from responsibility ployed) for eligible beneficiaries may for the spouse’s support. A spouse’s eli- be filled if: gibility depends upon the relationship (A) The commanding officer or CO’s of the spouse to the member; so long as designee determines that pharmacy the relationship of husband and wife is personnel and funds are available. not terminated by a final divorce or annulment decree, eligibility con- (B) The items requested are routinely tinues. stocked. (5) Eligibility of children is not af- (C) The prescribed quantity is within fected by the divorce of parents except limitations established by the com- that a stepchild relationship ceases mand. upon divorce or annulment of natural (D) The prescriber is in the local area parent and step-parent. A child’s eligi- (limits designated by the commanding bility for health benefits is not affected officer).
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(E) The provisions of chapter 21, endangered if the fetus were carried to MANMED are followed when such serv- term. ices include the dispensing of con- (10) Dental care worldwide on a space trolled substances. available basis. (4) Treatment on an inpatient or out- (11) Government ambulance services, patient basis of: surface or air, to transport dependents (i) Medical and surgical conditions. to, from, or between medical facilities (ii) Contagious diseases. when determined by the medical officer (iii) Nervous, mental, and chronic in charge to be medically necessary. conditions. (12) Home calls when determined by the medical officer in charge to be (5) Physical examinations, including medically necessary. eye examinations and hearing evalua- (13) Artificial limbs and artificial tions, and all other tests and proce- eyes, including initial issue, fitting, re- dures necessary for a complete physical pair, replacement, and adjustment. examination. (14) Durable equipment such as (6) Immunizations. wheelchairs, hospital beds, and resus- (7) Maternity (obstetrical) and infant citators may be issued on a loan basis. care, routine care and examination of (15) Orthopedic aids, braces, crutches, the newborn infant, and well-baby care elastic stockings, walking irons, and for mothers and infants meeting the similar aids. eligibility requirements of § 728.31(b). If (16) Prosthetic devices (other than a newborn infant of an unmarried de- artificial limbs and eyes), hearing aids, pendent minor daughter becomes a pa- orthopedic footwear, and spectacles or tient in his or her own right after dis- contact lenses for the correction of or- charge of the mother, classify the in- dinary refractive error may not be pro- fant as civilian humanitarian non- vided dependents. These items, how- indigent inasmuch as § 728.31(b) does ever, may be sold to dependents at cost not define the infant as a dependent of to the Government at facilities outside the active duty or retired service mem- the United States and at specific in- ber. Therefore, the minor daughter’s stallations within the United States sponsor (parent) should be counseled where adequate civilian facilities are concerning the possibility of Secre- unavailable. tarial designee status for the infant (17) Special lenses (including intra- (see § 728.77). ocular lenses) or contact lenses for (8) Diagnostic tests and services, in- those eye conditions which require cluding laboratory and x-ray examina- these items for complete medical or tions. Physical therapy, laboratory, x- surgical management of the condition. ray, and other ambulatory diagnostic (18) One wig if the individual has alo- or therapeutic measures requeted by pecia resulting from treatment of a non-Navy employed physicians may be malignant disease: Provided the indi- provided upon approval of the com- vidual has not previously received a manding officer or designated depart- wig at the expense of the United ment heads. Rendering of such srvices States. is subordinate to and will not unduly (e) Dependents of reserves. (1) A de- interfere with providing inpatient and pendent, as defined in § 728.31(b), of a outpatient care to active duty per- deceased member of the Naval Reserve, sonnel and others whose priority to re- the Fleet Reserve, the Marine Corps ceive care is equal to or greater than Reserve, or the Fleet Marine Corps Re- such dependents. Ensure that the re- serve, who— lease of any information to non-Navy (i) Was ordered to active duty or to employed physicians is in consonance perform inactive-duty training for any with applicable provisions of period of time. SECNAVINST 5211.5C. (ii) Was disabled in the line of duty (9) Family planning services as delin- from an injury while so employed, and eated in SECNAVINST 6300.2A. Abor- (iii) Dies from such a specific injury, tions, at the expense of the Govern- illness, or disease is entitled to the ment, may not be performed except same care as provided for dependents in where the life of the mother would be § 728.31(c).
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(2) The provisions of this subpart D quire the beneficiary to use the are not intended to authorize medical USMTF and the attending physician and dental care precluded for depend- has specific prior approval from the fa- ents of members of Reserve compo- cility’s commanding officer or higher nents who receive involuntary orders authority to make such determination. to active duty under 10 U.S.C. 270b. (i) Issuance for this reason should be (f) Unauthorized care. In addition to restricted to those instances when de- the devices listed in § 728.31(d)(16) as nial of the DD 1251 could result in a unauthorized, dependents are not au- significant risk to the health of any pa- thorized care for elective correction of tient requiring any clinical specialty. minor dermatological blemishes and (ii) Issuing authorities have discre- marks or minor anatomical anomalies. tionary authority to evaluate each sit- uation and issue a DD 1251 under the § 728.32 Application for care. ‘‘medically inappropriate’’ reason if: Possession of an ID card alone (DD 2 (A) In consideration of individual (Retired), PHS–1866–3 (Retired), or DD medical needs, personal constraints on 1173 (Uniformed Services Identification an individual’s ability to get to the and Privilege Card)) does not con- USMTF results in an unreasonable lim- stitute sufficient proof of eligibility. itation on that individual’s ability to Accordingly, a DEERS check will be get required medical care, and instituted per § 728.4 (cc) before medical (B) The issuing authority determines and dental care may be rendered except that obtaining care from a civilian in emergencies. When required inpa- source selected by the individual would tient or outpatient care is beyond the result in significantly less limitations capabilities of the naval MTF, the pro- on that individual’s ability to get re- visions of § 728.34 apply. When required quired medical care than would result inpatient care cannot be rendered and if the individual was required to obtain a decision is made to disengage a care from a USMTF. CHAMPUS-eligible beneficiary, the (C) A beneficiary is in a travel status. provisions of § 728.33 apply. The commanding officer of the first fa- cility contacted, in either the bene- § 728.33 Nonavailability statement (DD ficiary’s home catchment area or the 1251). catchment area where hospital care (a) General. Per DODINST 6015.19 of 26 was obtained, has this discretionary Nov. 1984, the following guidelines are authority. Travel in this instance effective as of 1 Jan. 1985. All pre- means the beneficiary is temporarily viously issued Nonavailability State- on a trip away from his or her perma- ment guidelines and reporting require- nent residence. The reason the patient ments are superseded. is traveling, the distance involved in (b) Applicability. The following provi- the travel, and the time away from the sions are applicable to nonemergency permanent residence is not critical to inpatient care only. A DD 1251 is not the principle inherent in the policy. required: The issuing officer to whom the re- (1) For emergency care (see para- quest for a Nonavailability Statement graph (d)(1)) of this section. is made should reasonably determine (2) When the beneficiary has other in- that the trip was not made, and the ci- surance (including Medicare) that pro- vilian care is not (was not) obtained, vides primary coverage for a covered with the primary intent of avoiding use service. of a USMTF or USTF serving the bene- (3) For medical services that ficiary’s home area. CHAMPUS clearly does not cover. (d) Guidelines for issuing—(1) Emer- (c) Reasons for issuance. DD 1251’s gency care. Emergency care claims do may be issued for only the following not require an NAS; however, the na- reasons: ture of the service or care must be cer- (1) Proper facilities are not available. tified as an emergency by the attend- (2) Professional capability is not ing physician, either on the claim form available. or in a separate signed and dated state- (3) It would be medically inappro- ment. Otherwise, a DD 1251 is required priate (as defined in § 728.2(u)) to re- by CHAMPUS-eligible beneficiaries
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who are subject to the provisions of manders of naval geographic medical this section. commands, naval MTFs will issue Non- (2) Emergency maternity care. Unless availability Statements only when care substantiated by medical documenta- required is not available from the tion and review, a maternity admission naval MTF and the beneficiary’s place would not be deemed as an emergency of residence is within the catchment since the fact of the pregnancy would area (as defined in § 728.2(d)) of the have been established well in advance issuing facility or as otherwise directed of the admission. In such an instance, by the Secretary of Defense. When the the beneficiary would have had suffi- facility’s inpatient catchment area cient opportunity to obtain a DD 1251 if overlaps the inpatient catchment area required in her residence catchment of one or more other USMTFs or area. USTFs with inpatient capability and (3) Newborn infant(s) remaining in hos- the residence of the beneficiary is pital after discharge of mother. A new- within the same catchment area of one born infant remaining in the hospital or more other USMTFs or USTFs with continuously after discharge of the inpatient capability, the issuing au- mother does not require a separate DD thority will: 1251 for the first 15 days after the (1) Determine whether required care mother is discharged. Claims for care is available at any other USMTFs or beyond this 15-day limitation must be USTFs whose inpatient catchment area accompanied by a valid DD 1251 issued overlaps the beneficiary’s residence. If in the infant’s name. This is due to the care is available, refer the beneficiary fact that the infant becomes a patient to that facility and do not issue a DD in his or her own right (the episode of 1251. care for the infant after discharge of (2) Implement measures ensuring the mother is not considered part of that an audit trail related to each the initial reason for admission of the check and referral is maintained, in- mother (delivery), and is therefore con- cluding the check required before ret- sidered a separate admission under a roactive issuance of a DD 1251 as delin- different diagnosis). eated in paragraph (g) of this section. (4) Cooperative care program. When a When other than written communica- DD 2161, Referral for Civilian Medical tion is made to ascertain capability, Care, is issued for inpatient care in make a record in the log required in connection with the Cooperative Care paragraph (h) of this section that ‘‘Tel- Program (§ 728.4(z)(5)(iv)) for care under ephonic (or other) determination was CHAMPUS, a DD 1251 must also be made on (date) that required care was issued. not available at (name of other (5) Beneficiary responsibilities. Bene- USMTF(s) or USTF(s) contacted)’’. The ficiaries are responsible for deter- individual ascertaining this informa- mining whether an NAS is necessary in tion will sign this notation. the area of their residence and for ob- (3) Once established that a DD 1251 is taining one, if required, by first seek- authorized and will be issued, the fol- ing nonemergency inpatient care in the lowing will apply: USMTF or USTF serving the (i) Do not refer patients to a specific catchment area. Beneficiaries cannot source of care. avoid this requirement by arranging to (ii) Nonavailability Statements be away from their residence when issued at commands outside the United nonemergency inpatient care is ob- States are not valid for care received in tained, e.g., staying with a relative or facilities located within the United traveling. Individuals requiring an States. Statements issued within the NAS because they reside in the inpa- United States are not valid for care re- tient catchment area of a USMTF or ceived outside the United States. USTF also require an NAS for non- (iii) The issuing authority will: emergency care received while away (A) If capability permits, prepare a from their inpatient catchment area. DD 1251 via the automated application (e) Issuing authority. Under the direc- of DEERS. Where this system is oper- tion of the Commander, Naval Medical ational, it provides for transmitting Command, exercised through com- quarterly reports to the Office of the
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Assistant Secretary of Defense for lated directly to the original admis- Health Affairs (OASD(HA)) by elec- sion. tronic means. System users should (2) Maternity episodes are valid if refer to their DEERS/NAS Users Man- outpatient of inpatient treatment re- ual for specific guidance on the use of lated to the pregnancy is initiated the automated system. At activities within 30 days of its issuance. They re- where the DEER/NAS automated sys- main valid for care of the mother tem is not operational, prepare each through termination of the pregnancy DD 1251 per instructions on the reverse and for 42 days thereafter to allow for of the form. After completion, if au- postnatal care to be included in the thorized by the facility CO, the issuing maternity episode. (See paragraph authority will sign the DD 1251. Give a (d)(3) of this section for the validity pe- copy to the patient for presentation to riod of DD 1251’s for infants remaining a participating civilian provider, or for after discharge of the mother.) submission with the claim of a non- (g) Retroactive issuance. Issue Non- participating provider. Retain a copy availability Statements retroactively for the issuing activity’s records. Re- only if required care could not have tain the original for subsequent trans- been rendered in a USMTF or USTF as mittal to the Naval Medical Data Serv- specified in paragraph (e) of this sec- ices Center per paragraph (j) of this tion at the time services were rendered section. in the civilian sector. At the time a (B) Explain to the patient or other retroactive issuance is requested, the responsible family member the validity facility receiving the request will de- period of the DD 1251 (see paragraph (f) termine whether capability existed at of this section). the USMTF or USTF serving the inpa- (C) Ensure that beneficiaries are tient catchment area wherein the bene- clearly advised of the cost-sharing pro- ficiary resides (resided) or at any of the visions of CHAMPUS and of the fact facilities in the overlapping area de- that the issuance of a Nonavailability scribed in paragraph (e) of this section. Statement does not imply that While the date of service will be re- CHAMPUS will allow any and all costs corded on the DD 1251, send the re- incurred through the use of the DD tained original to the Naval Medical 1251. The issuance of a DD 1251 indi- Data Services Center along with others cates only that care requested is not issued during the week of issuance available at a USMTF or USTF serving (paragraph (j) of this section refers). the beneficiary’s residence inpatient (h) Annotating DD 1251’s. Before catchment area. issuance, annotate each DD 1251 per (D) Review, with the patient or re- the instructions for completion on the sponsible family member, instructions reverse of the form. DD 1251’s issued 1 through 6 on the face of the DD 1251 under the CO’s discretionary authority and have the patient or responsible for the ‘‘medically inappropriate rea- family member sign acknowledgement son (paragraph (c)(3)(ii) of this section) that such review has been made and is will be annotated in the remarks sec- understood. tion documenting the special cir- (E) Advise recipients that CHAMPUS cumstances necessitating issuance, the fiscal intermediaries may deny claims name and location of the source of care of individuals who are not enrolled in selected by the beneficiary, and ap- the Defense Enrollment Eligibility Re- proximate distance from the source se- porting System (DEERS). lected to the nearest USMTF or USTF (f) Validity period. DD 1251’s issued with capability (see instruction num- for: ber 2 on the reverse of the DD 1251). Es- (1) Other than maternity care are tablish and maintain a consecutively valid for a hospital admission occur- numbered log to include for each indi- ring within 30 days of issuance and re- vidual to whom a DD 1251 is issued: main valid from the date of admission (1) Patient’s name and identifying until 15 days after discharge from the data. facility rendering inpatient care. This (2) The facility unique NAS number allows for any follow-on treatment re- (block number 1 on the DD 1251).
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(i) Appeal procedures. Beneficiaries the reasonable costs of inpatient hos- may appeal the denial of their request pital care incurred by the United for a DD 1251. This procedure consists States on behalf of retirees and depend- of four levels within Navy, any one of ents. Naval hospital collection agents which may terminate action and order have been provided instructions rel- issuance of a Nonavailability State- ative to this issue and are responsible ment if deemed warranted: for initiating claims to third-party (1) The first level is the chief of serv- payers for the cost of such care. Admis- ice, or director of clinical services if sion office personnel must obtain in- the chief of service is the cognizant au- surance, medical service, or health thority denying the beneficiary’s origi- plan (third-party payer) information nal request. from retirees and dependents upon ad- (2) The second level is the com- mission and forward this information manding officer of the naval MTF de- to the collection agent. nying the issuance. Where the appeal is denied and denial is upheld at the com- § 728.36 Pay patients. manding officer’s level, inform bene- Care is provided on a reimbursable ficiaries that their appeal may be for- basis to retired Coast Guard officers warded to the geographic commander and enlisted personnel, retired Public having jurisdictional authority. Health Service Commissioned Corps of- (3) The third level is the appropriate ficers, retired Commissioned Corps offi- geographic commander, if the appeal is cers of the National Oceanic and At- denied at this level, inform bene- mospheric Administration, and to the ficiaries that their appeal may be for- dependents of such personnel. Accord- warded to the Commander, Naval Med- ingly, patient administration personnel ical Command, Washington, DC 20372– will follow the provisions of subpart J 5120. to initiate the collection action proc- (4) The Commander, Naval Medical ess when inpatient or outpatient care Command, the fourth level of appeal, is provided to these categories of bene- will evaluate all documentation sub- ficiaries. mitted and arrive at a decision. The beneficiary will be notified in writing Subpart E—Members of Foreign of this decision and the reasons there- Military Services and Their De- for. pendents (j) Data collection and reporting. Do not issue the original of each DD 1251 § 728.41 General provisions. prepared at activities where the DEER/ (a) Dependent. As used in this sub- NAS automated system is not oper- part, the term ‘‘dependent’’ denotes a ational. Send the retained originals to person who bears one of the following the Commanding Officer, Naval Med- relationships to his or her sponsor: ical Data Services Center (Code–03), (1) A wife. Bethesda, MD 20814–5066 for reporting (2) A husband if dependent on his under report control symbol DD-HA (Q) sponsor for more than one-half of his 1463(6320). support. (3) An unmarried legitimate child, in- § 728.34 Care beyond the capabilities cluding an adopted or stepchild who is of a naval MTF. dependent on the sponsor for over one- When either during initial evaluation half of his or her support and who ei- or during the course of treatment of an ther: individual authorized care in this sub- (i) Has not passed the 21st birthday; part, a determination is made that re- or quired care or services are beyond the (ii) Is incapable of self-support due to capability of the naval MTF, the provi- a physical or mental incapacity that sions of § 728.4(z)(2) apply. existed prior to reaching the age of 21; or § 728.35 Coordination of benefits— (iii) Has not passed the 23rd birthday third party payers. and is enrolled in a full-time course of Title 10 U.S.C. 1095 directs the serv- study in an accredited institution of ices to collect from third-party payers higher learning.
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(b) Transfer to naval MTFs in the provide required care. If approved, the United States. Do not transfer personnel Chief of Naval Operations will furnish, covered in this subpart to the United through the chain of command, the States solely for the purpose of obtain- commanding officer of the designated ing medical care at naval MTFs. Con- naval MTF authorization for admission sideration may be given however, in of the beneficiary for treatment. special circumstances following laws of humanity or principles of international § 728.42 NATO. courtesy. Transfer to naval MTFs in (a) NATO SOFA nations. Belgium, the United States of such persons lo- Canada, Denmark, Federal Republic of cated outside the United States re- Germany, France, Greece, Iceland, quires approval of the Secretary of the Italy, Luxembourg, the Netherlands, Navy. Naval commands, therefore, Norway, Portugal, Spain, Turkey, the should not commit the Navy by a United Kingdom, and the United promise of treatment in the United States. States. Approval generally will not be (b) Beneficiaries. The following per- granted for treatment of those who suf- sonnel are beneficiaries under the con- fer from incurable afflictions, who re- ditions set forth. quire excessive nursing or custodial (1) Members of NATO military services care, or those who have adequate facili- and their dependents. Military personnel ties in their own country. When a re- of NATO nations, who, in connection quest is received concerning transfer with their official duties, are stationed for treatment at a naval MTF in the in or passing through the United United States, the following procedures States, and their dependents residing apply: in the United States with the sponsor (1) Forward the request to the Chief may be provided care in naval MTFs to of Naval Operations (OP–61), with a the same extent and under the same copy to the Commander, Naval Medical conditions as comparable U.S. uni- Command, Washington, DC 20372–5120 formed services personnel and their de- for administrative processing. Include: pendents. Accordingly, the provisions (i) Patient’s full name and grade or of § 728.12 are applicable to military rate (if dependent, the sponsor’s name personnel and § 728.31(d) through § 728.34 and grade or rate also). to accompanying dependents. (ii) Country of which a citizen. (2) Military ships and aircraft per- (iii) Results of coordination with the sonnel. Crew and passengers of visiting chief of the diplomatic mission of the military aircraft and crews of ships of country involved. NATO nations which land or come into (iv) Medical report giving the his- port at NATO or U.S. military airfields tory, diagnosis, clinical findings, re- or ports within NATO countries. sults of diagnostic tests and proce- (3) NATO liaison officers. In overseas dures, and all other pertinent medical areas, liaison officers from NATO information. Army Forces or members of a liaison (v) Availability or lack thereof of detachment from such a Force. professional skills and adequacy of fa- (c) Application for care. Military per- cilities for treatment in the member’s sonnel of NATO nations stationed in own country. the United States and their dependents (vi) Who will assume financial re- will present valid Uniformed Services sponsibility for costs of hospitalization Identification and Privilege Cards (DD and travel. 1173) when applying for care. For other (2) The Chief of Naval Operations eligible persons passing through the (OP–61) will, if appropriate, obtain United States on official business and State Department clearance and guid- those enumerated in paragraph (b) (2) ance and advise the Secretary of the and (3) of this section, orders or other Navy accordingly. The Commander, official identification may be accepted Naval Medical Command will furnish in lieu of the DD 1173. the Chief of Naval Operations informa- (d) Disposition. When it becomes nec- tion and recommendations relative to essary to return individuals to their the medical aspects and the name of home country for medical reasons, the naval MTF with the capability to make immediate notification to the
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NATO unit sponsoring the member or (viii) Patients not suitable for trans- dependent’s sponsor. Include all perti- fer to their own national organization nent information regarding the phys- must be dealt with for treatment and ical and mental condition of the indi- disposition purposes as patients of the vidual concerned. Following are details holding nation until they are trans- of agreements among the Armed ferred, i.e., they will be dealth with in Forces of NATO, CENTO, and SEATO military hospitals, military medical Nations on procedures for disposition installations, or in civilian hospitals of allied country patients by DOD med- that are part of the military medical ical installations. evacuation system of the holding na- (1) Transfer of patients. (i) The pa- tion. tient’s medical welfare must be the (2) Classification of patients. Different paramount consideration. When decid- channels for disposition will be re- ing upon transfer of a patient, give due quired for the following two types of consideration to any increased medical patients: hazard which the transfer might in- (i) Patients not requiring admission. volve. Patients not requiring admission to an (ii) Arrangements for disposition of MTF will be returned to their nearest patients should be capable of being im- national unit under arrangements to be plemented by existing organizations. made locally. Consequently, no new establishment (ii) Patients admitted to medical instal- should be required specially for dealing lations. All such patients will be dealth with the transferring of allied casual- with per paragraph (d)(1) of this sec- ties. tion. (iii) Transfer patients to their own (e) Care authorized outside the 48 con- national organization at the earliest tiguous United States. Major overseas practicable opportunity consistent commanders may authorize care in with the observance of principles estab- naval MTFs subject to the availability lished in paragraph (d)(1) (i) and (ii) of of space, facilities, and the capabilities this section and under any of the fol- of the professional staff in emergency lowing conditions: situations only, Provided, the required care cannot reasonably be obtained in (A) When a medical facility of their medical facilities of the host country own nation is within reasonable prox- or in facilities of the patient’s own imity of the facility of the holding na- country, or if such facilities are inad- tion. equate. Provide hospitalization only (B) When the patient is determined for acute medical and surgical condi- to require hospitalization in excess of tions, exclusive of nervous, mental, or 30 days. contagious diseases or those requiring (C) Where there is any question as to domiciliary care. Administer dental the ability of the patient to perform treatment only as an adjunct to au- duty upon release from the MTF. thorized inpatient care. Do not include (iv) The decision as to whether a pa- dental prostheses or orthodontia. tient, other than one requiring transfer under paragraph (d)(1)(iii) of this sec- § 728.43 Members of other foreign mili- tion, is fit for release from the MTF is tary services and their dependents. the responsibility of the facility’s com- (a) Foreign military service members. manding officer. For the purpose of § 728.43, members of (v) All clinical documents, to include foreign military services include only: x-rays, relating to the patient will ac- (1) Military personnel carried on the company such patients on transfer to current Diplomatic List (Blue) or on their own national organization. the List of Employees of Diplomatic (vi) The decision of suitability for Missions (White) published by the De- transfer and the arrangements for partment of State. transfer will be the responsibility of (2) Military personnel assigned or at- the holding nation. tached to United States military units (vii) Final transfer channels should for duty; military personnel on foreign be arranged by local liaison before ac- military supply missions accredited to tual movement. and recognized by one of the military
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departments; and military personnel (e) Care authorized outside the 48 con- on duty in the United States at the in- tiguous United States. Major overseas vitation of the Secretary of Defense or commanders may authorize care in one of the military departments. For naval MTFs subject to the availability the purpose of § 728.43, members of for- of space, facilities, and the capabilities eign Security Assistance Training Pro- of the professional staff in emergency grams (SATP) and Foreign Military situations only. Provided, the required Sales (FMS) are not included (see care cannot reasonably be obtained in § 728.44). medical facilities of the host country (3) Foreign military personnel ac- or in facilities of the patient’s own credited to joint United States defense country, or if such facilities are inad- boards or commissions when stationed equate. Provide hospitalization only in the United States. for acute medical and surgical condi- (4) Foreign military personnel cov- tions, exclusive of nervous, mental, or ered in agreements entered into by the contagious diseases or those requiring Secretary of State, Secretary of De- domiciliary care. Administer dental fense, or one of the military depart- treatment only as an adjunct to au- ments to include, but not limited to, thorized inpatient care. Do not include United Nations forces personnel of for- dental prostheses or orthodontia. eign governments exclusive of NATO nations. § 728.44 Members of security assist- (b) Care authorized in the United ance training programs, foreign States. Military personnel of foreign na- military sales, and their ITO au- tions not covered in § 728.42 and their thorized dependents. dependents residing in the United (a) Policies—(1) Invitational travel or- States with the sponsor may be rou- ders screening. Prior to determining the tinely provided only outpatient med- levels of care authorized or the govern- ical care in naval MTFs on a reimburs- ment or person responsible for pay- able basis. Provided, the sponsor is in ment for care rendered, carefully the United States in a status officially screen ITOs to detect variations appli- recognized by an agency of the Depart- cable to certain foreign countries. For ment of Defense. Dental care and hos- example, unless orders state dif- pitalization for such members and ferently, Kuwait has a civilian health their dependents are limited to emer- plan to cover medical expenses of their gencies. All outpatient care and hos- trainees; trainees from the Federal Re- pitalization in emergencies are subject public of Germany are personally re- to reimbursement as outlined in sponsible for reimbursing for inpatient § 728.46. care provided to their dependents; and (c) Application for care. All personnel all inpatient medical services for train- covered by § 728.43 will present orders ees from France and their dependents or other official U.S. identification are to be borne by the individual train- verifying their status when applying ee. for care. (2) Elective and definitive surgery. The (d) Disposition. When it becomes nec- overall policy with respect to elective essary to return individuals covered by and definitive surgery for Security As- § 728.43 to their home country for med- sistance Training Program (SATP), ical reasons, make immediate notifica- Foreign Military Sales (FMS) per- tion to the sponsoring unit of the pa- sonnel and their dependents is that tient or patient’s sponsor with a copy conservatism will at all times prevail, to the Chief of Naval Operations (OP– except bona fide emergency situations 61). Include all pertinent information which might threaten the life or health regarding the physical and mental con- of an individual. Generally, elective dition of the individual concerned and care is not authorized nor should be full identification, diagnosis, prog- started. However, when a commanding nosis, estimated period of hospitaliza- officer of a naval MTF considers such tion, and recommended disposition. Ad- care necessary to the early resumption ditionally, the provisions of § 728.42(d) and completion of training, submit the (1) and (2) apply. complete facts to the Chief of Naval
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Operations (OP–63) for approval. In- sonnel and their dependents except clude the patient’s name (sponsor’s that: also if patient is an ITO authorized de- (A) Dependent dental care is not au- pendent), grade or rate, country of ori- thorized. gin, diagnosis, type of elective care (B) Dependents are not authorized co- being sought, and prognosis. operative care under CHAMPUS. (3) Prior to entering training. Upon ar- (ii) International military education rival of an SATP or FMS trainee in the and training (IMET). Subject to reim- United States or at an overseas train- bursement for inpatient care at the ap- ing site, it is discovered that the train- propriate IMET rate for members or at ee cannot qualify for training by rea- the full reimbursement rate for de- son of a physical or mental condition pendents, IMET personnel of NATO na- which will require a significant amount tions who are in the United States or of treatment before entering or com- at U.S. Armed Forces installations out- pleting training, return such trainees side the United States and accom- to their home country immediately or panying dependents will be provided as soon thereafter as travel permits. medical and dental care in naval MTFs (4) After entering training. When train- to the same extent and under the same ees require hospitalization or are dis- conditions as comparable United abled after entering a course of train- States military personnel and their de- ing, return them to their home country pendents except that: as soon as practicable when, in the (A) Dependent dental care is not au- thorized. opinion of the commanding officer of (B) Dependents are not authorized co- the medical facility, hospitalization or operative care under CHAMPUS. disability will prevent training for a (2) Other foreign members and ITO au- period in excess of 30 days. Forward a thorized dependents—(i) Foreign military copy of the patient’s clinical records sales. Subject to reimbursement by the with the patient. When a trainee is ac- trainee or the trainee’s government for cepted for treatment that is not ex- both inpatient and outpatient care at pected to exceed 30 days, notify the the full reimbursement rate, FMS per- commanding officer of the training sonnel of non-NATO nations and ITO acvitity. Further, when a trainee is authorized accompanying dependents scheduled for consecutive training ses- may be provided medical and dental sions convening prior to the expected care on a space available basis when fa- data of release from a naval MTF, cilities and staffing permit except that: make the next scheduled training ac- (A) Prosthetic devices, hearing aids, tivity an information addressee. Upon orthopedic footwear, and similar ad- release from the MTF, direct such juncts are not authorized. trainees to resume training. (B) Spectacles may be furnished when (b) Care authorized. Generally, all required to enable trainees to perform SATP and FMS personnel and their their assigned duties, Provided the re- ITO authorized dependents are entitled quired spectacles are not available to care to the same extent. However, through civilian sources. certain agreements require that they (C) Dental care is limited to emer- be charged differently and that certain gency situations for the military mem- exclusions apply. ber and is not authorized for depend- (1) NATO members and their ITO au- ents. thorized dependents—(i) Foreign military (D) Dependents are not authorized sales (FMS). Subject to reimbursement cooperative care under CHAMPUS. per § 728.46, FMS personnel of NATO na- (ii) International military education tions who are in the United States or and training. Subject to reimbursement at U.S. Armed Forces installations out- for both inpatient and outpatient care side the United States and their ac- at the appropriate rates for members companying ITO authorized dependents and dependents, IMET personnel of will be provided medical and dental non-NATO nations may be provided care in naval MTFs to the same extent medical and dental care on a space and under the same conditions as com- available basis when facilities and parable United States military per- staffing permit except that:
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(A) Prosthetic devices, hearing aids, § 728.42(b)(1), Provided, the beneficiaries orthopedic footwear, and similar ad- are not stateless persons nor nationals juncts are not authorized. of any state which is not a party to the (B) spectacles may be furnished when North Atlantic Treaty, nor nationals required to enable trainees to perform of, nor ordinarily residents in the their assigned duties, Provided the re- United States. quired spectacles are not available (2) Others. Civilian personnel not cov- through civilian sources. ered in § 728.45(b)(1) (and their depend- (C) Dental care is limited to emer- ents residing with them) accompanying gency situations for military members personnel of foreign nations on duty in and is not authorized for dependents. the United States at the invitation of (D) Dependents are not authorized the Department of Defense or one of cooperative care under CHAMPUS. the military departments. (c) Application for care. Trainees and accompanying dependents will present (c) Application for care. Personnel cov- official U.S. identification or orders ered by the provisions of § 728.45 will verifying their status when applying present orders or other official U.S. for care. If any doubt exists as to the identification verifying their status extent of care authorized, ITOs should when applying for care. be screened (see paragraph (a)(1) of this section). § 728.46 Charges and collection. (d) Notification. When trainees require (a) Policy. Pub. L. 99–591, section 9029, hospitalization as a result of illness or contains provisions prohibiting the ex- injury prior to or after entering train- penditure of appropriated funds ing, the training activity (the hospital ‘‘. . . to provide medical care in the if patient has been admitted) will make United States on an inpatient basis to a message report through the normal foreign military and diplomatic per- chain of command to the Chief of Naval sonnel or their dependents unless the Operations (OP–63) with information Department of Defense is reimbursed copies to MAAG, COMNAV MEDCOM, for the costs of providing such care: Navy International Logistics Control Provided, That reimbursements Office (NAVIL CO), Unified Com- . . . shall be credited to the appropria- mander, the affected office, and the tions against which charges have been foreign naval attache concerned. In- clude details of the incident, estimated made for providing such care, except period of hospitalization, physical or that inpatient medical care may be mental condition of the patient, and di- provided in the United States without agnosis. For further amplification, see cost to military personnel and their de- OPNAVINST 4950.1H and pendents from a foreign country if NAVCOMPTMAN 032103. comparable care is made available to a comparable number of United States § 728.45 Civilian components (employ- military personnel in that foreign ees of foreign military services) and country.’’ their dependents. (b) Canadian agreement. On 3 Novem- (a) Care authorized. Beneficiaries cov- ber 1986, the Department of National ered in this section are only authorized Defence of Canada and DOD concluded care in naval MTFs in the United a comparable care agreement that cov- States and then only civilian humani- ers certain military personnel. The tarian emergency care on a reimburs- agreement stipulates that: able basis (subpart J) rendered at in- (1) DOD will, upon request, provide stallations which have been designated Canadian Forces members the same as remote by the Secretary of the range of medical and dental services Navy. Make arrangements to transfer such beneficiaries to a civilian facility under the same conditions and to the as soon as their condition permits. same extent as such services are pro- (b) Potential beneficiaries—(1) NATO. vided comparable United States mili- Civilian employee personnel (and their tary personnel. Inasmuch as the agree- dependents residing with them) accom- ment covers only certain military per- panying military personnel in sonnel, the reimbursement provisions
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of Pub. L. 99–591 remain in effect for in- services are ordered can produce them patient care provided to Canadian dip- or obtain them by contract, and the in- lomatic personnel, Canadian depend- ternal or inter-agency procurement is ents, and Canadian foreign military more convenient, or less expensive, sales trainees who receive care in the than commercial procurement. Provi- United States. Further: sions of the Economy Act apply to re- (2) Permanently stationed Canadian quests from other Federal agencies for units with established strengths of medical and dental care for bene- more than 150 personnel are expected ficiaries for whom they are responsible. to have integral health care capability. Consult specific provisions of the Act Any health care services which mem- respecting financial and acounting lim- bers of such units receive from the host itations and requirements. nation will be provided on a full reim- bursement basis. Groups of larger than § 728.52 Veterans Administration bene- 150 personnel, which conduct collective ficiaries (VAB). training in the United States, are ex- pected to deploy with an organic unit (a) Eligible beneficiaries—Those who medical capability. Naval MTFs may have served in the Armed Forces, have be requested to provide services, be- been separated under conditions other yond the capability of the organic unit, than dishonorable, and have been de- at full reimbursement rates. termined by the Veterans Administra- (c) Procedures. (1) Until otherwise di- tion (VA) to be eligible for care at VA rected, naval MTFs in the 50 United expense. Prior to 7 September 1980, vet- States will collect the full reimburse- erans status could be obtained by vir- ment rate (FRR) for inpatient care pro- tue of 1 day’s honorable service. The vided to all foreign military personnel following restrictions do not apply to (except Canadians covered by the com- individuals who are discharged from parable care agreement in § 728.46(b), active duty because of a disability or and military personnel connected with who were discharged for reasons of a Foreign Military Sales (FMS) case ‘‘early out’’ or hardship program under number), foreign diplomatic personnel, 10 U.S.C. 1171 and 1173. and to the dependents of both whether (1) For individuals with an original they are in the United States on offi- enlistment in the military service after cial duty or for other reasons. 7 September 1980, the law generally de- (2) Subpart J contains procedures for nies benefits, including medical care. the initiation of collection action when (2) For individuals entering service inpatient care is rendered to bene- after 16 October 1981, the law generally ficiaries from NATO nations and when either inpatient or outpatient care is denies medical benefits when such indi- rendered to all others enumerated in viduals do not complete the shorter of: this part. Chapter II, part 4 of (i) Twenty-four months of continuous NAVMED P–5020 is applicable to the active duty, or collection of and accounting for such (ii) The full period for which that charges. person was called or ordered to active duty. Subpart F—Beneficiaries of Other (b) Inpatient control—Each VAB ad- Federal Agencies mitted will be required to conform to regulations governing the internal ad- § 728.51 General provisions—the ministration of the naval facility. Re- ‘‘Economy Act.’’ strictive or punitive measures, includ- The Economy Act, 31 U.S.C. 1535, gen- ing disciplinary action or denial of erally permits agency heads, or heads privileges, will conform as nearly as of major organizational units of agen- possible to VA instructions. cies, to procure goods and services (c) Resolution of problems—All prob- from other agencies or within their lems pertaining to VABs, including ad- own agency so long as funds for pro- mission, medical or other records, and curement are available, the order is in all correspondence will be matters of the best interest of the Government, resolution between the commanding of- the source from which the goods or ficer of the naval facility and the VA
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office of jurisdiction authorizing ad- pabilities and workload permit pro- mission. Questions of policy and ad- viding such care. In an emergency, pro- ministration which cannot be so re- vide necessary care. solved will be forwarded, through the (3) Physical examinations. Upon a de- normal chain of command, to the Ad- termination by a naval MTF com- ministrator of Veterans Affairs via manding officer that space, facilities, COMNAVMEDCOM for resolution. and capabilities exist, naval MTFs may (d) Care in the United States—(1) Inpa- provide physical examinations when re- tient care. An eligible VAB may be ad- quested by the VA for the purpose of mitted to a naval MTF on presentation adjudicating claims for VA physical of a written authorization for admis- disability compensation. If authorized sion signed by an official of the VA of- by the VA, patients may be admitted fice of jurisdiction. Neurological and when the examination requires more certain neuropsychiatric patients with- than 1 day. out obvious evidence of psychosis and (4) Dental care. Limit dental treat- not requiring restraints, and instances of suspected tuberculosis, may be ad- ment to inpatients who require serv- mitted for diagnosis. When diagnosed, ices adjunctive to medical or surgical promptly report instances of psychosis, conditions for which hospitalized. psychoneurosis, and tuberculosis of (e) Care outside the United States—(1) present clinical significance to the VA Eligible beneficiaries. Beneficiaries de- office of jurisdiction with a request for scribed in paragraph (a) of this section transfer to a VA facility. who are citizens of the United States (i) Extent of care. Provide eligible and residing or sojourning abroad may, VABs medical and surgical care, in- within the capabilities of the facility cluding prostheses such as eyes and as determined by the commanding offi- limbs and appliances such as hearing cer, be provided inpatient and out- aids, spectacles, or orthopedic appli- patient care upon presentation of an ances when required for the proper authorization from the appropriate VA treatment of the condition upon which office of jurisdiction listed in para- eligibility is based. graph (e)(3) of this section. (ii) Disposition of emergency admission. (2) Emergency care. Overseas naval Notify the appropriate VA office of ju- MTFs furnishing emergency care to po- risdiction by message or other expedi- tential VABs will promptly notify the tious means within 72 hours after the appropriate VA office of jurisdiction date and hour of an emergency admis- and request authorization for treat- sion of a potential VAB. Include a re- ment and instructions for disposition quest for an authorization for admis- of the patient. sion and emergency treatment. If VA (3) Offices of jurisdiction. The fol- denies VAB status to such a person ad- lowing activities are vested with re- mitted in an emergency, the provisions sponsibility for issuing authorizations of § 728.81(a) are applicable. Once ad- for care and furnishing dispisition in- mitted in an emergency situation, structions for VABs in overseas naval discharage a VAB promptly upon ter- MTFs: mination of the emergency unless ar- (i) In the Trust Territory of the Pa- rangements have been made with the cific (Micronesia), VA Office, Honolulu, VA office of jurisdiction: Hawaii. (A) For transfer to a VA treatment facility if further treatment is re- (ii) In the Philippines, VA Regional quired. Office, Manila, Philippines. (B) To retain the patient as a VAB in (iii) In Canada, Canadian Department the naval MTF. of Veterans Affairs, Ottawa, Canada. (2) Outpatient care. Outpatient care, (iv) In all other foreign countries, including post hospitalization out- consular offices of U.S. embassies. patient care, may be provided upon au- (f) Forms required. (1) Complete a VA thorization by the VA office of jurisdic- 10–10 (Application for Medical Benefits) tion. When outpatient followup care is when potential VABs are admitted for requested, commanding officers are re- emergency care without prior author- sponsible for determining whether ca- ization.
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(2) Prepare a VA 10–10m (Medical Cer- (ii) Flight instructions. tificate and History) when care is ren- (iii) Travel to or from training or dered. All information required in the flight instructions. medical certificate thereon will be fur- (2) The following employees of the nished whether the admission is subse- Government of the United States, re- quently approved or disapproved by the gardless of nationality or place of VA office of jurisdiction. work, are entitled to receive care as (3) Since the completion of VA 10– outlined in paragraph (e) of this sec- 10m requires an examination of pa- tion for work incurred traumatic inju- tients, admissions which are dis- ries at the expense of OWCP. (In addi- approved will be reported as medical tion to injury by accident, a disease or examinations on DD 7A, Report of illness which is the proximate result of Treatment Furnished Pay Patients, performance of employment duties is Outpatient Treatment Furnished (part considered an injury.) This category in- B) (See subpart J). cludes but is not limited to: (4) Prepare and submit a DD 7 (Re- (i) Civilian student employees in port of Treatment Furnished Pay Pa- training at Navy and Marine Corps fa- tients, Hospitalization Furnished (part cilities. A)) on all VABs and potential VABs ad- (ii) Civilian seamen in the service of mitted (see subpart J). vessels operated by the Department of (5) Complete an SF 502 (Narrative the Army (see paragraph (a)(7) of this Summary) or SF 539 (Abbreviated Clin- section and § 728.80(c)(2) for civilian ical Record), as appropriate, when a Military Sealift Command (MSC) per- VAB or potential VAB is discharged or sonnel). otherwise released. When an interim (iii) All civilian employees of the report of hospitalization is requested Government except nonappropriated- by the VA office of jurisdiction, it may fund-activity employees. Nonappro- be prepared on an SF 502. priate fund employees may be covered under the Longshore and Harbor Work- § 728.53 Department of Labor, Office of ers’ Compensation Act (contact cog- Workers’ Compensation Programs nizant district office of OWCP). (OWCP) beneficiaries. (3) Civilian members of the Civil Air (a) Potential beneficiaries. The fol- Patrol (except Civil Air Patrol Cadets) lowing may be beneficiaries of one of for injury or disease which is the proxi- the programs sponsored by the Office of mate result of active service or travel Workers’ Compensation Programs to and from such service, rendered in (OWC) under the conditions set forth. performance or support of operational They are not beneficiaries of OWCP missions of the Civil Air Patrol under until authorized as such by the appro- the direction and written authority of priate district officer of OWCP. How- the Air Force. ever, they may be carried as potential (4) Former Peace Corps enrollees for beneficiaries pending OWCP determina- injury or disease which is the proxi- tion of eligibility. DOD civilian em- mate result of their former employ- ployees provided medical services ment with the Peace Corps or which under a Defense or service health pro- was sustained or contracted while lo- gram are not included under this au- cated with the Peace Corps outside the thority (see subpart G). United States and its territories. (1) Members and applicants for mem- (5) Former Job Crops enrollees for in- bership in the Reserve Officers’ Train- jury or disease which is the proximate ing Corps of the Navy, Army, and Air result of employment with the Job Force, provided the condition necessi- Corps. tating treatment was incurred in line (6) Former VISTA (Volunteers in of duty during an off-campus training Service to America) enrollees for in- regimen. Such care is authorized for in- jury or disease which is the proximate jury (a disease or illness which is the result of employment with VISTA. proximate result of performance of (7) Military Sealift Command (MSC) training is considered an injury) in- civilian marine personnel curred while engaged in: (CIVMARPERS or CIVMARS) (includ- (i) Training. ing temporary employees, intermittent
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employees, and employees with less (iii) Be referred to a non-Federal than 1 year’s service) are entitled to source of care where back-to-work care occupationally related care at the ex- may be provided at the CIVMAR’s ex- pense of OWCP. CIVMARS are in a pense after, if necessary, the imme- crew status only after reporting to diate emergency is alleviated when a their assigned ship. They are in a trav- reasonable determination can be made el status from crewing point to ship that the injury or illness is not occupa- and return. While in a travel status, tionally related. they are entitled to the same health (A) Per 5 U.S.C. 7901(c)(3), the health care benefits as other Federal civil service program for Federal civilian service employees in a travel status (5 employees is limited to referral of em- U.S.C. 8101). CIVMARS presenting for ployees, upon their request, to private treatment with a properly completed sources of care. CA–16, Request for Examination and/or (B) Long term extended care of Treatment, will: chronic illnesses such as hypertension, (i) Enter the naval MTF’s system diabetes, etc., is not authorized in through the occupational medicine naval MTFs at the expense of OWCP service. nor at the CIVMAR’s personal expense. (ii) Be treated for any injury or dis- (C) Patients who cannot be referred, ease proximately caused by their em- because of medical reasons or because ployment. Although the actual deter- non-Federal sources are not available mination of whether an illness or in- or available but inadequate, may be re- jury is occupationally related is a func- tained in naval MTFs at the expense of tion of OWCP, determinations are the CIVMAR or of his or her private in- based on the required injury report along with the treatment record from surance until transfer becomes pos- the attending physician. Therefore, sible. Although the means of access to when doubt exists as to the relation- the naval MTF may have been through ship of the condition to the potential the occupational medicine service, re- patient’s employment, the physician tention in the naval MTF is on a civil- should report an unbiased medical con- ian humanitarian basis. This is also ap- clusion and the medical rationale plicable when OWCP disallows a therefor, indicating the conditions CIVMAR’s claim (see paragraph (c) of which are responsible for the claim- this section). ant’s disability. As a general rule, the (b) Authorization required. Personnel following may be initially considered in paragraph (a) (1) through (6) may be as occupationally related, however, it rendered inpatient and outpatient care should be emphasized that OWCP is the as outlined in paragraph (e) of this sec- final approval authority: tion, unless otherwise stipulated in (A) Any injury or illness occurring as this section, upon presentation of a a direct result of employment. May properly prepared and signed author- occur on a ship, at a Government in- ization from CA–16 (Request for Exam- stallation ashore, or in an aircraft ination and/or Treatment). District of- while performing a requirement of em- fices of OWCP will honor these author- ployment. izations for 60 days unless written no- (B) Any injury or illness which be- tice of termination of authorization is comes manifest while away from work given earlier. Whereas the CA–16 is (on leave or liberty) while in a crew used primarily for traumatic injuries, status or travel status as long as the it may also be used to authorize exam- condition may be directly related to ination and treatment for disease or job activities or to exposures incident illness provided the affected agency to travel to ship assignment. has obtained prior permission from the (C) Required immunizations. cognizant district office of OWCP. If (D) Required physical examinations. the condition for which treatment is (E) Periodic medical surveillance requested appears related to employ- screening examinations for DOD occu- ment, treatment of beneficiaries in pational and industrial health pro- paragraph (a) (1) through (7) of this sec- grams, i.e., asbestos medical surveil- tion may be initiated without presen- lance, hearing conservation, etc. tation of a CA–16. Patients provided
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treatment without a CA–16 may be car- other orthopedic and prosthetic devices ried as OWCP beneficiaries from the will be replaced or repaired, except time of initial treatment, provided the that eyeglasses and hearing aids will appropriate district office of OWCP is not be replaced or repaired unless their notified and requested to submit a CA– damage or destruction is incidental to 16 within 48 hours giving authorization a personal injury requiring medical as of the date of actual treatment. services. OWCP will not be liable for payment of (2) Outpatient care. Complete medical bills for unauthorized treatment. Post and surgical care not requiring hos- hospitalization care following author- pitalization, and posthospitalization ized inpatient care does not require an services following authorized inpatient additional authorization. First aid care in a naval MTF for the proper treatment rendered civilian employees treatment of the condition upon which does not require an authorization form eligibility is based. (c) Disallowance by OWCP. When (3) Dental care. Limit dental treat- OWCP determines that any claim ment to emergencies and that care nec- should be disallowed, OWCP will advise essary as an adjunct to inpatient hos- the naval facility rendering care that pital care authorized in advance. Such no further treatment should be ren- care will not include dental prostheses, dered at OWCP expense. The patient unless specifically authorized, nor or- ceases to be an OWCP beneficiary as of thodontic treatment. the date of receipt of the notice of dis- (f) Reports and records. (1) Copies of allowance by the naval MTF and the medical records will accompany OWCP patient will be so notified. Any treat- patients being transferred from one ment subsequent to the date of receipt medical treatment facility to another. of the notice of disallowance will be at Records accompanying OWCP patients the personal expense of the patient (see to a debarkation hospital will be the § 728.81(a)). same as for military personnel and will (d) Authorization for transfer. Prior clearly identify the patient as an approval of OWCP is required before a OWCP beneficiary. transfer can be effected, except in an (2) Forward a CA–20 (Attending Phy- emergency or when immediate treat- sician’s Report) to the appropriate dis- ment is deemed more appropriate in trict office of OWCP on discharge of another Federal facility. When transfer the patient unless hospitalization ex- is effected without approval, the trans- ceeds 1 month. In such instances, a re- ferring facility will immediately re- port will be submitted every 30 days. quest such authorization from the ap- When extensive hospitalization is re- propriate district office of OWCP. quired, use an SF 502 or a narrative for- When authorized by OWCP, evacuation mat in lieu of CA–20. When submitted to the United States can be effected per to OWCP, the physician’s report will OPNAVINST 4630.25B. Medical records include: and a CA–16 will accompany such pa- (i) History. tients. (ii) Physical findings. (e) Care authorized—(1) Inpatient care. (iii) Laboratory findings. Medical and surgical care necessary for (iv) Abstract of hospital records. the proper treatment of the condition (v) Diagnosis for conditions due to in- upon which eligibility is based. Spe- jury and not due to injury. cific OWCP authorization is required (vi) Rationalized medical opinion for before major surgical procedures can the physician’s belief that the illness be performed unless the urgency of the or disease treated was causally related situation is such that time does not to a specific condition or set of condi- permit obtaining said authorization. tions to which the claimant was sub- All necessary prostheses, hearing aids, jected. spectacles, and orthopedic appliances (vii) Condition on discharge with will be furnished when required for opinion as to degree of impairment due proper treatment of the condition upon to injury, if any. which eligibility is based. Upon specific (3) Complete and submit, per subpart authorization, damaged or destroyed J, a DD 7 (Report of Treatment Fur- medical braces, artificial limbs, and nished Pay Patients, Hospitalization
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Furnished, part A) or DD 7A (Report of (1) Inpatient care. Necessary medical Treatment Furnished Pay Patients, and surgical care. Outpatient Treatment, part B) when (2) Outpatient care. Necessary medical outpatient or inpatient care is ren- and surgical care. dered to any OWCP beneficiary. (3) Dental care. (i) Limit dental care in the United States, its territories, § 728.54 U.S. Public Health Service possessions, and the Commonwealth of (USPHS), other than members of the uniformed services. Puerto Rico to emergencies for the re- lief of pain or acute conditions and (a) Potential beneficiaries. The fol- that necessary as an adjunct to inpa- lowing may be beneficiaries of the tient hospital care. Prosthetic dental USPHS for care in naval MTFs upon appliances and permanent restorations submission of the necessary form from are not authorized. appropriate officials as outlined in (ii) In overseas areas, dental care is paragraph (b) of this section. authorized to the extent necessary (1) Within and outside the United pending the patient’s return to the States. Any individuals the USPHS may United States, its territories, posses- determine to be eligible for care on an sions, or the Commonwealth of Puerto interagency reimbursable basis. Rico. (2) Within the 48 Contiguous United (d) Report. Complete and submit, per States and the District of Columbia. subpart J, a DD 7 (Report of Treatment American Indians, Alaska Natives, Es- Furnished Pay Patients, Hospitaliza- kimos, and Aleuts. tion Furnished, part A) or a DD 7A (Re- (3) In Alaska. American Indians, Eski- port of Treatment Furnished Pay Pa- mos, and Aleuts. tients, Outpatient Treatment, part B) (b) Authorization required—(1) Normal when outpatient or inpatient care is circumstances. An American Indian or rendered. Alaska Native may be rendered inpa- tient care upon presentation of form § 728.55 Department of Justice bene- HRSA 43 (Contract Health Service Pur- ficiaries. chase Order for Hospital Services Ren- Upon presentation of a letter of au- dered) or HRSA form 64 (Purchase/De- thorization that includes disposition of livery Order for Contract Health Serv- SF 88 (Report of Medical Examination), ices Other Than Hospital Inpatient or SF 93 (Report of Medical History), and Dental). Either form must be signed by address for submission of claim, the an appropriate Indian Health Service following personnel may be furnished or Alaska Native Health Service area/ requested care as beneficiaries of the program official. Department of Justice. See subpart J (2) Emergencies. In an emergency, care on completing and submitting forms may be rendered upon written request for central collection of the cost of of patient’s commanding officer or su- care provided. perior officer, or the patient if neither of the above is available. When emer- (a) Federal Bureau of Investigation. In- gency care is rendered without prior vestigative employees of the Federal authorization, the facility rendering Bureau of Investigation (FBI) and ap- care must notify the service unit direc- plicants for employment as special tor of the patient’s home reservation agents with the FBI may be provided: within 72 hours from the time such (1) Immunizations. care is rendered unless extenuating cir- (2) Physical examinations and hos- cumstances preclude prompt notifica- pitalization when required to deter- tion. mine physical fitness. Use this period (c) Care authorized. Unless limited by of hospitalization for diagnostic pur- the provisions stipulated in paragraph poses only. Do not correct disquali- (a) of this section and subject to the fying defects. provisions of § 728.3, the following care (b) U.S. Marshals. U.S. Marshals may may be rendered, when requested, to receive physical examinations and hos- all beneficiaries enumerated in para- pitalizations when required to deter- graph (a) of this section. mine physical fitness. Use this period
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of hospitalization for diagnostic pur- (3) Agents of the U.S. Customs Serv- poses only. Do not correct disquali- ice and their prisoners (detainees) may fying defects. be provided emergency medical treat- (c) Claimants against the United States. ment and evacuation services to the Claimants whose suits or claims nearest medical facility (military or ci- against the United States are being de- vilian) in those remote areas of the fended by the Department of Justice United States where no other such may be furnished physical examina- services are available. Limit evacu- tions to determine the extent and na- ation to the continental United States ture of the injuries or disabilities being and do not cross borders. The Navy’s claimed. Hospitalization is authorized responsibility for medical care of such for proper conduct of the examination. prisoners terminates once the medical Upon completion, forward the report of emergency has been resolved. Guarding the examination promptly to the U.S. of prisoners, while they or their cap- Attorney involved. tors are receiving treatment at naval MTFs, remains the responsibility of § 728.56 Treasury Department bene- the U.S. Customs Service or other ap- ficiaries. propriate Federal (nonmilitary) law en- (a) Potential beneficiaries. The fol- forcement agencies. lowing may be beneficiaries of the (c) Reports and records. (1) When ex- Treasury Department and may be ren- aminations are rendered to Secret dered care as set forth below. Service Special Agents and support (1) Secret Service Special Agents and personnel, forward one copy of the SF support personnel. 88, one copy of the SF 93, and one copy (2) Secret Service Agents providing of any forms provided with the letter of protection to certain individuals. authorization to United States Secret (3) Persons being provided protection Service, Administrative Operations Di- by the Secret Service. vision, Safety and Health Branch, 1800 (4) Agents of the U.S. Customs Serv- G Street, NW., Room 845, Washington, ice. DC 20223 or as otherwise directed by (5) Prisoners (detainees) of the U.S. the letter of authorization. Provide an Customs Service. information copy to the Deputy Comp- (b) Care authorized. (1) Secret Service troller of the Navy. Special Agents may be provided rou- (2) Complete and submit, per subpart tine annual physical examinations J, a DD 7 (Report of Treatment Fur- upon request and presentation of a let- nished Pay Patients, Hospitalization ter of authorization. Conduct and Furnished, part A) or DD 7A (Report of record examinations in the same man- Treatment Furnished Pay Patients, ner as routine examinations rendered Outpatient Treatment, part B) when naval officers except that they may be outpatient or inpatient care is ren- conducted only on an outpatient basis. dered. If hospitalization is considered desir- able in connection with an examina- § 728.57 Department of State and asso- tion, patient administration depart- ciated agencies. ment personnel will contact the United Eligibility for care under the provi- States Secret Service at (202) 535–5641 sions of this section will be determined at the address in paragraph (c) of this by the Department of State, Office of section. Enter a statement, attesting Medical Services. to the fact that hospitalization is de- (a) Beneficiaries. Officers and employ- sirable, in item 73 or 75 of the SF 88, as ees of the following agencies, their de- appropriate, before forwarding to the pendents, and applicants for appoint- United States Secret Service as di- ment to such agencies are authorized rected by the letter of authorization. inpatient and outpatient medical care (2) Secret Service Agents providing as set forth below in addition to that protection to certain individuals and care that may be authorized elsewhere those persons being provided such pro- within this part (i.e., §728.53, § 728.55, tection may be rendered all required § 728.56, and § 728.58). Limit dental care medical services including hospitaliza- to that delineated in paragraph (b)(6) of tion subject to the provisions of § 728.3. this section.
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(1) Department of State-U.S.Arms eligibility for care at the expense of Control and Disarmament Agency and one of the agencies, all care provided the Office of International Conferences. will be at the expense of the patient or (2) U.S. Agency for International De- patient’s sponsor and charged at the velopment. full reimbursement rate. (3) International Communications (3) In the United States. (i) Care is not Agency. authorized for an injury or illness in- (4) ACTION—Peace Corps Staff. curred in the United States. Authoriza- (5) Department of Agriculture—For- tions and other arrangements for care eign Agriculture Service. in the United States for individuals in- (6) Department of Commerce—Bureau curring injury or illness outside the of Public Roads. United States will be provided by the (7) Department of Interior—Bureau of Deputy Assistant Secretary for Med- Reclamation and the U.S. Geological ical Services, Department of State, Survey. using appropriate authorization (8) Department of Transportation— form(s). When personnel are admitted Federal Aviation Administration and in an emergency without prior author- the Federal Highway Administration. ization, the commanding officer of the (9) Department of Justice—Drug En- admitting naval MTF will immediately forcement Agency. request authorization from the Deputy (10) Department of Treasury—U.S. Assistant Secretary for Medical Serv- Customs, U.S. Secret Service, Office of ices. International Affairs (OIA), U.S.— (ii) The extent of care furnished in Saudi Arabian Joint Commission for the United States, to individuals in Economic Cooperation (JECOR), and paragraph (a) of this section who are the Internal Revenue Service. evacuated to the United States for (11) National Aeronautics and Space medical reasons, will be comparable in Administration. all respects to that which is authorized (12) Library of Congress. or prescribed for these individuals out- (13) Beneficiaries of such other agen- side the United States. When deter- cies as may be included in the Depart- mined appropriate by the Deputy As- ment of State Medical Program. sistant Secretary for Medical Services, (b) Care authorized—(1) General. The officers and employees and their ac- Foreign Service Act of 1946, as amend- companying dependents who have re- ed, authorizes care delineated in this turned to the United States for non- section. Subject to the restrictions and medical reasons may be furnished med- priorities of § 728.3 and the restrictions ical care at the expense of one of the of this section, care may be rendered at above agencies for treatment of an ill- the expense of the Department of State ness or injury incurred while outside or one of the agencies listed in para- the United States. graph (a) of this section. The law al- (4) Physical examinations. The Sec- lows for payment when care is fur- retary of State is authorized to provide nished for an illness or injury which re- for comprehensive physical examina- sults in hospitalization or equal treat- tions, including dental examinations ment. Outpatient care is only author- and other specific testing, of applicants ized as an adjunct to hospitalization. for employment and for officers and (2) Overseas. (i) When, in the opinion employees of the Foreign Service who of the principal or administrative offi- are U.S. citizens and for their depend- cer of an overseas post of the Depart- ents, including examinations necessary ment of State, an individual meets the to establish disability or incapacity for conditions of eligibility, the post will retirement purposes. An authorization furnish authorization to the naval will be executed by an appropriate De- MTF for care at the expense of the De- partment of State official and fur- partment of State or one of the agen- nished in duplicate to the naval MTF, cies listed in paragraph (a) of this sec- listing the type of examination re- tion. quired and stating that the individual (ii) Should the Department of State is entitled to services at the expense of official determine that the illness or the Department of State. Furnish re- injury does not meet the conditions of ports per the letter of authorization.
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(5) Immunizations. Inoculations and istries, and audiograms, without inter- vaccinations are authorized for offi- pretation in support of the medical sur- cers, employees, and their dependents veillance program for ATCS personnel upon written authorization from an ap- established by the FAA. propriate Department of State official. (d) Report. Complete and submit, per This authorization, in duplicate, will subpart J, a DD 7A (Report of Treat- include the type of inoculation or vac- ment Furnished Pay Patients, Out- cination required and will state that patient Treatment, part B) outpatient the individual is entitled to services at care is rendered. the expense of the Department of State. Furnish reports per the letter of § 728.59 Peace Corps beneficiaries. authorization. (a) Potential beneficiaries. (1) Appli- (6) Dental care. Limit dental care to cants for the Peace Corps. emergencies for the relief of pain or (2) Peace Corps Volunteers. acute conditions, or dental conditions (3) Minor children of a Peace Corps as an adjunct to inpatient care. Do not volunteer living with the volunteer. provide prosthetic dental appliances. (b) Care authorized in the United (c) . Evacuation to the United States States. Upon written request of a Peace Should a beneficiary in an overseas Corps official, stating care to be pro- naval MTF require prolonged hos- vided and disposition of reports, the pitalization, the commanding officer of following may be provided subject to the overseas facility will report the re- the provisions of § 728.3. quirement to the nearest Department (1) Physical examinations. Physical ex- of State principal or administrative of- aminations are authorized on an out- ficer and request authority to return patient basis only. Except for interpre- the patient to the United States. Re- tation of x-rays, make no assessment lease dependents who decline evacu- of the physical qualifications of ation to the custody of their sponsor. examinees. Aeromedical evacuation may be used per OPNAVINST 4630.25B. Travel of an (i) Preselection physical examination attendant or attendants is authorized may be provided applicants (volun- at Department of State expense when teers) for the Peace Corps. the patient is too ill or too young to (ii) Separation or other special phys- travel unattended. ical examinations may be provided vol- (d) Report. Complete and submit, per unteers and their dependents as listed subpart J, a DD 7 (Report of Treatment in paragraph (a)(3) of this section. Un- Furnished Pay Patients, Hospitaliza- less otherwise prescribed in written re- tion Furnished, part A) or DD 7A (Re- quests, report such examinations of port of Treatment Furnished Pay Pa- Peace Corps volunteers on SF–88 and tients, Outpatient Treatment, part B) SF–93. Include: when outpatient or inpatient care is (A) Medical history and systemic re- rendered. view. (B) Chest x-ray with interpretation. § 728.58 Federal Aviation Agency (C) Complete urinalysis, serology, (FAA) beneficiaries. and blood type. (a) Beneficiaries. Air Traffic Control (D) Pelvic examination and Pap Specialists (ATCS) of the FAA when smear for all female volunteers. appropriate authorization has been fur- (E) Hematocrit or hemoglobin for all nished by the FAA regional representa- females and for all males over 40 years tive. of age. (b) Authorization. Written authoriza- (F) Electrocardiogram for all volun- tion from an FAA Regional Flight Sur- teers over 40 years of age. geon is required and will include in- (2) Immunizations. Immunizations, as structions for forwarding the results of requested, may be provided all bene- services rendered. ficiaries listed in paragraph (a) of this (c) Care authorized. Subject to the section. provisions of § 728.3, authorized per- (3) Medical care. Both inpatient and sonnel may be rendered chest x-rays, outpatient care may be provided volun- electrocardiograms, basic blood chem- teers for illnesses or injuries occurring
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during their period of service which in- (d) Report. Complete and submit, per cludes all periods of training. Depend- subpart J, a DD 7 (Report of Treatment ents of volunteers specified in para- Furnished Pay Patients, Hospitaliza- graph (a)(3) of this section are author- tion Furnished, part A) or DD 7A (Re- ized care to the same extent as their port of Treatment Furnished Pay Pa- sponsor. tients, Outpatient Treatment, part B) (4) Dental care. Limit dental care to when outpatient or inpatient care is emergencies. Render only that care es- rendered. sential to relieve pain or prevent immi- nent loss of teeth. All beneficiaries § 728.60 Job Corps and Volunteers in seeking dental care will be requested, Service to America (VISTA) bene- whenever possible, to furnish advanced ficiaries. authorization. (a) Beneficiaries. Job Corps and (c) Care authorized outside the United VISTA enrollees and Job Corps appli- States—(1) Physical examinations. Ter- cants may be provided services as set mination physical examinations may forth. For former members, see § 728.53. be provided volunteers and eligible de- (b) Authorization required—(1) Job pendents of volunteers. In most in- Corps enrollees. Presentation of a Job stances, Peace Corps staff physicians Corps Identification Card after ap- will provide these examinations; how- pointment has been made by the corps- ever, help may be required of naval member’s Job Corps center. MTFs for ancillary services. (2) Job Corps applicants. Presentation (2) Immunizations. When requested, of a letter from a screening agency immunizations may be provided all (e.g., State Employment Service) after beneficiaries listed in paragraph (a) of an appointment has been made by that this section. agency. (3) Medical care. When requested in writing by a representative or physi- (3) VISTA Volunteers and VISTA cian of a Peace Corps foreign service Trainees. A ‘‘Blue-Cross and Blue post, volunteers, eligible dependents of Shield Identification Card’’ is issued to volunteers, and trainees of the Peace such personnel as identification. Each Corps may be provided necessary med- card has a VISTA identification num- ical care at Peace Corps expense. When ber which will be used on all records emergency treatment is rendered with- and correspondence. out prior approval, forward a request (c) Care authorized. Normally, med- to the Peace Corps foreign service post ical services are provided only when ci- as soon as possible. vilian of VA facilities are not avail- (4) Dental care. Limit dental care to able. or if available, are incapable of emergencies. Render only that care es- providing needed services. However, sential to relieve pain or prevent immi- upon presentation of an appropriate nent loss of teeth. All beneficiaries authorization, the following services seeking dental care will be requested, may be rendered subject to the provi- whenever possible, to furnish advanced sions of § 728.3. authorization. (1) Job Corps enrollees are authorized (5) Evacuation to the United States. emergency medical care upon presen- When a beneficiary in an overseas tation of their Job Corps Identification naval MTF requires prolonged hos- Card; however, the corpsmember’s Job pitalization, the commanding officer of Corps center should be notified imme- the overseas facility will report the re- diately. quirement to the nearest Peace Corps (2) Job Corps applicants may be pro- foreign service post and request au- vided preenrollment physical examina- thorization to return the patient to the tions and immunizations on an out- United States. Releases custody of de- patient basis only. pendents to their sponsor when evacu- (3) Job Corps enrollees, VISTA train- ation is declined. Aeromedical evacu- ees, and VISTA volunteers are author- ation may be used per OPNAVINST ized: 4630.25B. Travel of attendant(s) is au- (i) Outpatient medical examinations, thorized when the patient is too ill or outpatient treatment, and immuniza- too young to travel unattended. tions.
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(ii) Inpatient care for medical and the emergency is terminated and it is surgical conditions which, in the opin- permissible from a medical standpoint, ion of the attending physician, will discharge or transfer the patient to a benefit from definitive care within a facility that participates in Medicare. reasonable period of time. When found (2) Notification. Notify the nearest of- probable that a patient will require fice of the Social Security Administra- hospitalization in excess of 45 days, no- tion as soon as possible when a Medi- tify the Commander, Naval Medical care beneficiary is rendered treatment. Command (MEDCOM–33) by the most (d) Report. Complete and submit, per expeditious means. subpart J, a DD 7 (Report of Treatment (iii) Limit dental care to emer- Furnished Pay Patients, Hospitaliza- gencies. Render only that care essen- tion Furnished, part A) or DD 7A (Re- tial to relieve pain or prevent immi- port of Treatment Furnished Pay Pa- nent loss of teeth. Beneficiaries seek- tients, Outpatient Treatment, part B) ing dental care will be requested to fur- when outpatient or inpatient care is nish, whenever possible, advanced au- rendered. thorization. (d) Report. Complete and submit, per Subpart G—Other Persons subpart J, a DD 7 (Report of Treatment Furnished Pay Patients, Hospitaliza- § 728.71 Ex-service maternity care. tion Furnished, part A) or DD 7A (Re- (a) Eligible beneficiaries. After separa- port of Treatment Furnished Pay Pa- tion from the service under honorable tients, Outpatient Treatment, part B) conditions because of pregnancy, or when outpatient or inpatient care is separated from the service under hon- rendered. orable conditions and found to have been pregnant at the time of separa- § 728.61 Medicare beneficiaries. tion, the following former members (a) Care authorized. Emergency hos- and their newborn infant(s) may be pitalization and other emergency serv- provided care as set forth below. The ices are authorized for beneficiaries of rendering of this care is subject to the the Social Security Health Insurance provisions of § 728.3. When certified by Program for the Aged and Disabled medical authorities that the pregnancy (Medicare) who reside in the 50 United existed prior to entry into service States and the District of Columbia, (EPTE), maternity benefits are not au- Guam, Puerto Rico, the Virgin Islands, thorized. American Samoa, and the Northern (1) Former women members of the Mariana Islands. Such care in naval Army, Air Force, Navy, and Marine MTFs may be rendered when emer- Corps. gency services, as defined in § 728.61(b), (2) On or after 12 August 1985, former are necessary. women members of the Commissioned (b) Emergency services. Services pro- Corps of the United States Public vided in a hospital emergency room Health Service (USPHS) and the Na- after the sudden onset of a medical tional Oceanic and Atmospheric Ad- condition manifesting itself by acute ministration (NOAA). symptoms of sufficient severity (in- (b) Care authorized. (1) Former women cluding severe pain) such that the ab- members may be rendered medical and sence of immediate medical attention surgical care in naval MTFs incident to could reasonably be expected to result that pregnancy, prenatal care, hos- in: pitalization, postnatal care, and, when (1) Placing the patient’s health in se- requirements of SECNAVINST 6300.2A rious jeopardy. are met, abortions. Limit postnatal (2) Serious impairment to bodily care to 6 weeks following delivery. Do functions of serious dysfunction of any not promise civilian sources under any bodily organ or part. circumstances for either the mother or (c) General provisions—(1) Limitations. the infant as such care is not author- Benefit payments for emergency serv- ized. ices under Medicare can be made for (2) Treatment of the newborn infant only that period of time during which in USMTFs includes care, both inpa- the emergency exists. Therefore, when tient and outpatient, only during the
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first 6 weeks (42 days) following deliv- § 728.73 Applicants for enlistment or ery. If the newborn infant requires care reenlistment in the Armed Forces, beyond the 6-weeks postnatal period, and applicants for enlistment in the the mother or other responsible family reserve components. member must make arrangements for (a) Upon referral by a commander of disposition to private, State, welfare, a Military Enlistment Processing Sta- or another Federal facility. tion (MEPS), applicants will be fur- (c) Application for care. In making ap- nished necessary medical examina- plication for care authorized by this tions, including hospitalization when section, former women members should qualifications for service cannot other- apply either in person or in writing to wise be determined. Use the hos- the Armed Forces inpatient MTF near- pitalization period only for diagnostic est their home and present either their purposes. Do not correct disqualifying DD 214 (Armed Forces of the United defects. States Report of Transfer or Discharge) (b) Applicants who suffer injury or or DD 256A (Honorable Discharge Cer- acute illness while awaiting or under- tificate) as proof of eligibility for re- going processing at Navy and Marine quested care. In areas with more than Corps facilities or MEPS may be fur- one Armed Forces MTF available and nished emergency medical and dental capable of providing required care, ap- care, including emergency hospitaliza- plication should be made to the MTF of tion, for that injury or illness. the service from which separated, as applicable. Disengagement in such § 728.74 Applicants for appointment in areas to MTFs of other services may be the regular Navy or Marine Corps made only when space is not available and reserve components, including or capability does not exist in the MTF members of the reserve components who apply for active duty. of the services from which the indi- vidual was separated. (a) Necessary medical examinations (d) Charges and collection. Charges may be furnished, including hos- and reimbursement procedures for care pitalization when qualifications for rendered to beneficiaries in paragraph service cannot otherwise be deter- (a)(2) of this section are the same as mined. Use such a period of hospitaliza- prescribed by current regulations for tion only for diagnostic purposes. Do active Coast Guard, USPHS, and NOAA not correct disqualifying defects. members. (b) Applicants who suffer injury or acute illness while awaiting or under- § 728.72 Applicants for enrollment in going processing at Navy and Marine the Senior Reserve Officers’ Train- Corps facilities or MEPS may be fur- ing Program. nished emergency medical and dental When properly authorized, designated care, including emergency hospitaliza- applicants (including applicants for en- tion, for that injury or illness. rollment in the 2-year program and Military Science II enrollees applying § 728.75 Applicants for cadetship at for Military Science III) may be fur- service academies and applicants for the Uniformed Services Univer- nished medical examinations at naval sity of Health Sciences (USUHS). MTFs including hospitalization nec- essary for the proper conduct thereof. (a) Upon presentation of a letter of Medical care, including hospitaliza- authorization from the Department of tion, is authorized for diseases con- Defense Medical Examination Review tracted or injuries incurred in line of Board (DODMERB), applicants for ca- duty while at or traveling to or from a detship at Service Academies (Navy, military installation for the purpose of Army, Air Force, Coast Guard, and undergoing medical or other examina- Merchant Marine) and applicants for tions or for visits of observation. the Uniformed Services University of
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Health Sciences (USUHS) will be fur- program cannot be authorized for other nished medical examinations at facili- than abused dependents. The Sec- ties designated by the DODMERB. Hos- retary’s discretionary authority is ex- pitalization is authorized when quali- ercised most conservatively, however, fications for service cannot otherwise favorable action is usually taken on re- be determined. Use the hospitalization quests involving the following situa- period for diagnostic purposes only, tions: and not to correct disqualifying or (1) Preadoption proceedings wherein other defects. Perform examinations an active duty member or a retired and make disposition of completed member has taken affirmative legal ac- forms per BUMEDINST 6120.3M. (b) Applicants who suffer injury or tion to adopt a child. acute illness while awaiting or under- (2) Custodianships and guardianships going processing at Navy and Marine authorized by a court order wherein Corps facilities or at MEPS may be fur- the member is designated by the court nished emergency medical and dental as the custodian or guardian and the care, including emergency hospitaliza- child is fully dependent upon the active tion, for that injury or illness. duty or retired member sponsor. (3) Evaluation and selection of non- § 728.76 Naval Home residents. beneficiaries who are donor candidates Provide necessary medical and dental for an organ or tissue transplant proce- care, both inpatient and outpatient, to dure in behalf of a military service residents of the Naval Home when re- beneficiary. quested by the Governor of the Home. (4) Nonbeneficiary participants in of- In an emergency, care may be rendered ficially approved clinical research without prior approval of the Gov- studies. ernor; however, the Governor of the (5) Unremarried former spouses who: Home should be contacted immediately Require care for a condition incurred and requested to furnish authorization. during or caused/aggravated by condi- § 728.77 Secretarial designees. tions associated with the member’s or former member’s creditable service; do Subject to the capabilities of the pro- not qualify under the former spouses fessional staff and the availability of space and facilities, naval MTFs and act; and do not have medical coverage DTFs will provide treatment to indi- under an employer-sponsored health viduals that have been granted Secre- plan which will provide for the care re- tarial designee status by any of the quired. three service Secretaries (Navy, Army, (6) Abused dependents of discharged or Air Force), the Secretary of Com- or dismissed former uniformed services merce for NOAA personnel, the Sec- members in need of medical or dental retary of Health and Human Services care resulting from knowledge of the for USPHS personnel, or the Secretary abuse or for an injury or illness result- of Transportation for Coast Guard per- ing from abuse by the former member. sonnel. Eligibility will terminate the earliest (a) Potential designees. Upon a show- of 1 year after the date on which the ing of sufficient cause, the Secretary of member is discharged or dismissed the Navy may authorize individuals, from a uniformed service, or when care not otherwise authorized by law, to re- is no longer needed. ceive such care as is available in naval (7) In other instances wherein the cir- MTFs in the United States. Designa- cumstances clearly merit the providing tion may be extended on a worldwide of treatment in naval MTFs, and in basis for preadoptive children and which the best interest of the patient, wards of active duty members, and for the Navy, and the Government will be abused dependents delineated in para- graph (a)(6) of this section. Temporary served, favorable Secretarial action in loco parents or foster parent status may result. The mere need of medical of the member with regard to a minor care by a former beneficiary or other is insufficient for approval. Also, civil- person, alone, will not support ap- ian health care under the CHAMPUS proval of such a request.
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(b) Requests for consideration. Re- orable or bad-conduct discharge or dis- quests for consideration will be sub- missal from a uniformed service as a mitted to the Commander, Naval Med- result of court-martial conviction for ical Command (MEDCOM–33) by appli- an offense involving abuse of a depend- cants via their command, when appli- ent of the member. cable, or by the Medical Department (ii) Full names, social security num- command concerned. Requests should bers (if assigned), and relationship to include any pertinent information the former member of any dependent in which will support resolution and a re- need of medical or dental care to treat turn address. Requests involving: adverse health conditions resulting (1) Preadoption must include a leg- from such dependent’s knowledge of ible reproducible copy of an interim the abuse or any injury or illness suf- court order or adoption agency place- fered by the abused person as a result ment agreement which names the spon- of such abuse. sor and identifies the other partici- (c) Blanket designation. (1) The Sec- pating parties. A petition for a court retary of Defense has granted Secre- order is insufficient to support a rec- tarial designee status to full-time ommendation for approval. Schedule ‘‘A’’ faculty members of the (2) Custodianships and guardianships Uniformed Services University of must include a legible reproducible Health Sciences (USUHS). They have copy of the court order, identification been provided documentation substan- of the parties, and also identify any tiating their eligibility and, where nec- amounts of income to which the ward essary, an eligibility termination date. is entitled. These personnel are authorized routine (3) Participants in clinical research care at the Naval Hospital, Bethesda, studies must include: MD. At other naval MTFs, only emer- (i) Sufficient clinical information gency treatment is authorized while concerning the nature of the study. they are traveling on official univer- (ii) Benefits which may accrue to the sity business. The letter of authoriza- individual. tion excludes routine dental care, pros- (iii) The extent, if any, to which ac- thetic appliances, and spectacles. cess by other authorized beneficiaries (2) The following officials within the will be impaired. Government, the Department of De- (iv) Benefits which will accrue to the fense, and military departments have command, e.g., enhancement of train- been granted blanket Secretarial des- ing, maximum use of specialized facili- ignation for medical and emergency ties, etc. dental care in naval MTFs in the (v) Recommended duration of des- United States: ignation. (i) The President. (vi) Whether the consenting indi- (ii) The Vice President. vidual has been informed concerning (iii) Members of the Cabinet. the nature of the study, its personal (iv) Article III Federal Judges. implications, and freely consents. (v) U.S. Court of Military Appeals (4) Unremarried former spouses must Judges. include: (vi) Members of Congress. (i) A notarized copy of the marriage (vii) The Secretary, Deputy Sec- license. retary, and the Assistant Secretaries of (ii) A statement attesting to the fact Defense. that the sponsoring former spouse (viii) The Under Secretary of Defense achieved 20 or more years of creditable for Policy. military service. (ix) The Under Secretary of Defense (iii) Copy of divorce decree with offi- for Research and Engineering. cial date. (x) The Secretaries, Under Secre- (5) Abused depdendents must include: taries, and the Assistant Secretaries of (i) Full name, social security num- the Military Departments. ber, grade or rate, branch or service, (d) Authorization. Designees will and date and type of discharge or dis- present a signed letter bearing the let- missal of the former member. Such a terhead of the designating service. Sec- member must have received a dishon- retarial designees are not included in
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the DEERS data base and may not pos- outpatient or inpatient care is ren- sess Government identification cards. dered to Secretarial designees whose Therefore, the only proof of their eligi- charges for care have not been waived. bility for treatment may be the letter of authorization. When a Secretarial § 728.78 American Red Cross rep- designee presents for treatment: resentatives and their dependents. (1) Ask for identification of the indi- (a) Potential beneficiaries. vidual presenting the letter of author- (1) Volunteer workers. ization to assure that the person seek- (2) Full-time, paid employees. ing care is the individual to whom the (3) Dependents of personnel enumer- letter was issued. ated in paragraph (a) (1) and (2) of this (2) Check the expiration date on the section when accompanying their spon- letter of authorization. Many author- sor outside the continental United izations are issued for only a specified States, including Alaska, Hawaii, and period of time, e.g., abused depend- Puerto Rico. ents—no longer than 1 year. (b) Care authorized. (1) When services (3) Check to assure that the indi- of the American Red Cross (ARC) have vidual is applying for care authorized been accepted in behalf of the Federal by the letter of authorization. Designa- Government under applicable DOD reg- tion is often granted for a specific diag- ulations, beneficiaries in paragraph nosis or specific mode of treatment. (a)(1) of this section are considered (4) Check to assure that the indi- ‘‘employees’’ of the Government for the vidual has not been designated for care purpose of this part and are authorized only as specific facility. Many author- health care in USMTFs, both in and izations are granted for conditions or outside the United States for work-re- for care that can be rendered only by a lated conditions. See § 728.53(a)(2) re- specified physician or under a specific garding the specific application of this program. authorization. (5) Place a copy of the letter of au- (2) Beneficiaries enumerated in para- thorization in the individual’s Health graph (a) (1) and (2) of this section are Record or outpatient treatment record authorized health care in USMTFs lo- on the left side at the first visit or ad- cated outside the United States for mission. both work and nonwork-related condi- (e) Charges and collection. (1) Inter- tions. See § 728.53(a)(2) for treatment of agency rates are applicable for inpa- work-related conditions of those in tient and outpatient care provided out- paragraph (a)(1) of this section. side the National Capital Region to all (3) Beneficiaries identified in para- individuals listed in paragraph (c)(2) of graph (a) (1), (2), and (3) of this section this section with the exception of are authorized emergency care in Members of Congress. Charges are at USMTFs outside the continental full reimbursement rates for Members United States, including Alaska, Ha- of Congress provided inpatient or out- waii, and Puerto Rico where facilities patient care outside the National Cap- are not otherwise available in reason- ital Region. ably accessible and appropriate non- (2) In the National Capital Region: Federal hospitals. Provide hospitaliza- (i) Charges are waived for outpatient tion only for acute medical and sur- care provided to all categories listed in gical conditions, exclusive of nervous, paragraph (c)(2) of this section. mental, or contagious diseases or those (ii) Charge interagency rates for in- requiring domiciliary care. Routine patient care of all individual in para- dental care, other than dental pros- graph (c)(2) of this section except Mem- thesis and orthodontia, is authorized bers of Congress. Charge Members of on a space available basis provided fa- Congress at full reimbursement rates. cilities are not otherwise available in (3) Complete and submit, per subpart reasonably accessible non-Federal fa- J, a DD 7 (Report of Treatment Fur- cilities. nished Pay Patients, Hospitalization (c) Records disposal. Upon completion Furnished, part A) or DD 7A (Report of of treatment of accredited representa- Treatment Furnished Pay Patients, tives of the American Red Cross or Outpatient Treatment, part B) when their dependents, forward medical
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records, including all clinical records ized on a space available basis provided and x-ray films, to the Medical Direc- facilities are not otherwise available in tor, National Headquarters, American reasonably accessible and appropriate Red Cross, 20th and D Street NW., non-Federal facilities. Washington, DC 20006. (c) Charges and collection. Care is au- (d) Charges and collection. Charge thorized on a reimbursable basis. Com- beneficiaries in paragraph (a) (1) and plete and submit, per subpart J, a DD 7 (2) of this section the rate applicable to (Report of Treatment Furnished Pay officer personnel and dependents in Patients, Hospitalization Furnished, paragraph (a)(3) of this section the de- part A) or DD 7A (Report of Treatment pendent rate. Complete and submit, per Furnished Pay Patients, Outpatient subpart J, a DD 7 (Report of Treatment Treatment, part B) when outpatient or Furnished Pay Patients, Hospitaliza- inpatient care is rendered. tion Furnished, part A) or DD 7A (Re- port of Treatment Furnished Pay Pa- § 728.80 U.S. Government employees. tients, Outpatient Treatment, part B) (a) Civil service employees of all Fed- when outpatient or inpatient care is eral agencies, including teachers em- rendered to ARC personnel or to their ployed by Department of Defense De- dependents. pendent’s Schools (DODDS) and their dependents, may be provided hos- § 728.79 Employees of Federal contrac- pitalization and necessary outpatient tors and subcontractors. services, (other than occupational (a) Beneficiaries. (1) U.S. citizen con- health services), on a reimbursable tractor, engineering, and technical basis, outside the continental limits of service personnel designated as U.S. the United States and in Alaska, where Navy Technicians. facilities are not otherwise available in (2) Civilian employees of contractors reasonably accessible and appropriate and subcontractors operating under non-Federal hospitals. Except for em- U.S. Government contracts. ployees who are serving aboard naval (3) Dependents of personnel enumer- vessels, hospitalization may be fur- ated in paragraph (a) (1) and (2) of this nished only for acute medical and sur- section when accompanying their spon- gical conditions, exclusive of nervous, sor outside the continental United mental, or contagious diseases or those States or in Alaska. requiring domiciliary care. Routine (b) Care authorized. (1) Beneficiaries dental care, other than dental pros- identified in paragraph (a) (1) and (2) of thesis and orthodontia, is authorized this section may be provided emer- on a space available basis provided fa- gency care in naval MTFs for illnesses cilities are not otherwise available in and injuries occurring at work in or reasonably accessible and appropriate outside the United States. non-Federal facilities. (2) While serving outside the conti- (b) Such civilian employees and their nental United States or in Alaska, dependents may be provided medical, where facilities are not otherwise surgical, dental treatment, hospitaliza- available in reasonably accessible and tion, and optometric care at installa- appropriate non-Federal facilities, tions in the United States which have beneficiaries identified in paragraph (a) been designated remote by the Sec- (1), (2), and (3) of this section may re- retary of the Navy for the purpose of ceive hospitalization and necessary providing medical care. outpatient services in naval MTFs on a (c) The major objective of the fol- reimbursable basis. Except for bene- lowing programs for civil service em- ficiaries in paragraph (a)(1) of this sec- ployees, regardless of location, is emer- tion who are serving aboard naval ves- gency treatment for relief of minor ail- sels, all others enumerated may only ments or injuries to keep the employee be hospitalized for acute medical and on the job: surgical conditions, exclusive of nerv- (1) The Department of Labor, Office ous, mental, or contagious diseases or of Workers’ Compensation Programs those requiring domiciliary care. Rou- (OWCP), governs the overall medical tine dental care, other than dental care program for employees of the Gov- prosthesis and orthodontia, is author- ernment who sustain injuries while in
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the performance of duty, including dis- the following personnel are authorized eases proximately caused by conditions care as set forth. of employment (see § 728.53). (b) Beneficiaries and extent of care. (1) (2) Federal civil service employees Provide all occupational health serv- and applicants for such employment ices to civilian employees paid from are authorized services as outlined in nonappropriated funds, including Navy chapter 22, section XIII, of the Manual exchange employees and service club of the Medical Department employees, free of charge (see (MANMED). When appropriated fund § 728.80(c)(2)). Provide treatment of oc- and nonappropriated fund employees, cupational illnesses and injuries other including unpaid volunteer employees, than in emergencies per rules and regu- require emergency and nonemergency lations of the Office of Workers’ Com- occupational health services due to an pensation Programs (see § 728.53). illness or an injury on the job, provide (2) Civilians attending the Federal this limited care through your occupa- Bureau of Investigation (FBI) Acad- tional health service, emergency room, emy, Marine Corps Development and or evening primary care clinic, as ap- Education Command, Quantico, VA, propriate. This care is rendered free of may be rendered care at the Naval charge to the employee, the employee’s Medical Clinic, Quantico, VA, for emer- command, or insurance carrier. In- gencies. Such persons who are in need cluded with this group are Military of hospitalization for injuries or dis- Sealift Command (MSC) civilian ma- ease may be hospitalized and classed as rine personnel (authorized additional civilian humanitarian nonindigents care and services as outlined in with the approval of the cognizant hos- BUMINST 6320.52 and care under pital’s commanding officer. EXCEPTION: § 728.53(a)(7)) and members of the Na- Certain individuals, such as employees tional Oceanic and Atmospheric Ad- of the Federal Bureau of Investigation ministration (NOAA) serving with the who are injured in the line of duty, Navy. may be entitled to care at the expense of the Office of Workers’ Compensation (3) Under the technical control of the Programs (OWCP) (see § 728.53). Surgeon General of the Army, the DOD (3) The following civilians who are in- Civilian Employees’ Health Service is jured or become ill while participating responsible for administering the in Navy or Marine Corps sponsored health program for all Federal civil sports, recreational or training activi- service employees in the District of Co- ties may be rendered care on a tem- lumbia area. porary (emergency) basis until such (d) Care, other than occupational time as disposition can be effected to health services, is provided on a reim- another source of care. bursable basis. Complete and submit, (i) Members of the Naval Sea Cadet per subpart J, a DD 7 (Report of Treat- Corps. ment Furnished Pay Patients, Hos- (ii) Junior ROTC/NDCC (National De- pitalization Furnished, part A) or DD fense Cadet Corps) cadets. 7A (Report of Treatment Furnished (iii) Civilian athletes training or Pay Patients, Outpatient Treatment, competing as part of the U.S. Olympic part B) when outpatient or inpatient effort. care is rendered. (iv) Civilians competing in Navy or Marine Corps sponsored competitive § 728.81 Other civilians. meets. (a) General. In an emergency, any (v) Members of Little League teams person may be rendered care in naval and Youth Conservation groups. MTFs to prevent undue suffering or (vi) Boy Scouts and Girl Scouts of loss of life or limb. Limit care to that America. necessary only during the period of the (4) Other civilian personnel included emergency, and if further treatment is below are not normally eligible for indicated, initiate action to transfer care in naval MTFs; however, under the patient to a private physician or ci- the conditions set forth, care may be vilian facility as soon as possible. Fur- rendered. ther, subject to the provisions of §728.3, (i) Potential beneficiaries.
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(A) Civilian representatives of reli- United Nations) or by a voluntary non- gious groups. profit-relief agency registered with and (B) Educational institutions rep- approved by the Advisory Committee resentatives. on Voluntary Aid (e.g., CARE), they (C) Athletic clinic instructors. may receive other necessary non- (D) USO representatives. emergency medical care and occupa- (E) Celebrities and entertainers. tional health services while serving (F) Social agencies representatives. outside the 48 contiguous United (G) Others in a similar status to States and the District of Columbia. those in § 728.81(b)(4)(i) (A) through (F). (c) Charges and collection. Care is pro- (H) News correspondents. vided on a reimbursable basis. Com- (I) Commercial airline pilots and em- plete and submit, per subpart J, a DD 7 ployees. (Report of Treatment Furnished Pay (J) Volunteer workers. This category Patients, Hospitalization Furnished, includes officially recognized welfare part A) or DD 7A (Report of Treatment workers, other than Red Cross. Furnished Pay Patients, Outpatient (ii) Care authorized. (A) Persons enu- Treatment, part B) when outpatient or merated in paragraph (b)(4)(i) (A) inpatient care is rendered. through (G) of this section, who are contracted to provide direct services to § 728.82 Individuals whose military the Armed Forces and who are acting records are being considered for under orders issued by the Department correction. of Defense or one of the military de- Individuals who require medical eval- partments to visit military commands uation in connection with consider- overseas, and their accompanying de- ation of their individual circumstances pendents, may be provided medical by the Navy, Army, and Air Force care in naval MTFs outside the 48 con- Board for Correction of Military tiguous United States and the District Records are authorized evaluation, in- of Columbia provided local civilian fa- cluding hospitalization when necessary cilities are not reasonably available or for the proper conduct thereof. are inadequate. Limit inpatient care to acute medical and surgical conditions § 728.83 Persons in military custody exclusive of nervous, mental, or con- and nonmilitary Federal prisoners. tagious diseases, or those requiring (a) Potential beneficiaries. domiciliary care. Routine dental care, (1) Military prisoners. other than dental prostheses and or- (2) Nonmilitary Federal prisoners. thodontia, is authorized on a space (3) Enemy prisoners of war and other available basis outside the United detained personnel. States, provided such care is not other- (b) Care authorized—(1) Military pris- wise available in reasonably accessible oners. (i) Whose punitive discharges and appropriate non-Federal facilities. have been executed but whose sen- (B) Persons enumerated in paragraph tences have not expired are authorized (b)(4)(i) (H) and (I) of this section are all necessary medical and dental care. authorized emergency medical and den- (ii) Whose punitive discharges have tal care in naval MTFs outside the 48 been executed and who require hos- contiguous United States and the Dis- pitalization beyond expiration of sen- trict of Columbia provided local civil- tences are not eligible for care but may ian facilities are not reasonably avail- be hospitalized as civilian humani- able or are inadequate. tarian nonindigents until final disposi- (C) Persons enumerated in paragraph tion can be made to some other appro- (b)(4)(i)(J) of this section, both within priate facility. and outside the 48 contiguous United (iii) On parole pending completion of States and the District of Columbia, appellate review or whose parole may receive care in naval MTFs for in- changes to an excess leave status fol- juries or diseases incurred in the per- lowing completion of sentence to con- formance of duty as beneficiaries of finement while on parole are members OWCP (see § 728.53). Additionally, if of the military service and as such are such volunteers are sponsored by an authorized care as outlined in subpart international organization (e.g., the B.
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(iv) On parole whose punitive dis- either from civilian sources as supple- charge has been executed are not mem- mental care or from stocks maintained bers of the military service and are by the facility, are payable from oper- therefore not entitled to care at Gov- ation and maintenance funds available ernment expense. If the circumstances for support of naval MTFs. However, are exceptional, individuals herein who certain adjuncts may be cost-shared are not authorized care may request under CHAMPUS for CHAMPUS-eligi- Secretarial designee status under the ble individuals under circumstances provisions of § 728.77. enumerated in the cooperative care or (2) Nonmilitary Federal prisoners. services criteria of § 728.4(z). Under the provisions of this section, nonmilitary Federal prisoners are au- § 728.92 Policy. thorized only emergency medical care. When such care is being rendered, the (a) Provide adjuncts to medical care institution to which prisoners are sen- to eligible beneficiaries receiving inpa- tenced must furnish necessary guards tient or outpatient care when, in the to effectively maintain custody of pris- opinion of the attending physician, oners and assure the safety of other pa- such adjuncts will offer substantial as- tients, staff members, and residents of sistance in overcoming the handicap or the local area. Under no circumstances condition and thereby contribute to will military personnel be voluntarily the well-being of the beneficiary. used to guard or control such pris- (b) Unless necessary for humani- oners. Upon completion of emergency tarian reasons, do not furnish ortho- care, make arrangements for imme- pedic and prosthetic appliances on an diate transfer of the prisoners to a non- elective basis to members of the naval military MTF or for return to the facil- service with short periods of service re- ity to which sentenced. maining when the defect requiring the (3) Enemy prisoners of war and other appliance existed prior to entry into detained personnel. Subject to the provi- service and when such members will be sions of § 728.3, enemy prisoners of war separated from the service because of and other detained personnel are enti- these defects. tled to and may be rendered all nec- (c) For active duty members, make essary medical and dental care. the initial allowance of orthopedic (c) Charges and collection. Care pro- vided individuals enumerated in footwear and orthopedic alterations to § 728.83(b)(1) (ii), (iv), and (2) is on a re- standard footwear the same quantity imbursable basis. Complete and sub- as provided in the initial clothing al- mit, per subpart J, a DD 7 (Report of lowance. Treatment Furnished Pay Patients, (d) Base the number of orthopedic Hospitalization Furnished, part A) or and prosthetic appliances issued or re- DD 7A (Report of Treatment Furnished placed for other authorized recipients Pay Patients, Outpatient Treatment, upon the individual’s requirements as part B) when outpatient or inpatient determined by the attending physician care is rendered. to be consistent with the highest standards of modern medicine. Subpart H—Adjuncts to Medical (e) Former members of the uniformed Care service should be advised that they may obtain durable medical equip- § 728.91 General. ment, medical care, and adjuncts from Adjuncts to medical care include but Veterans Administration facilities. are not limited to prosthetic devices (f) Dependents are authorized certain such as artificial limbs, artificial eyes, adjuncts per §§ 728.31 (c) and (d) and in hearing aids, orthopedic footwear, instances where items are not nor- spectacles, wheel chairs, hospital beds, mally authorized at the expense of the and similar medical support items or Government, they may be provided at aids which are required for the proper cost to the United States if available care and management of the condition from Government stocks under the fol- being treated. Generally, expenses in- lowing conditions: curred for procurement of such items, (1) Outside the United States.
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(2) At specific stations within the § 728.93 Chart of adjuncts. United States which have been author- The following chart and footnotes ized by the Secretary of the Navy to provide information relative to ad- sell these items. juncts which may be furnished the sev- eral categories of beneficiaries eligible for medical care at naval MTFs.
Others authorized the Active duty and re- same benefits as active Dependents author- Other bene- Adjuncts ized the same bene- 8 tired members duty or retired mem- fits ficiaries( ) bers(8)
Ambulance service ...... Yes ...... Yes ...... Yes(1) ...... No Artificial eyes ...... Yes ...... Yes ...... Yes ...... Maybe(3) Artificial limbs ...... Yes ...... Yes ...... Yes ...... Maybe(3) Contact or special lenses(11) ..... Yes(4) ...... Yes(4) ...... Maybe(2)(4)(6) ...... No Crutches(7) ...... Yes ...... Yes ...... Yes ...... Yes Dental prostheses ...... Yes ...... Yes ...... Maybe(9) ...... Maybe(9) Elastic stockings ...... Yes ...... Yes ...... Yes ...... Yes Hearing aids(10) ...... Yes(5) ...... Yes(5) ...... Maybe(2) ...... Maybe(3) Hearing aid parts and batteries Yes(10) ...... Yes(10) ...... Maybe(2)(10) ...... No Hospital beds (7) ...... Yes ...... Yes ...... Yes ...... Yes Joint braces ...... Yes ...... Yes ...... Yes ...... Yes Orthopedic footware ...... Yes ...... Yes ...... Maybe(2) ...... Maybe(3) Prosthetic devices, other(7) ...... Yes ...... Yes ...... Maybe(2) ...... No Respirators and inhalators(7) ..... Yes ...... Yes ...... Yes ...... Yes(1) Resuscitators (7) ...... Yes ...... Yes ...... Yes ...... Yes(1) Spectacles ...... Yes ...... Yes ...... Maybe(2)(6) ...... No Walking irons(7) ...... Yes ...... Yes ...... Yes ...... Yes Wheel chairs(7) ...... Yes ...... Yes ...... Yes ...... Yes 1 When considered medically appropriate by the attending physician. 2 See § 728.92(f). 3 Outside the United States and at designated remote stations when considered medically appropriate by the attending physi- cian. 4 Contact or special lenses are not to be issued solely for cosmetic reasons. Further guidelines are contained in NAVMEDCOMINST 6810.1. 5 In addition to the hearing aid, include in initial issue one spare receiver cord, approximately 1 month's supply of batteries, and a statement indicating make, model, type of receiver, serial number, code, part numbers, ``B'' battery voltage, and type of ``A'' and ``B'' batteries, as appropriate. Provide replacement of hearing aids upon the same basis as initial issue and, except in unusual circumstances, will not be replaced within 2 years of the initial furnishing or the last replacement of the appliance. 6 Spectacles, contact lenses, or intraocular lenses may be provided dependents with eye conditions which require these items for complete medical or surgical management of a condition other than ordinary refractive error. For further information, consult NAVMEDCOMINST 6810.1. 7 May be loaned on a custody basis at the discretion of the attending physician. 8 See subpart of this part relating to specific beneficiary. 9 When considered by the attending physician and dentist to be an adjunct to a medical or surgical condition other than dental and when in consonance with existing legislation and directives. 10 For further guidelines, consult BUMEDINST 6320.41B. 11 Includes intraocular lenses required for implantation upon removal of cataracts.
Subpart I—Reservists—Continued from SECNAVINST 1770.3, paragraph Treatment, Return to Limited 10, is applicable when a reservist may Duty, Separation, or Retire- be entitled to physical disability bene- ment for Physical Disability fits. (1) When a notice of eligibility (NOE) § 728.101 General. has been issued to a member hospital- ized in a naval MTF and the attending (a) While Notice of eligibility (NOE). physician is of the opinion that recov- the NOE is basically a document that ery is not anticipated or that the re- substantiates entitlement to a dis- servist is not expected to be fit for re- ability benefit equal to pay and allow- turn to full duty within a reasonable ances, it may be accepted when re- period, a medical board will be con- quired to substantiate eligibility for benefits other than pay and allow- vened and the case managed the same ances, i.e., treatment in USMTFs under as that of a Regular member. Assure the provisions of title 10, United States that a copy of the NOE accompanies Code. the medical board report forwarded to (b) Physical disability benefits. The fol- the Central Physical Evaluation Board. lowing, excerpted and paraphrased
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Disability benefits, equal to pay and al- furnished by naval health care facili- lowances, will continue in such in- ties for which central collection from stances until final disposition. other Government agencies and private (2) There is no limited duty status, parties is required. per se, for inactive reservists. However, if the attending physician determines § 728.112 Responsibilities. that a reservist is temporarily unfit for (a) Patient administration departments. full duty, but will be fit for full duty The initiation of the collection process following a period of convalescence or begins with patient administration de- following duty with physical limita- partments. Collection action cannot be tions, not to exceed 6 months, the phy- accomplished unless patient adminis- sician may return the reservist to duty tration departments take the initial with a summary of the hospitalization step to complete: or treatment. The summary will set (1) DD 7, Report of Treatment Fur- forth the limitations posed by the nished Pay Patients, Hospitalization Fur- member’s disability and the period of nished (part A). Prepare a separate sub- such limitations. Followup hospitaliza- stantiating DD 7, in triplicate, for each tion, treatment, and evaluation for the category of pay patient receiving inpa- same condition may be provided at tient care. At the end of each day that USMTFs during the period of restricted any pay patient is admitted, submit duty, if required. If, during the period DD 7’s to the collection agent. of the restricted duty, it appears that (2) DD 7A, Report of Treatment Fur- the reservist will be permanently unfit nished Pay Patients, Outpatient Treat- for full duty, promptly authorize the ment Furnished (part B). Prepare a sepa- reservist to report for evaluation, rate substantiating DD 7A, in trip- treatment if required, and appearance licate, for each category of pay patient before a medical board at the nearest receiving outpatient care. At the end of naval MTF capable of accomplishing each day that any pay patient is treat- same. Admission to the sicklist is au- ed on an outpatient basis, submit DD thorized, when required. Should the 7A’s to the collection agent. medical board recommend appearance (b) Collection agents. Upon receipt of a before a physical evaluation board, dis- completed DD 7 or DD 7A, collection ability benefits equal to pay and allow- agents will take the action indicated in ances should continue until final dis- paragraph 24304 of the Resource Man- position is effected. agement Handbook, NAVMED P–5020, to effect central collection action. § 728.102 Care from other than Federal sources. § 728.113 Categories of pay patients. The provisions of this subpart do not The categories of patients for whom authorize care for reservists at other collection action must be initiated are: than Federal facilities nor out of funds (a) Coast Guard. (1) Active Officers; available for operation of USMTFs (2) Retired Officers; (3) Active Enlisted; (supplemental care) after a period of (4) Retired Enlisted; (5) Dependents; (6) active duty or a period of training duty Cadets. ends, including travel to and from such (b) Public Health Service. (1) Active Of- training. Such care may be rendered ficers; (2) Retired Officers; (3) Depend- under the provisions of part 732 of this ents of Officers. chapter. (c) National Oceanic and Atmospheric Administration (NOAA). (1) Active Offi- Subpart J—Initiating Collection cers; (2) Retired Officers; (3) Depend- Action on Pay Patients ents of Officers. (d) Foreign. (1) NATO Officers (Except § 728.111 General. Canadians provided care under the The Comptroller of the Navy has ap- comparable care agreement.); (2) NATO proved a system of transactions that Enlisted (Except Canadians provided generates reports to COMNAV care under the comparable care agree- MEDCOM on unfunded reimbursable ment.); (3) NATO Dependents; (4) Civil- transactions. The purpose of the final ians Accompanying NATO Members; (5) report is to provide data on services Foreign Military Sales (FMS) Officers;
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(6) FMS Enlisted; (7) FMS Dependents; 732.24 Appeal procedures. (8) FMS Civilians; (9) Military Grant Aid Officers; (10) Military Grant Aid Subpart C—Accounting Classifications for Enlisted; (11) Military Grant Aid De- Nonnaval Medical and Dental Care pendents; (12) Military Grant Aid Civil- Expenses and Standard Document ians; (13) Military Officers From Other Numbers Than NATO Nations; (14) Military En- 732.25 Accounting classifications for listed From Other Than NATO Nations; nonnaval medical and dental care ex- (15) Dependents of Officers and Enlisted penses. From Other Than NATO Nations; (16) 732.26 Standard document numbers. Civilians Accompanying Military Mem- bers of Other Than NATO Nations; (17) AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 1071–1088, Nationals and Their Dependents. 5031, 6148, 6201–6203, and 8140; and 32 CFR 700.1202. (e) Secretarial designees not exempted from paying. SOURCE: 52 FR 32297, Aug. 27, 1987, unless (f) Others. (1) Merchant Marines; (2) otherwise noted. Military Sealift Command (MSC) Per- sonnel; (3) Public Health Service bene- Subpart A—General ficiaries (Other than Commissioned Corps); (4) Veterans Administration § 732.1 Background. beneficiaries; (5) Peace Corps bene- When a U.S. Navy or Marine Corps ficiaries; (6) Job Corps beneficiaries; (7) member or a Canadian Navy or Marine Volunteers In Service to America Corps member receives authorized care (VISTA) beneficiaries; (8) Office of from other than a Navy treatment fa- Workers Compensation Program cility, care is under the cognizance of (OWCP) beneficiaries; (9) Bureau of the uniformed service medical treat- Employees Compensation (BEC) bene- ment facility (USMTF) providing care, ficiaries; (10) Department of State and the USMTF referring the member to Other Federal Agencies beneficiaries another treatment source, or under the (prepare a separate form for each Fed- provisions of this part. If such a mem- eral agency); (11) Civilian Humani- ber is not receiving care at or under tarian Nonindigents (CHNI); (12) Trust the auspices of a Federal source, re- Territory beneficiaries; (13) Others not sponsibility for health and welfare, and specified above who are not entitled to the adjudication of claims in connec- health benefits at the expense of the tion with their care, remains within Government. the Navy Medical Department. Part 728 of this chapter and NAVMEDCOMINST PART 732—NONNAVAL MEDICAL 6320.18 contain guidelines concerning AND DENTAL CARE care for other eligible beneficiaries, not authorized care by this part. Subpart A—General § 732.2 Action. Sec. 732.1 Background. Ensure that personnel under your 732.2 Action. cognizance are made aware of the con- tents of this part. Failure to comply Subpart B—Medical and Dental Care from with contents may result in delayed Nonnaval Sources adjudication and payment or may re- 732.11 Definitions. sult in denial of Navy financial respon- 732.12 Eligibility. sibility for expenses of maternity, med- 732.13 Sources of care. ical, or dental care obtained. 732.14 Authorized care. 732.15 Unauthorized care. 732.16 Emergency care requirements. Subpart B—Medical and Dental 732.17 Nonemergency care requirements. Care From Nonnaval Sources 732.18 Notification of illness or injury. 732.19 Claims. § 732.11 Definitions. 732.20 Adjudication authorities. 732.21 Medical board. Unless otherwise qualified in this 732.22 Recovery of medical care payments. part the following terms when used 732.23 Collection for subsistence. throughout are defined as follows:
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(a) Active duty. Full-time duty in the fense does not allow release to military active military service of the United control, constructive return is not ac- States. Includes full-time training complished. The individual is respon- duty; annual training duty; and attend- sible for medical and dental care re- ance, while in the active military serv- ceived prior to arrest and the incarcer- ice, at a school designated as a service ating jurisdiction is responsible for school by law or by the Secretary of care required after arrest. the military department concerned. (d) Designated Uniformed Services (b) Active duty for training. A specified Treatment Facilities (Designated USTFs). tour of active duty for Reserves for Under Pub. L. 97–99, the following fa- training under orders that provides for cilities are ‘‘designated USTFs’’ for the automatic reversion to non-active duty purpose of rendering medical and den- status when the specified period of ac- tal care to all categories of individuals tive duty is completed. It includes an- entitled to care under this part. nual training, special tours, and the (1) Sisters of Charity of the Incarnate initial tour performed by enlistees Word Health Care System, 6400 without prior military service. The pe- Lawndale, Houston, TX 77058 (713) 928– riod of duty includes travel to and from 2931 operates the following facilities: training duty, not in excess of the al- (i) St. John Hospital, 2050 Space Park lowable constructive travel time pre- Drive, Nassau Bay, TX 77058, telephone scribed by SECNAVINST 1770.3 and (713) 333–5503. Inpatient and outpatient paragraphs 10242 and 10243 of DOD Mili- services. tary Pay and Allowances Entitlements (ii) St. Mary’s Hospital Outpatient Manual. Clinic, 404 St Mary’s Boulevard, Gal- (c) Constructive return. For purposes veston, TX 77550, telephone (409) 763– of medical and dental care, an 5301. Outpatient services only. unathorized absentee’s return to mili- (iii) St. Joseph Hospital Ambulatory tary control may be accomplished Care Center, 1919 La Branch, Houston, through notification of appropriate TX 77002, telephone (713) 757–1000. Out- military authorities as outlined below. patient services only. (1) For members in an unauthorized (iv) St Mary’s Hospital Ambulatory absentee (UA) status, constructive re- Care Center, 3600 Gates Boulevard, turn to military control for the pur- Port Arthur, TX 77640 (409) 985–7431. pose of providing medical or dental Outpatient services only. care at Navy expense is effected when (2) Inpatient and outpatient services. (i) one of the following has occurred: Wyman Park Health System, Inc., 3100 (i) A naval activity informs a civilian Wyman Park Drive, Baltimore, MD provider of medical or dental care that 21211, telephone (301) 338–3693. the Navy accepts responsibility for a naval member’s care. The naval activ- (ii) Alston-Brighton Aid and Health ity providing this information must Group, Inc., Brighton Marine Public also provide documentation of such no- Health Center, 77 Warren Street, Bos- tification to the appropriate adjudica- ton, MA 02135, telephone (617) 782–3400. tion authority in § 732.20. (iii) Bayley Seton Hospital, Bay (ii) A member has been apprehended Street and Vanderbilt Avenue, Staten by civil authorities at the specific re- Island, NY 10304, telephone (718) 390– quest of naval authorities and naval 5547 or 6007. authorities have been notified that the (iv) Pacific Medical Center, 1200 12th member can be released to military Avenue South, Seattle, WA 98144, tele- custody. phone (206) 326–4100. (iii) A naval member has been ar- (3) Outpatient services only. (i) Coastal rested, while in a UA status, by civil Health Service, 331 Veranda Street, authorities for a civil offense and a Portland, ME 04103 (207) 774–5805. naval authority has been notified that (ii) Lutheran Medical Center, Down- the member can be released to military town Health Care Services, 1313 Supe- control. rior Avenue, Cleveland, OH 44113, tele- (2) When a naval member has been ar- phone (216) 363–2065. rested by civil authorities for a civil (e) Duty status. The situation of the offense while in a UA status and the of- claimant when maternity, medical, or
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dental care is received. Members, in- ignated offices, under program man- cluding reservists, on leave or liberty agement control of COMNAVMEDCOM are considered in a duty status. Reserv- and direct control of regional medical ists, performing active duty for train- commands, responsible for administra- ing or inactive duty training, are also tive requirements delineated in this considered in a duty status during part. Responsibilities and functional their allowable constructive travel tasks of OMAs and ODAs are outlined time to and from training. in NAVMEDCOMINST 6010.3. (f) Emergency care. Medical treatment (n) Prior approval. Permission granted of severe life threatening or poten- for a specific episode of necessary but tially disabling conditions which result nonemergent maternity, medical, or from accident or illness of sudden onset dental care. and necessitates immediate interven- (o) Reservist. A member of the Naval tion to prevent undue pain and suf- or Marine Corps Reserve. fering or loss of life, limb, or eyesight (p) Supplemental care—(1) Operation and dental treatment of painful or and maintenance funds, Navy. Supple- acute conditions. mental care of all uniformed services (g) Federal facilities. Navy, Army, Air members, at Navy expense, encom- Force, Coast Guard, Veterans Adminis- passes only inpatient or outpatient tration, and USTFs (former U.S. Public care augmenting the capability of a Health Service facilities listed in naval MTF treating a member. Such § 732.11(d). care is usually obtained from civilian (h) Inactive duty training. Duty pre- sources through referral by the treat- scribed for Reserves by the Secretary ing naval MTF. If a member, author- of the Navy under Section 206 of Title ized care under this part, is admitted 37, United States Code, or any other to or is being treated on an outpatient provision of law. Also includes special basis at any USMTF, all supplemental additional duties authorized for Re- care is the financial responsibility of serves by an authority designated by that facility regardless of whether the the Secretary of the Navy and per- facility is organized or authorized to formed by Reserves on a voluntary provide needed health care. The cost of basis in connection with the prescribed such care is chargeable to operation training or maintenance activities of and maintenance funds (OM&N) avail- units to which they are assigned. able for operation of the USMTF re- (i) Maternity emergency. A condition questing the care regardless of service commencing or exacerbating during affiliation of the member (see part 728 pregnancy when delay caused by refer- of this chapter for such care under ral to a uniformed services medical Navy Medical Department facilities). treatment facility (USMTF) or des- (2) Nonnaval medical and dental care ignated USTF would jeopardize the program funds. Adjudication authorities welfare of the mother or unborn child. will pay claims, under this part, for (j) Member. United States Navy and care received as a result of a referral Marine Corps personnel, Department of when: National Defence of Canada Navy and (i) A United States Navy or Marine Marine Corps personnel, and Navy and Corps member or a Canadian Navy or Marine Corps personnel of other NATO Marine Corps member requires care be- Nations meeting the requirements for yond the capability of the referring care under this part. USMTF and care is obtained for such a (k) Non-federal care. Maternity, med- member not admitted to or not being ical, or dental care furnished by civil- treated on an outpatient basis by a ian sources (includes State, local, and USMTF, and foreign MTFs). (ii) The referring USMTF is not orga- (l) Nonnaval care. Maternity, medical, nized nor authorized to provide the or dental care provided by other than needed health care. Navy MTFs. Includes care in other (3) Other uniformed services supple- USMTFs, designated USTFs, VA facili- mental care programs. In addition to ties, as well as from civilian sources. services that augment other USMTF’s (m) Office of Medical Affairs (OMA) or capabilities, supplemental care pro- Office of Dental Affairs (ODA). Des- grams of the other uniformed services
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include care and services comparable patient care under the provisions of to those authorized by this part, e.g., this part to members of the Depart- emergency care and pre-approved non- ment of National Defence of Canada re- emergency care. ceiving care in the United States. (q) Unauthorized absence. Absence or (d) Absent without authority. Naval departure without authority from a members absent without authority member’s command or assigned place during an entire episode of treatment of duty. are not eligible for non-Federal med- (r) Uniformed Services Medical Treat- ical, dental, or emergency maternity ment Facilities (USMTF). Health care fa- care at Government expense. The only cilities of the Navy, Army, Air Force, exception occurs when a member’s ill- Coast Guard, and the former U.S. Pub- ness or injury is determined to have lic Health Service facilities listed in been the direct cause of the unauthor- paragraph (d) of this section designated ized absentee status. In such an in- as USTFs per DOD and Department of Health and Human Services directives. stance, eligibility will be: (1) Determined to have existed from § 732.12 Eligibility. the day and hour of such injury or ill- (a) Regular members. To be eligible for ness provided the member was not in non-Federal medical, dental, or emer- an unauthorized absentee status prior gency maternity care at Government to the onset of the illness or injury and expense, Regular active duty United initiation of treatment. States naval members and Canadian (2) Retained when the member is re- Navy and Marine Corps members must turned directly to military control. be in a duty status when care is pro- (3) Terminated should the member vided. return to an unauthorized absentee (b) Reservists. (1) Reservists on active status immediately after completion of duty for training and inactive duty treatment. Departmental level training, including leave and liberty (MEDCOM–333 for medical and therefrom, are considered to be in a MEDCOM–06 for dental) review is re- duty status while participating in quired before benefits may be extended. training. Accordingly, they are enti- (e) Constructive return. When con- tled to care for illnesses and injuries structive return, defined in § 732.11(c), occurring while in that status. is effected, entitlement will be deter- (2) Reservists are entitled to care for mined to have existed from 0001 hours injuries and illnesses occurring during of the day of constructive return, not direct travel enroute to and from ac- necessarily the day and hour care was tive duty training (ACDUTRA) and to initiated. and from inactive duty training. (c) NATO naval members. Naval mem- § 732.13 Sources of care. bers of the NATO Status of Forces Agreement (SOFA) nations of Belgium, (a) Initial application. If a member re- Denmark, Federal Republic of Ger- quires maternity, medical, or dental many, France, Greece, Iceland, Italy, care and naval facilities are unavail- Luxembourg, the Netherlands, Norway, able, make initial application to other Portugal, Spain, Turkey, and the available Federal medical or dental fa- United Kingdom, are authorized out- cilities or USTFs. When members are patient care only under the provisions of stationed in or passing through a this part when stationed in or passing NATO SOFA nation and U.S. facilities through the United States in connec- are unavailable, ensure that members tion with official duties. Public Law make initial application for emergency 99–591 prohibits inpatient care of these and nonemergency care to military fa- foreign military members in the cilities of the host country, or if appli- United States at the expense of the cable, to civilian sources under the United States Government. The other NATO SOFA nation’s health care pro- NATO SOFA Nation, Canada, entered gram. When hospitalized in Hawaii, into a comparable care agreement with Alaska, or in a foreign medical facility, the United States requiring the United members and responsible commands States to provide inpatient and out- will comply with OPNAVINST 6320.6.
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(b) Secondary sources. When either (ii) Prosthetic treatment to restore emergency or nonemergency care is re- extensive loss of masticatory function quired and there are no Federal or or the replacement of anterior teeth NATO SOFA facilities available, care for esthetic reasons. may be obtained from non-Federal (iii) Repair of existing dental pros- sources under this part. theses when neglect of the repair would result in unserviceability of the appli- § 732.14 Authorized care. ance. (a) Medical. (1) Consultation and (iv) Any type of treatment adjunctive treatment provided by physicians or at to medical or surgical care. medical facilities, and procedures not (v) All x-rays, drugs, etc., required involving treatment when directed by for treatment or care in paragraphs COMNAVMEDCOM, are authorized. (c)(1) (i) through (iv) of this section. Such care includes, but is not limited (2) In emergencies (no prior ap- to: treatment by physicians, hospital proval), only measures appropriate to inpatient and outpatient care, surgery, relieve pain or abort infection are au- nursing, medicine, laboratory and x- thorized. ray services, physical therapy, eye ex- (d) Eye refractions and spectacles. In- aminations, etc. See § 732.17 for prior cludes refractions of eyes by physicians approval of these services in non- and optometrists and furnishing and emergency situations. repairing spectacles. (2) When transplant (including bone- (1) Refractions. A refraction may be marrow) is the treatment of choice, obtained from a civilian source at Gov- COMNAVMEDCOM approval is re- ernment expense only when Federal fa- quired. If time permits, telephone (A) cilities are not available, no suitable 294–1102, (C) (202) 653–1102 during reg- prescription is in the member’s Health ular hours or (A) 294–1327, (C) 653–1327 Record, and the cognizant OMA or re- after regular duty hours, and followup ferring USMTF has given prior ap- with a message. Request approval via proval. message in nonemergency situations. (2) Spectacles. When a member has no (b) Maternity episode. If a member au- suitable spectacles and the lack there- thorized care under this part qualifies of, combined with the delay in obtain- for care under the provisions of ing suitable ones from a Federal source § 732.17(c) and delivers in a civilian hos- would prevent performance of duty; re- pital, routine newborn care (i.e., nurs- pair, replacement, or procurement ery, newborn examination, PKU test, from a civilian source may be author- etc.) is a part of the mother’s admis- ized upon initiation of an after-the-fact sion expenses. Regardless of cir- request per § 732.17. Otherwise, the pre- cumstances necessitating delivery in a scription from the refractionist, with civilian facility or how charges are sep- proper facial measurements, must be arated on the bill, charges will be paid sent for fabrication to the appropriate from funds available for care of the dispensing activity set forth in mother. If the infant becomes a patient NAVMED COMINST 6810.1. See in his or her own right—through an ex- § 732.15(g) concerning contact lenses. tension of the birthing hospital stay § 732.15 Unauthorized care. because of complications, transfer to another facility, or subsequent admis- The following are not authorized by sion—the provisions of part 728 of this this part: chapter and NAVMEDCOMINST 6320.18 (a) Chiropractic services. are applicable, and the sponsor be- (b) Vasectomies. comes responsible for a part of the (c) Tubal ligations. medical expenses incurred. (d) Breast augmentations or reduc- (c) Dental. (1) With prior approval, tions. the following may be provided: (e) Psychiatric care, beyond the ini- (i) All types of treatment (including tial evaluation. operative, restorative, and oral sur- (f) Court ordered care. gical) to relieve pain and abort infec- (g) Contact lenses. tion. (h) Other elective procedures.
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§ 732.16 Emergency care requirements. after-the-fact approval per this para- Only in a bona fide emergency will graph. medical, maternity, or dental services (2) Submit requests on a NAVMED be obtained under this part by or on be- 6320/10. Statement of Civilian Medical/ half of eligible personnel without prior Dental Care, with blocks 1 through 7 authority as outlined below. and 19 through 25 completed. Assist- (a) Medical or dental care. A situation ance in completing the NAVMED 6320/ where the need or apparent need for 10 can be obtained from the health ben- medical or dental attention does not efits advisor (HBA) at the nearest permit obtaining approval in advance. USMTF. (b) Maternity care. When a condition (3) Upon receipt, the adjudication au- commences or exacerbates during preg- thority will review the request and, if nancy in a manner that a delay, caused necessary, forward it to the appro- by referral to a USMTF or USTF, priate chief of service with an expla- would jeopardize the welfare of the nation of non-Federal care regulations mother or unborn child, the following pertaining to the request. The chief of constitutes indications for admission service will respond to the request to or treatment at a non-Federal facil- within 24 hours. The adjudication au- ity: thority will then complete blocks 26 (1) Medical or surgical conditions and 27, and return the original of the which would constitute an emergency approved/disapproved NAVMED 6320/10 in the nonpregnant state. to the member. (2) Spontaneous abortion, with first trimester hemorrhage. (b) Blanket prior approval. (1) Recruit- (3) Premature or term labor with de- ing offices and other activities far re- livery. moved from USMTFs, uniformed serv- (4) Severe pre-eclampsia. ices dental treatment facilities (5) Hemorrhage, second and third tri- (USDTFs), designated USTFs, and VA mester. facilities may request blanket approval (6) Ectopic pregnancy with cardio- for civilian medical and dental care of vascular instability. assigned active duty personnel. Letter (7) Premature rupture of membrames requests should be submitted to the ad- with prolapse of the umbilical cord. judication authority (§ 732.20) assigned (8) Obstetric sepsis. responsibility for the geographic area (9) Any other obstetrical condition of the requestor. that, by definition, constitutes an (2) With full realization that such emergency circumstance. blanket approval is an authorization to obligate the Government without indi- § 732.17 Nonemergency care require- vidual prior approval, adjudication au- ments. thorities will ensure that: Members are cautioned not to obtain (i) Each blanket approval letter nonemergency care from civilian specifies a maximum dollar amount al- sources without prior approval from lowable in each instance of care. the cognizant adjudication authority (ii) The location of the activity re- in § 732.20. Obtaining nonemergency ceiving blanket approval authority is care, other than as specified herein, clearly delineated. without documented prior approval may result in denial by the Govern- (iii) Travel distance and time re- ment of responsibility for claims aris- quired to reach the nearest USMTF, ing from such care. USDTF, designated USTF, or VA facil- (a) Individual prior approval. (1) Sub- ity have been considered. mit requests for prior approval of non- (iv) Certain conditions are specifi- emergency care (medical, dental, or cally excluded, e.g., psychiatric care maternity) from non-Federal sources and elective surgical procedures. These to the adjudication authority (§ 732.20) conditions will continue to require in- serving the geographic area where care dividual prior approval. is to be obtained. When the require- (v) COMNAVMEDCOM (MEDCOM- ments of § 732.14(d)(2) are met and spec- 333) is made an information addressee tacles have been obtained, request on each letter of authorization.
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(c) Maternity care. (1) Pregnant active should be denied when members have duty members residing outside Mili- not attempted to adhere to the provi- tary Health Services System (MHSS) sions of this part. inpatent catchment areas of uniformed (4) Upon arrival at the designated services facilities (including USTFs), leave address, members should contact designated in Volumes I, II, and III of the MTF indicated on the statement MHSS Catchment Area Directories, are attached to their leave request. The permitted to choose whether to deliver MTF will make a determination wheth- in a closer civilian hospital or travel to er the member’s leave address falls a USMTF or USTF for delivery. If the within the inpatient catchment area of Government is to assume financial re- a USMTF or USTF with the capability sponsibility for non-Federal maternity of providing needed care. If no such care of any member regardless of where USMTF or USTF exists, the member she resides, the member must obtain will be given the opportunity to choose individual prior approval as outlined in to deliver in a civilian hospital closer paragraph (a) of this section. Adjudica- to her leave address or travel to the tion authorities should not approve re- most accessible USMTF or USTF with quests from members residing within capability for maternity care. an inpatient MHSS catchment area un- (5) Upon determination that civilian less: sources will be used for maternity care, (i) Capability does not (did not) exist the MTF listed on the attachment to at the USMTF or other Federal MTF the leave papers will inform the mem- serving her catchment area. ber that she (or someone acting in her (ii) An emergency situation neces- behalf) must notify that MTF of the sitated delivery or other treatment in member’s admission for delivery or a non-Federal facility (§ 732.16(b)). other inpatient care so that medical (2) Normal delivery at or near the ex- cognizance can be initiated. pected delivery date should not be con- (6) Automatically grant prior or ret- sidered an emergency for members re- roactive approval, as the situation war- siding within an MHSS inpatient rants, to members requiring maternity catchment area where delivery was ex- care while in a travel status in the exe- pected to occur and, unless provided for cution of permanent change of station in this part, will not be reason for de- (PCS) orders. livery in a civilian facility at Govern- (d) Nonemergency care without prior ment expense. approval. (1) If it becomes known that a (3) When granted leave that spans the member intends to seek medical or period of an imminent delivery, the dental care (inpatient or outpatient) pregnant member should request a from a non-Federal source and prior copy of her complete prenatal care approval has not been granted for the records from the prenatal care physi- use of the Nonnaval Medical and Den- cian. The physician should note in the tal Care Program, the member must be record whether the member is clear to counseled by, or in the presence of, a travel. If receiving prenatel care from Medical Department officer. Request a USMTF, the HBA will assist the that the member sign a statement on member in obtaining a statement bear- an SF 600, Chronological Record of ing the name of the MTF (may be an Medical Care, or an SF 603 or 603A, OMA) with administrative responsi- Health Record, Dental as appropriate, bility for the geographic area of her for inclusion in the member’s Health leave address, including the telephone Record. The statement must specify number of the head of the patient ad- that counseling has been accomplished, ministration department or HBA, if and that the member understands the available. If a member is receiving pre- significance of receiving unauthorized natal care from other than a USMTF, civilian care. This must be accom- she should avail herself of the services plished when either personal funds or of the nearest HBA to effect the third party payor (insurance) funds are aforestated services. This statement intended to be used to defray the cost should be attached to the approved of care. Counseling will include: leave request. In normal deliveries, re- (i) Availability of care from a Fed- quests for after-the-fact approval eral source.
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(ii) The requirement for prior ap- ber and, if appropriate, newborn in- proval if the Government may be ex- fant(s), to a Federal facility or for such pected to defray any of the cost of such other action as is appropriate. care. (i) Name, grade or rate, and social se- (iii) Information regarding possible curity number of patient. compromise of disability benefits (ii) Name of non-Federal medical or should a therapeutic misadventure dental facility rendering treatment. occur. (iii) Date(s) of such treatment. (iv) Notification that should hos- (iv) Nature and extent of treatment pitalization become necessary, or other or care already furnished. time is lost from the member’s place of (v) Need or apparent need for further duty, such lost time may be chargeable treatment (for maternity patients, as ‘‘ordinary leave.’’ need or apparent need for further care (v) Notification that the Government of infant(s) also). cannot be responsible for out-of-pocket (vi) Earliest date on which transfer expenses which may be required by the to a Federal facility can be effected. insurance carrier or when the member (vii) Telephone number of attending does not have insurance which covers physician and patient. the cost of contemplated care. (2) Should movement be delayed due (vi) Direction to report to a uni- to actions of the member or the mem- formed services medical officer (pref- ber’s family, payment may be denied erably Navy) upon completion of treat- for all care received after provision of ment for determination of member’s written notification by the adjudica- fitness for continued service. tion authority. (2) If it becomes known that a mem- (3) The denial is § 732.18(a)(2) will be ber has already received non-Federal for care received after the member’s medical care without prior authoriza- condition has stabilized and after the tion, refer the member to a uniformed cognizant adjudication authority has services medical officer (preferably made a request to the attending physi- Navy) to determine fitness for contin- cian and hospital administration for ued service. At this time, counseling the member’s release from the civilian measures delineated in paragraph facility. This notification must specify: (d)(1)(iii), (iv), and (v) of this section (i) Date and time the Navy will ter- must be taken. minate its responsibility for payment. (ii) That care rendered subsequent to § 732.18 Notification of illness or in- receipt of the written notification is at jury. the expense of the member. (a) Member’s responsibility. (1) If able, (b) Adjudication authority. As soon as members must notify or cause their it is ascertained that a member is parent command, the nearest naval ac- being treated in a nonnaval facility, tivity, or per OPNAVINST 6320.6, the adjudication authorities must make nearest U.S. Embassy or consulate the notifications required in when hospitalized in a foreign medical MILPERSMAN, article 4210100.11. See facility to be notified as soon as pos- part 728 of this chapter on message sible of the circumstances requiring drafting and information addressees. medical or dental attention in a non- (1) Article 4210100.11 of the Federal facility. The member will also MILPERSMAN requires submission of assure (request the facility to make no- a personnel casualty report, by priority tification if unable to do so personally) message, to the primary and secondary that the following information is next of kin (PNOK/SNOK) of Navy passed to the adjudication authority members seriously or very seriously ill serving the area of the source of care or injured, and on those terminally ill (§ 732.20). This notification is in addi- (diagnosed and confirmed). While sub- tion to the requirements of article mission of the personnel casualty re- 4210100 of the Military Personnel Com- port to the PNOK and SNOK is a re- mand Manual (MILPERSMAN) or Ma- sponsibility of the member’s command, rine Corps Order 6320.3B, as appro- adjudication authorities must advise priate. The adjudication authority will the member’s command when such a then arrange for transfer of the mem- member is being treated or diagnosed
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by non-Federal sources. The message block 10. If prior approval was not ob- will also request forwarding of the tained, state in block 11 circumstances member’s service and medical records necessitating use of non-Federal facili- to the personnel support detachment ties. (PSD) supporting the activity in which (iii) Signature by the member in the OMA is located. Additionally, the block 17 implies agreement for release notification should contain a request of information to the responsible adju- for appropriate orders, either tem- dication authority receiving the claim porary additional duty (TEMADD) or for processing. Signature by the certi- temporary duty (TEMPDU). fying officer in block 18 will be consid- (i) Request TEMADD orders if care is ered certification that documentation expected to terminate within the time has been entered in the member’s constraints imposed for these orders. Health Record as directed in article 16– (ii) Request TEMDU Under Treat- 24 of MANMED. ment orders for members hospitalized (2) Itemized bills. The original and in a NMTF within the adjudication three copies of itemized bills to show: authority’s area of responsibility. (i) Dates on or between which serv- (2) Make prompt message notifica- ices were rendered or supplies fur- tion to the member’s commanding offi- nished. cer when apprised of any medical con- (ii) Nature of and charges for each dition, including pregnancy, which will item. now or in the foreseeable future result (iii) Diagnosis. in loss of a member’s full duty services in excess of 72 hours. Mark the message (iv) Acknowledgment of receipt of ‘‘Commanding Officer’s Eyes Only.’’ the services or supplies on the face of the bill or by separate certificate. The § 732.19 Claims. acknowledgment must include the statement. ‘‘Services were received and (a) Member’s responsibility. Members were satisfactory.’’ receiving care are responsible for prep- aration and submission of claims to the (3) Claims for reimbursement. To effect cognizant adjudication authority iden- reimbursement, also submit the origi- tified in § 732.20. A complete claim in- nal and three copies of paid receipts cludes: and an SF 1164. Claim for Reimburse- (1) NAVMED 6320/10, Statement of Ci- ment for Expenditures on Official Busi- vilian Medical/Dental Care. In addition ness, completed per paragraphs 046377– to its use as an authorization docu- 2 a and b of the Naval Comptroller ment, the original and three copies of a Manual (NAVCOMPT MAN). NAVMED 6320/10 are required to adju- (4) Notice of eligibility (NOE) and line dicate claims in each instance of sick- of duty (LOD) determination. When a re- ness, injury, or maternity care when servist claims benefits for care re- treatment is received from a non-Fed- ceived totally after the completion of eral source under the provisions of this either an active duty or active duty for part. The form should be prepared by a training period, the claim should also naval medical or dental officer, when include: practicable, by the senior officer (i) An NOE issued per SECNAVINST present where a naval medical or den- 1770.3. tal officer is not on duty, or by the (ii) An LOD determination from the member receiving care when on de- member’s commanding officer. tached duty where a senior officer is (b) Adjudicating authority’s responsi- not present. bility. Reviewing and processing prop- (i) For nonemergency care with prior erly completed claims and forwarding approval, submit the NAVMED 6320/10 approved claims to the appropriate dis- containing the prior approval, after bursing office should be completed completing blocks 8 through 18. within 30 days of receipt. Advice may (ii) For emergency care (or non- be requested from COMNAVMEDCOM emergency care without prior ap- (MEDCOM–333 (A/V 294–1127)) for med- proval), submit a NAVMED 6320/10 ical or MEDCOM–06 (A/V 294–1250)) for after completing blocks 1 through 18. dental on unusual or questionable in- Assure that the diagnosis is listed in stances of care. Advise claimants of
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any delay experienced in processing approval and the appropriate avenues claims. of appeal as outlined in § 732.24. (1) Review. The receiving adjudication (3) Processing. Subpart C contains the authority will carefully review each chargeable accounting classifications claim submitted for payment or reim- and Standard Document Numbers bursement to verify whether: (SDN) to be cited on the NAVCOMPT (i) Claimant was entitled to benefits 2277, Voucher for Disbursement and/or (i.e., was on active duty, active duty Collection, on an SF 1164 submitted per for training, inactive duty training, paragraph (a)(3) of this section, and on was not an unauthorized absentee, supporting documents of approved etc.). As required by part 728 of this claims before submission to disbursing chapter, a Defense Enrollment Eligi- offices. bility Reporting System (DEERS) eli- (i) For payment to providers of care, gibility check must be performed on a NAV COMPT 2277 will be prepared claims to all claimants required to be and certified approved for payment by enrolled in DEERS. the adjudicating authority. This form (ii) Care rendered was due to a bona must accompany the NAVMED 6320/10 fide emergency. (NOTE: When questions and supporting documentation per arise as to the emergency nature of paragraph 046393–1 of the care, forward the claim and all sup- NAVCOMPTMAN. porting documentation to the appro- (ii) Where reimbursement is re- priate clinical specialist at the nearest quested, the SF 1164 submitted per naval hospital for review.) § 732.19(a)(3) will be completed, per (iii) Prior approval was granted if a paragraph 046377 of the bona fide emergency did not exist. NAVCOMPTMAN, and certified ap- (NOTE: If prior approval was not ob- proved for payment by the adjudicating tained and the condition treated is de- authority. This form must accompany termined to have been nonemergent, the NAVMED 6320/10 and supporting the claim may be denied.) Consider- documentation. ation should always be given to cases (c) Amount payable. Amounts payable that would have received prior ap- are those considered reasonable after proval but, due to lack of knowledge of taking into consideration all facts. the program, the member did not sub- Normally, payment should be approved mit a request. at rates generally prevailing within the (iv) Care rendered was authorized geographic area where services or sup- under the provisions of this part. plies were furnished. Although rates (v) Care rendered was appropriate for specially established by the Veterans the specific condition treated. (NOTE: Administration, CHAMPUS, or those When questions arise regarding appro- used in Medicare are not controlling, priateness of care, forward all docu- they should be considered along with mentation to a clinical specialist at other facts. the nearest naval hospital for review. If (1) Excessive charges. If any charge is care is determined to have been inap- excessive, the adjudication authority propriate, the claim may be denied to will advise the provider of care of the the extent the member was negligent.) conclusion reached and afford the pro- (vi) Claimed benefits did not result vider an opportunity to voluntarily re- from a referral by a USMTF. If the duce the amount of the claim. If this member was an inpatient or an out- does not result in a proper reduction patient in a USMTF immediately prior and the claim is that of a physician or to being referred to a civilian source of dentist, refer the difference in opinions care, the civilian care is supplemental to the grievance committee of the pro- and may be the responsibility of the re- vider’s professional group for an opin- ferring USMTF. See § 732.11(p) for the ion of the reasonableness of the charge. definition of supplemental care. If satisfactory settlement of any claim (2) Dispproval. If a determination is cannot thus be made, forward all docu- made to disapprove a claim, provide mentation to COMNAVMEDCOM the member (and provider of care, when (MEDCOM–333) for decision. Charges applicable) a prompt and courteous let- determined to be above the allowed ter stating the reason for the dis- amount or charges for unauthorized
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services are the responsibility of the Command, Northeast Region, Office of service member. Dental Affairs, Great Lakes, IL 60088, (2) Third party payment. Do not with- Tele: (A/V) 792–3940 or (C) (312) 688–3940. hold payment while seeking funds from (ii) Responsibility for medical mat- health benefit plans or from insurance ters for States in the Northeast Region policies for which premiums are paid is vested in: Commander, Naval Med- privately by service members (see ical Command, Northeast Region, Of- § 732.22 for possible recovery of pay- fice of Medical Affairs, Great Lakes, IL ments action). 60088, Tele: (A/V) 792–3950 or (C) (312) (3) No-fault insurance. In States with 688–3950. no-fault automobile insurance require- (2) National Capital Region. For the ments, adjudication authorities will States of Maryland and West Virginia; notify the insurance carrier identified in item 16 of the NAVMED 6320/10 that the Virginia counties of Arlington, Federal payment of the benefits in this Fairfax, Loudoun, and Prince William; part is secondary to any no-fault insur- the Virginia cities of Alexandria, Falls ance coverage available to the poten- Church, and Fairfax; and the District tially covered member. of Columbia, responsibility for medical (d) Duplicate payments. Adjudication and dental matters is vested in: Com- authorities and disbursing activities mander, Naval Medical Command, Na- should take precautions against dupli- tional Capital Region, Office of Medical cate payments per paragraph 046073 of Affairs, Bethesda, MD 20814, Tele: (A/V) the NAVCOMPTMAN. 295–5322 or (C) (301) 295–5322. (3) Mid-Atlantic Region. For the § 732.20 Adjudication authorities. States of North Carolina, South Caro- (a) General. Controlling activities for lina, and all areas of Virginia south medical care in the United States are and west of Prince William and designated as ‘‘offices of medical af- Loudoun counties, responsibility for fairs’’ (OMA) and for dental care, ‘‘of- medical and dental matters is vested fices of dental affairs’’ (ODA). in: Commander, Naval Medical Com- NAVMEDCOMINST 6010.3 delineates mand, Mid-Atlantic Region, 6500 Hamp- responsibilities and functional tasks of ton Boulevard, Norfolk, VA 23502, Attn: OMAs and ODAs, including monthly re- Office of Medical/Dental Affairs, Tele: porting of receipt of claims and claims (A/V) 565–1074/1075 or (C) (804) 445–1074 payment. Commanders of geographic or 1075. naval medical commands must commu- (4) Southeast Region. For the States of nicate with all activities in their re- Alabama, Arkansas, Florida, Georgia, gions to ensure that messages and med- Louisiana, Mississippi, Oklahoma, Ten- ical cognizance reports are properly nessee, and Texas, medical and dental furnished per higher authority direc- responsibilities are vested in: Com- tives. manding Officer, Naval Medical Clinic, (b) Within the United States (less Ha- Code O1A, New Orleans, LA 70146, Tele: waii). For the 48 contiguous United States, the District of Columbia, and (A/V) 485–2406/7/8 or (C) (504) 361–2406 Alaska, the following six regions are 2407 or 2408. responsible for care rendered or to be (5) Southwest Region. For the States rendered within their areas of responsi- of Arizona and New Mexico; the coun- bility. ties of Kern, San Bernadino, San Luis (1) Northeast Region. The States of Obispo, Santa Barbara, and all other Connecticut, Delaware, Illinois, Indi- California counties south thereof; the ana, Iowa, Kentucky, Maine, Massa- community of Bridgeport, California chusetts, Michigan, Minnesota, Mis- (Marine Corps cold-weather training souri, New Hampshire, New Jersey, site); and Nevada, except for NAS New York, Ohio, Pennsylvania, Rhode Fallon and its immediate area; medical Island, Vermont, and Wisconsin are and dental responsibilities are vested served by 1 ODA and 1 OMA: in: Commander, Naval Medical Com- (i) Responsibility for dental matters mand, Southwest Region, Office of for States in the Northeast Region is Medical Affairs, San Diego, CA 92134– vested in: Commander, Naval Medical 7000, Tele: (A/V) 987–2611 or (C) 233–2611.
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(6) Northwest Region. The States of Naval Hospital, Yokosuka, Japan), for Alaska, Colorado, Idaho, Kansas, Mon- care rendered in Japan, Korea, and tana, Nebraska, North Dakota, Oregon, Okinawa. South Dakota, Utah, Washington, and (4) Commanding Officer, U.S. Naval Wyoming; the counties of Inyo, Kings, Hospital, FPO San Francisco 96630–1600 Tulare, and all other counties of Cali- (U.S. Naval Hospital, Guam, Mariana fornia north thereof; and NAS Fallon, Islands), for care rendered in New Zea- Nevada and its immediate area are land and Guam. served by 2 OMAs and 1 ODA: (5) Commanding Officer, U.S. Naval (i) Responsibility for dental matters Communications Station, FPO San for the area of responsibility of the Francisco 96680–1800 (U.S. Naval Com- Northwest Region is vested in: Com- munications Station, Harold E. Holt, mander, Naval Medical Command, Exmouth, Western Australia), for care Northwest Region, Office of Dental Af- rendered in Australia. fairs, Oakland, CA 94267–5025, Tele: (A/ (6) Commanding Officer, U.S. Naval V) 855–6200 or (C) (415) 633–6200. Air Station, FPO New York 09560 (U.S. (ii) Responsibility for medical mat- Naval Air Station, Bermuda), for care ters for the States of Colorado, Kansas, rendered in Bermuda. and Utah; the California counties of (7) Commanding Officer, U.S. Naval Inyo, Kings, Tulare, and all other coun- Hospital, FPO Miami 34051 (U.S. Naval ties of California north thereof; and Hospital, Roosevelt Roads, Puerto NAS Fallon, Nevada and its immediate Rico), for maternity and medical care, area is vested in: Commander, Naval Medical Command, Northwest Region, and Commanding Officer, U.S. Naval Oakland, CA 94627–5025, Attn: Office of Dental Clinic, FPO Miami 34051 (U.S. Medical Affairs, Tele: (A/V) 855–5705 or Naval Dental Clinic, Roosevelt Roads, (C) (415) 633–5705. PR), for dental care rendered in Puerto (iii) Responsibility for medical mat- Rico, the Virgin Islands, and other Car- ters for the States of Alaska, Idaho, ibbean Islands. Montana, Nebraska, North Dakota, Or- (8) Commanding Officer, Naval Med- egon, South Dakota, Washington, and ical Clinic, Box 121, Pearl Harbor, HI Wyoming is vested in: Commanding Of- 96860, for maternity and medical care, ficer, Naval Medical Clinic, Naval Sta- and Commanding Officer, Naval Dental tion, Seattle, WA 98115, Attn: Office of Clinic, Box 111, Pearl Harbor, HI 96860, Medical Affairs, Tele: (A/V) 941–3823 or for dental care rendered in the State of (C) (206) 526–3823. Hawaii, Midway Island, and the Central (c) Outside the United States (plus Ha- Pacific basin. waii). For all areas outside the United (9) The OMA for either the Southeast States plus Hawaii, the following ac- Region or the Southwest Region for tivities are vested with responsibility care rendered in Mexico to members for approval or disapproval of requests stationed within the respective areas of and claims for maternity, medical, and responsibility of these OMAs. Forward dental care: claims for care rendered in Mexico to (1) Executive Director, all other personnel to Commander, OCHAMPUSEUR, U.S. Army Medical Naval Medical Command, Washington, Command, APO New York 09102, for DC 20372–5120 (MEDCOM–333). care rendered within the U.S. European (10) Commander, Naval Medical Com- Command, Africa, the Malagasy Repub- mand, Washington, DC 20372–5120 lic, and the Middle East. (MEDCOM–333) for inpatient and out- (2) Commanding Officer, U.S. Naval patient emergency and nonemergency Hospital, FPO San Francisco 96652–1600 care of active duty Navy and Marine (U.S. Naval Hospital, Subic Bay, Corps members in Canada and under Luzon, Republic of the Philippines), for the circumstances outlined in para- care rendered in Afghanistan, Ban- graph (d) of this section. gladesh, Hong Kong, India, Nepal Paki- (11) Outside the 50 United States, stan, the Philippines, Southeast Asia, commanding officers of operational Sri Lanka and Taiwan. units may either approve claims and (3) Commanding Officer, U.S. Naval direct payment by the disbursing offi- Hospital, FPO Seattle 98765–1600 (U.S. cer serving the command or forward
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claims to the appropriate naval med- Standards Notes, available from ical command in paragraphs (b)(1) COMNAVMEDCOM (MEDCOM–25), pro- through (c)(9) of this section. This is a vide guidance. local policy decision to enhance the (a) Chronic conditions requiring a maintenance of good public relations. medical board include (but are not lim- (12) The appropriate command in ited to): paragraphs (b)(1) through (c)(9) of this (1) Arthritis, section for care rendered aboard com- (2) Asthma, mercial vessels en route to a location (3) Diabetes, within the geographic areas listed. (4) Gout, (13) The commanding officer author- (5) Heart disease, izing care in geographical areas not (6) Hypertension, specifically delineated elsewhere in this section. (7) Peptic ulcer disease, (d) The Commander, Naval Medical (8) Psychiatric conditions, and Command (MEDCOM–333), Navy Depart- (9) Allergic conditions requiring de- ment, Washington, DC 20372–5120. Under sensitization. the following circumstances, responsi- (b) Other potentially disabling or bility is vested in COMNAVMEDCOM chronic conditions may be referred to a for adjudication of claims: medical board by the adjudication au- (1) For reservists who receive treat- thority with the concurrence of an ap- ment after completion of their active propriate naval clinical specialist and duty or inactive duty training as pre- the commander of the regional medical scribed in § 732.12(b). command. (2) For care rendered in Mexico to personnel stationed outside the areas § 732.22 Recovery of medical care pay- of responsibility of the Southeast and ments. Southwest Regions. Adjudication authorities must sub- (3) For care rendered to members sta- mit evidence of payment to the action tioned in or passing through countries JAG designee per chapter 24 of the in Central and South America. Manual of the Judge Advocate General (4) For outpatient care rendered (JAGMAN), in each instance of pay- NATO active duty members. ment where a third party may be le- (5) When Departmental level review gally liable for causing the injury or is required prior to approval, adjudica- disease treated, or when a Government tion, or payment. These claims: claim is possible under workers com- (i) Will be considered on appeal. pensation, no-fault insurance, or under (ii) Must be forwarded by the member medical payments insurance (all auto- through the adjudication authority mobile accident cases). chain of command (In instances of un- (a) To assist in identifying possible usual or controversial denial of claims, third party liability cases, item 16 of the adjudication authority may for- each NAVMED 6320/10 must be com- ward claims to COMNAVMEDCOM on pleted whenever benefits are received appeal, via the chain of command, with in connection with a vehicle accident. notification to the member.). Adjudication authorities should return (6) For all inpatient and outpatient for completion, as applicable, any care of active duty Navy and Marine claim received without item 16 com- Corps members stationed in the United pleted. States who receive care in Canada. (b) The front of a NAVJAG Form 5890/12 (Hospital and Medical Care, 3rd § 732.21 Medical board. Party Liability Case) must be com- When adjudication authorities un- pleted and submitted by adjudication cover conditions which may be chronic authorities with evidence of payment. or otherwise potentially disabling, Block 4 of this form requires an ap- they should make a determination pended statement of the patient or an (with help from appropriate clinical accident report, if available. To ensure specialists) as to the need for a medical that Privacy Act procedures are ac- board. Chapter 18 of MANMED and complished and documented, the per- Medical Disposition and Physical son securing such a statement from a
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recipient of care must show the recipi- § 732.24 Appeal procedures. ent the Privacy Act statement printed When a claim for care or a request at the bottom of the form prior to se- for prior approval for nonemergency curing such a statement. The member care is initially denied by an adjudica- should be asked to sign his or her name tion authority, the member may appeal beneath the statement. the denial as outlined below. Any level (c) For care rendered in States with in the appeal process may over-rule the no-fault insurance laws, comply with previous decision and order payment of procedures outlined in § 732.19(c)(3). the claim in whole or in part or grant § 732.23 Collection for subsistence. the request for prior approval of care. (a) Level I—Reconsideration by the The Navy Pay and Personnel Proce- adjudication authority making the ini- dures Manual provides guidance re- tial denial. The member should submit garding pay account checkage proce- any additional information that may dures to liquidate subsistence charges mitigate the initial denial. incurred by members entitled to care under the provisions of this part. Such (b) Level II—Consideration by the members must also be entitled to basic commander of the regional medical allowance for subsistence (BAS) while command having cognizance over the hospitalized at Government expense. adjudication authority which upheld The responsible activity (the adjudica- the initial denial on reconsideration. tion authority or the naval MTF to (c) Level III—Consideration by which such a member is transferred) COMNAVMEDCOM (MEDCOM–333). should follow procedures outlined in the Navy Pay and Personnel Proce- Subpart C—Accounting Classi- dures Manual when an eligible officer fications for Nonnaval Med- or enlisted member of the naval service ical and Dental Care Ex- is subsisted at Department of the Navy penses and Standard Docu- expense while hospitalized in a ment Numbers nonnaval treatment facility. Subpart C contains the creditable accounting § 732.25 Accounting classifications for classification for inpatient subsistence nonnaval medical and dental care collections. expenses.
Sub- OBJ.** Approp. Head Class BCN SA AAA TT PAA Cost Code Purpose
17*1804 188M 000 00018 M 000179 2D MDQ000 990010000MDQ Outpatient Care Serv- ice Ex- penses.12 17*1804 188M 000 00018 M 000179 2D MDT000 990010000MDT Outpatient Care Supply Ex- penses.13 17*1804 188M 000 00018 M 000179 2D MDE000 990010000MDE Ambulance Expenses.1 17*1804 188M 000 00018 M 000179 2D MDQI00 990020000MDQ Inpatient Care Service Ex- pense.12 17*1804 188M 000 00018 M 000179 2D MDTI00 990020000MDT Inpatient Care Supply Ex- penses.13 17*1804 188M 006 00018 M 000179 3C MDZI00 990020000MDZ Inpatient Sub- sistence Collec- tions.1 Notes: *For the third digit of the appropriation, enter the last digit of the fiscal year current at the time claim is ap- proved for payment. **Refer to NAVCOMPT Manual par. 027003 for appropriate Expenditure Category Codes when disburse- ment or collection involves a foreign or U.S. Contractor abroad.
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1 Not applicable when care is procured from non-DOD sources for a patient receiving either inpatient or out- patient care at a naval medical facility. In such instances, the expenses incurred are payable from operations and maintenance funds available for support of the naval medical facility. 2 Service expenses include: hospital, emergency room clinic, office fees; physician and dentist professional fees; laboratory, radiology, operating room, anesthesia, physical therapy, and other services provided. 3 Supply expenses include: medications and pharmacy charges; IV solutions; whole blood and blood prod- ucts; bandages; crutches; prosthetic devices; needles and syringes; and other supplies provided.
§ 732.26 Standard document numbers. 2277 (Voucher for Disbursement and/or Collection), NAVCOMPT 1164 (Claim Adjudication authorities will assign for Reimbursement for Expenditures on to each claim approved for payment, a Official Business) and on all other doc- unique 15 position alpha/numeric umentation accompanying claims. standard document number (SDN). Compose SNDs per the following exam- Prominently display this number on ple: N0016887MD00001 or the NAVMED 6320/10, the NAVCOMPT N0016887RV00001.
1 2 thru 6 7 & 8 9 & 10 11 thru 15 Position Entry MD or N 00168 87 RV 00001
Position Data entry
1 ...... ``N'' identifies Navy. 2 thru 6 ...... Unit Identification Code of document issuing activity. 7 and 8 ...... Last two digits of the fiscal year in which the claim is approved for payment. 9 and 10, ...... For NAVCOMPT 2277s, ``MD'' identifies the document as Miscellaneous Finan- cial Document. or, 9 and 10 ...... For SF 1164s, ``RV'' identifies the document as a Reimbursement Voucher. 11 thru 15 ...... Consecutively assigned five digit serial number beginning with ``00001'' each fis- cal year. Each subsequent claim will then be serially numbered ``00002'', ``00003'', etc.
PART 733—ASSISTANCE TO AND titled to basic pay is entitled to a basic SUPPORT OF DEPENDENTS; PA- allowance for quarters at the monthly TERNITY COMPLAINTS rates according to the pay grade to which he or she is assigned, in accord- ance with 37 U.S.C. 403. Sec. 733.1 Rates of basic allowance for quarters. (b) The term ‘‘dependent’’ with re- 733.2 Delegations. spect to a member of the naval service, 733.3 Information and policy on support of as used in this part, means: dependents. (1) His or her spouse; 733.4 Complaints of nonsupport and insuffi- (2) His or her unmarried child (in- cient support of dependents. cluding any of the following categories 733.5 Determination of paternity and sup- of children if such child is in fact de- port of illegitimate children. pendent on the member: A stepchild; AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031; 37 an adopted child; or an illegitimate U.S.C. 101, 401, 403; 50 U.S.C. App. 2210; E.O. child whose alleged member-parent has 11157, 29 FR 7973, 3 CFR 1964 Supp. p. 139, as been judicially decreed to be the parent amended. of the child or judicially ordered to SOURCE: 44 FR 42190, July 19, 1979, unless contribute to the child’s support, or otherwise noted. whose parentage has been admitted in writing by the member) who either: § 733.1 Rates of basic allowance for (i) Is under 21 years of age; or quarters. (ii) Is incapable of self-support be- (a) Except as otherwise provided by cause of a mental or physical inca- law, a member of the naval service en- pacity, and in fact dependent on the
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member for over one-half of his or her § 733.3 Information and policy on sup- support; and port of dependents. (3) His or her parent (including a (a) Policy—(1) General. The naval stepparent or parent by adoption, and service will not be a haven or refuge for any person, including a former step- personnel who disregard or evade their parent, who has stood in loco parentis obligations to their families. All mem- to the member at any time for a con- bers of the naval service are expected tinuous period of at least 5 years before to conduct their personal affairs satis- he or she became 21 years of age) who factorily. This includes the require- is in fact dependent on the member for ment that they provide adequate and over one-half of his or her support; continuous support for their lawful de- however, the dependency of such a par- pendents and comply with the terms of ent is determined on the basis of an af- separation agreements and court or- fidavit submitted by the parent and ders. Failure to do so which tends to any other evidence required under reg- bring discredit on the naval service is a ulations prescribed by the Secretary of proper subject of command consider- the Navy, and he or she is not consid- ation for initiation of court-martial ered a dependent of the member claim- proceedings or other administrative or ing the dependency unless: disciplinary action. (i) The member has provided over (2) Adequacy of support. Every mem- one-half of his or her support for the ber has an inherent natural and moral period prescribed by the Secretary; or obligation to support his or her spouse (ii) Due to changed circumstances and family. What is adequate and rea- arising after the member enters on ac- sonably sufficient support is a highly tive duty, the parent becomes in fact complex and individual matter depend- dependent on the member for over one- ent on numerous factors, and may be half of is or her support. resolved permanently only in the civil The relationship between a stepparent courts. Salient factors that should be and his or her stepchild is terminated considered are the pay of the member, by the stepparent’s divorce from the any other private income or resources parent by blood. of the member and the dependents, the cost of necessities and every day living § 733.2 Delegations. expenses and financial obligations of The Director, Navy Family Allow- the dependents, and the expenses and ance Activity, Anthony J. Celebrezze other financial obligations of the mem- Federal Building, Cleveland, OH 44199, ber in relation to his or her income. with respect to personnel of the Navy, The Department of the Navy does not and the Head, Personal Affairs Branch, and cannot act as a court in these mat- Manpower Department, Headquarters ters. It is desired that the amount of United States Marine Corps, Wash- support to be provided for dependents ington, DC 20380, with respect to per- either be established by mutual under- sonnel of the Marine Corps, have been standing between the parties concerned granted the authority by the Secretary or adjudicated in the civil courts. The of the Navy to make determinations support scales set forth below are not including determinations of depend- intended as a fixed rule. They are in- ency and relationship when required by tended as guidelines and the actual legislation or policy for eligibility for support may be increased or decreased basic allowance for quarters, transpor- as the facts and circumstances warrant tation and medical care in behalf of de- until the amount of support to be fur- pendents of Navy and Marine personnel nished is settled by agreement of the and to administer matters involving parties or adjudicated by the civil adequacy of support for dependents and courts. Because of the inherent arbi- waivers of support of a spouse, and on trary and temporary nature of the sup- the basis of new evidence or for other port scales set forth below, it is not in- good cause to reconsider or modify any tended that they be used as bases for such determination. any judicial proceedings, for to do so
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would lend excessive credence to ad- prima facie, the appropriate conclusion ministrative tools which have been de- of the Marine Corps, pending civil signed for use only within the Navy court or extrajudicial resolution and the Marine Corps. among the involved parties. (i) Number of dependents and amount (3) Support of a lawful wife. The laws of support to be provided in the ab- of jurisdictions in the United States sence of a mutual agreement or court impose a legal obligation upon a hus- order: band to support his wife. Exemptions (A) Navy members: from support of a lawful wife may be in Support to be the form of an order of a civil court of Relationship and number of dependents provided competent jurisdiction, relinquishment (gross pay) by the wife or mutual agreement of the
Spouse only ...... 1¤3 parties, or a waiver of the naval sup- Spouse and one minor child ...... 1¤2 port requirement granted by the Direc- 3 Spouse and two or more children ...... ¤5 tor, Navy Family Allowance Activity One minor child ...... 1¤6 Two minor children ...... 1¤4 or the Commandant of the Marine Three minor children ...... 1¤3 Corps, as appropriate. (4) Payments of alimony. Dependents For purposes of this support guide, for whom basic allowance for quarters gross pay will include basic pay and or other allowances are payable are de- basic allowance for quarters, but does fined by law. For purposes of qualifying not include hazardous duty pay, sea or for basic allowance for quarters, med- foreign duty pay, incentive pay, or ical care or other benefits, a former basic allowance for subsistence. spouse is not a dependent even though (B) Marine Corps members. If the ques- alimony has been decreed. Members are tion of support is in dispute, the fol- expected to comply with the terms of lowing will be used as a guide for sup- court orders or divorce decrees which port: adjudge payments of alimony even For spouse only—BAQ plus 20% of basic pay. though basic allowance for quarters is For spouse and one minor child—BAQ plus not payable. 25% of basic pay. (5) Support of children. The duty of a For spouse and two or more minor children— member to support his or her minor BAQ plus 30% of basic pay. children is not affected by desertion or For one child—1⁄6 of basic pay. For two minor children—1⁄4 of basic pay. other misconduct on the part of the For three or more minor children—1⁄3 of basic spouse. The obligation to support a pay. child or children is not affected by dis- (1) The amount of support to a de- solution of the marriage through di- pendent for whom basic allowance for vorce, unless the judicial decree or quarters is claimed should not be less order specifically negates the obliga- than the applicable rate of basic allow- tions of the member to support a child ance for quarters to which the member or children of the marriage. The fact is entitled. that a divorce decree is silent relative (2) A Marine’s obligation to provide to support of minor children or does for the support of children by a former not mention a child or children will marriage has as high a priority as an not be considered as relieving the serv- obligation to provide for a present wife ice member of the inherent obligation and family. In those cases of a legiti- to provide support for the child or chil- mate financial inability to provide sup- dren of the marriage. In many cases, port for all dependents, commanders the courts may not be cognizant of the shall attempt to assist the Marine in existence of a child or children, or may the equitable distribution of income not have jurisdiction over the child or for the assistance of all dependents, children. A commanding officer has utilizing the guidelines set forth above. discretion to withhold action for al- (3) It is to be emphasized that the leged failure to support a child under guidelines set forth are to be used only the following conditions: as an interim measure, and that the (i) Where the member cannot ascer- commander’s decision as to the quan- tain the whereabouts and welfare of tum of support to be provided will be, the child concerned.
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(ii) Where it is apparent that the per- of the Court of Claims or Comptroller son requesting support for a child does General will be followed in determina- not have physical custody of the child. tions of dependency. (iii) Where the member has been granted custody of the child by court § 733.4 Complaints of nonsupport and order but does not have physical con- insufficient support of dependents. trol of the child and the member is (a) Upon receipt of a complaint alleg- ready, willing, and able to care for and ing that a member is not adequately support the child if physical control is supporting his or her lawful dependents obtained. (spouse or children), the member will (6) Adopted children. The natural par- be interviewed and informed of the pol- ents of an adopted child are relieved of icy of the Department of the Navy con- the obligation to support the child as cerning support of dependents. In the such duty is imposed on the adoptive absence of a determination by a civil parents. A Navy or Marine Corps mem- court or a mutual agreement of the ber who contemplates the adoption of a parties, the applicable guide in § 733.3 child should be aware of the legal obli- will apply. The member will be in- gation to provide continuous support formed that his/her Navy or Marine for such child during minority. Corps career may be in jeopardy if he/ (7) Entitlement to basic allowance for she does not take satisfactory action. quarters. Entitlement of members to The member may become ineligible to basic allowance for quarters on behalf reenlist or extend enlistment (in the of dependents is provided by statute. case of enlisted members), and may be No member should be denied the right subject to administrative or discipli- to submit a claim or application for nary action that may result in separa- basic allowance for quarters, nor tion from the Navy or Marine Corps. should any command refuse or fail to (1) Waiver of support of spouse. If the forward any such claim or application. member feels that he or she has legiti- In cases involving parents, the member mate grounds for a waiver of support should furnish an estimate of the de- for the spouse, the Director, Navy pendency situation to the best of his or Family Allowance Activity, acting her knowledge. Commanding officers under the policy guidance of the Chief should not contact parents for depend- of Naval Personnel or the Commandant ency information to include in the of the Marine Corps (Code MSPA), may member’s application. This delays the grant such a waiver for support of a application and serves no useful pur- spouse (but not children) on the basis pose, as such cases are thoroughly in- of evidence of desertion without cause vestigated by the Navy Family Allow- or infidelity on the part of the spouse. ance Activity or Headquarters Marine The evidence may consist of— Corps, which obtains necessary depend- (i) An affidavit of the service mem- ency affidavits directly from the par- ber, relative, disinterested person, pub- ents. Any person, including a service lic official, or law enforcement officer. member or dependent who obtains an However, affidavits of the service mem- allowance by fraudulent means is sub- ber and relatives should be supported ject to criminal prosecution. by other corroborative evidence. All af- (8) Application of the rule based on fidavits must be based upon the per- Robey v. United States 71 Ct. Cl. 561. De- sonal knowledge of the facts set forth; terminations that no dependency exists statements of heresay, opinion, and may be made in disputed cases—if a conclusion are not acceptable as evi- member does not contribute to the sup- dence. port of spouse and child at least to the (ii) Written admissions by the spouse extent of: contained in letters written by that (i) The full amount of his/her basic spouse to the service member or other allowance for quarters, or persons. (ii) An amount specified in a court The request for waiver of support of a order or legal separation agreement, or spouse should be submitted to the Di- (iii) An amount agreed to by the par- rector, Navy Family Allowance Activ- ties as acceptable, adequate support, ity or the Commandant of the Marine whichever is lesser. Pertinent decisions Corps (Code MSPA) with a complete
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statement of the facts and substan- that the member may have. If the tiating evidence, and comments or rec- court order or decree specifies an ommendations of the commanding offi- amount of support to be provided the cer. member will be expected to comply (2) Action. After a written complaint with the terms of such decree or order. that a member has failed or refused to If no amount is specified, support furnish support for his or her spouse or should be rendered in accordance with children has been received, and the such reasonable agreement as may be member has been counseled with re- made with the mother or legal guard- gard to his/her rights and obligations ian of the child or, in the absence of in the support matter, continued fail- ure or refusal, without justification, to such agreement, in accordance with furnish support for dependents in ac- the applicable guide set forth above. cordance with the provisions of a valid However, no basic allowance for quar- court order, written agreement, or, in ters will be included in using the guide the absence of a court order or agree- unless basic allowance for quarters is ment, the appropriate support guide payable in behalf of illegitimate chil- set forth above, will be a basis for con- dren. If the member refuses to comply sideration of disciplinary or adminis- with the terms of the court order, ad- trative action which may result in the ministrative action will be taken as in- member’s separation from active serv- dicated in § 733.4. ice. (1) Court of competent jurisdiction. A (b) [Reserved] court of competent jurisdiction is gen- erally a court that has jurisdiction § 733.5 Determination of paternity and support of illegitimate children. over the subject matter and the parties involved. As a general rule, the com- (a) Illegitimate children. If the service petency of the court to render the judi- member desires marriage, leave for cial order or decree may be tested by this purpose is recommended whenever the enforceability of the order or de- consistent with the needs or exigencies cree. Normally, although not always, of the service. When the blood parents of an illegitimate child marry, the personal service of the court’s process child is considered to be legitimized by on the member is considered essential. the marriage unless a court finds the With respect to a foreign judicial order child to be illegitimate. or decree, the general rule is that (b) Judicial order or decree of paternity where the defendant was a citizen or or support. Normally any order or de- subject of the foreign country in which cree which specifies the obligation to the order or decree was issued, the render support of illegitimate children court may have acquired jurisdiction will include within it a determination over the member by any mode of serv- of paternity of such children; however, ice or notice recognized as sufficient by some jurisdictions provide for deter- the laws of that country. It should be minations of the legal obligation to noted, however, that an order or decree support illegitimate children without a against a citizen or permanent resident determination of paternity. Either of another country, without personal type of order or decree falls within the service or personal notice of the action scope of this paragraph. If a judicial to him or her, is null and void unless order or decree of paternity or support the member voluntarily submitted to is rendered by a United States or for- the jurisdiction by appearing and con- eign court of competent jurisdiction testing the action. In the event there is against a member of the Navy or Ma- doubt as to the competency of the rine Corps on active duty, the member court to enter the order or decree, the concerned will be informed of his moral question shall be referred to the Judge and legal obligations as well as his legal rights in the matter. The member Advocate General. will be advised that he is expected to (2) [Reserved] render financial assistance to the child (c) Nonjudicial determination. In the regardless of any doubts of paternity absence of an adjudication of paternity
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or of a court-ordered obligation to fur- In cases where the complaint, along nish support, the member shall be pri- with the corroboration of a physician’s vately consulted and asked, where ap- affidavit, alleges and explains an un- propriate, whether he or she admits ei- usual medical situation which makes it ther paternity of, or the legal obliga- essential to obtain information from tion to support, the child or expected the alleged father in order to protect child. If the answer is affirmative, the the physical health of either the pro- member shall be informed that he or spective mother or the unborn child, she is expected to furnish support as the last-known address of the former set forth in paragraph (b) of this sec- member shall likewise be furnished to tion. Where paternity or the legal obli- the claimant. gation to support is admitted by a male member, such member should be PART 734—GARNISHMENT OF PAY informed of his moral obligation to as- sist in the payment of prenatal ex- OF NAVAL MILITARY AND CIVIL- penses. IAN PERSONNEL FOR COLLEC- (d) Members not on active duty. Allega- TION OF CHILD SUPPORT AND tions of paternity against members of ALIMONY the naval service who are not on active duty will be forwarded to the indi- Sec. vidual concerned in such a manner as 734.1 Purpose. to insure that the charges are delivered 734.2 Scope. to the addressee only. The correspond- 734.3 Service of process. ence should be forwarded via the com- 734.4 Responsibilities. mandant of the naval district in which 734.5 Administrative procedures. the member resides. AUTHORITY: 42 U.S.C. 659 (Social Security (e) Former members. (1) If a certified Act, sec. 459 added by Pub. L. 93–647, part B, copy of a judicial order or decree of pa- sec. 101(a), 88 Stat. 2357, as amended by the ternity or support duly rendered by a Tax Reform and Simplification Act of 1977, United States or foreign court of com- Pub. L. 95–30, title V, sec. 502, 91 Stat. 157).
petent jurisdiction against a former SOURCE: 44 FR 42193, July 19, 1979, unless member of the Navy or Marine Corps is otherwise noted. submitted, his or her last-known ad- dress will be furnished to the complain- § 734.1 Purpose. ant with return of the correspondence This part prescribes responsibilities and court order. The complainant will and procedures applicable in the De- be informed of the date of discharge partment of the Navy when processsing and advised that the individual con- cerned is no longer a member of the and honoring legal process brought for Navy or Marine Corps in any capacity. the enforcement of legal obligations to (2) Where there has been no court ad- provide child support or make alimony judication, the correspondence will be payments under 42 U.S.C. 659 (Social returned to the complainant with an Security Act, section 459 added by Pub. appropriate letter stating that the in- L. 93–647, part B, sec. 101(a), 88 Stat. dividual is no longer a member of the 2357, as amended by the Tax Reform Navy or the Marine Corps in any capac- and Simplification Act of 1977, Pub. L. ity and giving the date of his or her 95–30, title V, sec. 502, 91 Stat. 157). discharge or final separation except that the last-known address of the § 734.2 Scope. former member shall be furnished to The provisions of this part shall the claimant if the complaint against apply to legal process affecting any the former member is supported by a Federal pay administered by the De- document which establishes that the partment of the Navy and due and pay- former member has made an admission able to all categories of naval military or statement acknowledging paternity or civilian personnel including per- or responsibility for support of a child sonnel of Navy or Marine Corps non- before a court of competent jurisdic- appropriated-fund activities. This part tion, administrative or executive agen- is not applicable to legal process af- cy, or official authorized to receive it. fecting entitlements administered by
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other agencies, such as civilian em- such process may be served on the Di- ployees’ retirement benefits adminis- rector of Civilian Personnel Law, Of- tered by the Office of Personnel Man- fice of the General Counsel, Navy De- agement or compensation administered partment, Washington, DC 20390. by the Veterans Administration. (B) If pertaining to non-civil service [44 FR 42193, July 19, 1979, as amended at 47 civilian personnel of Navy Exchanges FR 28371, June 30, 1982] or related nonappropriated-fund instru- mentalities administered by the Navy § 734.3 Service of process. Resale System Office, such process (a) It is the policy of the Department may be served on the Commanding Of- of the Navy to respond promptly to ficer, Navy Resale System Office, At- legal process addressed to naval offi- tention: Industrial Relations Officer, cials. Service of legal process affecting 29th Street and Third Avenue, Brook- the pay of Department of the Navy per- lyn, New York 11232. sonnel shall be made on the following (C) If pertaining to non-civil service designated officials in the manner and civilian personnel of Navy clubs, in the circumstances specified below: messes, or recreational facilities (non- (1) Navy members. Process affecting appropriated funds), such process may the military pay of active duty, Re- be served on the Chief of Naval Per- serve, Fleet Reserve, or retired Navy sonnel, Director, Recreational Services members, wherever serving or residing, Division (Pers/NMPC–72), Washington, may be served personnally or by reg- DC 20370. istered or certified mail, return receipt (D) If pertaining to non-civil service requested, on the Director, Navy Fam- civilian personnel of other non- ily Allowance Activity, Anthony J. appropriated-fund instrumentalities Celebrezze Federal Building, Room 967, which fall outside the purview of the Cleveland, Ohio 44199. Chief of Naval Personnel or the Com- (2) Marine Corps members. Process af- manding Officer, Navy Resale Systems fecting the military pay of active-duty, Office, such as locally established mo- Reserve, Fleet Marine Corps Reserve, rale, welfare, and other social and or retired Marine Corps members, hobby clubs, such process may be wherever serving or residing, may be served on the commanding officer of served personally or by registered or the activity concerned. certified mail, return receipt re- (E) If pertaining to non-civil service quested, on the Commanding Officer, civilian personnel of any Marine Corps Marine Corps Finance Center (AA), nonappropriated-fund instrumental- Kansas City, Missouri 64197. ities, such process may be served on (3) Civilian Employees. Process affect- the commanding officer of the activity ing the pay of active civilian employ- concerned. ees of the Department of the Navy: (b) The Department of the Navy offi- (i) If currently employed at Navy or cials designated above are authorized Marine Corps activities (including non- to accept service of process within the appropriated-fund instrumentalities) purview of 42 U.S.C. 659 (Social Secu- or installations situated within the rity Act, sec. 459 added by Pub. L. 93– territorial jurisdiction of the issuing 647, part B, sec. 101(a), 88 Stat. 2357, as court, such process may be served per- amended by the Tax Reform and Sim- sonally, or by registered or certified plification Act of 1977, Pub. L. 95–30, mail, return receipt requested, on the title V, sec. 502, 91 Stat. 157). Where commanding officer or head of such ac- service of process is offered to an offi- tivity or installation, or principal as- cial not authorized to accept it under sistant specifically designated in writ- paragraph (a) of this section, the per- ing by such official. son offering such service shall be re- (ii) In other cases involving civilian ferred to the appropriate official des- employees, such process may be served ignated in paragraph (a) of this section. personally or by registered or certified mail, return receipt requested, in the § 734.4 Responsibilities. manner indicated below: (a) Designated officials. Within their (A) If pertaining to civil service per- respective areas of cognizance as set sonnel of the Navy or Marine Corps, forth in § 734.3, the designated officials
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are responsible for the following func- who are qualified to advise and assist tions with regard to legal process: the designated officials concerning the (1) Sending such notifications and di- disposition of legal process, and rections to the member concerned and (3) Where required, ensuring effective his or her commanding officer as may liaison with the Department of Justice be required. or United States Attorneys. (2) Obtaining or providing an appro- priate review by qualified legal coun- § 734.5 Administrative procedures. sel. The designated officials specified in (3) Taking or directing actions, tem- porary and final, as are necessary to § 734.3, shall, in consultation with the comply with 42 U.S.C. 659, as amended Judge Advocate General and Com- (see § 734.3(b)), the Marine Corps Man- mander, Navy Accounting and Finance ual, Navy Comptroller Manual, and the Center or the Commandant of the Ma- court’s order in the case, and rine Corps (FD), as appropriate, estab- (4) Apprising the cognizant United lish procedures for effectively exe- States Attorney of the Department of cuting their assigned responsibilities. the Navy’s disposition, as required, Implementing procedures shall con- and, in coordination with the Judge form with 42 U.S.C., 659, as amended, Advocate General, effecting liaison the Marine Corps manual, the Navy with the Department of Justice or Comptroller Manual, and the Federal United States Attorneys in instances Personnel Manual. of noncompliance with process or other circumstances requiring such action. PART 735—REPORTING BIRTHS AND (b) Command responsibility. (1) The Commanding officer of the member or DEATHS IN COOPERATION WITH employee concerned shall, upon receipt OTHER AGENCIES of notification from the appropriate designated official, ensure that the Sec. member or employee has received writ- 735.1 Purpose. ten notification of the pendency of the 735.2 Background. action and that the member or em- 735.3 Action. ployee is afforded counseling con- AUTHORITY: 70A Stat. 278; 80 Stat. 379, 383; cerning his or her obligations in the 5 U.S.C. 301, 552; and 10 U.S.C. 5031. matter, and legal assistance if applica- SOURCE: 51 FR 15321, Apr. 23, 1986, unless ble, in dealing with the legal action to otherwise noted. affect his or her Federal pay. The com- manding officer shall comply with the § 735.1 Purpose. directions of the designated official in responding to the legal process. To promulgate latest guidance on re- (2) For the purposes of this part, the porting births and deaths, including Director, Navy Family Allowance Ac- births to which part 138 of this title is tivity, Cleveland, Ohio, will function as applicable. the commanding officer with regard to retired Navy military personnel and § 735.2 Background. members of the Fleet Reserve. For Armed Forces members and their (c) Legal services. The Judge Advocate dependents on duty overseas, registra- General is responsible for the following tion of vital statistics with an appro- functions pertaining to legal process priate foreign government may be a within the purview of this part: distinct advantage should documentary (1) Providing overall technical direc- evidence, acceptable in all courts, be tion and guidance, as required, for all required at any future time. Depart- Department of the Navy military and ment of Defense (DOD) policy is that civilian attorneys engaged in reviewing military services will require their such process or advising on its disposi- members to make official record of tion. (2) Ensuring, as Director, Naval births, deaths, marriages, etc., with Legal Sevice, the availability of attor- local civil authorities in whose juris- neys in Naval Legal Service Offices diction such events occur.
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§ 735.3 Action. Immigration and Naturalization Serv- When a medical officer has knowl- ice (USINS), at the earliest practicable edge of a birth or death occurring time. USINS offices are located in under the following conditions, he or ports of entry and in major cities of she shall refer the matter to the com- the United States. manding officer for assurance of com- (iii) For births occurring on courses pliance with DOD policy. out-bound and beyond the continental (a) Births. (1) In accordance with limits of the U.S., report to the U.S. local health laws and regulations, the consular representative at the next ap- commanding officer of a naval hospital propriate foreign port. When the air- in the United States (U.S.) shall report craft or ship does not enter a foreign to proper civil authorities all births, port, procedures described in including stillbirths, occurring at the § 735.3(a)(2)(ii) shall be followed. hospital. Medical officers on ships and (3) Attention is invited to the fact aircraft operating within U.S. political that reports of birth may be forwarded boundaries, or at stations other than to the Bureau of Health Statistics, De- naval hospitals in the U.S., shall report partment of Health, Honolulu, Hawaii all births occurring within their profes- for any births occurring on courses des- sional cognizance. It shall be the duty tined for islands in the Pacific Ocean of the medical officer to determine the over which the United States has juris- requirements of local civil authorities diction as well as for those births for these reports. which are otherwise accepted by civil (2) When births occur on aircraft or authorities for Hawaii. ships operating beyond U.S. political (4) Part 138 of this title prescribes boundaries, the medical officer respon- policy, responsibilities, and procedures sible for delivery shall make a report on birth registration of infants born to to the commanding officer, master of the ship, or to the officer in command U.S. citizens, in military medical fa- of any aircraft, in every case to be re- cilities outside the United States and corded in the ship or aircraft log. A re- its possessions. port shall also be made to local civil (b) Deaths. When a death occurs at a authorities in the first port of entry if naval activity in any State, Territory, required by law and regulation of such or insular possession of the United authorities when births occur on a States, the commanding officer or des- course inbound to the U.S. Addition- ignated representative shall report the ally, the medical officer shall: death promptly to proper civil authori- (i) Furnish the parents with appro- ties in accordance with Naval Medical priate certificates and shall, if the re- Command directives. If requested by port is not accepted by the local reg- these civil authorities, the civil death istrar of vital statistics or other civil certificate may be prepared and signed authority, or in any case in which local by the cognizant naval medical officer. authority has indicated in writing that Local agreements concerning reporting such a report will not be accepted, and preparation of death certificates (ii) Advise the parents to seek the ad- should be made between the naval fa- vice of the nearest office of the U.S. cility and local civil authorities.
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CROSS REFERENCE: For joint procurement responsibility for the disposition of ex- regulations of the Armed Forces, see chapter cess and surplus property located in I of this title. the United States, Puerto Rico, the Virgin Islands, American Samoa, PART 736—DISPOSITION OF Guam, and the Trust Territory of the PROPERTY Pacific Islands with the Administrator of General Services, and for disposition Sec. of such property located in foreign 736.1 General. areas, with the head of each executive 736.2 Dispositions under contracts. agency. The Act of August 10, 1956 (70A 736.3 Sale of personal property. Stat. 451; 10 U.S.C. 7304, 7305, 7307) and 736.4 Disposition of real property. 736.5 Disposition of real and personal prop- Executive Order 11765 of January 21, erty under special statutory authority. 1974, (39 FR 2577) provide authority for 736.6 Certification prior to disposition. the disposal of warships as well as 736.7 Approval by the Attorney General. other vessels stricken from the Naval Vessel Register. The United States AUTHORITY: Secs. 5031, 6011, 70A Stat. 278, as amended; 10 U.S.C. 5031, 6011. Interpret or Maritime Commission, however, is au- apply R.S. 3618, 3678, 3709, 38 Stat. 1084, 44 thorized to dispose of surplus vessels, Stat. 605, 49 Stat. 885, 53 Stat. 811, 54 Stat. other than warships, or 1,500 gross tons 396, 57 Stat. 380, 59 Stat. 260, sec. 27, 60 Stat. or more which the Commission deter- 856, sec. 5, 60 Stat. 998, sec. 4, 62 Stat. 286, mines to be merchant vessels or capa- secs. 7(c), 8(a–b), 62 Stat. 452, 63 Stat. 377, 64 ble of conversion to merchant use (40 Stat. 1109, 65 Stat. 645, 68 Stat. 832, sec. U.S.C. 484(i)). Accordingly, in disposing 501(c)(3), 68A Stat. 163, secs. 2481, 2541, 2542, 2571–2574, 2662, 2667, 6155, 6156, 6901, 7227, 7228, of its property, the Department of the 7230, 7304–7308, 7541–7547, 7601–7604, 70A Stat. Navy is subject to applicable regula- 141, sec. 5003, 72 Stat. 1252, 72 Stat. 1793, sec. tions of the Administrator of General 616, 73 Stat. 381, as amended; 31 U.S.C. 487, Services and the Secretary of Defense, 628, 41 U.S.C. 5, 31 U.S.C. 686, 686a, 40 U.S.C. and, in regard to potential merchant 304a, 50 U.S.C. 98–98h, 22 U.S.C. 521, 44 U.S.C. vessels other than warships, to deter- 366–380, 42 U.S.C. 1572, 24 U.S.C. 37, 20 U.S.C. minations of the United States Mari- 77d, 15 U.S.C. 328, 49 U.S.C. 1156(c), 1157(a–b), time Commission. In general, property 40 U.S.C. 471 et seq., 42 U.S.C. 1855–1855g, 22 U.S.C. 1611–1613c, 1750 et seq., 26 U.S.C. of the Department of the Navy, which 501(c)(3), 10 U.S.C. 2481, 2541, 2542, 2571–2574, becomes excess to its needs, may not 2662, 2667, 6155, 6156, 6901, 7227, 7228, 7230, 7304– be disposed of to the general public 7308, 7541–7547, 7601–7604, 38 U.S.C. 5003, 42 until it has been determined to be sur- U.S.C. 1891–1893, 40 U.S.C. 483a. E.O. 10885, 25 plus after screening such property with FR 8471. the other military departments of the SOURCE: 25 FR 4674, May 27, 1960, unless Department of Defense and all other otherwise noted. agencies of the Government, and after it has been offered for donation to the § 736.1 General. educational institutions. Real and personal property under the (a) Within the limitations indicated jurisdiction of the Department of the in the introductory paragraph of this Navy, exclusive of battleships, aircraft section, the Department of the Navy is carriers, cruisers, destroyers, and sub- authorized to sell its surplus personal marines (referred to as warships in this property under the authority of the part) and certain public domain lands Federal Property Act and the Act of and mineral interests, may be disposed August 10, 1956 (70A Stat. 451; 10 U.S.C. of under the authority contained in the 7305), and to report its real property, Federal Property and Administrative when excess to the needs of the Depart- Services Act of 1949 (63 Stat. 377), as ment of Defense, to the General Serv- amended (40 U.S.C. 471), in this part re- ices Administration for ultimate dis- ferred to as the Federal Property Act. position by that agency or the Depart- The Federal Property Act places the ment of the Navy. The Department of
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the Navy is also authorized to transfer § 736.2 Dispositions under contracts. real and personal property to other de- (a) Contractor inventory (that is, partments or agencies of the Govern- personal property acquired by a con- ment, and to sell, transfer and other- tractor under terms vesting title in the wise dispose of certain vessels and Government but in excess of the other personal property under special amount required for performance of a statutory authority. Ships other than contract) may be sold to the contractor warships are sold pursuant to the Fed- or otherwise disposed of in accordance eral Property Act (40 U.S.C. 484(i)) by with the terms and conditions set forth the U.S. Maritime Commission if over in the contract and applicable Navy in- 1500 gross tons and determined by the structions. See also parts 8 and 13 and Maritime Commission to be merchant §§ 30.2 and 30.3 of this title. vessels or capable of conversion to (b) Industrial and plant equipment merchant use. In certain cases, Navy provided by the Government to a con- vessels and other property may be tractor for the performance of a con- transferred or otherwise made avail- tract may, subject to applicable statu- able to other agencies without reim- tory authority and Navy instructions bursement (sec. 616, 73 Stat. 381; 40 be disposed of in accordance with the U.S.C. 483a). applicable contract terms and condi- (b) This part sets forth the general tions. procedures and authority with respect (c) Transfer to nonprofit education or to the disposition of property under the research institutions of title to equip- control of the Department of the Navy ment purchased with funds available except disposition of property to for- for grants or contracts for the conduct eign governments under the authority of basic or applied research is author- ized by the act of September 6, 1958 of such statutes as the Aid to Amer- (sec. 2, 72 Stat. 1793; 42 U.S.C. 1892) and ican Republics Act (54 Stat. 396; 22 implementing regulations (§§ 13.800 to U.S.C. 521) and the Mutual Defense As- 13.803 of this title). sistance Control Act of 1951 (65 Stat. 644; 22 U.S.C. 1611–1613c). § 736.3 Sale of personal property. (c) The Department of Defense Dis- (a) The sale of personal property de- posal Manual and directives issued by termined to be surplus or foreign ex- the Department of the Navy cover the cess or for exchange purposes is au- disposition of all property of the De- thorized by the Federal Property Act partment including disposition under and regulations of the Administrator of the Federal Property Act. The Navy General Services (see § 736.1(a)). Certain Personnel Property Disposal Manual vessels stricken from the Naval Vessel and the Marine Corps Supply Manual Register may be sold under the act of contain information and operating in- August 19, 1956, (70A Stat. 451, 10 U.S.C. structions for the guidance of field per- 7305). sonnel in disposing of personal prop- (b) Sales are by sealed bid, auction, erty at Navy and Marine Corps instal- spot bid or, under limited conditions lations, respectively. Section XXIV of prescribed by law, negotiated method. Navy Procurement Directives contains A deposit, generally 20 percent of the similar information applicable to the amount bid, is normally required of disposition of contractor inventory. each bidder. Awards are usually made These publications are available for in- to the highest acceptable bidder. Nor- spection at the Naval Material Com- mally property may not be removed mand Headquarters, Washington, DC; from Government control until full at the offices of the Commandants of payment is made. Arrangements must the several Naval Districts; and at var- be made by the successful bidder to re- ious Navy and Marine Corps installa- move the property within the time tions. limit prescribed in the invitation to bid or sales contract. The Government [25 FR 4674, May 27, 1960, as amended at 39 reserves the right to withdraw any FR 18442, May 28, 1974; 41 FR 26008, June 24, property from sale when in the best in- 1976] terest of the Government.
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(1) The Department of Defense has a gations from the Administrator of Gen- contact point for any person interested eral Services. in purchasing surplus Department of (b) Outside the States of the United Defense personal property within the States, the District of Columbia, the United States. The contact point is the Commonwealth of Puerto Rico, the Defense Surplus Bidders Control Office, Virgin Islands, American Samoa, Defense Logistics Service Center, Fed- Guam, and the Trust Territory of the eral Center Building, Battle Creek, Pacific Islands, Department of the Michigan. This office maintains a sin- Navy real property determined to be gle bidders list for all military depart- excess to the Department of Defense is ments. The list is arranged to show disposed of directly by the Commander, each person’s buying interests, both Naval Facilities Engineering Com- geographically and with respect to cat- mand, Field Division Directors, and egories of property. The categories of District or Area Public Works Officers. property (together with an application (5 U.S.C. 301, 40 U.S.C. 471–514) blank) are listed in a pamplet ‘‘How to [35 FR 10008, June 18, 1970, as amended at 41 Buy Surplus Personal Property From FR 26008, June 24, 1976] The Department of Defense,’’ prepared by the Defense Logistics Services Cen- § 736.5 Disposition of real and per- ter, Defense Supply Agency, Battle sonal property under special statu- Creek, Michigan. tory authority. (2) Retail sales at fixed prices based In addition to the authority to sell on the current market value are con- personal property to the general public ducted by certain Defense property dis- and to transfer real property to the posal offices. General Services Administration under the provisions of §§ 736.3 and 736.4, the [39 FR 18442, May 28, 1974] Department of the Navy has further § 736.4 Disposition of real property. authority to dispose of personal and real property as described in para- (a) Real property, including related graphs (a) through (h) of this section. personal property, determined to be ex- (a) Disposition to other Government cess to the needs of the Department of agencies. The Department of the Navy Defense is subject to disposition under is authorized to transfer real and per- the Federal Property Act. In the States sonal property to other governmental of the United States, the District of departments or agencies under statutes Columbia, the Commonwealth of Puer- applicable to particular agencies, the to Rico, the Virgin Islands, American act of March 4, 1915 (38 Stat. 1084) as Samoa, Guam, and the Trust Territory amended (31 U.S.C. 686) and, as to cer- of the Pacific Islands, Department of tain personal property, under direc- the Navy real property determined to tives of the General Services Adminis- be excess to the Department of Defense tration. and not required for the needs and the (b) Leases. Real and personal property discharge of the responsibilities of all under the control of the Department of Federal agencies, is generally disposed the Navy not excess to its needs and of by the General Services Administra- not for the time being required for pub- tion as surplus property. Exceptions, lic use may be leased, when the Sec- however, are property worth less than retary of the Navy shall deem it to be $1,000; certain leases, permits, licenses, advantageous to the Government, to easements or similar interests; certain such lessee or lessees and upon such fixtures, structures, and improve- terms and conditions as in his judg- ments; and other special classes of ment will promote the national defense property which, when determined to be or will be in the public interest. Such surplus, are disposed of by the Com- leases shall be for a period of not ex- mander, Naval Facilities Engineering ceeding five years unless the Secretary Command, Field Division Directors, determines that a longer period will and District or Area Public Works Offi- promote the national defense or will be cers under authority delegated in Title in the public interest. Such leases are II, Regulations of the General Services authorized by the act of August 10, 1956 Administration, or under special dele- (70A Stat. 150; 10 U.S.C. 2667). Leases of
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Government-owned real property where equipment, to exchange or sell similar the estimated annual rental is more items which are not excess to its needs, than 50,000 must be deferred for 30 days and apply the exchange allowance or after reporting the proposed trans- proceeds of sale in whole or part pay- action to the Armed Services Commit- ment for the items procured. tees of Congress in accordance with the (f) Donations and loans of personal act of August 10, 1956 70A Stat. 147), as property. (1) Certain personal property amended (10 U.S.C. 2662). of the Department of the Navy, includ- (c) Disposition of strategic materials. ing vessels, which become surplus, may Strategic materials may be disposed of be donated or loaned under the author- by the Department of the Navy under ity contained in the Federal Property the authority described in § 736.3 only Act and the act of August 10, 1956 (70A when such property is excess to the Stat. 453; 10 U.S.C. 2572, 7308, 7545) to: needs of the Department of Defense and (i) Schools such as maritime acad- when the Director of the Office of Civil emies or military, naval, Air Force or and Defense Mobilization (acting Coast Guard preparatory schools, des- through the Defense Materials Service ignated by the Secretary of Defense as of the General Services Administra- educational activities of special inter- tion) determines that the amounts of est to the armed services. such materials to be disposed of are so (ii) Accredited schools, colleges and small as to make transfer thereof universities and educational institu- under the act of June 7, 1939 (53 Stat. tions which have been exempted from 811) as amended (50 U.S.C. 98–98h) eco- taxation under section 501(c)(3) of the nomically impractical, or such mate- Internal Revenue Code of 1954 and rials are not necessary for stockpile re- State Departments of Education for quirements determined in accordance use by tax exempt educational institu- with section 2 of said act. tions. Applications for donation shall (d) Disposition of vessels. Vessels be approved by the Department of stricken from the Naval Vessel Reg- Health and Human Services and the ister may be sold by the Department of Administrator of General Services and the Navy under the authority and sub- may be filed with the field representa- ject to the limitations of the Federal tive of the Department of Health and Property Act (sections 203(i), 63 Stat. Human Services located nearest the ap- 386, 40 U.S.C. 484(i)) and the act of Au- plicant. gust 10, 1956, (70A Stat. 451; 10 U.S.C. (iii) States, Territories, Common- 7304, 7305, 7307) and Executive Order wealths, or possessions of the United 11765 (39 FR 2577). However, pursuant to States and political subdivisions, mu- section 203(i) of the Federal Property nicipal corporations, veterans associa- Act (40 U.S.C. 484(i)), the United States tions, soldiers’ monument associations, Maritime Commission disposes of ves- State museums, and non-profit edu- sels, other than warships, if over 1,500 cational museums, subject in certain gross tons and determined by the Mari- cases to the approval of the Curator for time Commission to be merchant ves- the Navy and to objection by a concur- sels or capable of conversion to mer- rent resolution of the Congress. chant use. Vessels may be sold for (2) Applications other than those to scrapping or for use under such author- be filed with the field representative of ity or, if such sale is not feasible, the the Department of Health and Human Naval Ship Systems Command may ar- Services shall be filed with the Depart- range for the demolition of a vessel and ment of the Navy and referred to the sale of the resulting materials by an cognizant Command or Headquarters authorized selling activity as set forth for action except that applications for in § 736.3. vessels and district craft shall be re- (e) Exchange of sale of property for re- ferred to the Chief of Naval Operations, placement purposes. Under the authority applications for boats to the Naval of section 201(c) of the Federal Prop- Ship Systems Command, and applica- erty Act (40 U.S.C. 481(c)) and of the tions for barges, floating drydocks, and Armed Services Procurement Regula- other floating construction equipment tion, the Department of the Navy is au- to the Naval Facilities Engineering thorized in the procurement of new Command. Detailed instructions with
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respect to such applications are set eral of the proposed disposal and the forth in the Defense Disposal Manual. probable terms and conditions thereof. (g) Disposition of equipment for re- Within a reasonable time, in no event search. Under the act of September 6, to exceed sixty days after receiving 1958 (72 Stat. 1793; 42 U.S.C. 1891–1893), such notification, the Attorney Gen- equipment purchased with research eral will advise the Department of the grant or contract funds may be trans- Navy, whether, insofar as he can deter- ferred for the conduct of basic or ap- mine, the proposed disposition would plied scientific research to (1) non-prof- tend to create or maintain a situation it institutions of higher education or inconsistent with the antitrust laws. In (2) non-profit organizations whose pri- such cases, the Department of the mary purpose is the conduct of sci- Navy must obtain from the proposed entific research. An annual report of purchaser information regarding its fi- such transfers must be made to the ap- nancial status, the anticipated use to propriate Committees of Congress. be made of the property and any other (h) Assistance in major disaster relief. information as may be required by the Under the act of December 31, 1970, (42 Attorney General; the award or final U.S.C. 4401–4485) and subject to direc- sale must be delayed until the Attor- tions of the Director of the Office of ney General advises of his determina- Emergency Preparedness, certain ex- tion. cess personal property may be utilized for or donated to States and local gov- PART 744—POLICIES AND PROCE- ernments for relief of suffering and DURES FOR THE PROTECTION OF damage resulting from major disasters. PROPRIETARY RIGHTS IN TECH- Surplus property may also be disposed NICAL INFORMATION PROPOSED of to States for sale to small business FOR RELEASE TO FOREIGN GOV- concerns affected by specific disasters such as hurricanes. ERNMENTS [25 FR 4674, May 27, 1960, as amended at 25 Sec. FR 11066, Nov. 22, 1960, 26 FR 12158, Dec. 20, 744.1 Purpose. 1961; 35 FR 10008, June 18, 1970; 39 FR 18442, 744.6 Authorization for release without con- May 28, 1974; 41 FR 26008, June 24, 1976; 47 FR sent of the owner. 28371, June 30, 1982] AUTHORITY: Sec. 301, 80 Stat. 379, secs. 5031, 6011, 70A Stat. 278, 375 as amended; 5 U.S.C. § 736.6 Certification prior to disposi- 301, 10 U.S.C. 5031, 6011. Interpret or apply tion. the Mutual Security Act of 1954 (68 Stat. 832) The transfer, sale, or other disposi- as amended, 22 U.S.C. 1750 et seq., and Act of tion of a battleship, aircraft carrier, Sept. 4, 1961 (Pub. L. 87–195, 75 Stat. 424), 22 cruiser, destroyer, or submarine shall U.S.C. 2151–2406 (2351, 2356). not be made unless and until the Chief § 744.1 Purpose. of Naval Operations, in accordance with the act of August 10, 1956 (70A This part implements part 264 of this Stat. 452; 10 U.S.C. 7307), has certified title and the Technical Property Inter- that such material is not essential to change Agreements between the United the defense of the United States. States and foreign governments which agreements are designed to facilitate § 736.7 Approval by the Attorney Gen- the interchange of patent rights and eral. technical information for defense pur- Prior to the disposition, either com- poses. petitively or by negotiation, to private [26 FR 12217, Dec. 21, 1961] interests of a plant or plants, or other property, which cost the Government § 744.6 Authorization for release with- $1,000,000 or more if real property, or out consent of the owner. $3,000,000 or more if personal property (a) Military equipment including the (other than a patent, process, tech- information essential for its operation, nique or invention), or of patents, proc- maintenance and repair and technical esses, techniques or inventions, irre- information, known or claimed to be spective of cost, the Department of the proprietary, which is being considered Navy must notify the Attorney Gen- for release in accordance with
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§ 264.4(d)(3), may be released when the § 746.1 Purpose. Chief of Naval Operations or his des- This part implements Department of ignee or a bureau chief or deputy bu- Defense Directive 5535.3 of November 2, reau chief determines under the au- 1973 and 41 CFR subpart 101–4.1, and thority of the Act that such action sets forth the policy, terms, conditions, clearly warrants the assumption of fi- and procedures for the licensing of nancial liability that may be incurred rights in domestic patents and patent and there is no acceptable substitute applications vested in the United equipment or information for which States of America and in the custody consent to release is obtainable or of the Department of the Navy. which is not proprietary. (b) Where any technical information § 746.2 Policy. is released in accordance with this sec- (a) A major premise of the Presi- tion, such release shall be subject to dential Statement fo Government Pat- the conditions of release set forth in ent Policy, August 23, 1971 (36 FR 16887, § 264.4(f). August 26, 1971), is that government in- (c) Military equipment, including the ventions normally will best serve the information essential for its operation, public interest when they are devel- maintenance, and repair, known or oped to the point of practical applica- claimed to be privately owned and for tion and made available to the public which consent for release cannot be ob- in the shortest possible time. The tained may be furnished to foreign gov- granting of express nonexclusive or ex- ernments in accord with § 264.4(d)(3) clusive licenses for the practice of without further legal authorization, these inventions may assist in the ac- provided such release is made pursuant complishment of the national objective to the grant aid provisions of the Mu- to achieve a dynamic and efficient tual Security Act of 1954, as amended, economy. and provided further, there is no ac- (b) The granting of nonexclusive li- ceptable substitute equipment or infor- censes generally is preferable, since the mation for which consent for release is invention is thereby laid open to all in- obtainable or which is not proprietary. terested parties and serves to promote [24 FR 10715, Dec. 25, 1959, as amended at 44 competition in industry, if the inven- FR 30686, May 29, 1979] tion is in fact promoted commercially. However, to obtain commercial utiliza- tion of the invention, it may be nec- PART 746—LICENSING OF GOV- essary to grant an exclusive license for ERNMENT INVENTIONS IN THE a limited period of time as an incentive CUSTODY OF THE DEPARTMENT for the investment of risk capital to OF THE NAVY achieve practical application of an in- vention. Sec. (c) Whenever the grant of an exclu- 746.1 Purpose. sive license is deemed appropriate, it 746.2 Policy. shall be negotiated on terms and condi- 746.3 Delegation of authority. tions most favorable to the public in- 746.4 Definitions. terest. In selecting an exclusive li- 746.5 Government inventions available for censee, consideration shall be given to licensing. 746.6 Nonexclusive license. the capabilities of the prospective li- 746.7 Limited exclusive license. censee to further the technical and 746.8 Additional licenses. market development of the invention, 746.9 Royalties. his plan to undertake the development, 746.10 Reports. the projected impact on competition, 746.11 Procedures. and the benefit to the Government and 746.12 Litigation. the public. Consideration shall be given 746.13 Transfer of custody of Government also to assisting small business and mi- inventions. nority business enterprises, as well as AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5031; 40 economically depressed, low income, U.S.C. 486(c); and 41 CFR 101–4.1. and labor surplus areas, and whether SOURCE: 41 FR 55712, Dec. 22, 1976, unless each or any applicant is a United otherwise noted. States citizen or corporation. Where
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there is more than one applicant for an § 746.5 Government inventions avail- exclusive license, that applicant shall able for licensing. be selected who is determined to be Government inventions normally will most capable of satisfying the criteria be made available for the granting of and achieving the goals set forth in express nonexclusive or limited exclu- this part. sive licenses to responsible applicants (d) Subject to the following: (1) Any according to the factors and conditions existing or future treaty or agreement set forth in §§ 746.6 and 746.7, subject to between the United States and any for- the applicable procedures of § 746.11. eign government or inter-govern- The Chief of Naval Research may re- mental organization, or move a prior designation of avail- (2) Licenses under or other rights to ability for licensing of any patent(s) or inventions made or conceived in the patent application(s), provided that no course of or under Department of the outstanding licenses to that invention Navy research and development con- are in effect. tracts where such licenses or other rights to such inventions are provided § 746.6 Nonexclusive license. for in the contract and retained by the (a) Availability of licenses. Each gov- party contracting with the Department ernment invention normally shall be of the Navy, no license shall be granted made available for the granting of non- or implied in a government invention, exclusive revocable licenses, subject to except as provided for in this part. the provisions of any other licenses, in- (e) No grant of a license under this cluding those under § 746.8. part shall be construed to confer upon (b) Terms of grant. (1) The duration of any licensee any immunity from the the license shall be for a period as spec- antitrust laws or from a charge of pat- ified in the license agreement, provided ent misuse, and the acquisiton and use that the licensee complies with all the of rights pursuant to this part shall not terms of the license. be immunized from the operation of (2) The license shall require the li- state or federal law by reason of the censees to bring the invention to the source of the grant. point of practical application within a period specified in the license, or such § 746.3 Delegation of authority. extended period as may be agreed upon, The Chief of Naval Research is dele- and to contine to make the benefits of gated the authority to administer the the invention reasonably accessible to the public. patent licensing program, with the au- thority to redelegate such authority. (3) The license may be granted for all or less than all fields of use of the in- § 746.4 Definitions. vention, and throughout the United States of America, its territories and (a) Government invention means an in- possessions, the Commonwealth of vention covered by a domestic patent Puerto Rico, and the District of Colum- or patent application that is vested in bia, or in any lesser geographic portion the United States and in the custody of thereof. the Department of the Navy, and is (4) After termination of a period designated by the Chief of Naval Re- specified in the license agreement, the search as appropriate for the grant of Chief of Naval Research may restrict an express non-exclusive or exclusive the license to the fields of use and/or license. geographic areas in which the licensee (b) To the point of practical application has brought the invention to the point means to manufacture in the case of a of practical application and continues composition or product, to practice in to make the benefits of the invention the case of a process, or to operate in reasonably accessible to the public. the case of a machine, under such con- (5) The license may extend to subsidi- ditions as to establish that the inven- aries and affiliates of the licensee but tion is being worked and that its bene- shall be nonassignable without ap- fits are reasonably accessible to the proval of the Chief of Naval Research, public. except to the successor of that part of
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the licensee’s business to which the in- (c) Terms of grant. (1) The license may vention pertains. be granted for all or less than all fields (6) The Government shall make no of use of the government invention, representation or warranty as to the and throughout the United States of validity of any licensed application(s) America, its territories and posses- or patent(s), or of the scope of any of sions, the Commonwealth of Puerto the claims contained therein, or that Rico, and the District of Columbia, or the exercise of the license will not re- in any lesser geographic portion there- sult in the infringement of any other of. patent(s), nor shall the Government as- (2) Subject to the rights reserved to sume any liability whatsoever result- the Government in paragraphs (c)(6) ing from the exercise of the license. and (c)(7) of § 746.7, the licensee shall be granted the exclusive right to practice § 746.7 Limited exclusive license. the invention in accordance with the (a) Availability of licenses. Each gov- terms and conditions specified in the ernment invention may be made avail- license. able for the granting of a limited ex- (3) The duration of the license shall clusive license, provided that: be negotiated but shall be for a period (1) The invention has been published less than the terminal portion of the as available for licensing pursuant to patent, the period remaining being suf- paragraph (a) of § 746.11 for a period of ficient to make the invention reason- at least six months; ably available for the grant of a non- (2) The Chief of Naval Research has exclusive license; and such period of determined that: exclusivity shall not exceed 5 years un- (i) The invention may be brought to less the Chief of Naval Research deter- the point of practical application in mines, on the basis of a written sub- certain fields of use and/or in certain mission supported by a factual show- geographical locations by exclusive li- ing, that a longer period is reasonably censing; necessary to permit the licensee to (ii) The desired practical application enter the market and recoup his rea- has not been achieved under any non- sonable costs in so doing. exclusive license granted on the inven- (4) The license shall require the li- tion; and censee to bring the invention to the (iii) The desired practical application point of practical application within a is not likely to be achieved expedi- period specified in the license, or with- tiously in the public interest under a in a longer period as approved by the nonexclusive license or as a result of Chief of Naval Research, and to con- further government-funded research or tinue to make the benefits of the in- development; vention reasonably accessible to the (3) The notice of the prospective li- public. censee has been published, pursuant to (5) The license shall require the li- paragraph (d) of § 746.11 for at least 60 censee to expend a specified minimum days; and amount of money and/or take other (4) After termination of the period specified actions, within a specified pe- set forth in paragraph (a)(3) of § 746.7 riod of time after the effective date of the Chief of Naval Research has deter- the license, in an effort to bring the in- mined that no applicant for a non- vention to the point of practical appli- exclusive license has brought or will cation. bring, within a reasonable period, the (6) The license shall be subject to the invention to the point of practical ap- irrevocable, royalty-free right of the plication, as specified in the exclusive Government of the United States to license, and that to grant the exclusive practice and have practiced the inven- license would be in the public interest. tion throughout the world, by or on be- (b) Selection of exclusive licensee. An half of the Government of the United exclusive licensee will be selected on States, and by or on behalf of any for- bases consistent with the policy set eign government or intergovernmental forth in § 746.2 and in accordance with organization pursuant to any existing the procedures set forth in § 746.11. or future treaty or agreement with the
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United states. If the Chief of Naval Re- exemplify circumstances wherein such search finds it to be in the public inter- licenses may be granted: est, this license may also be expressly (a) In consideration of the settlement subject to this same royalty-free right of an interference; by or on behalf of state and municipal (b) In consideration of a release of a governments. claim of infringement; or (7) The license shall reserve to the (c) In exchange for, or as part of, the Chief of Naval Research the right to re- consideration for a license under ad- quire the licensee to grant sublicenses versely held patents. to responsible applicants on terms that are reasonable in the circumstances: § 746.9 Royalties. (i) The extent that the invention is (a) Nonexclusive license. Normally, required for public use by government royalties shall not be changed under regulations, or nonexclusive licenses granted to (ii) As may be necessary to fulfill United States citizens and United health or safety needs, or States corporations on government in- (iii) For other public purposes stipu- ventions; however, the Chief of Naval lated in the license. Research may require other consider- (8) The license may extend to subsidi- ation. aries and affiliates of the licensee but (b) Limited exclusive license. A limited shall be nonassignable without ap- exclusive license on a government in- proval of the Chief of Naval Research, vention shall contain a royalty provi- except to successors of that part of the sion and/or other consideration flowing licensee’s business to which the inven- to the Government. tion pertains. (9) An exclusive licensee may grant § 746.10 Reports. sublicenses under his license, subject A license shall require the licensee to to the approval of the Chief of Naval submit periodic reports on his efforts Research. Each sublicense granted by to achieve practical application of the an exclusive licensee shall make ref- invention. The reports shall contain in- erence to the exclusive license, includ- formation within his knowledge, or ing the rights retained by the Govern- which he may acquire under normal ment under the exclusive license, and a business practices, pertaining to the copy of such sublicense shall be fur- commercial use being made of the in- nished to the Chief of Naval Research. vention, and other information which (10) The license may be subject to the Chief of Naval Research may deter- such other terms as may be in the pub- mine is pertinent to its licensing ac- lic interest. tivities and is specified in the license. (11) The Government shall make no representation or warranty as to valid- § 746.11 Procedures. ity of any licensed application(s) or (a) Publication requirements. The Chief patent(s), or of the scope of any of the of Naval Research shall cause to be claims contained therein, or that the published in the FEDERAL REGISTER, exercise of the license will not result in the Official Gazette of the United the infringement of any other pat- States Patent and Trademark Office, ent(s), nor shall the Government as- and at least one other publication that sume any liability whatsoever result- the Chief of Naval Research deems ing from the exercise of the license. would best serve the public interest, a list of the government inventions § 746.8 Additional licenses. available for licensing under the condi- Subject to any outstanding licenses, tions specified in this part. The list nothing in this part shall preclude the shall be revised periodically to include Chief of Naval Research from granting directly, or by reference to a pre- additional nonexclusive or limited ex- viously published list, all inventions clusive licenses for government inven- currently available for licensing. Other tions when he determines that to do so publications on inventions available would provide for an equitable ex- for licensing are encouraged, and may change of patent rights. The following include abstracts, when appropriate, as
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well as information on the design, con- (3) A statement describing the time, struction, use, and potential market expenditure, and other acts which the for the inventions. applicant considers necessary to (b) Contents of a nonexclusive license achieve practical application of the in- application. An application for a non- vention and the applicant’s offer to in- exclusive license under a government vest that sum to perform such acts if invention should be addressed to the the license is granted; Chief of Naval Research (Code 300), Ar- (4) A statement that contains the ap- lington, VA 22217, and shall include: plicant’s best knowledge of the extent (1) Identification of the invention for to which the government invention is which the license is desired, including being practiced by private industry and the patent application serial number or the Government; patent number, title, and date, if (5) Identification of other exclusive known, and any other identification of licenses granted to applicant under in- the invention; ventions in the custody of other gov- (2) Name and address of the person, ernment agencies; and company, or organization applying for (6) Any other facts which the appli- the license, and whether the applicant cant believes are evidence that it is in is a United States citizen or a United the public interest for the Chief of States corporation; Naval Research to grant an exclusive (3) Name and address of the rep- license rather than a nonexclusive li- resentative of applicant to whom cor- cense, and that such exclusive license respondence should be sent; should be granted to the applicant. (4) Nature and type of applicant’s (d) Published notices. (1) A notice that business; a prospective exclusive licensee has (5) Source of information concerning been selected shall be published in the the availability of a license on this in- FEDERAL REGISTER, and a copy of the vention; notice shall be sent to the Attorney (6) Purpose for which the license is General. The notice shall include: desired and a brief description of appli- (i) Identification of the invention; cant’s plan to achieve that purpose; (ii) Identification of the selected li- (7) A statement of the fields of use censee; for which applicant intends to practice (iii) Duration and scope of the con- the invention; and templated license; and (8) A statement as to the geographic (iv) A statement to the effect that areas in which the applicant would the license will be granted unless: practice the invention. (A) An application for a nonexclusive (c) Contents of an exclusive license ap- license, submitted by a responsible ap- plication. An application for an exclu- plicant pursuant to paragraph (b) of sive license should be addressed to the § 746.11, is received by the Chief of Chief of Naval Research (Code 300), Ar- Naval Research within 60 days from the lington, VA 22217, and, in addition to publication of the notice in the FED- the information indicated in paragraph ERAL REGISTER, and the Chief of Naval (b) of § 746.11, an application for an ex- Research determines in accordance clusive license shall include: with his prescribed procedures, under (1) Applicant’s status, if any, in any which procedures the Chief of Naval one or more of the following categor- Research shall record and make avail- ies: able for public inspection all decisions (i) Small business firm; made pursuant thereto and the basis (ii) Minority business enterprise; therefore, that the applicant has estab- (iii) Location in a surplus labor area; lished that he has already achieved or (iv) Location in a low-income area; is likely to bring the invention to the and point of practical application withing a (v) Location in an economically de- reasonable period under a nonexclusive pressed area; license; or (2) A statement of applicant’s capa- (B) The Chief of Naval Research de- bility to undertake the development termines that third party has pre- and marketing required to achieve the sented evidence and argument which practical application of the invention; has established that it would not be in
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the public interest to grant the exclu- tice of intention to modify or revoke sive license. the license, and the licensee and any (2) If an exclusive license has been sublicensee shall be allowed 30 days granted pursuant to this part, notice after such notice to remedy any breach thereof shall be published in the FED- of any covenant or agreement as re- ERAL REGISTER. Such notice shall in- ferred to in paragraph (e)(1) of § 746.11, clude: or to show cause why the license (i) Identification of the invention; should not be modified or revoked. (ii) Identification of the licensee; and (f) Appeals. An applicant for a license, (iii) Duration and scope of the li- a licensee, or such other third party cense. who has participated under paragraph (3) If an exclusive license has been (d)(1)(iv)(B) of § 746.11 shall have the modified or revoked pursuant to para- right to appeal, in accordance with pro- graph (e) § 746.11, notice thereof shall be cedures prescribed by the Chief of published in the FEDERAL REGISTER. Naval Research, any decision con- Such notice shall include: cerning the granting, denial, interpre- (i) Identification of the invention; tation, modification, or revocation of a (ii) Identification of the licensee; and license. (iii) Effective date of the modifica- tion or revocation. § 746.12 Litigation. (e) Modification or revocation. (1) Any license granted pursuant to this part The property interest in a patent is may be modified or revoked by the the right to exclude. It is not the in- Chief of Naval Research if the licensee tent of the Government to transfer the at any time defaults in making any re- property right in a patent when a li- port required by the license or commits cense is issued pursuant to this part. any breach of covenant or agreement Accordingly, the right to sue for in- therein contained. fringement shall be retained with re- (2) A license may also be revoked by spect to all licenses so issued by the the Chief of Naval Research if the li- Government. censee willfully makes a false state- ment of material fact or willfully § 746.13 Transfer of custody of Govern- omits a material fact in the license ap- ment inventions. plication or any report required in the The Chief of Naval Research may license agreement. enter into an agreement to transfer (3) Before modifying or revoking any custody of a Government invention to license granted pursuant to this part another government agency for pur- for any cause, the Chief of Naval Re- poses of administration, including the search shall furnish the licensee and granting of licenses pursuant to this any sublicensee of record a written no- part.
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PART 750—GENERAL CLAIMS 750.54 Payment of costs, settlements, and judgments related to certain medical or REGULATIONS legal malpractice claims. 750.55 Attorney’s fees. Subpart A—General Provisions for Claims 750.56–750.60 [Reserved]
Sec. Subpart D—Claims Not Cognizable Under 750.1 Scope of subpart A. Any Other Provision of Law 750.2 Investigations: In general. 750.3 Investigations: The report. 750.61 Scope of subpart D. 750.4 Claims: In general. 750.62 Statutory authority. 750.5 Claims: Proper claimants. 750.63 Definitions. 750.6 Claims: Presentment. 750.64 Claim procedures. 750.7 Claims: Action by receiving command. 750.65 Statute of limitations. 750.8 Claims: Responsibility of the adjudi- 750.66 Officials with authority to settle. cating authority. 750.67 Scope of liability. 750.9 Claims: Payments. 750.68 Claims not payable. 750.10 Claims: Settlement and release. 750.69 Measure of damages. 750.11 Claims: Denial. 750.12 Claims: Action when suit filed. AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, 750.13 Claims: Single service responsibility. and 5148; E.O. 11476, 3 CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202. 750.14–750.20 [Reserved] SOURCE: 57 FR 4722, Feb. 7, 1992, unless oth- Subpart B—Federal Tort Claims Act erwise noted. 750.21 Scope of subpart B. 750.22 Exclusiveness of remedy. Subpart A—General Provisions for 750.23 Definitions. Claims 750.24 Statutory/regulatory authority. 750.25 Scope of liability. § 750.1 Scope of subpart A. 750.26 The administrative claim. (a) General. (1) The Judge Advocate 750.27 Information and supporting docu- mentation. General is responsible for the adminis- 750.28 Amendment of the claim. tration and supervision of the resolu- 750.29 Investigation and examination. tion of claims arising under the Fed- 750.30 Denial of the claim. eral Tort Claims Act (subpart B of this 750.31 Reconsideration. part), the Military Claims Act (subpart 750.32 Suits under the Federal Tort Claims C of this part), the Nonscope Claims Act (FTCA). Act (subpart D of this part), the Per- 750.33 Damages. sonnel Claims Act (part 751 of this 750.34 Settlement and payment. chapter), the Foreign Claims Act, the 750.35 Attorney’s fees. 750.36 Time limitations. International Agreements Claims Act 750.37–750.40 [Reserved] pertaining to cost sharing of claims pursuant to international agreements, Subpart C—Military Claims Act the Federal Claims Collection Act of 1966 (subpart A of part 757 of this chap- 750.41 Scope of subpart C. ter), the Medical Care Recovery Act 750.42 Statutory authority. (subpart B of part 757 of this chapter), 750.43 Claims payable. 750.44 Claims not payable. and postal claims. 750.45 Filing claim. (2) The Deputy Assistant Judge Ad- 750.46 Applicable law. vocate General (Claims and Tort Liti- 750.47 Measure of damages for property gation) is the functional manager of claims. the Navy claims system established to 750.48 Measure of damages in injury or evaluate, adjudicate, and provide liti- death cases. gation support for claims arising under 750.49 Delegations of adjudicating author- the acts listed above and is responsible ity. 750.50 Advance payments. to the Judge Advocate General for the 750.51 Final disposition. management of that system. The 750.52 Appeal. claims system consists of field activi- 750.53 Cross-servicing. ties delegated claims processing and
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adjudicating authority and the attor- against the United States. When an in- neys and support personnel assigned to cident involves an actual or potential the Claims and Tort Litigation Divi- claim against the United States for sion of the Office of the Judge Advo- property damage only and the total cate General. For economy of lan- amount likely to be paid does not ex- guage, Naval Legal Service Offices and ceed $5,000.00, an abbreviated investiga- Naval Legal Service Office Detach- tive report may be submitted. Where ments are referred to as Naval Legal this monetary figure may be exceeded, Service Command Activities. but the circumstances indicate an ab- (3) Commanding officers of com- breviated report may be adequate to mands receiving claims are responsible preserve the facts and protect the Gov- for complying with the guidance on in- ernment’s claims interests, approval to vestigations in §§ 750.2 and 750.3 and the submit a limited investigative report guidance on handling and forwarding may be sought from the nearest Naval claims found in § 750.5. Legal Service Command activity. (b) This subpart A delineates general (d) Developing the facts. Any inves- investigative and claims-processing re- tigation convened for claims purposes quirements to be followed in the han- must focus on developing the facts of dling of all incidents and claims within the incident, i.e., the who, what, where, the provisions of this part. Where the when, why, and how of the matter. general provisions of this subpart A Opinions on the possible liability of the conflict with the specific provisions of United States under any of the claims any subsequent subpart of this part, statutes listed above shall not be ex- the specific provisions govern. pressed. Early and continuous con- sultation with claims attorneys at § 750.2 Investigations: In general. Naval Legal Service Command activi- (a) Conducting the investigation. The ties is essential to ensure the timely command where the incident giving development of all necessary facts, the rise to the claim is alleged to have hap- identification and preservation of rel- pened is responsible for conducting an evant evidence, and to void the need investigation in accordance with this for supplemental inquiries. part. (e) Attorney work product. (1) The con- (b) Thorough investigation. Every inci- vening order and the preliminary state- dent that may result in a claim against ment of an investigative report pre- or in favor of the United States shall pared to inquire into the facts of an in- be promptly and thoroughly inves- cident giving or likely to give rise to a tigated under this part. Investigations claim against the United States shall convened for claims purposes are suffi- include the following: ciently complex that they should be This investigation has been convened and performed with the assistance and conducted, and this report prepared, in con- under the supervision of a judge advo- templation of claims adjudication and litiga- cate or other attorney. Where the com- tion and for the express purpose of assisting mand has an attorney assigned, he attorneys representing the interests of the shall be involved in every aspect of the United States. proceedings. When an attorney is not (2) When an investigation is prepared assigned to the investigating com- by or at the direction of an attorney mand, consultation shall be sought representing the Department of the from the appropriate Naval Legal Serv- Navy and is prepared in reasonable an- ice Command activity. ticipation of litigation, it is exempt (c) Recovery barred. Even when recov- from mandatory disclosure under the ery may be barred by statute or case Freedom of Information Act exemption law, all deaths, serious injuries, and (b)(5) and is normally privileged from substantial losses to property that are discovery in litigation under the attor- likely to give rise to claims must be in- ney work product privilege. 5 U.S.C. vestigated while the evidence is avail- 552(b)(5). Unless an attorney prepares able. Claims against persons in the the report or personally directs its naval service arising from the perform- preparation, the investigation may not ance of their official duties shall be in- be privileged, even if it was prepared in vestigated as though they were claims reasonable anticipation of litigation.
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(f) Advance copy. An advance copy of claim and to advise such personnel any investigation conducted because a where they should file their claim. claim has been, or is likely to be, sub- (c) Content of the report. The written mitted shall be forwarded to the Naval report of investigation shall contain Legal Service Command activity information answering the questions claims office responsible for the area mentioned in § 750.3(a) and, depending where the incident giving rise to the on the nature of the incident, will in- claim occurred. clude the following: (1) Date, time, and exact place the § 750.3 Investigations: The report. accident or incident occurred, speci- (a) Purpose. The purpose of investiga- fying the highway, street, or road; tions into claims incidents is to gather (2) A concise but complete statement all relevant information about the in- of the incident with reference to phys- cident so adjudicating officers can ei- ical facts observed and any statements ther pay or deny the claim. The essen- by the personnel involved; tial task of the investigating officer is (3) Names, grades, organizations, and to answer the questions of who, what, addresses of military personnel and ci- where, when, why and how? The Navy’s vilian witnesses; best interests are served when the in- (4) Opinions as to whether military vestigation is thorough and is per- or civilian employees involved in the formed in a timely manner so the incident were acting within the scope claimant can be advised promptly of of their duties at the time; the action on the claim. (5) Description of the Government property involved in the incident and (b) Duties of the investigating officer. It the nature of any damage it sustained; is the investigating officer’s responsi- and, bility: (6) Descriptions of all private prop- (1) To interview all witnesses to the erty involved. incident and prepare summaries of (d) Immediate report of certain events. their comments. Obtaining signed The Navy or Marine Corps activity statements of Government witnesses is most directly involved in the incident not necessary. Summaries of the wit- shall notify the Judge Advocate Gen- nesses’ remarks prepared by the inves- eral and the appropriate adjudicating tigating officer are quite sufficient and authority immediately by message, generally expedite the gathering of in- electronic mail, or telephone in any of formation. On the other hand, written the following circumstances: signed statements should be obtained (1) Claims or possible claims arising from the claimant, wherever possible; out of a major disaster or out of an in- (2) To inspect the property alleged to cident giving rise to five or more pos- have been damaged by the action of sible death or serious injury claims. Government personnel; (2) Upon filing of a claim that could (3) To determine the nature, extent, result in litigation that would involve and amount of any damage, and to ob- a new precedent or point of law. tain pertinent repair bills or estimates (3) Claims or possible claims that in- and medical, hospital, and associated volve or are likely to involve an agency bills necessary to permit an evaluation other than the Department of the of the claimant’s loss; Navy. (4) To obtain maintenance records of (e) Request for assistance. When an in- the Navy motor vehicle, plane, or other cident occurs at a place where the piece of equipment involved in the naval service does not have an installa- claim; tion or a unit conveniently located for (5) To reduce to writing and incor- conducting an investigation, the com- porate into an appropriate investiga- manding officer or officer in charge tive report all pertinent statements, with responsibility for performing the summaries, exhibits, and other evi- investigation may request assistance dence considered by the investigator in from the commanding officer or officer arriving at his conclusions; and, in charge of any other organization of (6) To furnish claim forms to any per- the Department of Defense. Likewise, son expressing an interest in filing a if a commanding officer or officer in
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charge of any other organization of the prognosis, and the period of hos- Department of Defense requests such pitalization or incapacity. assistance from a naval commanding (2) A Privacy Act statement for each officer or officer in charge, the latter person who was asked to furnish per- should normally comply. If a complete sonal information shall be provided. investigation is requested it will be Social Security numbers of military performed in compliance with the regu- personnel and civilian employees of the lations of the requested service. These U.S. Government should be included in investigations are normally conducted the report but should be obtained from without reimbursement for per diem, available records, not from the indi- mileage, or other expenses incurred by vidual. the investigating unit or installation. (3) Names, addresses, and ages of all (f) Report of Motor Vehicle Accident, civilians or military personnel injured Standard Form 91. RCS OPNAV 5100–6. or killed; names of insurance compa- The operator of any Government motor nies; information on the nature and ex- vehicle involved in an accident of any tent of injuries, degree of permanent sort shall be responsible for making an disability, prognosis, period of hos- immediate report on the Operator’s Re- pitalization, name and address of at- port of Motor Vehicle Accident, Stand- tending physician and hospital, and ard Form 91. This operator’s report amount of medical, hospital, and burial shall be made even though the operator expenses actually incurred; occupation of the other vehicle, or any other per- and wage or salary of civilians injured son involved, states that no claim will or killed; and names, addresses, ages, be filed, or the only vehicles involved relationship, and extent of dependency are Government owned. An accident of survivors of any such person fatally shall be reported by the operator re- injured should be included. gardless of who was injured, what prop- (4) If straying animals are involved, a erty was damaged, or who was respon- statement as to whether the jurisdic- sible. The operator’s report shall be re- tion has an ‘‘open range law’’ and, if so, reference to such statute. ferred to the investigating officer, who (5) A statement as to whether any shall be responsible for examining it person involved violated any State or for completeness and accuracy and who Federal statute, local ordinance, or in- shall file it for future reference or for stallation regulation and, if so, in what attachment to any subsequent inves- respect. The statute, ordinance, or reg- tigative report of the accident. ulation should be set out in full. (g) Priority of the investigation. To en- (6) A statement on whether a police sure prompt investigation of every in- investigation was made. A copy of the cident while witnesses are available police report of investigation should be and before damage has been repaired, included if available. the duties of an investigating officer (7) A statement on whether arrests shall ordinarily have priority over any were made or charges preferred, and other assignments he may have. the result of any trial or hearing in (h) Contents of the report of investiga- civil or military courts. tion. The report should include the fol- (i) Expert opinions. In appropriate lowing items in addition to the require- cases the opinion of an expert may be ments in § 750.3(c): required to evaluate the extent of dam- (1) If pertinent to the investigation, age to a potential claimant’s property. the investigating officer should obtain In such cases the investigating officer a statement from claimant’s employer should consult Navy-employed experts, showing claimant’s occupation, wage experts employed by other departments or salary, and time lost from work as a of the U.S. Government, or civilian ex- result of the incident. In case of per- perts to obtain a competent assessment sonal injury, the investigating officer of claimant’s damages or otherwise to should ask claimant to submit a writ- protect the Government’s interest. Any ten statement from the attending phy- cost involved with obtaining the opin- sician setting forth the nature and ex- ion of an expert not employed by the tent of injury and treatment, the dura- Navy shall be borne by the command tion and extent of any disability, the conducting the investigation. Any cost
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involved in obtaining the opinion of a § 750.34(c)(2)(ii) has the responsibility to Navy-employed expert shall be borne ensure that remedial action is taken to by the command to which the expert is rectify noncompliance indicated in the attached. Medical experts shall be em- investigative report prior to for- ployed only after consultation with the warding the report to the Judge Advo- Chief, Bureau of Medicine and Surgery. cate General. (j) Action by command initiating the in- vestigation and subsequent reviewing au- § 750.4 Claims: In general. thorities. (1) The command initiating (a) Claims against the United States. the investigation in accordance with Claims against the United States shall § 750.3 or § 750.5 shall review the report receive prompt and professional dis- of investigation. If additional inves- position. Every effort will be made to tigation is required or omissions or ensure an investigation is thoroughly other deficiencies are noted, the inves- and accurately completed, the claim- tigation should be promptly returned ant’s allegations evaluated promptly, with an endorsement indicating that a and where liability is established, a supplemental investigative report will check issued as quickly as possible to be submitted. If the original or supple- prevent further harm to a meritorious mental report is in order, it shall be claimant. Similarly, claims not payble forwarded by endorsement, with any will be processed promptly and the pertinent comments and recommenda- claimant advised of the reasons for the tions. An advance copy of the inves- denial. tigation shall be forwarded to the Naval Legal Service Command activity (b) Claims in favor of the United States. having territorial responsibility for the Potential claims in favor of the United area where the incident giving rise to States will be critically evaluated and, the claim occurred as indicated in where appropriate, promptly asserted § 750.34(c)(2)(ii). and aggressively pursued. (2) A reviewing authority may direct (c) Assistance to Claimants. Claimants that additional investigation be con- or potential claimants who inquire ducted, if considered necessary. The about their rights or the procedures to initial investigation should not be re- be followed in the resolution of their turned for such additional investiga- claims will be referred to a claims offi- tion, but should be forwarded by an en- cer. The officer will provide claim dorsement indicating that the supple- forms, advise where the forms should mental material will be submitted. The be filed, and inform the requester of report shall be endorsed and forwarded the type of subtantiating information to the next-level authority with appro- required. Claims officers may provide priate recommendations including an advice on the claims process but shall assessment of the responsibility for the not provide advice or opinions about incident and a recommendation as to the merits or the wisdom of filing a the disposition of any claim that may particular claim. While claims officers subsequently be filed. If a reviewing have a responsiblity to provide general authority may be an adjudicating au- information about claims, they must thority for a claim subsequently filed, consider 18 U.S.C. 205 which makes it a one copy of the report shall be retained crime for an officer or employee of the by such authority for at least 2 years United States to act as an agent or an after the incident. attorney in the prosecution of any (3) It is essential that each investiga- claim against the United States. tive report reflect that a good faith ef- fort was made to comply with the Pri- § 750.5 Claims: Proper claimants. vacy Act of 1974 (5 U.S.C. 552a) as im- (a) Damage to property cases. A claim plemented by 32 CFR part 701, subpart for damage to, or destruction or loss of, F. Any indication of noncompliance property shall be presented by the shall be explained either in the pre- owner of the property or a duly author- liminary statement or the forwarding ized agent or legal representative. endorsements and, when required, cor- ‘‘Owner’’ includes a bailee, lessee, or rected. The adjudicating Naval Legal mortgagor, but does not include a Service Command activity listed in mortgagee, conditional vendor, or
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other person having title for security Personnel Claims Act shall be sub- purposes only. mitted on DD Form 1842. The claim and (b) Personal injury and death cases. A all other papers requiring the signature claim for personal injury shall be pre- of the claimant shall be signed by the sented by the person injured or a duly claimant personally or by a duly au- authorized agent or legal representa- thorized agent. If signed by an agent or tive, or, in the case of death, by the legal representative, the claim shall in- properly appointed legal representative dicate the title or capacity of the per- of the deceased’s estate or survivor son signing and be accompanied by evi- where authorized by State law. dence of appointment. When more than (c) Subrogation. A subrogor and a one person has a claim arising from the subrogee may file claims jointly or sep- same incident, each person shall file a arately. When separate claims are filed claim separately. A subrogor and a and each claim individually is within subrogee may file a claim jointly or local adjudicating authority limits, separately. they may be processed locally, even if the aggregate of such claims exceeds (b) To whom submitted. Claims under local monetary jurisdiction, if they do the Federal Tort and Military Claims not exceed the sum for which approval Acts shall be submitted to the com- of the Department of Justice is re- manding officer of the Navy or Marine quired (currently, $100,000.00) under the Corps activity involved, if known. Oth- Federal Tort Claims Act. Where they erwise, they shall be submitted to the exceed this amount, they shall be re- commanding officer of any Navy or ferred to the Claims and Tort Litiga- Marine Corps activity, preferably the tion Division. one nearest to where the accident oc- (d) Limitation on transfers and assign- curred, the local Naval Legal Service ment. All transfers and assignments Command activity, or to the Judge Ad- made of any claim upon the United vocate General, 200 Stovall Street, Al- States, and all powers of attorney, or- exandria, VA 22332–2400. ders, or other authorities for receiving payment of any such claim, are abso- § 750.7 Claims: Action by receiving lutely null and void unless they are command. made after the allowance of such a (a) Record date of receipt. The first claim, the ascertainment of the command receiving a claim shall amount due, and the issuing of a war- stamp or mark the date of recipt on rant for the payment thereof. 31 U.S.C. the letter or claim form. The envelope 203. This statutory provision does not in which the claim was received shall apply to the assignment of a claim by be preserved. operation of law, as in the case of a re- (b) Determine the military activity in- ceiver or trustee in bankruptcy ap- volved. The receiving command shall pointed for an individual, firm, or cor- poration, or the case of an adminis- determine the Navy or Marine Corps trator or executor of the estate of a activity most directly involved with person deceased, or an insurer sub- the claim—usually the command where rogated to the rights of the insured. the incident is alleged to have oc- curred—and forward a copy of the § 750.6 Claims: Presentment. claim to that activity. The original (a) Written demand and Standard Form claim (and the transmittal letter, if a 95. A claim shall be submitted by pre- copy is forwarded to a more appro- senting a written statement with the priate activity) should immediately be amount of the claim expressed in a sum sent to the servicing Naval Legal Serv- certain, and, as far as possible, describ- ice Command activity claims office. ing the detailed facts and cir- (c) Initiate an investigation. An inves- cumstances surrounding the incident tigation under this part shall be com- from which the claim arose. The Claim menced immediately by the command for Damage or Injury, Standard Form most directly involved with the claim. 95, shall be used whenever practical for Once the investigation has been com- claims under the Federal Tort and pleted, an advance copy shall be for- Military Claims Acts. Claims under the warded by the convening authority to
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the Naval Legal Service Command ac- the adjudicating authority limits es- tivity providing claims support. Wait- tablished in this instruction, the claim ing until endorsements have been ob- shall be referred promptly to the Judge tained before providing a copy of the Advocate General. The following mate- investigation to the cognizant claims rials shall be forwarded with the claim: adjudicating authority is neither re- (i) An official endorsement or letter quired nor desirable. The facts of the of transmittal containing a rec- incident must be made known to cog- ommendation on resolution of the nizant claims personnel as soon as pos- claim. sible. (ii) A memorandum of law containing a review of applicable law, an evalua- § 750.8 Claims: Responsibility of the tion of liability, and recommendation adjudicating authority. on the settlement value of the case. (a) Reviewing prior actions. The adju- This memorandum should concentrate dicating authority determines whether on the unusual aspects of applicable an adequate investigation has been law, chronicle the attempts to resolve conducted, whether the initial receipt the claim at the local level, provide in- date is recorded on the face of the formation about the availability of claim, and whether all holders of the witnesses, and outline any other infor- investigation, if completed, are advised mation material to a resolution of the of the receipt of the claim. claim, i.e. prior dealings with the (b) Determining sufficiency of the claim. claimant’s attorney, local procedural The claim should be reviewed and a de- rules, or peculiarities that may make termination of its sufficiency made. If trial difficult. The memorandum the claim is not sufficient as received, should not repeat information readily it shall be returned to the party who obtained from the investigative report submitted it along with an explanation and should be tailored to the com- of the insufficiency. This does not con- plexity of the issues presented. An ab- stitute denial of the claim. The claim breviated memorandum should be sub- shall not be considered ‘‘presented’’ mitted if the claim is statutorily until it is received in proper form. barred because of the statute of limita- (c) Adjudicating the claim. (1) The ad- tions or Federal Employees’ Compensa- judicating authority shall evaluate and tion Act or otherwise barred because of either approve or disapprove all claims the Feres doctrine. within its authority, except where the (iii) The original investigative report payment of multiple Federal Torts and all allied papers. Claims Act claims arising from the (iv) The original claim filed by the same incident will exceed $100,000.00 in claimant (and the envelope in which it the aggregate and thereby require ap- arrived, if preserved). The adjudicating proval of the Department of Justice. In authority shall retain at least one copy this latter instance, the claims and the of all papers forwarded to the Judge investigative report shall be forwarded Advocate General under this section. to the Judge Advocate General for ac- (d) Preparing litigation reports. A liti- tion. gation report is prepared when a law- (2) The adjudicating authority shall suit is filed and a complaint received. evaluate and, where liability is estab- The report is addressed to the Depart- lished, attempt to settle claims for ment of Justice official or the U.S. At- amounts within its adjudicating au- torney having cognizance of the mat- thority. Permission of higher authority ter. The report is a narrative summary to conduct settlement negotiations to of the facts upon which the suit is effect such settlements is not nec- based and has as enclosures the claims essary. Negotiation at settlement fig- file and a memorandum of law on the ures above the adjudicating authority’s issues presented. payment limits may be attempted if (1) When the claim has been for- the claimant is informed that the final warded to the Judge Advocate General decision on the claim will be made at a prior to the initiation of a suit, litiga- higher level. tion reports originate in the Claims (3) If a claim cannot be approved, set- and Tort Litigation Division of the Of- tled, compromised, or denied within fice of the Judge Advocate General.
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(2) When, however, the claim has not tive settlement of Federal tort claims been forwarded and is still under the or the civil action provisions of 28 cognizance of the Naval Legal Service U.S.C. 1346(b) also constitutes a com- Command claims office, that command plete release of any claim against any will ordinarily be required to prepare employee of the Government whose act and forward the litigation report to the or omission gave rise to the claim. requesting organization. In this in- stance, the litigation report should be § 750.11 Claims: Denial. sent directly to the cognizant Depart- A final denial of any claim within ment of Justice official or U.S. Attor- this chapter shall be in writing and ney with a copy of the report and all sent to the claimant, his attorney, or enclosures to the Judge Advocate Gen- legal representative by certified or reg- eral. istered mail with return receipt re- quested. The denial notification shall § 750.9 Claims: Payments. include a statement of the reason or Claims approved for payment shall be reasons for the denial. The notification expeditiously forwarded to the dis- shall include a statement that the bursing office or the General Account- claimant may: ing Office depending on the claims act (a) If the claim is cognizable under involved and the amount of the re- the Federal Tort Claims Act, file suit quested payment. Generally, payment in the appropriate United States Dis- of a Federal tort claim above $2,500.00 trict Court within 6 months of the date requires submission of the payment of the denial notification. voucher to the General Accounting Of- (b) If the claim is cognizable under fice. All other field authorized pay- the Military Claims Act, appeal in ment vouchers are submitted directly writing to the Secretary of the Navy to the servicing disbursing office for within 30 days of the receipt of the de- payment. nial notification. The notice of denial shall inform the claimant or his rep- § 750.10 Claims: Settlement and re- resentative that suit is not possible lease. under the Act. (a) Fully and partially approved claims. When a claim is approved for payment § 750.12 Claims: Action when suit filed. in the amount claimed, no settlement (a) Action required of any Navy official agreement is necessary. When a federal receiving notice of suit. The commence- tort, military, or non-scope claim is ment, under the civil action provisions approved for payment in a lesser of the Federal Tort Claims Act (28 amount than that claimed, the claim- U.S.C. 1346(b)), of any action against ant must indicate in writing a willing- the United States and involving the ness to accept the offered amount in Navy, that comes to the attention of full settlement and final satisfaction of any official in connection with his offi- the claim. In the latter instance, no cial duties, shall be reported imme- payment will be made until a signed diately to the commanding officer of settlement agreement has been re- the servicing Naval Legal Service Com- ceived. mand activity who shall take any nec- (b) Release. (1) Acceptance by the essary action and provide prompt noti- claimant of an award or settlement fication to the Judge Advocate Gen- made by the Secretary of the Navy or eral. The commencement of a civil ac- designees, or the Attorney General or tion against an employee of the Navy designees, is final upon acceptance by for actions arising from the perform- the claimant. Acceptance is a complete ance of official duties shall be reported release by claimant of any claim in the same manner. against the United States by reason of (b) Steps upon commencement of civil the same subject manner. Claimant’s action. Upon receipt by the Judge Ad- acceptance of an advance payment does vocate General of notice from the De- not have the same effect. partment of Justice or other source (2) The claimant’s acceptance of an that a civil action involving the Navy award or settlement made under the has been initiated under the civil ac- provisions governing the administra- tion provisions of the Federal Tort
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Claims Act, and there being no inves- (1) Department of the Army: Austria, tigative report available at the head- Belgium, El Salvador, France, the Fed- quarters, a request shall be made to eral Republic of Germany, Grenada, the commanding officer of the appro- Honduras, Korea, the Marshall Islands, priate Naval Legal Service Command and Switzerland and as the Receiving activity for an investigative report State Office in the United States under into the incident. If there is not a com- 10 U.S.C. 2734a and 2734b and the NATO pleted investigation, the request shall Status of Forces Agreement, and other be forwarded to the appropriate naval Status of Forces Agreements with activity to convene and complete such countries not covered by the NATO a report. The commanding officer of agreement. the Naval Legal Service Command ac- (2) Department of the Navy: Bahrain, tivity shall determine whether an ad- Iceland, Israel, Italy, Portugal, and Tu- ministrative claim had been filed and, nisia. if available information indicates none (3) Department of the Air Force: Aus- had, advise the Office of the Judge Ad- tralia, Azores, Canada, Cyprus, Den- vocate General (Claims and Tort Liti- mark, Greece, India, Japan, Luxem- gation Division) immediately. bourg, Morocco, Nepal, Netherlands, Norway, Pakistan, Saudi Arabia, § 750.13 Claims: Single service respon- Spain, Turkey, the United Kingdom, sibility. Egypt, Oman, and claims involving, or (a) The Department of Defense has generated by, the U.S. Central Com- assigned single-service responsibility mand (CENTCOM) and the U.S. Special for processing claims in foreign coun- Operations Command (USSOC), that tries under the following acts. The arise in countries not specifically as- service and country assignments are in signed to the Departments of the Army DODDIR 5515.8 of 9 June 1990.1 and the Navy. (1) Foreign Claims Act (10 U.S.C. (c) U.S. forces afloat cases under 2734); $2,500.00. Notwithstanding the single (2) Military Claims Act (10 U.S.C. service assignments above, the Navy 2733); may settle claims under $2,500.00 (3) International Agreements Claims caused by personnel not acting within Act (10 U.S.C. 2734a and b), on the pro- the scope of employment and arising in rata cost sharing of claims pursuant to foreign ports visited by U.S. forces international agreement; afloat and may, subject to the concur- (4) NATO Status of Forces Agree- rence of the authorities of the receiv- ment (4 UST 1792, TIAS 2846) and other ing state concerned, process such similar agreements; claims. (5) Medical Care Recovery Act (42 U.S.C. 2651–2653) claims for reimburse- §§ 750.14–750.20 [Reserved] ment for medical care furnished by the United States; Subpart B—Federal Tort Claims (6) Nonscope Claims Act (10 U.S.C. Act 2737), claims not cognizable under any other provision of law; § 750.21 Scope of subpart B. (7) Federal Claims Collection Act of This subpart provides information re- 1966 (31 U.S.C. 3701); the Act of June garding the administrative processing 1921 (31 U.S.C. 3702), claims and de- and consideration of claims against the mands by the U.S. Government; and United States under the FTCA. The (8) Public Law 87–212 (10 U.S.C. 2736), FTCA is a limited waiver of sovereign advance or emergency payments. immunity. Under the FTCA, an indi- (b) Single service assignments for vidual can seek money damages for processing claims mentioned above are personal injury, death, or property as follows: damage caused by the negligent or wrongful act or omission of a Federal 1 Copies may be obtained if needed, from employee acting within the scope of Commanding Officer, U.S. Naval Publica- employment. The FTCA also provides tions and Forms Center, 5801 Tabor Avenue, for compensation for injuries caused by Philadelphia, PA 19120. certain intentional, wrongful conduct.
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The liability of the United States is de- searches, to seize evidence, or to make termined in accordance with the law of arrests for violations of Federal law. 28 the State where the act or omission U.S.C. 2680(h). occured. (c) Government employees—(1) General. ‘‘Employee of the Government,’’ de- § 750.22 Exclusiveness of remedy. fined at 28 U.S.C. 2671, includes officers (a) The Federal Employees Liability or employees of any Federal agency, Reform and Tort Compensation Act of members of the U.S. military or naval 1988, Public Law 100–694 (amending 28 forces, and persons acting on behalf of U.S.C. 2679(b) and 2679(d)), provides a Federal agency in an official capac- that the exclusive remedy for damage ity. or loss of property, or personal injury (2) Government contractors. Govern- or death arising from the negligent or ment (also referred to as independent) wrongful acts or omissions of all Fed- contractors, are those individuals or eral employees, acting within the scope businesses who enter into contracts of their employment, will be against with the United States to provide the United States. This immunity from goods or services. Because the defini- personal liability does not extend to al- tion of ‘‘Federal agency,’’ found at 28 legations of constitutional torts, nor to U.S.C. 2671, specifically excludes ‘‘any allegations of violations of statutes contractor with the United States,’’ specifically authorizing suits against the United States is generally not lia- individuals. ble for the negligence of Government (b) Other statutory provisions create contractors. There are, however, three immunity from personal liability for limited exceptions to the general rule, specific categories of Federal employ- under which a cause of action against ees whose conduct, within the scope of the United States has been found to their employment, gives rise to claims exist in some jurisdictions. They are: against the Government. Department (i) Where the thing or service con- of Defense health care providers are tracted for is deemed to be an ‘‘inher- specifically protected by 10 U.S.C. 1089, ently dangerous activity’’; the Gonzalez Act. DOD attorneys are (ii) where a nondelegable duty in the specifically protected by 10 U.S.C. 1054. employer has been created by law; or, (iii) where the employer retains con- § 750.23 Definitions. trol over certain aspects of the con- (a) Negligent conduct. Generally, neg- tract and fails to discharge that con- ligence is the failure to exercise that trol in a reasonable manner. degree of care, skill, or diligence a rea- (3) Employees of nonappropriated-fund sonable person would exercise under activities. Nonappropriated-fund activi- similar circumstances. Negligent con- ties are entities established and oper- duct can result from either an act or a ated for the benefit of military mem- failure to act. The law of the place bers and their dependents, and have where the conduct occurred will deter- been judicially determined to be mine whether a cause of action lies ‘‘arms’’ of the Federal government. against the Government. 28 U.S.C. These entities operate from self-gen- 1346(b) and 2674. erated funds, rather than from funds (b) Intentional torts. Although any appropriated by Congress. Examples in- employee who commits an intentional clude Navy and Marine Corps Ex- tort is normally considered to be act- changes, officer or enlisted clubs, and ing outside the scope of employment, recreational services activities. A the FTCA does allow claimants to seek claim arising out of the act or omission compensation for injuries arising out of an employee of a nonappropriated- of the intentional torts of assault, bat- fund activity not located in a foreign tery, false imprisonment, false arrest, country, acting within the scope of em- abuse of process, and malicious pros- ployment, is an act or omission com- ecution, if committed by a Federal in- mitted by a Federal employee and will vestigative or law enforcement officer. be handled in accordance with the An ‘‘investigative or law enforcement FTCA. officer’’ is any officer of the United (d) Scope of employment. ‘‘Scope of States empowered by law to execute employment’’ is defined by the law of
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respondeat superior (master and serv- forces, or the Coast Guard, during time ant) of the place where the act or omis- of war. sion occurred. Although 28 U.S.C. 2671 (2) Additional claims not payable. Al- states that acting within the scope of though not expressly statutorily ex- employment means acting in the line cepted, the following types of claims of duty, the converse is not always shall not be paid under the FTCA: true. For administrative purposes, a (i) A claim for personal injury or Government employee may be found death of a member of the armed forces ‘‘in the line of duty,’’ yet not meet the of the United States incurred incident criteria for a finding of ‘‘within the to military service or duty. Compare scope of employment’’ under the law of United States v. Johnson, 481 U.S. 681 the place where the act or omission oc- (1987); Feres v. United States, 340 U.S. 135 curred. (1950) with Brooks v. United States, 337 U.S. 49 (1949); § 750.24 Statutory/regulatory author- (ii) Any claim by military personnel ity. or civilian employees of the Navy, paid The statutory provisions of the Fed- from appropriated funds, for personal eral Tort Claims Act (FTCA) are at 28 property damage occurring incident to U.S.C. 1346(b), 2671–2672, and 2674–2680. service or Federal employment, cog- The Attorney General of the United nizable under 31 U.S.C. 3721 and the ap- States has issued regulations on ad- plicable Personnel Claims Regulations, ministrative claims filed under the 32 CFR part 751; FTCA at 28 CFR part 14. If the provi- (iii) Any claim by employees of non- sions of this section and the Attorney appropriated-fund activities for per- General’s regulations conflict, the At- sonal property damage occurring inci- torney General’s regulations prevail. dent to Federal employment. These claims will be processed as indicated in § 750.25 Scope of liability. 32 CFR part 756; (a) Territorial limitations. The FTCA (iv) Any claim for personal injury or does not apply to any claim arising in death covered by the Federal Employ- a foreign country. 28 U.S.C. 2680(k) and ees’ Compensation Act (5 U.S.C. 8116c); Beattie v. United States, 756 F.2d 91 (D.C. (v) Any claim for personal injury or Cir. 1984). death covered by the Longshore and (b) Exclusions from liability. Statutes Harbor Workers’ Compensation Act (33 and case law have established cat- U.S.C. 905 and 5 U.S.C. 8171); egories of exclusions from FTCA liabil- (vi) That portion of any claim for ity. personal injury or property damage, (1) Statutory exclusions. Section 2680 caused by the negligence or fault of a of Title 28 lists claims not cognizable Government contractor, to the extent under the FTCA. They include: such contractor may have assumed li- (i) Claims based on the exercise or ability under the terms of the contract performance of, or the failure to exer- (see United States v. Seckinger, 397 U.S. cise or perform, a discretionary Gov- 203 (1969) and § 750.23(c)(2); ernment function; (vii) Any claim against the Depart- (ii) Admiralty claims under 46 U.S.C. ment of the Navy by another Federal 741–752 or 781–790. Claims under the agency. Property belonging to the Gov- Death on the High Seas Act (46 U.S.C. ernment is not owned by any one de- 761), however, are cognizable under the partment of the Government. The Gov- FTCA. All admiralty claims will be re- ernment does not reimburse itself for ferred to the Judge Advocate General the loss of its own property except for adjudication. Admiralty claims where specifically provided for by law; against the Navy shall be processed and under part 752 of this Chapter; (viii) Any claim for damage to a vehi- (iii) Claims arising from intentional cle rented pursuant to travel orders. torts, except those referred to in § 750.23(b); § 750.26 The administrative claim. (iv) Claims arising from the combat (a) Proper claimant. See § 750.5 of this activities of the military or naval part.
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(b) Claim presented by agent or legal monthly or yearly earnings and the du- representative. A claim filed by an agent ration of last employment; or legal representative will be filed in (iii) Full names, addresses, birth the name of the claimant; be signed by dates, relationship, and marital status the agent or legal representative; show of the decedent’s survivors, including the title or legal capacity of the person identification of survivors dependent signing; and be accompanied by evi- for support upon decedent at the time dence of the individual’s authority to of death; file a claim on behalf of the claimant. (iv) Degree of support provided by de- (c) Proper claim. A claim is a notice in cedent to each survivor at time of writing to the appropriate Federal death; agency of an incident giving rise to (v) Decedent’s general physical and Government liability under the FTCA. mental condition before death; It must include a demand for money (vi) Itemized bills for medical and damages in a definite sum for property burial expenses; damage, personal injury, or death al- (vii) If damages for pain and suffering leged to have occurred by reason of the are claimed, a physician’s detailed incident. The Attorney General’s regu- statement specifying the injuries suf- lations specify that the claim be filed fered, duration of pain and suffering, on a Standard Form 95 or other written any drugs administered for pain, and notification of the incident. If a letter the decedent’s physical condition dur- or other written notification is used, it ing the interval between injury and is essential that it set forth the same death; and, basic information required by Standard (viii) Any other evidence or informa- Form 95. Failure to do so may result in tion which may affect the liability of a determination that the administra- the United States. tive claim is incomplete. A suit may be (2) Personal injury. (i) A written re- dismissed on the ground of lack of sub- port by attending physician or dentist ject matter jurisdiction based on on the nature and extent of the injury, claimant’s failure to present a proper nature and extent of treatment, any claim as required by 28 U.S.C. 2675(a). degree of temporary or permanent dis- (d) Presentment. A claim is deemed ability, the prognosis, period of hos- presented when received by the Navy in pitalization, any any diminished earn- proper form. A claim against another ing capacity. In addition, the claimant agency, mistakenly addressed to or may be required to submit to a phys- filed with the Navy shall be transferred ical or mental examination by a physi- to the appropriate agency, if ascertain- cian employed by any Federal agency. able, or returned to the claimant. A Upon written request, a copy of the re- claimant presenting identical claims port of the examining physician shall with more than one agency should be provided; identify every agency to which the (ii) Itemized bills for medical, dental, claim is submitted on every claim form and hospital expenses incurred, or presented. Claims officers shall coordi- itemized receipts of payments of such nate with all other affected agencies expenses; and ensure a lead agency is designated. (iii) A statement of expected ex- 28 CFR 14.2. penses for future treatment; (iv) If a claim is made for lost wages, § 750.27 Information and supporting a written statement from the employer documentation. itemizing actual time and wages lost; (a) Proper documentation. Depending (v) If a claim is made for lost self-em- on the type of claim, claimants may be ployed income, documentary evidence required to submit information, as fol- showing the amount of earnings actu- lows: ally lost; and (1) Death. (i) An authenticated death (vi) Any other evidence or informa- certificate or other competent evidence tion which may affect the liability of showing cause of death, date of death, the United States for the personal in- and age of the decedent; jury or the damages claimed. (ii) Decedent’s employment or occu- (3) Property damage. (i) Proof of own- pation at time of death, including ership;
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(ii) A detailed statement of the turn receipt requested. The notifica- amount claimed for each item of prop- tion of final denial shall include the erty; reasons for the denial. The notification (iii) An itemized receipt of payment shall include a statement informing for necessary repairs or itemized writ- the claimant of his right to file suit in ten estimates of the cost of repairs; the appropriate Federal district court (iv) A statement listing date of pur- not later than 6 months after the date chase, purchase price, and salvage of the mailing of the notification. 28 value where repair is not economical; CFR 14.9(a). and (v) Any other evidence or informa- § 750.31 Reconsideration. tion which may affect the liability of the United States for the property (a) Request. Prior to the commence- damage claimed. ment of suit and prior to the expiration (b) Failure to submit necessary docu- of the 6-month period for filing suit, a mentation. If claimant fails to provide claimant or his duly authorized agent sufficient supporting documentation, or legal representative may present a claimant should be notified of the defi- request for reconsideration to the au- ciency. If after notice of the deficiency, thority who denied the claim. The re- including reference to 28 CFR 14.4, the quest shall be in writing and shall information is still not supplied, two state the reasons for the requested re- follow-up requests should be sent by consideration. A request for reconsider- certified mail, return receipt re- ation is presented on the date it is re- quested. If after a reasonable period of ceived by the DON. 28 CFR 14.9(b). time the information is still not pro- (b) Proper basis. A request for recon- vided, the appropriate adjudicating au- sideration shall set forth claimant’s thority should deny the claim. reasons for the request, and shall in- clude any supplemental supporting evi- § 750.28 Amendment of the claim. dence or information. Any writing A proper claim may be amended at communicating a desire for reconsider- any time prior to settlement, denial, or ation that reasonably appears to have the filing of suit. An amendment must been presented solely for the purpose of be submitted in writing and must be extending the statutory period for fil- signed by the claimant or duly author- ing suit, shall not be treated as a re- ized agent or legal representative. No quest for reconsideration. Claimant or finally denied claim for which recon- claimant’s authorized representative sideration has not been requested shall be notified promptly that the under § 750.31 may be amended. writing is not considered a proper re- § 750.29 Investigation and examina- quest for reconsideration. tion. (c) Effect of presentment of request. The Subpart A of this part requires an in- presentment of a proper request for re- vestigation for every incident that may consideration starts a new 6-month pe- result in a claim against or in favor of riod for the DON to act on the request the United States. Where a previously to reconsider. The claimant may not unanticipated claim is filed against the file suit until the expiration of the new Government and an investigation has 6-month period, or until after the date not already been conducted, the appro- of mailing of the final denial of the re- priate claims officer shall immediately quest. Final denial of a request for re- request an investigation. See subpart A consideration shall be accomplished in of this part for specific action required the manner prescribed in § 750.30. 28 by an adjudicating authority. CFR 14.9(b).
§ 750.30 Denial of the claim. § 750.32 Suits under the Federal Tort Final denial of an administrative Claims Act (FTCA). claim shall be in writing and shall be (a) Venue. Venue is proper only in the sent to the claimant, his duly author- judicial district where the plaintiff re- ized agent or legal representative by sides or where the act or omission com- certified or registered mail, with re- plained of occurred. 28 U.S.C. 1402.
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(b) Jury trial. There is no right to (c) Setoff. The United States is not trial by jury in suits brought under the obligated to pay twice for the same in- FTCA. 28 U.S.C. 2402. jury. Claimants under the FTCA may (c) Settlement. The Attorney General have received Government benefits or of the United States, or designee, may services as the result of the alleged arbitrate, compromise, or settle any tort. The cost of these services or bene- action filed under the FTCA. 28 U.S.C. fits shall be considered in arriving at 2677. any award of damages. For example, (d) Litigation support—(1) Who pro- the cost of medical or hospital services vides. The adjudicating authority hold- furnished at Government expense, in- ing a claim at the time suit is filed cluding CHAMPUS payments, shall be shall be responsible for providing nec- considered. Additionally, benefits or essary assistance to the Department of services received under the Veterans Justice official or U.S. Attorney re- Act (38 U.S.C. 101–800) must be consid- sponsible for defending the Govern- ered. Brooks v. United States, 337 U.S. 49 ment’s interests. (1949). (2) Litigation report. A litigation re- (d) Suit. Any damage award in a suit port, including a legal memorandum brought under the FTCA is limited to emphasizing anticipated issues during the amount claimed administratively litigation, shall be furnished to the ap- unless based on newly discovered evi- propriate Department of Justice offi- dence. 28 U.S.C. 2675(b). Plaintiff must cial or U.S. Attorney. prove the increased demand is based on (3) Pretrial discovery. Complete and facts not reasonably discoverable at timely responses to discovery requests the time of the presentment of the are vital to the effective defense of tort claim or on intervening facts relating litigation. Subject to existing per- to the amount of the claim. sonnel and resources available, appro- priate assistance shall be provided. The § 750.34 Settlement and payment. Judge Advocate General should be no- (a) Settlement agreement—(1) When re- tified promptly when special problems quired. A settlement agreement, signed are encountered in providing the re- by the claimant, must be received prior quested assistance. to payment in every case in which the (4) Preservation of evidence. Tort liti- claim is either: gation is often accomplished over an (i) Settled for less than the full extended period of time. Every effort amount claimed, or shall be made to preserve files, docu- (ii) The claim was not presented on a ments, and other tangible evidence Standard Form 95. that may bear on litigation. Destruc- (2) Contents. Every settlement agree- tion of such evidence, even in accord- ment must contain language indicating ance with routine operating proce- payment is in full and final settlement dures, undermines defense of a case. of the applicable claim. Each settle- ment agreement shall contain lan- § 750.33 Damages. guage indicating acceptance of the set- (a) Generally. The measure of dam- tlement amount by the claimant, or ages is determined by the law of the his agent or legal representative, shall place where the act or omission oc- be final and conclusive on the claim- curred. When there is a conflict be- ant, or his agent or legal representa- tween local and applicable Federal law, tive, and any other person on whose be- the latter governs. 28 U.S.C. 1346(b). half or for whose benefit the claim has (b) Limitations on liability. The United been presented, and shall constitute a States is not liable for interest prior to complete release of any claim against judgment or for punitive damages. In a the United States and against any em- death case, if the place where the act ployee of the Government whose con- or omission complained of occurred duct gave rise to the claim, by reason provides for only punitive damages, the of the same subject matter. 28 CFR United States will be liable in lieu 14.10(b). In cases where partial payment thereof, for actual or compensatory will benefit both claimant and the Gov- damages. 28 U.S.C. 2674. ernment, such as payment for property
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damage to an automobile, the settle- from a third party and the agency is ment agreement shall be tailored to re- unable to adjust the third party claim; flect the terms of the partial settle- (iv) The compromise of a particular ment. All settlement agreements shall claim, as a practical matter, will or contain a recitation of the applicable may control the disposition of a re- statutory limitation of attorneys fees. lated claim in which the amount to be 28 U.S.C. 2678. paid may exceed $100,000.00; or (b) DON role in settlement negotiations (v) The DON is informed or is other- involving the U.S. Attorney or DOJ. wise aware that the United States or Agency concurrence is generally an employee, agent, or cost-plus con- sought by the Department of Justice or tractor of the United States is involved U.S. Attorney’s office prior to settle- in litigation based on a claim arising ment of suits involving the DON. Re- out of the same incident or trans- quests for concurrence in settlement action. proposals shall be referred to the ap- (2) Specific delegation and designa- propriate DON adjudicating authority tion—(i) Payment authority. with primary responsibility for moni- Federal Tort toring the claim. Adjudicating authori- Delegated and designated authority Claims Act ties shall consult with the Judge Advo- Judge Advocate General ...... Unlimited. cate General concerning proposed set- Deputy Judge Advocate General ...... Unlimited. tlements beyond their adjudicating au- Assistant Judge Advocate General (Gen- Unlimited. thority. eral Law). Deputy Assistant Judge Advocate Gen- $100,000.00. (c) Payment of the claim—(1) Statutory eral (Claims and Tort Litigation) and authority. Pursuant to 28 U.S.C. 2672 Deputy Division Director. and in accordance with 28 CFR 14.6(a), Head, Federal Tort Claims Branch, $50,000.00. the Secretary of the Navy or designee, Claims and Tort Division, OJAG. Commanding Officers of Naval Legal $25,000.00. acting on behalf of the United States, Service Offices; Officers in Charge of may compromise or settle any claim Naval Legal Service Office Detach- filed against the Navy under the FTCA, ments when Specifically Designated by Cognizant Commanding Officers of provided any award, compromise, or Naval Legal Service Offices. settlement by the Navy in excess of $100,000.00 may be effected only with Any payment of over $100,000.00 must the prior written approval of the Attor- be approved by the Department of Jus- ney General or designee. Title 28 CFR tice. In addition, the authority to deny 14.6 requires consultation with the De- Federal Tort Claims is double the Fed- partment of Justice prior to com- eral Tort Claims Act approval author- promise or settlement of a claim in any ity shown above. The Judge Advocate amount when: General, the Deputy Judge Advocate (i) A new precedent or a new point of General, the Assistant Judge Advocate law is involved; General (General Law), and the Deputy (ii) A question of policy is or may be Assistant Judge Advocate General involved; (Claims and Tort Litigation) may deny (iii) The United States is or may be Federal Tort Claims in any amount. entitled to indemnity or contribution (ii) Territorial responsibility.
Responsible command Territory
NAVLEGSVCOFF Newport ...... Maine, Vermont, New Hampshire, Massachusetts, Rhode Island, and Connecticut. NAVLEGSVCOFF Philadelphia ...... Pennsylvania, New Jersey, Ohio, and New York. NAVLEGSVCOFF Washington, DC .. Maryland, the District of Columbia, and Northern Virginia area (zip 220±223). NAVLEGSVCOFF Norfolk ...... Virginia (less Northern Virginia areaÐzip 220±223), and West Virginia, North Carolina (counties of Currituck, Camden, Pasquotonk, Gates, Perquimans, Chowan, Dare, Tyrrell, Washington, Hyde, Beaufort, Pamlico, Craven, Jones, Carteret, and Onslow only), Bermuda, Iceland, Greenland, Azores, The Caribbean, The Republics of Guate- mala, El Salvador, Honduras, Nicaragua, Costa Rica, and Panama, Belize, Colombia, Venezuela, Guyana, French Guiana, Surinam, Brazil, Bolivia, Paraguay, Uruguay, Ar- gentina, and all Atlantic and Arctic Ocean areas and islands not otherwise assigned. NAVLEGSVCOFF Charleston ...... North Carolina (less counties of Currituck, Camden, Pasquotonk, Gates, Perquimans, Chowan, Dare, Tyrrell, Washington, Hyde, Beaufort, Pamlico, Craven, Jones, Carteret, Onslow), and Georgia (less Counties of Charlton, Camden, and Glynn). NAVLEGSVCOFF Jacksonville ...... That portion of Florida east of the western boundaries of Gadsen, Liberty, and Franklin Counties and Georgia (counties of Charlton, Camden, and Glynn).
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Responsible command Territory
NAVLEGSVCOFF Pensacola...... Florida [Pensacola/Panama City area (zip 324±325)], Alabama, Louisiana and Mis- sissippi (that portion south of Washington, Humphreys, Holmes, Attala, Winston, and Noxubee Counties, and that portion of the Gulf of Mexico East of longitude 90 W). NAVLEGSVCOFF Memphis ...... Missouri, Tennessee, Kentucky, Arkansas, and that portion of Mississippi north of the southern boundaries of Washington, Humphreys, Holmes, Attala, Winston, and Noxubee Counties. NAVLEGSVCOFF Great Lakes ...... North Dakota, South Dakota, Nebraska, Minnesota, Michigan, Iowa, Wisconsin, Illinois, and Indiana. NAVLEGSVCOFF Corpus Christi ..... Texas. NAVLEGSVCOFF San Diego ...... California (Imperial County, San Diego County, and that area included in Marine Corps Base, Camp Pendleton extending into Orange County, only), that portion of Mexico in- cluding and West of the States of Chihuahua, Durango, Nayarit, Jalisoc, and Colima, Pacific Ocean areas and islands South of Latitude 45N and East of Longitude 135W, Ecuador, Peru, Chile, Arizona, New Mexico, Oklahoma, and Nevada (Clark County only). NAVLEGSVCOFF Long Beach ...... That portion of California in Kern, Santa Barbara, Ventura, Los Angeles and Orange Counties (excluding Marine Corps Base, Camp Pendleton), Riverside, San Bernadino, and the China Lake Naval Weapons Station Center. NAVLEGSVCOFF San Francisco ..... Northern California (Counties of San Luis Obispo, Kings, Tulare, Inyo, and all counties North thereof), Colorado, Nevada (less Clark County), Utah, and Kansas. NAVLEGSVCOFF Puget Sound ...... Washington, Oregon, Idaho, Montanta, Wyoming, and Alaska. NAVLEGSVCOFF Pearl Harbor ...... Hawaii, including Midway and Pacific Island possessions serviced from Hawaii. NAVLEGSVCOFF Mayport ...... Claims involving commands located at Naval Station, Mayport, Florida. NAVLEGSVCOFF Guam ...... Guam, The Trust Territory of The Pacific Islands, The Republic of The Marshall Island, The Federated States of Micronesia and The Commonwealth of The Northern Mari- anas. NAVLEGSVCOFF Yokosuka ...... Japan, Okinawa, Korea, that portion of the Eurasian Continent North of latitude 30N and East of longitude 60E, and those Pacific and Arctic Ocean areas and islands North of latitude 30N that are East of longitude 60E and West of longitude 170w. NAVLEGSVCOFF Naples ...... Europe, the African Continent (excluding that portion thereof assigned to NLSO Subic Bay), the Eurasian Continent (excluding that portion thereof assigned to NLSO Yokosuka and NLSO Subic Bay), and the Mediterranean. NAVLEGSVCOFF Subic Bay ...... Philippines, Hong Kong, Singapore, Diego Garcia, and unless otherwise specified, all Pa- cific and Indian Ocean areas and islands located between longitude 135E and lon- gitude 15E; Ethiopia, Somalia, Kenya, Tanzania, Mozambique, Swaziland, Lesotho, and South Africa; that portion of the Eurasian Continent South of latitude 30N and East of longitude 60E.
(3) Funding. Claims approved for § 750.36 Time limitations. $2,500.00 or less are paid from DON ap- (a) Administrative claim. Every claim propriations. Claims approved in excess filed against the United States under of $2,500.00 are paid from the judgment the FTCA must be presented in writing fund and must be forwarded to the within 2 years after the claim accrues. United States General Accounting Of- 28 U.S.C. 2401(b). Federal law deter- fice (GAO) for payment. 28 CFR mines the date of accrual. A claim ac- 14.10(a). Claims arising out of the oper- crues when the claimant discovers or ation of nonappropriated-fund activi- reasonably should have discovered the ties and approved for payment shall be existence of the act giving rise to the forwarded to the appropriate non- claim. In computing the statutory time appropriated-fund activity for pay- period, the day of the incident is ex- ment. cluded and the day the claim was pre- sented included. § 750.35 Attorney’s fees. (b) Amendments. Upon timely filing of Attorney’s fees are limited to 20 per- an amendment to a pending claim, the cent of any compromise or settlement DON shall have 6 months to make a of an administrative claim, and are final disposition of the claim as amend- limited to 25 percent of any judgment ed, and the claimant’s option to file rendered in favor of a plaintiff, or of suit under 28 U.S.C. 2675(a) shall not any settlement accomplished after suit accrue until 6 months after the pre- is filed. These amounts are to be paid sentment of an amendment. 28 CFR out of the amount awarded and not in 14.2(c). addition to the award. 28 U.S.C. 2678. (c) Suits. A civil action is barred un- less suit is filed against the United
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States not later than 6 months after § 750.43 Claims payable. the date of mailing of notice of final (a) General. Unless otherwise pre- denial of the claim. 28 U.S.C. 2401(b). scribed, a claim for personal injury, The failure of the DON to make final death, or damage or loss of real or per- disposition of a claim within 6 months sonal property is payable under this after it is presented shall, at the option provision when: of the claimant any time thereafter, be (1) Caused by an act or omission de- deemed a final denial of the claim. 28 termined to be negligent, wrongful, or U.S.C. 2675(a). otherwise involving fault of DON per- sonnel acting within the scope of their §§ 750.37–750.40 [Reserved] employment; or (2) Incident to noncombat activities Subpart C—Military Claims Act of the DON. A claim may be settled under this provision if it arises from § 750.41 Scope of subpart C. authorized activities essentially mili- This section prescribes the sub- tary in nature, having little parallel in stantive bases and special procedural civilian pursuits, and in which the U.S. requirements for the settlement of Government has historically assumed a claims against the United States for broad liability, even if not shown to death, personal injury, or damage, loss, have been caused by any particular act or destruction of property: or omission by DON personnel while (a) Caused by military personnel or ci- acting within the scope of their em- vilian employees of the Department of the ployment. Examples include practice Navy (DON) (hereinafter DON personnel). firing of missiles and weapons, sonic For the purposes of this section, DON booms, training and field exercises, and personnel include all military per- maneuvers that include operation of sonnel of the Navy and Marine Corps, aircraft and vehicles, use and occu- volunteer workers, and others serving pancy of real estate, and movement of as employees of the DON with or with- combat or other vehicles designed espe- out compensation, and members of the cially for military use. Activities inci- National Oceanic and Atmospheric Ad- dent to combat, whether or not in time ministration or of the Public Health of war, and use of DON personnel dur- Service when serving with the DON. ing civil disturbances are excluded. DON personnel does not include DON (b) Specific claims payable. Claims contractors or their employees. payable by the DON under § 750.43(a) (1) (b) Incident to noncombat activities of and (2) shall include, but not be limited the DON. Claims for personal injury or to: death of a member of the Armed Forces (1) Registered or insured mail. Claims or Coast Guard, or civilian officer or for damage to, loss, or destruction, employee of the U.S. Government even if by criminal acts, of registered whose injury or death is incident to or insured mail while in the possession service, however, are not payable. of DON authorities are payable under (c) Territorial limitation. There is no the MCA. This provision is an excep- geographical limitation on the applica- tion to the general requirement that tion of the MCA, but if a claim arising compensable damage, loss, or destruc- in a foreign country is cognizable tion of personal property be caused by under the Foreign Claims Act (10 DON personnel while acting within the U.S.C. 2734), the claim shall be proc- scope of their employment or otherwise essed under that statute. See 10 U.S.C. incident to noncombat activities of the 2733(b)(2). DON. The maximum award to a claim- (d) Suit. The MCA authorizes the ad- ant under this section is limited to ministrative settlement and payment that to which the claimant would be of certain claims. The United States entitled from the Postal Service under has not consented to be sued. the registry or insurance fee paid. The award shall not exceed the cost of the § 750.42 Statutory authority. item to the claimant regardless of the 10 U.S.C. 2733, as amended, commonly fees paid. Claimant may be reimbursed referred to as the Military Claims Act for the postage and registry or insur- (MCA). ance fees.
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(2) Property bailed to the DON. Claims indirectly from any act by armed for damage to or loss of personal prop- forces engaged in combat. erty bailed to the DON, under an ex- (c) Any claim for reimbursement of press or implied agreement are payable medical, hospital, or burial expenses to under the MCA, even though legally the extent already paid by the U.S. enforceable against the U.S. Govern- Government. ment as contract claims, unless by ex- (d) Any claim cognizable under: press agreement the bailor has as- (1) Military Personnel and Civilian sumed the risk of damage, loss, or de- Employees’ Claims Act, as amended. 31 struction. Claims filed under this para- U.S.C. 3721. graph may, if in the best interest of the (2) Foreign Claims Act. 10 U.S.C. 2734. U.S. Government, be referred to and (3) 10 U.S.C. 7622, relating to admi- processed by the Office of the General ralty claims. See part 752 of this Chap- Counsel, DON, as contract claims. ter. (3) Real property. Claims for damage to real property incident to the use and (4) Federal Tort Claims Act. 28 U.S.C. occupancy by the DON, whether under 2671, 2672, and 2674–2680. an express or implied lease or other- (5) International Agreements Claims wise, are payable under the MCA even Act. 10 U.S.C. 2734a and 2734b. though legally enforceable against the (6) Federal Employees’ Compensation DON as contract claims. Claims filed Act. 5 U.S.C. 8101–8150. under this paragraph may, if in the (7) Longshore and Harbor Workers’ best interest of the U.S. Government, Compensation Act. 33 U.S.C. 901–950. be referred to and processed by the Of- (e) Any claim for damage to or loss fice of the General Counsel, DON, as or destruction of real or personal prop- contract claims. erty founded in written contract [ex- (4) Property of U.S. military personnel. cept as provided in § 750.43(b) (2) and Claims of U.S. military personnel for (3)]. property lost, damaged, or destroyed (f) Any claim for rent of real or per- under conditions in § 750.43(a) (1) and (2) sonal property [except as provided in occurring on a military installation, § 750.43(b) (2) and (3)]. not payable under the Military Per- (g) Any claim involving infringement sonnel and Civilian Employees’ Claims of patents. Act, are payable under the MCA. (h) Any claim for damage, loss, or de- (5) Health care and Legal Assistance struction of mail prior to delivery by Providers. Claims arising from the per- the Postal Service to authorized DON sonal liability of DON health care and personnel or occurring due to the fault legal assistance personnel for costs, of, or while in the hands of, bonded per- settlements, or judgments for neg- sonnel. ligent acts or omissions while acting within the scope of assigned duties or (i) Any claim by a national, or cor- employment are payable under the poration controlled by a national, of a MCA. See § 750.54. country in armed conflict with the United States, or an ally of such coun- § 750.44 Claims not payable. try, unless the claimant is determined (a) Any claim for damage, loss, de- to be friendly to the United States. struction, injury, or death which was (j) Any claim for personal injury or proximately caused, in whole or in death of a member of the Armed Forces part, by any negligence or wrongful act or civilian employee incident to his on the part of the claimant, or his service. 10 U.S.C. 2733(b)(3). agent or employee, unless the law of (k) Any claim for damage to or loss the place where the act or omission of bailed property when bailor specifi- complained of occurred would permit cally assumes such risk. recovery from a private individual (l) Any claim for taking private real under like circumstances, and then property by a continuing trespass or by only to the extent permitted by the technical trespass such as overflights law. of aircraft. (b) Any claim resulting from action (m) Any claim based solely on com- by the enemy or resulting directly or passionate grounds.
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§ 750.45 Filing claim. section 750.27 of this part. A claim (a) Who may file. Under the MCA, spe- must be substantiated as required by cifically, the following are proper this Part in order to be paid. See 10 claimants: U.S.C. 2733(b)(5). (1) U.S. citizens and inhabitants. (f) Amendment of claim. A proper (2) U.S. military personnel and civil- claim may be amended by the claimant ian employees, except not for personal at any time prior to final denial or injury or death incident to service. payment of the claim. An amendment (3) Persons in foreign countries who shall be submitted in writing and are not inhabitants. signed by the claimant or a duly au- (4) States and their political subdivi- thorized agent or legal representative. sions (including agencies). (g) Payment. Claims approved for pay- (5) Prisoners of war for personal prop- ment shall be forwarded to such dis- erty, but not personal injury. bursing officer as may be designated by (6) Subrogees, to the extent they paid the Comptroller of the Navy for pay- the claim. ment from appropriations designated (b) Who may not file. (1) Inhabitants for that purpose. If the Secretary of of foreign nations for loss or injury oc- the Navy considers that a claim in ex- curring in the country they inhabit. (2) U.S. Government agencies and de- cess of $100,000.00 is meritorious and partments. would otherwise be covered by 10 (c) When to file/statute of limitations. U.S.C. 2733 and § 750.43, he may make a Claims against the DON must be pre- partial payment of $100,000.00 and refer sented in writing within 2 years after the excess to the General Accounting they accrue. In computing the 2 year Office for payment from appropriations period, the day the claim accrues is ex- provided therefore. cluded and the day the claim is pre- sented is included. If the incident oc- § 750.46 Applicable law. curs in time of war or armed conflict, (a) Claims arising within the United however, or if war or armed conflict in- States, Territories, Commonwealth, and tervenes within 2 years after its occur- Possessions. The law of the place where rence, an MCA claim, on good cause the act or omission occurred will be ap- shown, may be presented within 2 years plied in determining liability and the after the war or armed conflict is ter- effect of contributory or comparative minated. For the purposes of the MCA, negligence on claimant’s right of re- the date of termination of the war or covery. armed conflict is the date established (b) Claims within foreign countries. (1) by concurrent resolution of Congress or Where the claim is for personal injury, by the President. See 10 U.S.C. death, or damage to or loss or destruc- 2733(b)(1). tion of real or personal property caused (d) Where to file. The claim shall be by an act or omission determined to be submitted by the claimant to the com- manding officer of the naval activity negligent, wrongful, or otherwise in- involved, if it is known. Otherwise, it volving fault of DON personnel acting shall be submitted to the commanding within the scope of their employment, officer of any naval activity, preferably liability of the United States will be the one within which, or nearest to assessed under general principles of which, the incident occurred, or to the tort law common to the majority of Judge Advocate General of the Navy, American jurisdictions. 200 Stovall Street, Alexandria, VA (2) Apply the law of the foreign coun- 22332–2400. try governing the legal effect of con- (e) Claim form. A claim is correct in tributory or comparative negligence by form if it constitutes written notifica- the claimant to determine the relative tion of an incident, signed by the merits of the claim. If there is no for- claimant or a duly authorized agent or eign law on contributory or compara- legal representative, with a claim for tive negligence, apply traditional rules money damages in a sum certain. A of contributory negligence. Apply for- Standard Form 95 is preferred. A claim eign rules and regulations on operation should be substantiated as discussed in of motor vehicles (rules of the road) to
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the extent those rules are not specifi- miliar with the type of property dam- cally superseded or preempted by U.S. aged, lost, or destroyed. Armed Forces traffic regulations. (c) Loss of use of damaged property (c) Clarification of terms. The prin- which is economically repairable may, ciples of absolute liability and punitive if claimed, be included as an additional damages do not apply to claims under element of damage to the extent of the the MCA. Federal law determines the reasonable expense actually incurred meaning and construction of the MCA. for appropriate substitute property, for such period reasonably necessary for § 750.47 Measure of damages for prop- repairs, as long as idle property of the erty claims. claimant was not employed as a sub- Determine the measure of damages in stitute. When substitute property is property claims arising in the United not obtainable, other competent evi- States or its territories, common- dence such as rental value, if not spec- wealth, or possessions under the law of ulative or remote, may be considered. the place where the incident occurred. When substitute property is reasonably Determine the measure of damages in available but not obtained and used by property claims arising overseas under the claimant, loss of use is normally general principles of American tort not payable. law, stated as follows: (a) If the property has been or can be § 750.48 Measure of damages in injury economically repaired, the measure of or death cases. damages shall be the actual or esti- (a) Where an injury or death arises mated net cost of the repairs necessary within the United States or its terri- to substantially restore the property to tories, commonwealth, or possessions, the condition that existed immediately determine the measure of damages prior to the incident. Damages shall under the law of the location where the not exceed the value of the property injury arises. immediately prior to the incident less (b) Where an injury or death arises in the value thereof immediately after a foreign country and is otherwise cog- the incident. To determine the actual nizable and meritorious under this pro- or estimated net cost of repairs, the vision, damages will be determined in value of any salvaged parts or mate- accordance with general principles of rials and the amount of any net appre- American tort law. The following is ciation in value effected through the provided as guidance. repair shall be deducted from the ac- (1) Measure of Damages for Overseas tual or estimated gross cost of repairs. Personal Injury Claims. Allowable com- The amount of any net depreciation in pensation includes reasonable medical the value of the property shall be added and hospital expenses necessarily in- to such gross cost of repairs, if such ad- curred, compensation for lost earnings justments are sufficiently substantial and services, diminution of earning ca- in amount to warrant consideration. pacity, anticipated medical expenses, Estimates of the cost of repairs shall physical disfigurement, and pain and be based upon the lower or lowest of suffering. two or more competitive bids, or upon (2) Wrongful Death Claims Arising in statements or estimates by one or Foreign Countries. (i) Allowable com- more competent and disinterested per- pensation includes that in paragraph sons, preferably reputable dealers or of- (b)(1) of this section, burial expenses, ficials familiar with the type of prop- loss of support and services, loss of erty damaged, lost, or destroyed. companionship, comfort, society, pro- (b) If the property cannot be eco- tection, and consortium, and loss of nomically repaired, the measure of training, guidance, education, and nur- damages shall be the value of the prop- turing, as applicable. erty immediately prior to the incident (ii) The claim may be presented by or less the value immediately after the on behalf of the decedent’s spouse, par- incident. Estimates of value shall be ent, child, or dependent relative. made, if possible, by one or more com- Claims may be consolidated for joint petent and disinterested persons, pref- presentation by a representative of erably reputable dealers or officials fa- some or all of the beneficiaries or may
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be filed by a proper beneficiary individ- deny an appeal of a claim it had pre- ually. viously denied.
§ 750.49 Delegations of adjudicating § 750.50 Advance payments. authority. (a) Scope. This paragraph applies ex- (a) Settlement Authority. (1) The Sec- clusively to the payment of amounts retary of the Navy may settle claims in not to exceed $100,000.00 under 10 U.S.C. any amount. The Secretary may pay 2736 in advance of submission of a the first $100,000.00 and report the ex- claim. cess to the Comptroller General for (b) Statutory authority. Title 10 U.S.C. payment under 31 U.S.C. 1304. 10 See 2736 authorizes the Secretary of the U.S.C. 2733(d). Navy or designee to pay an amount not (2) The Judge Advocate General has in excess of $100,000.00 in advance of the delegated authority to settle claims for submission of a claim to or for any per- $100,000.00 or less. son, or the legal representative of any (3) The Deputy Judge Advocate Gen- person, who was injured or killed, or eral, the Assistant Judge Advocate whose property was damaged or lost, as General (General Law), and the Deputy the result of an accident for which al- Assistant Judge Advocate General lowance of a claim is authorized by (Claims and Tort Litigation) have dele- law. Payment under this law is limited gated authority to settle claims for to that which would be payable under $25,000.00 or less. the MCA (10 U.S.C. 2733). Payment of (4) Naval Legal Service Office com- an amount under this law is not an ad- manding officers and the Officer in mission by the United States of liabil- Charge, U.S. Sending State Office for ity for the accident concerned. Any Italy have delegated authority to set- amount so paid shall be deducted from tle claims for $15,000.00 or less. any amount that may be allowed under (5) Officers in charge of Naval Legal any other provision of law to the per- Service Office Detachments, when spe- son or his legal representative for in- cifically designated by cognizant com- jury, death, damage, or loss attrib- manding officers of Naval Legal Serv- utable to the accident concerned. ice Offices; and the Claims Officer at the U.S. Naval Station, Panama Canal (c) Officials with Authority to make Ad- have delegated authority to settle vance Payments. (1) The Secretary of claims for $10,000.00 or less. the Navy has authority to make ad- (6) Overseas commands with a Judge vance payments up to $100,000.00 Advocate General’s Corps officer or a (2) The Judge Advocate General has judge advocate of the Marine Corps at- delegated authority to make advance tached, have delegated authority to payments up to $100,000.00. settle claims for $5,000.00 or less. (3) The Deputy Assistant Judge Ad- (b) Denial Authority. (1) The Sec- vocate General (Claims and Tort Liti- retary of the Navy may deny a claim in gation) has delegated authority to any amount. make advance payments up to (2) The Judge Advocate General, the $25,000.00. Deputy Judge Advocate General, the (4) Naval Legal Service Office com- Assistant Judge Advocate General manding officers and the Officer in (General Law), and the Deputy Assist- Charge, U.S. Sending State Office for ant Judge Advocate General (Claims Italy have delegated authority to make and Tort Litigation) have delegated au- advance payments up to $5,000.00. thority to deny claims in any amount. (5) Officers in Charge of Naval Legal (3) All other adjudicating authorities Service Office Detachments, when spe- have delegated authority to deny cifically designated by cognizant Com- claims only to the amount of their set- manding Officers of Naval Legal Serv- tlement authority. ice Offices; and the Staff Judge Advo- (c) Appellate Authority. Adjudicating cate at the U.S. Naval Station, Pan- authorities have the same authority as ama Canal have delegated authority to delegated in paragraph b above to act make advance payments up to $3,000.00. upon appeals. No appellate authority (6) Overseas commands with a Judge below the Secretary of the Navy may Advocate General’s Corps officer or a
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judge advocate of the Marine Corps at- claimant, or his attorney or legal rep- tached, have delegated authority to resentative, by certified or registered make advance payments up to $3,000.00. mail, return receipt requested. The no- (d) Conditions for Advance Payments. tification of denial shall include a Prior to making an advance payment statement of the reason or reasons for under 10 U.S.C. 2736, the adjudicating denial and that the claimant may ap- authority shall ascertain that: peal. The notification shall also inform (1) The injury, death, damage, or loss the claimant: would be payable under the MCA (10 (1) The title of the appellate author- U.S.C. 2733); ity who will act on the appeal and that (2) The payee, insofar as can be deter- the appeal will be addressed to the ad- mined, would be a proper claimant, or judicating authority who last acted on is the spouse or next of kin of a proper the claim. claimant who is incapacitated; (3) The provable damages are esti- (2) No form is prescribed for the ap- mated to exceed the amount to be paid; peal, but the grounds for appeal should (4) There exists an immediate need of be set forth fully. the person who suffered the injury, (3) The appeal must be submitted damage, or loss, or of his family, or of within 30 days of receipt by the claim- the family of a person who was killed, ant of notice of action on the claim. for food, clothing, shelter, medical, or burial expenses, or other necessities, § 750.52 Appeal. and other resources for such expenses (a) A claim which is disapproved in are not reasonably available; whole or in part may be appealed by (5) The prospective payee has signed the claimant at any time within 30 a statement that it is understood that days after receipt of notification of dis- payment is not an admission by the approval. An appeal shall be in writing Navy or the United States of liability and state the grounds relied upon. An for the accident concerned, and that appeal is not an adversary proceeding the amount paid is not a gratuity but and a hearing is not authorized; how- shall constitute an advance against ever, the claimant may obtain and sub- and shall be deducted from any amount mit any additional evidence or written that may be allowed under any other argument for consideration by the ap- provision of law to the person or his pellate authority. legal representative for injury, death, (b) Upon receipt, the adjudicating au- damage, or loss attributable to the ac- thority examines the appeal, deter- cident concerned; and mines whether the appeal complies (6) No payment under 10 U.S.C. 2736 may be made if the accident occurred with this regulation, and reviews the in a foreign country in which the claims investigative file to ensure it is NATO Status of Forces Agreement (4 complete. The claim, with the com- U.S.T. 1792, TIAS 2846) or other similar plete investigative file and a memo- agreement is in effect and the injury, randum of law, will be forwarded to the death, damage, or loss appellate authority for action. If the (i) Was caused by a member or em- evidence in the file, including informa- ployee of the DON acting within the tion submitted by the claimant with scope of employment or the appeal, indicates the appeal should (ii) Occurred ‘‘incident to noncombat be approved, the adjudicating author- activities’’ of the DON as defined in ity may treat the appeal as a request § 750.43. for reconsideration. (c) Processing of the appeal may be § 750.51 Final disposition. delayed pending further efforts by the (a) Claimant to be notified. The adjudi- adjudicating authority to settle the cating authority shall notify the claim. Where the adjudicating author- claimant, in writing, of the action ity does not reach a final agreement on taken on the claim. an appealed claim, it shall send the en- (b) Final denial. A final denial, in tire claim file to the next higher set- whole or in part, of any MCA claim tlement authority, who is the appellate shall be in writing and sent to the authority for that claim.
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(d) The appellate authority shall no- § 750.55 Attorney’s fees. tify the claimant in writing of the de- Attorney’s fees not in excess of 20 termination on appeal; that such deter- percent of any settlement may be al- mination constitutes the final adminis- lowed. Attorney’s fees so determined trative action on the claim; and there are to be paid out of the amount is no right to sue under the MCA. awarded and not in addition to the award. These fee limitations shall be § 750.53 Cross-servicing. incorporated in any settlement agree- (a) See § 750.13 or information about ment secured from a claimant. single-service claims responsibility under DODDIR 5515.8 of 9 June 1990. §§ 750.56–750.60 [Reserved] (b) Claims Settlement Procedures. Where a single service has been as- Subpart D—Claims Not Cog- signed a country or area claims respon- nizable Under Any Other Pro- sibility, that service will settle claims vision of Law cognizable under the MCA under the regulations of that service. The for- § 750.61 Scope of subpart D. warding command shall afford any as- This section provides information on sistance necessary to the appropriate payment of claims against the United service in the investigation and adju- States, not payable under any other dication of such claims. statute, caused by the act or omission, negligent, wrongful, or otherwise in- § 750.54 Payment of costs, settlements, volving fault, of Department of the and judgments related to certain Navy (DON) military and civilian per- medical or legal malpractice claims. sonnel (hereinafter DON personnel) (a) General. Requests for reimburse- acting outside the scope of their em- ment/indemnification of costs, settle- ployment. ments, and judgments cognizable under 10 U.S.C. 1089(f) [for personal injury or § 750.62 Statutory authority. death caused by any physician, dentist, Section 2737 of title 10, United States nurse, pharmacist, paramedic, or other Code, provides authority for the admin- supporting personnel (including med- istrative settlement in an amount not ical and dental technicians, nurse as- to exceed $1,000.00 of any claim against sistants, and therapists)] or 10 U.S.C. the United States not cognizable under 1054(f) (for damages for injury or loss of any other provision of law for damage, property caused by any attorney, para- loss, or destruction of property or for legal, or other member of a legal staff) personal injury or death caused by while acting as DON personnel will be military personnel or a civilian official paid if: or employee of a military department (1) The alleged negligent or wrongful incident to the use of a vehicle of the actions or omissions arose in connec- United States at any place, or any tion with either providing health care other property of the United States on functions or legal services and within a Government installation. There is no right to sue. There are no territorial the scope of employment; and limitations and the Act has worldwide (2) Such personnel furnish prompt no- application. tification and delivery of all process served or received, and other docu- § 750.63 Definitions. ments, information, and assistance as requested; and cooperate in defending (a) Civilian official or employee. Any civilian employee of the DON paid from the action on the merits. appropriated funds at the time of the (b) Requests for Indemnification. All incident. requests for indemnification for per- (b) Vehicle. Includes every description sonal liability of DON personnel for of carriage or other artificial contriv- acts or omissions arising out of as- ance used, or capable of being used, as signed duties shall be forwarded to the a means of transportation on land. See Judge Advocate General for action. 1 U.S.C. 4.
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(c) Government installation. Any Fed- (i) Claims submitted solely under 10 eral facility having fixed boundaries U.S.C. 2737 shall be promptly consid- and owned or controlled by the U.S. ered. If a nonscope claim is denied, the Government. It includes both military claimant shall be informed of reasons bases and nonmilitary installations. in writing and advised he may appeal in writing to the Secretary of the Navy § 750.64 Claim procedures. (Judge Advocate General) provided the (a) The general provisions of subpart appeal is received within 30 days of the A of this part shall apply in deter- notice of denial. The provisions of mining what is a proper claim, who is § 750.51(b) of subpart C also apply to de- a proper claimant, and how a claim is nials of nonscope claims. to be investigated and processed under 10 U.S.C. 2737 and this section. § 750.65 Statute of limitations. (b) A claim is presented when the (a) A claim must be presented in DON receives from a claimant or the writing within 2 years after it accrues. claimant’s duly authorized agent, writ- It accrues at the time the claimant dis- ten notification of a nonscope claim in- covers, or in the exercise of reasonable cident accompanied by a demand for care should have discovered, the exist- money damages in a sum certain. ence of the act or omission for which (c) A claimant may amend a claim at the claim is filed. any time prior to final action. Amend- (b) In computing time to determine ments will be submitted in writing and whether the period of limitation has signed by the claimant or the claim- expired, exclude the incident date and ant’s duly authorized agent. include the date the claim was pre- (d) Claims submitted under the provi- sented. sions of the Federal Tort Claims Act (FTCA) or Military Claims Act (MCA) § 750.66 Officials with authority to set- shall be considered automatically for tle. an award under this section when pay- ment would otherwise be barred be- Judge Advocate General; Deputy cause the DON personnel were not in Judge Advocate General; Assistant the scope of their employment at the Judge Advocate General (General Law); time of the incident. If a tender of pay- Deputy Assistant Judge Advocate Gen- ment under this section is not accepted eral (Claims and Tort Litigation Divi- by the claimant in full satisfaction of sion); Head, Federal Tort Claims the claim, no award will be made, and Branch (Claims and Tort Litigation Di- the claim will be denied pursuant to vision); Head, Military Claims Branch the rules applicable to the statute (Claims and Tort Litigation Division), under which it was submitted. and commanding officers of Naval (e) Damages caused by latent defects Legal Service Offices may settle a of ordinary, commercial type, Govern- nonscope claim. ment equipment that were not payable § 750.67 Scope of liability. under the MCA, Foreign Claims Act, or FTCA are payable under this section. (a) Subject to the exceptions in (f) Nonscope claims for damages § 750.68 of specific claims not payable, caused by local national DON employ- the United States shall not pay more ees overseas are also payable under than $1,000.00 for a claim against the this section if the injury was caused by United States, not cognizable under the use of Government equipment. any other provision of law, except Arti- (g) Payment may not be made on a cle 139, UCMJ. nonscope claim unless the claimant ac- (b) Article 139, UCMJ, 10 U.S.C. 939, is cepts the amount offered in full satis- not preemptive. The prohibition in 10 faction of the claim and signs a settle- U.S.C. 2737 on paying claims ‘‘not cog- ment agreement. nizable under any other provisions of (h) Payment for nonscope claims ad- law’’ applies only to law authorizing judicated by field commands will be af- claims against the United States. Arti- fected through their local disbursing cle 139 authorizes claims against office by use of funds obtained from the servicemembers. See part 755 of this Judge Advocate General. chapter.
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§ 750.68 Claims not payable. 751.27 Preparation and dispatch of demand packets. (a) A claim for damage, loss, or de- 751.28 Assignment of claimants rights to struction of property or the personal the government. injury or death caused wholly or partly 751.29 Recoveries from carrier, contractor, by a negligent or wrongful act of the or insurer. claimant or his agent or employee. 751.30 Settlement procedures and third (b) A claim, or any part thereof, that party responses. is legally recoverable by the claimant 751.31 Common reasons for denial by carrier under an indemnifying law or indem- or contractor. nity contract. 751.32 Forwarding claims files for offset ac- (c) A subrogated claim. tion. 751.33 Unearned freight packet. § 750.69 Measure of damages. 751.34 GAO appeals. 751.35 Forms and instructions. Generally, the measure-of-damage provisions under the MCA are used to AUTHORITY: 5 U.S.C 301; 10 U.S.C. 939, 5013, determine the extent of recovery for and 5148; E.O. 11476, 3 CFR, 1969 Comp., p. 132; 32 CFR 700.206 and 700.1202. nonscope claims. Compensation is com- puted in accordance with §§ 750.47 and SOURCE: 57 FR 5055, Feb. 12, 1992, unless 750.48 of subpart C, except damages for otherwise noted. personal injury or death under this sec- tion shall not be for more than the cost Subpart A—Claims Against the of reasonable medical, hospital, and United States burial expenses actually incurred and not otherwise furnished or paid for by § 751.1 Scope of subpart A. the United States. Subpart A of this part prescribes pro- cedures and substantive bases for ad- PART 751—PERSONNEL CLAIMS ministrative settlement of claims REGULATIONS against the United States submitted by Department of the Navy (DON) per- Subpart A—Claims Against the United sonnel and civilian employees of the States naval establishment.
Sec. § 751.2 Claims against the United 751.1 Scope of subpart A. States: In general. 751.2 Claims against the United States: In general. (a) Maximum amount payable. The 751.3 Authority. Military and Civilian Employees’ Per- 751.4 Construction. sonnel Claims Act (Personnel Claims 751.5 Definitions. Act), 31 U.S.C. 3701, 3702, and 3721, pro- 751.6 Claims payable. vides that the maximum amount pay- 751.7 Claims not payable. able for any loss or damage arising 751.8 Adjudicating authorities. 751.9 Presentment of claim. from a single incident is limited to 751.10 Form of claim. $40,000.00. Claims for losses occurring 751.11 Investigation of claim. prior to 31 October 1988 are limited to 751.12 Computation of award. $25,000.00. 751.13 Payments and collections. (b) Additional instructions. The Judge 751.14 Partial payments. Advocate General of the Navy may 751.15 Reconsideration and appeal. issue additional instructions or guid- 751.16–751.20 [Reserved] ance as necessary to give full force and Subpart B—Demand On Carrier, effect to this section. Contractor, or Insurer (c) Preemption. The provisions of this section and the Personnel Claims Act 751.21 Scope of subpart B. are preemptive of other claims regula- 751.22 Carrier recovery: In general. tions. Claims not allowable under the 751.23 Responsibilities. Personnel Claims Act may, however, be 751.24 Notice of loss or damage. 751.25 Types of shipments and liability in- allowable under another claims act. volved. (d) Other claims. Claims arising from 751.26 Demand on carrier, contractor, or in- the operation of a ship’s store, laundry, surer. dry cleaning facility, tailor shop, or
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cobbler shop should be processed in ac- and Marine Corps nonappropriated- cordance with NAVSUP P487. fund activities for loss, damage, or de- struction of personal property incident § 751.3 Authority. to their employment will be processed The Personnel Claims Act provides and adjudicated in accordance with the authority for maximum payment this enclosure and forwarded to the ap- up to $40,000.00 for loss, damage, or de- propriate local nonappropriated-fund struction of personal property of mili- activity which employs the claimant tary personnel or civilian employees for payment from nonappropriated- incident to their service. The Act pro- funds. vides for the recovery from carriers, (4) Separation from service. Separation warehouse firms, and other third par- from the service or termination of em- ties responsible for such loss, damage, ployment shall not bar former military or destruction. No claim may be paid personnel or civilian employees from unless it is presented in writing within filing claims or bar designated officers 2 years of the incident giving rise to from considering, ascertaining, adjust- the claim. ing, determining, and authorizing pay- ment of claims otherwise falling within § 751.4 Construction. the provision of these regulations when The provisions of this section and the such claim accrued prior to separation Personnel Claims Act provide limited or termination. compensation to service members and (b) Improper claimants. Insurers, as- civilian employees of the DON for loss signees, subrogees, vendors, and damage to personal property in- lienholders, contractors, subcontrac- curred incident to service. This limited tors and their employees, and other compensation is not a substitute for persons not specifically mentioned as private insurance. Although not every proper claimants. loss may be compensated under the (c) Unusual occurrence. Serious events Personnel Claims Act, its provisions and natural disasters not expected to shall be broadly construed to provide take place in the normal course of reasonable compensation on meri- events. Two different types of incidents torious claims. Adjudications must be may be considered unusual occur- based on common sense and the rea- rences: those of an unusual nature and soned judgment of the claims examiner those of a common nature that occur giving the benefit of realistic doubt to to an unexpected degree of severity. the claimant. Examples of unusual occurrences in- clude structural defects in quarters, § 751.5 Definitions. faulty plumbing maintenance, termite (a) Proper claimants—(1) Members of or rodent damage, unusually large size the DON. All Navy and Marine Corps hail, and hazardous health conditions active duty members and reservists on due to Government use of toxic chemi- active duty for training under Federal cals. Examples of occurrences that are law whether commissioned, enrolled, not unusual include potholes or foreign appointed, or enlisted. A retired mem- objects in the road, ice and snow slid- ber may only claim under this Act if ing off a roof onto a vehicle, and tears, loss or damage occurred while the rips, snags, or stains on clothing. claimant was on active duty or in con- Claims that electrical or electronic de- nection with the claimant’s last move- vices were damaged by a power surge ment of personal property incident to may be paid when lightning has actu- service. ally struck the claimant’s residence or (2) Civilian employees of the Navy. Fed- objects outside the residence, such as a eral employees of the naval establish- transformer box, or when power com- ment paid from appropriated funds. pany records or similar evidence shows This term does not include Red Cross that a particular residence or group of employees, USO personnel, and em- residences was subjected to a power ployees of Government contractors (in- surge of unusual intensity. In areas cluding technical representatives). subject to frequent thunderstorms or (3) Claims by nonappropriated-fund em- power fluctuations, claimants are ex- ployees. Claims by employees of Navy pected to use surge suppressors, if
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available, to protect delicate items ant can substantiate that he was free such as computers or videocassette re- from negligence, he can file a claim for corders. damages to his household goods. (d) Personal property. Property includ- (5) Shipment or storage at the claim- ing but not limited to household goods, ant’s expense. The shipment or storage unaccompanied baggage, privately is considered Government-sponsored if owned vehicles (POV’s), mobile homes, the Government later reimburses the and boats. claimant for it. The Government, how- (e) Intangible property. Property that ever, will not compensate a claimant has no intrinsic marketable value such for loss or damage that occurs while as bankbooks, checks, promissory property is being shipped or stored at notes, non-negotiable stock certifi- the claimant’s expense, even if the cates, bonds, baggage checks, insur- Government reimburses the claimant ance policies, money orders, and trav- for the shipment or storage fees. The elers checks. reason for this is that there is no con- (f) Vehicles. Includes automobiles, tract, called a Government Bill of Lad- motorcycles, mopeds, utility trailers, ing (GBL), between Government and camping trailers, trucks, mounted the carrier. In such cases the claimant camper bodies, motor homes, boats, must claim against the carrier. boat trailers, bicycles, and aircraft. (b) Losses at assigned quarters or other Mobile homes and other property used authorized places. Damage or loss as dwelling places are not considered caused by fire, explosion, theft, van- vehicles. dalism, lightning, flood, earthquake, and unusual occurrences. Losses due to § 751.6 Claims payable. theft may only be paid if the claimant Claims for loss, damage, or destruc- took reasonable measures to safeguard tion of property may be considered as the property and the theft occurred as set out below if possession of the prop- a result of a forced entry. Claimants erty was reasonable and useful under are expected to secure windows and the circumstances and the loss did not doors of their barracks, quarters, wall result from the negligence of the lockers, and other storage areas. claimant. Claimants are expected to store (a) Transportation and storage losses. valuables in a secure area within their (1) Incurred during transportation barracks, quarters, and storage areas. under orders, whether in possession of Claimants are also expected to take the Government, carrier, storage ware- extra measures to protect cash, valu- house, or other Government con- able jewelry, and similar small, easily tractor. pilferable items. Normally, such items (2) Incurred during travel under or- should be kept in a locked container ders, including temporary duty. within a secured room. It is also advis- (3) Incurred during travel on a space able that the locked container be large available basis on a military aircraft, enough that it is not convenient for a vessel, or vehicle. thief to carry off. Bicycles located at (4) Do-it-yourself (DITY) moves. In cer- quarters or on base must be secured to tain circumstances, loss of or damage a fixed object. Overseas housing is con- to property during a DITY move is sidered assigned quarters for claimants compensable. Claimants, however, are who are not local inhabitants. required to substantiate the fact of loss (c) Vehicle losses. (1) Incurred while a or damage in shipment. Claimants who vehicle is used in the performance of do not prepare inventories have dif- military duty, if such use was author- ficulty substantiating thefts. In addi- ized or directed for the convenience of tion, unless evidence shows that some- the Government, provided the travel thing outside the claimant’s control did not include commuting to or from caused the damage, breakage is pre- the permanent place of duty, and did sumed to be the result of improper not arise from mechanical or struc- packing by the claimant. For example, tural defect of the vehicle. There is no if a claimant’s truck is rear-ended by a requirement that the loss be due to drunk driver during a DITY move, it is fire, flood, hurricane, or other unusual out of claimant’s control. If the claim- occurrence, or to theft or vandalism.
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As a general rule, however, travel is or the Department of Defense (DOD). A not considered to be for the conven- vehicle properly on the installation ience of the Government unless it was should be presumed to be used incident pursuant to written orders authorizing to the claimant’s service. A vehicle use for which the claimant is entitled that is not properly insured or reg- to reimbursement. The claimant must istered in accordance with local regula- be free from negligence in order to be tions is not properly on the installa- paid for a collision loss. Travel by the tion. A vehicle left in a remote area of claimant to other buildings on the in- the installation that is not a des- stallation is not considered to be under ignated long-term parking area for an orders for the convenience of the Gov- undue length of time is presumed not ernment. Travel off the installation to be on the installation incident to without written orders may only be service. deemed to be for the convenience of the (5) Theft of property stored inside a ve- Government if the claimant was ex- hicle. Claimants are expected to lock pressly directed by his superior to use doors and windows. Neither the pas- POV to accomplish the mission. The senger compartment nor the trunk of a issuance of written orders after the vehicle is a proper place for the long- fact raises the presumption that travel term storage of property unconnected was not for the convenience of the Gov- with the use of the vehicle. The pas- ernment. The maximum payment of senger compartment of a vehicle does $2,000.00 authorized by the Allowance not provide adequate security, except List-Depreciation Guide still applies to for very short periods of time for arti- loss of or damage to vehicles and con- cles that are not of high value or easily tents. This maximum does not apply to pilferable. Car covers and bras are pay- DITY moves. able if bolted or secured to the vehicle (2) Incurred while a vehicle is shipped with a wire locking device. at Government expense, provided the (6) Rental vehicles. Damage to rental loss or damage did not arise from me- vehicles is considered under paragraphs chanical or structural defect of the ve- of the Joint Federal Travel Regula- hicle during such shipment. Damage tions (JFTR), rather than as a loss in- caused during shipment at the claim- cident to service. ant’s expense or while the vehicle is (d) Mobile homes and contents in ship- being moved to or from the port by an ment. Claims for damage to mobile agent of the claimant is not compen- homes and contents in shipment are sable. payable unless the damage was caused (3) Incurred while a vehicle is located by structural or mechanical defects at quarters or other authorized place of (see § 751.12(g) below on mobile homes). lodging, including garages, carports, (e) Borrowed property (including vehi- driveways, assigned parking spaces, if cles). Loss or damage to borrowed prop- the loss or damage is caused by fire, erty is compensable if it was borrowed flood, hurricane, theft, or vandalism, for claimant’s or dependent’s own use. or other unusual occurrence. Van- A statement will be provided by the dalism is damage intentionally caused. owner of the property attesting to the Stray marks caused by children play- use of the property by the claimant. ing, falling branches, gravel thrown by (f) Clothing and articles being worn. other vehicles, or similar occurrences Repairs/replacement of clothing and are not vandalism. The amount pay- articles being worn while on a military able on vandalism claims is limited to installation or in the performance of $2,000.00. official duty may be paid if loss is (4) Incurred while a vehicle is located caused by fire, flood, hurricane, theft, at places other than quarters but on a or vandalism, or other unusual occur- military installation, if the loss or rence. This paragraph shall be broadly damage is caused by fire, flood, hurri- construed in favor of compensation, cane, theft, or vandalism, or other un- but see § 751.5(c) for the definition of usual occurrence. ‘‘Military installa- unusual occurrence. Articles being tion’’ is used broadly to describe any worn include hearing aids, eyeglasses, fixed land area, wherever situated, con- and items the claimant is carrying, trolled, and used by military activities such as a briefcase.
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(g) Personal property held as evidence tificates, marriage certificates, college or confiscated property. If property be- diplomas, passports, or similar docu- longing to the victim of a crime is to ments may be allowed if the original or be held as evidence for an extended pe- a certified copy is lost or destroyed in- riod of time (in excess of 2 months) and cident to service. In general, com- the temporary loss of the property will pensation will only be allowed for re- work a grave hardship on the claimant, placing documents with a raised seal a claim for the loss may be considered that are official in nature. No com- for payment. This provision will not be pensation will be allowed for docu- used unless every effort has been made ments that are representative of value, to determine whether secondary evi- such as stock certificates, or for per- dence, such as photographs, may be sonal letters or records. substituted for the item. No compensa- (2) Estimate fees. An estimate fee is a tion is allowed to a person suspected of fixed cost charged by a person in the an offense for property seized from that business of repairing property to pro- same person in the investigation of vide an estimate of what it would cost that offense. This also applies to prop- to repair property. An estimate fee in erty a foreign government unjustly excess of $50.00 should be examined confiscates or an unjust change in a with great care to determine whether foreign law that forces surrender or it is reasonable. A person becomes obli- abandonment of property. gated to pay an estimate fee when the (h) Theft from possession of claimant. estimate is prepared. An estimate fee Theft from the person of the claimant should not be confused with an ap- is reimbursable if the theft occurred by praisal fee, which is not compensable use of force, violence, or threat to do (see § 751.7). A reasonable estimate fee bodily harm, or by snatching or is compensable if it is not going to be pickpocketing, and at the time of theft credited toward the cost of repair. If it the claimant was either on a military is to be credited toward the cost of re- installation, utilizing a recreation fa- pair, it is not compensable regardless cility operated or sponsored by the De- of whether the claimant chooses to partment of Defense or any agency have the work done. When an estimate thereof, or in the performance of offi- fee is claimed, the file must reflect cial duty. The theft must have been re- whether the fee is to be credited. ported to appropriate police authori- ties as soon as practicable, and it must § 751.7 Claims not payable. have been reasonable for the claimant to have had on his person the quality (a) Losses in unassigned quarters in the and the quantity of the property alleg- United States. Claims for property dam- edly stolen. aged or lost at quarters occupied by (i) Property used for the benefit of the the claimant within the United States Government. Compensation is author- that are not assigned or otherwise pro- ized where property is damaged or lost vided by the Government. while being used in the performance of (b) Currency or jewelry shipped or Government business at the direction stored in baggage. Claims for lost or request of superior authority or by money, currency, or jewelry shipped or reason of military necessity. stored in baggage are not payable. Coin (j) Money deposited for safekeeping, or paper money included in collections transmittal, or other authorized disposi- is payable only if listed on an inven- tion. Compensation is authorized for tory prepared at origin. personal funds delivered to and accept- (c) Enemy property or war trophies. ed by military and civilian personnel This includes only property that was authorized by the commanding officer originally enemy property or a war tro- to receive these funds for safekeeping, phy that passed into the hands of a col- deposit, transmittal, or other author- lector and was then purchased by a ized disposition, if the funds were nei- claimant. ther applied as directed by the owner (d) Unserviceable or Worn-Out Prop- nor returned to the owner. erty. (k) Fees—(1) For obtaining certain doc- (e) Loss or Damage to Property to uments. The fees for replacing birth cer- the Extent of any Available Insurance
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Coverage as Set Forth in § 751.26 of this property shipped to accommodate an- part. other person, as well as property used (f) Inconvenience or loss of use. Ex- to transport contraband. penses arising from late delivery of (l) Sales tax. Sales taxes associated personal property, including but not with repair or replacement costs will limited to the expenses for food, lodg- not be considered unless the claimant ing, and furniture rental, loss of use, provides proof that the sales tax was interest, carrying charges, attorney’s actually paid. fees, telephone calls, additional costs (m) Appraisal fees. An appraisal, as of transporting claimant or family distinguished from an estimate of re- members, time spent in preparation of placement or repair, is defined as a claim, or cost of insurance are not compensable. While such claims do not valuation of an item provided by a per- lie against the Government, members son who is not in the business of selling should be referred to the Personal or repairing that type of property. Nor- Property Office for assistance in filing mally, claimants are expected to ob- their inconvenience claims against the tain appraisals on expensive items at commercial carriers (NAVSUP Publi- their own expense. cation 490, Transportation of Personal (n) Quantities of property not reason- Property). able or useful under the circumstances are (g) Items of speculative value. Theses, not compensable. Factors to be consid- manuscripts, unsold paintings, or a ered are claimant’s living conditions, similar creative or artistic work done family size, social obligations, and any by the claimant, friend, or a relative is particular need to have more than av- limited to the cost of materials only. erage quantities, as well as the actual The value of such items is speculative. circumstances surrounding the acquisi- Compensation for a utilitarian object tion and loss. made by the claimant, such as a quilt (o) Intangible Property, such as or bookcase, is limited to the value of Bankbooks, Checks, Promissory Notes, an item of similar quality. Stock Certificates, Bonds, Bills of Lad- (h) Loss or damage to property due to ing, Warehouse Receipts, Baggage negligence of the claimant. Negligence is Checks, Insurance Policies, Money Or- a failure to exercise the degree of care ders, and Traveler’s Checks are not expected under the circumstances that is the proximate cause of the loss. Compensable. Losses due, in whole or in part, to the (p) Property Owned by the United negligence of the claimant, the claim- States, Except where the Claimant is ant’s spouse, child, houseguest, em- Responsible to an Agency of the Gov- ployee, or agent are not compensable. ernment other than the DON. (i) Business property. Losses of items (q) Contractual coverage. Losses, or acquired for resale or use in a private any portion thereof, that have been re- business are not compensable. If prop- covered or are recoverable pursuant to erty is acquired for both business and contract are not compensable. personal use, compensation will not be allowed if business use is substantial, § 751.8 Adjudicating authorities. or is the primary purpose for which the (a) Claims by Navy personnel. (1) The item was purchased, or if the item is following are authorized to adjudicate designed for professional use and is not and authorize payment of personnel normally intended for personal use. claims up to $40,000.00: (j) Motor vehicles. Collision damage is (1) The Judge Advocate General; not payable unless it meets the criteria for payment as property used for the (ii) Deputy Judge Advocate General; benefit of the Government as estab- (iii) Any Assistant Judge Advocate lished in § 751.6(c)(1). General; (k) Violation of law or directives. Prop- (iv) The Deputy Assistant Judge Ad- erty acquired, possessed, or trans- vocate General (Claims and Tort Liti- ported unlawfully or in violation of gation); and competent regulations or directives. (v) Commanding officers of Naval This includes vehicles, weapons, or Legal Service Offices.
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(2) The Staff Judge Advocate at- sonal property office serving the instal- tached to Naval Supply Center, Oak- lation where the claimant is stationed, land is authorized to adjudicate and or nearest to the point where the loss pay claims up to $25,000.00. or damage occurred. If submission in (3) The Staff Judge Advocate at- accordance with the foregoing is im- tached to Naval Station, Panama practical under the circumstances, the Canal is authorized to adjudicate and claim may be submitted in writing to pay claims up to $10,000.00. any installation or establishment of (4) The following are authorized to the Armed Forces which will forward adjudicate and authorize payment of the claim to the appropriate Navy or personnel claims up to $5,000.00: Marine Corps claims office for proc- (i) Officers in charge of Naval Legal essing. To constitute a filing under this Service Office Detachments; regulation, a claim must be presented (ii) The Staff Judge Advocate at- in writing to one of the military de- tached to Naval Station, Keflavik; and partments. Claims that are incomplete (iii) Any personnel attached to a will not be refused and shall be logged Naval Legal Service Office when spe- in as received. Claimants submitting cifically designated by the com- such claims, however, shall be in- manding officer of that Naval Legal formed in writing that properly com- Service Office. pleted forms or necessary substan- (5) Any individual, when personally tiation must be received within a fixed designated by the Judge Advocate Gen- period of time (normally 30 days), oth- eral, may be authorized to adjudicate erwise the claim will be denied or paid and authorize payment of personnel only in the amount substantiated. claims up to any delegated amount, (b) Statute of limitations. A claim must not to exceed $40,000.00. be presented in writing to a military (b) Claims by Marine Corps personnel. installation within 2 years after it ac- (1) The following individuals are au- crues. This requirement is statutory thorized to adjudicate and authorize and may only be waived if a claim ac- payment of personnel claims up to crues during armed conflict, or armed $40,000.00: conflict intervenes before the 2 years (i) Commandant of the Marine Corps; have run, and good cause is shown. In (ii) Deputy Chief of Staff, Manpower this situation, a claim may be pre- and Reserve Affairs Department; sented not later than 2 years after the (iii) Director, Human Resources Divi- end of the armed conflict. A claim ac- sion; crues on the day the claimant knows or (iv) Head, Personal Affairs Branch; should know of the loss. For losses that (v) Deputy Head, Personal Affairs occur in shipment of personal property, Branch; normally the day of delivery or the day (vi) Head, Personnel Claims Section; the claimant loses entitlement to stor- and age at Government expense (whichever (vii) Any individual, when personally occurs first) is the day the claim ac- designated by the Commandant of the crues. If a claimant’s entitlement to Marine Corps, may be authorized to ad- Government storage terminates, but judicate and authorize payment of per- the property is later delivered at Gov- sonnel claims up to any delegated ernment expense, the claim accrues on amount, and not to exceed $40,000.00. delivery. In computing the 2 years, ex- (2) The following individuals are au- clude the first day (day of delivery or thorized to adjudicate and authorize incident) and include the last day. If payment of personnel claims up to the last day falls on a non-workday, ex- $25,000.00: tend the 2 years to the next workday. (i) Head, Adjudication Unit; (c) Substantiation. The claimant is re- (ii) Head, Carrier Recovery Unit; and sponsible for substantiating ownership (iii) Head, Administration Unit. or possession, the fact of loss or dam- age, and the value of property. Claim- § 751.9 Presentment of claim. ants are expected to report losses (a) General. A claim shall be sub- promptly. The greater the delay in re- mitted in writing and, if practicable, be porting a loss, the more substantiation presented to the claims office or per- the claimant is expected to provide.
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(1) Obviously damaged or missing inven- ined to determine whether the material tory items that are not reported at deliv- is solid hardwood, fine quality veneer ery. Claimants are expected to list over hardwood, veneer over pressed missing inventory items and obvious wood, or other types of material. If the damage at time of delivery. Claimants inspection is conducted at the claim- who do not should be questioned. Obvi- ant’s quarters, the general quality of ously some claimants will simply not property should be determined. Claim- notice readily apparent damage. If, ants should routinely be directed to however, the claimant cannot provide bring in vehicles and small broken an explanation or lacks credibility, items of value such as figurines for in- payment should be denied based on spection, and inspections should be lack of evidence that the item was lost conducted on all large claims. Observa- or damaged in shipment. tions by repairmen and transportation (2) Later-discovered shipment loss or inspectors are very valuable, but on oc- damage. A claimant has 70 days to un- casion, claims personnel must go out of pack, discover, and report loss and the office and inspect items them- damage that is not obvious at delivery. selves. Such inspections are necessary In most cases, loss and damage that is to reduce the number of reconsider- discovered later and reported in a ations and fraudulent claims and are timely manner should be deemed to invaluable in enabling claims per- have been incurred in shipment. sonnel to understand the facts in many (3) Damage to POV’s in shipment. Per- situations. sons shipping POV’s are expected to list damage on DD Form 788 (Private § 751.10 Form of claim. Vehicle Shipping Document for Auto- mobile) when they pick up the vehicle. The claim should be submitted on DD Obvious external damage that is not Form 1842 (Claim for Personal Prop- listed is not payable. Damage the erty) accompanied by DD Form 1844 claimant could reasonably be expected (List of Property). If DD Forms 1842 not to notice at the pickup point and 1844 1 are not available, any writing should be considered if the claimant re- will be accepted and considered if it as- ports the damage to claims personnel serts a demand for a specific sum and within a short time, normally a few substantially describes the facts nec- days, after arriving at the installation. essary to support a claim cognizable (4) Credibility. Most claimants are under these regulations. The claim honest. Most claimants objectively at- must be signed by a proper claimant tempt to claim only what is due them. (see § 751.5) or by a person with a power These persons are entitled to the pre- of attorney for a proper claimant. A sumption that what they list is honest, copy of the power of attorney must be although it may not be correct. Some included with the claim. claimants lack credibility and their claims require careful scrutiny. Fac- § 751.11 Investigation of claim. tors that indicate a claimant’s credi- Upon receipt of a claim filed under bility is questionable include amounts the Personnel Claims Act, the claim claimed that are exaggerated in com- shall be stamped with the date and re- parison with the cost of similar items, ceiving office, and be referred to a insignificant or almost undetectable claims investigating officer. The inves- damage, very recent purchase dates for tigating officer shall consider all infor- most items claimed, and statements mation and evidence submitted with that appear incredible. Such claimants the claim and shall conduct such fur- should be required to provide more evi- ther investigation as may be necessary dence than is normally expected. and appropriate. (5) Inspections. Whenever a question arises about damage to property, the 1 best way to determine a proper award Copies of these forms may be obtained by contacting the claims office or personal is to examine the item closely to deter- property office serving the installation mine that nature of the damage. For where the claimant is stationed, or nearest furniture, undersurfaces and the edges to the point where the loss or damage oc- of drawers and doors should be exam- curred.
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§ 751.12 Computation of award. item, and the nature of the damage, The Judge Advocate General will pe- and claims personnel should exercise riodically publish an Allowance List- sound judgment to avoid being too le- Depreciation Guide specifying rates of nient or too harsh. depreciation and maximum payments (iii) Cosmetic damage to nondecorative applicable to categories of property. items. LOV should also be awarded to The Allowance List-Depreciation Guide compensate claimants for cosmetic will be binding on all DON claims per- damage to items that were not pur- sonnel. The value of the loss is deter- chased for purposes of display or deco- mined and adjusted to reflect pay- ration. For example, the casing of a ments, repairs, or replacement by car- washing machine is dented. The wash- riers or insurers, or lost potential in- ing machine is not decorative in nature surance or carrier recoveries. and still functions perfectly. An LOV, (a) Repair of items. For items that can rather than replacement of the wash- be economically repaired, the cost of ing machine or the casing, is the appro- repair or an appropriate loss in value is priate measure of the claimant’s loss. the measure of the loss. The cost of re- (2) PED to repairable items. PED is pair may be the actual cost, as dem- damage to an item that predates the onstrated by a paid bill, or reasonable incident giving rise to a claim. PED is estimated costs, as demonstrated by an most commonly identified by the use estimate of repair prepared by a person of symbols on household goods ship- in the business of repairing that type ment inventories. Whenever PED is of property. listed on an inventory, claims per- (1) Loss of value (LOV)—(i) Minor dam- sonnel must determine whether the age not worth repairing. An LOV, rather PED did in fact exist and whether the than replacement cost, should be cost of repairing the item includes re- awarded when an item suffers minor pairing PED. The fact that a claimant damage that is not economical to re- signed the inventory that listed PED is pair but the item remains useful for its conclusive evidence that PED did exist intended purpose. An LOV is particu- unless the member has taken written larly appropriate when the item is not exceptions on the inventory to the car- of great value and has preexisting dam- rier’s description of PED. These find- age (PED). An LOV is also appropriate ings are essential for recovery pur- to compensate claimants for minor poses. Often inspecting the item or damage, such as a chip or surface crack calling the repairman who prepared the to a figure or knickknack. For exam- estimate is the only way to make an ple, if an inexpensive, fiberboard coffee effective determination. table with extensive PED is scratched, repair of the scratch would exceed the (i) Estimates that do not include repair value of the table. Under the cir- of PED. If the estimate does not in- cumstances, LOV is appropriate. clude repair of PED, even if PED is (ii) Damage to upholstered furniture. If listed on the inventory, no deduction damage can be repaired imperceptibly should be made. This fact should be re- by cleaning or reweaving, the claimant corded on the chronology sheet and on is only entitled to repair cost. If re- carrier recovery documents. pairs would be somewhat noticeable (ii) Estimates that include repair of but the damage is to an area not nor- PED. If repair of PED is included in the mally seen, repair costs plus an LOV estimate, the percentage attributable would be appropriate. Alternatively, if to repair of PED is deducted. repairs would be somewhat noticeable (3) Mechanical defects. The Personnel but the item is of no great value and Claims Act only provides compensation has already suffered PED, repair costs for losses incurred incident to service. and LOV would be appropriate even if Damage resulting from a manufactur- the damage is in an obvious area. If, er’s defect or from normal wear and however, repairs would be so noticeable tear is not compensable. Damage to the as to destroy the usefulness of the engine or transmission of an old vehi- item, the item should be reupholstered cle during shipment is probably due to or replaced. What is noticeable will de- a mechanical defect. Internal damage pend on the nature and value of the to appliances, such as old televisions,
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is also often due to a mechanical de- (1) Similar used items. If there is a reg- fect, particularly when their is no ex- ular market for used items of that par- ternal damage to the item. Claims for ticular type, the loss may be measured internal damage to small appliances by the cost of a similar item of similar that are not normally repaired, such as age. Prices obtained from industry toasters or hair dryers, should be as- guides or estimates from dealers in this sessed based on damage to other items type of property are acceptable to es- in the carton and the shipment, the age tablish value. There is a regular mar- of the item, the honesty of the claim- ket on used cars and the value of a ant, and whether there are loose parts used automobile is always measured inside. If the evidence suggests rough according to the N.A.D.A. Official Car handling caused the damage, a claim Guide rather than the depreciated re- for the item should be paid. Internal placement cost. Similarly, the Mobile damage to larger items such as tele- Home Manufactured Housing Replace- visions or stereos should be evaluated ment Guide may be used to value a de- by a repairman. Evidence that suggests stroyed mobile home. Where there is no rough handling, such as smashed regular market in a particular type of boards, provides a basis for payment. used item, however, estimates from Evidence that suggests a fault in the dealers in ‘‘collector’s items’’ should be item, such as burned-out circuits, does avoided. not. Deterioration because an item in (2) Depreciated replacement cost. This storage was not used for a long time, is the normal measure of a claimant’s rather than because the item was mis- loss. A catalog or store price for a new handled or the conditions of storage item similar in size and quality is de- were improper, is also considered due preciated using the Allowance List-De- to a mechanical defect. preciation Guide to reflect wear and (4) Wrinkled clothing. Clothing wrin- tear on the missing or destroyed item. kled in shipment presents special prob- The replacement cost for identical lems. Normally, unless the wrinkling is items—particularly decorative items— so severe as to amount to actual dam- should be used whenever the item is age, the cost to press wrinkles out of readily available in the local area, but clothing after a move is not compen- a claimant who is eligible to use the sable. The mere fact that clothing was Navy Exchange (NEX) and the NEX ‘‘wadded up’’ or ‘‘used as packing mate- Mail Order Catalog should not be al- rial’’ is not in itself sufficient. The lowed a higher replacement cost of an wrinkling must be such that profes- item, such as a television, from a spe- sional pressing is necessary to make cialty store when the NEX carries an the clothing usable. This determina- item comparable in size, quality, and tion will depend on the wrinkling and features from another manufacturer. the nature of the material. (3) ‘‘Fair and reasonable’’ (F&R) (5) Wet and mildewed items. A claim- awards. A fair and reasonable award ant has a duty to mitigate damages by should be used sparingly when other drying wet items to prevent further de- measures would compensate the claim- terioration. Items that have been wet ant appropriately. Overuse of such are not necessarily damaged and claim- awards impedes carrier recovery and ants who throw them away have dif- ‘‘F&R’’ should never be used when a ficulty substantiating that a loss has more precise measure of damages is occurred. Although a deeply seated available. An F&R award for a missing mildew infestation is almost impos- or destroyed item should reflect the sible to remove completely, items value of an item similar in quality, de- lightly infested can often be cleaned. scription, age, condition, and function (b) Replacement of items. A claimant is to the greatest extent possible. An entitled to the value of missing and de- F&R award for a damaged item should stroyed items. An item that has sus- reflect either the amount a firm would tained damage is considered destroyed charge for repair or the reduced value if it is no longer useful for its intended to the greatest extent possible. When- purpose and the cost of repairing it ex- ever such an award is made, the basis ceeds its value. Value is measured in for the award should be explained on the following ways: the chronology sheet, in the comments
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block of DD Form 1844 (List of Prop- useful life of upholstered furniture. erty), or in a separate memorandum. A When upholstered furniture is reuphol- fair and reasonable award may be con- stered because the damage is too severe sidered in the following instances: to be repaired and an LOV is not appro- (i) The item is obsolete and a simple priate, the cost of new fabric is depre- deduction of a percentage for obsoles- ciated at a rate of 5 percent per year. If cence is not appropriate. the item has been reupholstered since (ii) The claimant cannot replace the it was purchased, depreciation is meas- item in the local area. ured from the date the item was last (iii) The claimant cannot replace the reupholstered, rather than from the item at any cost. date the item was originally purchased. (iv) Repair costs or replacement costs Labor costs are allowed as claimed. If are excessive for the item and an LOV the estimate does not list separate is not appropriate. costs for fabric and labor, the labor (v) The claimant has substantiated a costs may be assumed to be 50 percent loss in some amount but has failed to of the total bill. substantiate a loss in the amount (3) Rapidly depreciating items. Tires, claimed. most clothing items, and most toys (c) Depreciation. The Personnel rapidly lose their value, as the high de- Claims Act is only intended to com- preciation rate for these items reflects. pensate claimants for the fair market Depreciation should be taken on such value of their loss. Except in unusual items even when they are less than 6 cases, a used item that has been lost or months old. As a rule of thumb, half of destroyed is worth less than a new the normal yearly or flat rate deprecia- item of the same type. The price of a tion should be taken on such items new replacement item must be depre- when they are between 3 and 6 months ciated to award the claimant the value old at the time of loss. of the lost or destroyed item. Average (4) Obsolescence. Even though depre- yearly and flat rates of depreciation ciation is not taken during periods of have been established to determine the storage, obsolescence should be fair value of used property in various claimed on those items that have lost categories. These rates are listed in the value because of changes in style or Allowance-List Depreciation Guide. technological innovations. The listed depreciation rate should be (5) Military uniforms. Normally, no de- adjusted if an item has been subjected preciation should be taken on military to greater or lesser wear and tear than uniforms. Depreciation, however, normal or if the replacement cost the should be taken on military uniform claimant provides is for a used item items that are being phased out or that rather than a new one. Yearly depre- belong to persons separating from the ciation is not taken during periods of service. Socks and underwear are not storage and normally no depreciation considered military uniform items. is taken on repair costs or on replace- (d) Salvage value. Whenever a claim- ment cost for items less than 6 months ant has been fully compensated for a old, excluding the month of purchase destroyed item that still has some and the month the claim accrued (but value, the claimant has the option of see § 751.12(c)(3)). either retaining the item and having (1) Depreciating replacement parts. No the claims office deduct an amount for depreciation should be taken on re- the salvage value, or turning the item placement parts for damaged items un- over to the Government or to the car- less these are parts separately pur- rier if the carrier will fully reimburse chased or normally replaced during the the Government. useful life of these items. The replace- (1) Turn-in to the Government. On all ment cost for these latter items should claims, except CONUS domestic ship- be depreciated. For example, the glass ments, if the claimant does not choose top to a table is not normally replaced to retain the items and accepts a re- during the useful life of the table and duction in the amount paid on the should not be depreciated. claim for salvage value, the claims of- (2) Depreciating fabric for reupholstery. fice will require the claimant to turn Fabric is normally replaced during the them into a disposal unit designated by
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the Personal Property Office. Nor- end of the period allotted for carrier mally, the amount that the Govern- pick-up. ment may obtain from selling such (3) Maximum allowances. If the claim- items is very low. If the claims office ant will not be fully compensated for determines that the salvage value is an item because a maximum allowance less than $25.00, the claimant may be is applied, he will not be required to advised to dispose of the items by other turn in the item. means, either by throwing the item (e) Standard abbreviations. The claims away or by turning it over to a chari- examiner’s intent should be clear and table organization. Claimants may also unmistakable to anyone reviewing the be directed to make alternative dis- remarks section of DD Form 1844. The position of items that have been re- following standardized abbreviations fused by the designated disposal unit. are used in completing the remarks This alternate disposition must be section. Other abbreviations should not noted on the chronology sheet that is be used. Whenever one or more of these kept as part of the claims file. Claims abbreviations will not adequately ex- personnel will not divert such items to plain how the claimant has been com- personal use or use them to furnish pensated, a brief explanation should be Government offices. In determining inserted in the remarks section, in the whether an item has salvage value, the comments section on the bottom of DD size of the item and the distance the Form 1844, or on the chronology sheet claimant must travel to turn it in that is kept in each claims file. should be considered. A claimant must (1) AC: Amount claimed. The amount make his own arrangements to trans- claimed was awarded to the claimant. port salvageable items prior to pay- This abbreviation is not used if the ment. Claims personnel should ask the claimant has presented an estimate of claimant’s command to make transpor- repair. tation available to assist the claimant in appropriate cases, particularly when (2) AGC: Agreed cost of repairs. The the item is large or bulky. Sound dis- claimant did not present an estimate cretion prohibits requiring a claimant but instead, after discussing the mat- living far from a designated disposal ter with claims personnel, entered an unit to turn in an item of relatively amount that represents the claimant’s slight value. guess as to how much it would cost to (2) Turn-in to the carrier. On CONUS repair the damaged item. The claims domestic shipments, the carrier may office may accept this amount as a fair choose to pick up items for which it estimation of the cost of repair based will fully reimburse the Government. on the amount of damage, the value of Pursuant to a Joint Military-Industry the item, and the cost of similar re- Memorandum on Salvage, items that pairs in the area. A claimant may be are hazardous to keep around, such as allowed up to $50.00 as an AGC without mildewed items or broken glass (except an inspection and between $50.00 and items such as figurines and crystal $100.00 if claims personnel have in- with a per item value of more than spected the item. The use of AGC is an $50.00), may be disposed of as the claim- integral part of small claims proce- ant chooses. Claimants must retain dures. other items for a maximum of 120 days (3) CR: Carrier recovery. The claimant from the date of delivery to allow the was paid this amount by the carrier for carrier to pick them up. Pursuant to the item. The payment is recorded in this memorandum of understanding, the remarks column, and the total car- the carrier has until the end of the in- rier payment is deducted at the bottom spection period or 30 days after receipt of DD Form 1844 in the same manner as of the demand, whichever is greater, to insurance recovery. identify such items. Claims offices (4) D: Depreciation. Yearly deprecia- must identify files in which the carrier tion was taken on the destroyed or is entitled to salvage and must process missing item in accordance with the these claims for recovery action within appropriate depreciation guide in effect 30 days so that the claimant does not at the time of the loss. Deviations from dispose of salvageable items before the standard rates must be explained.
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(5) DV: Depreciated value. A claim- (17) NEX: Navy Exchange replacement ant’s repair costs exceeded the value of cost. A replacement from the NEX was the item, so the depreciated value was used. awarded instead. Whenever a claimant (18) RC: Replacement cost. A replace- claims a repair cost that is very high, ment cost was used. The store or cata- relative to the age and probable re- log from which the replacement cost placement cost, the replacement cost was taken should be listed. should be obtained and the depreciated (19) SV/N: Item has no salvage value. A value determined. destroyed item was determined to have (6) ER: Estimate of repair. The claim- no salvage value. ant provided an estimate of repair that (20) SV/R: Salvage value, item retained. was used to value the loss. If multiple A destroyed item was determined to estimates were provided, they should have salvage value and the claimant be numbered and referred to as exhib- chose to keep the item. Accordingly, a its. deduction was made for the salvage (7) EX: Exhibit. When numerous docu- value. ments have been provided to substan- (21) SV/T: Salvage value, item turned in. tiate a claim, they should be numbered A destroyed item was determined to and referred to as exhibits. have salvage value and the claimant (8) FR: Flat rate depreciation. Flat chose not to keep the item. If the item rate depreciation was taken on an item is part of a CONUS domestic shipment, in accordance with the Depreciation the claimant must keep it for the car- Guide in effect at the time of the loss. rier to pick up. Otherwise, the claim- Deviations from the normal rate must ant must turn the item in prior to pay- be explained. ment on the claim. (9) F&R: Fair and reasonable. A fair (f) Sets. Normally, when component and reasonable award was made (see parts of a set are missing or destroyed, § 751.12(b)(3)). the claimant is only entitled to the re- placement cost of the missing or de- (10) LOV: Loss of value. An LOV was stroyed components. In some in- awarded (see § 751.5(a)(1)). stances, however, a claimant would be (11) The ad- MA: Maximum allowance. entitled to replacement of the entire judicated value, listed in the ‘‘Amount set or to an additional LOV. Some Allowed’’ column, exceeds a maximum claimants will assert that all of the allowance. The amount in excess of the items in a room are part of a set. maximum allowance is subtracted at Pieces sold separately, however, are or- the bottom of the DD Form 1844. dinarily not considered parts of a set, (12) N/P: Not payable. The item is not and pieces that merely complement payable. The reason for this comment other items, such as a loveseat pur- should be noted (i.e., ‘‘not substan- chased to complement a particular tiated’’). hutch, are never considered part of a (13) OBS: Obsolescence. A percentage set. When a component part of a set is was deducted for obsolescence. missing or destroyed and cannot be re- (14) PCR: Lost potential carrier recov- placed with a matching item, or has to ery. A deduction was made for lost be repaired so that it no longer PCR. matches other component parts of the (15) PED: Preexisting damage. A deduc- set, the following rules apply: tion was made for PED. (1) The set is no longer useful for its in- (16) PP: Purchase price. The purchase tended purpose. When a set is no longer price was used to value the loss. Nor- useful for its intended purpose because mally, the purchase price is not an ade- component parts are missing or de- quate measure of the claimant’s loss. stroyed the entire set may be replaced. If, however, the claimant used the re- Note that several firms will match dis- placement cost of a dissimilar item or continued sets of china and crystal and otherwise failed to substantiate the re- that replacement of the set is not au- placement cost, a recent purchase price thorized if replacement items can be may be used at the discretion of claims thus obtained. Generally, with china personnel, if a true replacement cost is and crystal the value of the set as a not available. whole is not destroyed unless more
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than 25 percent of the place settings ize shipment of a mobile home that has are unusable. Exceptions may be made not been placed in a fit condition to be if the claimant can demonstrate a par- shipped. ticular need for a certain number of (1) Transportation counseling prior to place settings because of family size or shipment. Servicemembers should be social obligations. In those rare in- advised of the following: stances when an entire set is replaced, (i) They are responsible for placing the claimant will be required to turn in the mobile home and its tires, tubes, undamaged pieces. frames, and other parts in fit condition (2) The set is still useful for its intended to ship and for loading the mobile purpose. When missing pieces cannot be home to withstand the stresses of nor- matched and there is measurable de- mal transportation. They will not be crease in the value of the set, but the compensated for any damage that re- set is still useful for its intended pur- sults either from a latent defect in the pose, the claimant is awarded the value construction of the mobile home (ex- of the missing pieces plus an amount cept when the carrier is aware of the for the diminution in value of the set defect and the servicemember is not) or as a whole. The amount awarded as an from their failure to place the mobile LOV will vary depending on the exact home in fit condition to ship. circumstances. (ii) They are responsible for paying (3) Mattresses and upholstered furniture for necessary repairs en route. Such re- are recovered. A mattress and box pairs can amount to several hundred or spring set is covered during normal even several thousand dollars, and use. Such sets are still useful for their some mobile homes have been left in intended purpose if one piece of the set storage at the servicemember’s expense has to be recovered in a different fab- hundreds of miles from destination be- ric. No award will be made for the cause the owner could not pay for nec- undamaged piece. When one piece of a essary repairs. set of upholstered furniture suffers damage that cannot be repaired or re- (iii) They are responsible for reseal- covered in matching fabric, recovering ing the roof and weatherproofing the the entire set or recovering the dam- mobile home after delivery. The cost of aged piece plus LOV should be consid- this is not compensable, nor is any ered. Factors to take into account in- damage caused by the servicemember’s clude the value of the set, PED to the failure to have it done. set, the nature of the current damage, (iv) They are responsible for remov- and the extent to which the claimant’s ing obstructions, grading the roadway, furniture is already mismatched. or otherwise preparing the site to (g) Mobile homes. Mobile homes make it accessible for the carrier’s present special problems. Most mobile equipment at both origin and destina- homes, particularly larger ones, are tion. not built to withstand the stress of (v) Because of the risk that damage multiple long moves. While the Mobile will result for which they cannot be Home One-Time Only rate solicitation compensated, servicemembers should program, effective 1 November 1987, strongly consider purchasing private may have reduced the incidence of loss insurance coverage. A claimant usually and damage by encouraging carriers to must purchase separate insurance for use extra axles when necessary, mobile property shipped inside the mobile home shipments can result in enor- home and most mobile home carriers mous, uncompensated losses for will sell some sort of insurance cov- servicemembers and present unusual erage for damage to the mobile home difficulties for claims adjudicators. Be- itself. Often, when a mobile home has cause the risk is so great, claims of- been moved repeatedly, the risk of un- fices must coordinate with their serv- compensated loss is so high that the icing transportation offices to ensure servicemember should consider selling both that servicemembers shipping mo- the home rather than attempting to bile homes are advised of the risk and ship it. of their responsibilities, and that the (2) Inspection Prior to Shipment. Trans- transportation office does not author- portation personnel should inspect the
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home prior to shipment in all in- (4) Substantiation of a claim. Prior to stances. All defects should be recorded. adjudication of such claims, the mobile In particular: home should be inspected and the fol- (i) A mobile home should not be lowing evidence obtained, if possible: shipped with a servicemember’s fur- (i) DD Form 1800 (Mobile Home Ship- niture and other household goods in- ment Inspection at Destination). This side. The maximum safe weight of ap- document shows the condition of the pliances and additional property is home at origin prior to shipment. This very low. An overweight mobile home document is prepared by the Transpor- tends to blow tires and break apart tation Office (TO) and is signed by the during shipment. Servicemembers servicemember, the carrier’s represent- should be advised long before shipment ative, and the Government inspector. that they will have to make other ar- It is vital and a claim should not be rangements for shipping such items at paid without it. At destination, dam- their own expense. ages noted at delivery should be anno- (ii) A mobile home should never be tated and the form dated and signed by shipped with defects in the steel frame the driver and the servicemember. or tow hitch. Damages may be listed on this form or (iii) The condition of all tires should on the DD Form 1840 (Joint Statement be checked and recorded. Some carriers of Loss or Damage at Delivery). (ii) DD Form 1863 (Accessorial Services- submit huge bills for ‘‘blown’’ tires Mobile Home). For shipments after 1 No- during shipment. vember 1987, DD Form 1863 lists all (iv) Structural changes to the inte- services the carrier is required to pro- rior of the home, particularly those vide, including line-haul, payment of that involve cutting through beams, tolls, overdimension charges, permits should be examined closely and a civil and licenses, provision of anti-sway de- engineer should be called in to render vices, axles with wheels and tires, tem- an opinion. Frequently, it is not safe to porary lights, and escort services. All ship mobile homes in which the claim- costs and services may not appear on ant has altered the interior framing. the GBL. For shipments prior to 1 No- (3) Latent Defects. Many carriers will vember 1987, damages may also be list- attempt to escape liability by attrib- ed on this form. uting all damage to latent manufac- (iii) DD Form 1840/1840R. Beginning 1 turing defects. A loss due to such a de- November 1987, later-discovered dam- fect, like a loss due to any other me- ages must be listed on DD Form 1840R chanical defect, is not considered inci- and dispatched to the carrier within 75 dent to service. When an engineer’s re- days of delivery. Timely notice on mo- port or other evidence shows that dam- bile home shipments differs slightly age was indeed caused by a defect rath- from such notice on other shipments. er than by the carrier’s failure to take Item 306 of the carrier’s rate solicita- the necessary care, the following rules tion provides that ‘‘upon delivery by apply: the carrier, all loss of or damage to the (i) If both the carrier and the claim- mobile home shall be noted on the de- ant knew or should have known of the livery document, the inventory form, defect, and if the claimant took no cor- the DD Form 1800, and/or the DD Form rective action and had the mobile 1840. Late discovered loss or damage, home shipped anyway, the claim is not including personal property within the payable. mobile home, will be noted on the DD (ii) If the carrier knew or should have Form 1840R not later than 75 days fol- known of the defect, and the claimant lowing delivery and shall be accepted could not reasonably have been ex- by the carrier as overcoming the pre- pected to know of it, the claim is pay- sumption of correctness of delivery re- able and liability should be pursued ceipt.’’ against the carrier. (iv) DD Form 1412 (Inventory of Items (iii) If neither the claimant nor the Shipped in Housetrailer). Prior to 1 No- carrier could reasonably be expected to vember 1987, the servicemember pre- know of the defect, the claim is not pared DD Form 1412. After 1 November payable. 1987, the carrier is required to prepare
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this in coordination with the opinions prepared by qualified engi- servicemember. neers. The claimant may not be com- (v) DD Form 1841. If a Government pensated for services the carrier failed representative does not inspect the mo- to perform or performed improperly or bile home at delivery, an inspection for other incidental expenses. The should be requested. claimant should be referred to the (vi) Driver’s statement. The mobile transportation office for these. Such home carrier should be requested to services (listed on DD Form 1843 and provide (within 14 days) a statement the GBL correction notice) include: from the driver of the towing vehicle (i) Escort or pilot services, ferry fees, explaining the circumstances sur- tolls, permits, overdimension charges, rounding the damage as well as de- or taxes. tailed travel particulars. If the mobile (ii) Storage costs or parking fees en home carrier does not respond, the file route. should be so annotated. Such state- (iii) Expand charges and charges for ments are often self-serving and should anti-sway devices, brakes and brake re- be reviewed critically to determine pairs, or adding or replacing axles, whether the carrier is attributing dam- tubes, or tires. age to a latent defect. (iv) Wrecker service. (vii) The claimant Owner’s statement. (v)Connecting or disconnecting utili- should provide a statement concerning ties. the age of the mobile home, the date (vi) Blocking, unblocking, or remov- and place purchased, any prior damage ing or installing skirting. or repairs, all prior moves, and prior claims. (vii) The cost of separating or re- (viii) Estimates of repair. When pos- assembling and resealing a double-wide sible, the claimant should obtain two mobile home. estimates of repair from firms in the (6) Carrier liability and attempted waiv- business of repairing, rather than sell- ers. In the absence of additional cov- ing, mobile homes. Such estimates erage, the carrier’s maximum liability should list the approximate value of for personal property shipped with the the home before and after damage, a mobile home is $250.00. The carrier is detailed breakdown of the repairs need- fully liable for damages to the mobile ed and their cost, and the cause of home itself. Carriers are also liable for damage. damage caused by third parties with (ix) Engineer’s statement. Where the whom they contract, such as wrecker facts indicate the possibility of a la- services. Some carriers may still try to tent defect, the claimant should be as- obtain waivers, from the sisted in obtaining a statement from a servicemember. A waiver signed by the qualified engineer or vehicle mainte- servicemember, however, is not binding nance professional with expertise in on the United States. The Navy is the mobile homes explaining the cause of contracting party and the owner has damage. The claims office should co- not authority to sign a waiver agree- ordinate in advance with facilities en- ment or any other document pur- gineers or with local reserve units with porting to exempt the carrier from the engineering expertise to provide such liability imposed under the GBL. inspection where possible. (5) Compensable damage. In adjudi- § 751.13 Payments and collections. cating the claim, the claimant may be Payment of approved personnel paid for loss of or damage to the mobile claims and deposit of checks received home except when the damage is due to from carriers, contractors, insurers, or a latent defect, to the servicemember’s members will be made by the Navy or failure to place the home in fit condi- Marine Corps disbursing officer serving tion to ship, or to the servicemember’s the adjudicating authority. Payments failure to have the roof resealed. The will be charged to funds made available servicemember may also be com- to the adjudicating authority for this pensated for the reasonable cost of re- purpose. Credit for collections will be pair estimates provided by firms in the to the accounting data specified in business of mobile home repair and of Navy Comptroller Manual section
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046370, paragraph 2 or in superseding nally adjudicated by the commanding messages, if applicable. offer, the files will be forwarded to the Judge Advocate General for final ac- § 751.14 Partial payments. tion. The claimant shall be notified of (a) Partial payments when hardship ex- this action either by letter or by copy ists. When claimants need funds to feed, of the letter forwarding the file to clothe, or house themselves and/or higher adjudicating authority. The for- their families as a result of sustaining warding letter shall include a synopsis a compensable loss, the adjudicating of action taken on the file and reasons authority may authorize a partial pay- for the action or denial, as well as a ment of an appropriate amount, nor- recommendation of further action or mally one-half of the estimated total denial. payment. When a partial payment is (b) Files forwarded to JAG. For files made, a copy of the payment voucher forwarded to JAG in accordance with and all other information related to § 751.15(a), the forwarding endorsement the partial payment shall be placed in shall include the specific reasons why the claim file. Action shall be taken to the requested relief was not granted ensure the amount of the partial pay- and shall address the specific points or ment is deducted from the adjudicated complaints raised by the clamant’s re- value of the claim when final payment quest for reconsideration. is made. (c) Appeals procedure for claims sub- (b) Marine hardship payments. The mitted by Marine Corps personnel. Where Marine claimant’s Transportation any of the Marine Corps adjudication Management Office (TMO) shall ensure authorities listed in § 751.8(b) fail to compliance with all requirements of grant the relief requested, or otherwise § 751.14(a), and may request authority resolve the claim the satisfaction of for payment by message from the Com- the claimant, the request for reconsid- mandant of the Marine Corps (MHP– eration shall be forwarded together 40). with the entire original file and the ad- (c) Effect of partial payment. Partial judicating authority’s recommenda- payments are to be subtracted from the tion, to the Judge Advocate General. adjudicated value of the claim before payment of the balance due. Overpay- §§ 751.16–751.20 [Reserved] ments are to be promptly recouped. Subpart B—Demand On Carrier, § 751.15 Reconsideration and appeal. Contractor, or Insurer (a) General. When a claim is denied either in whole or in part, the claimant § 751.21 Scope of subpart B. shall be given written notification of a Subpart B addresses the recovery the initial adjudication and of the process for loss or damage occurring right to submit a written request for during the storage or transport of reconsideration to the original adjudi- household goods and other personal cating authority within 6 months from property for which military personnel the date the claimant receives notice and civilian employees were paid under of the initial adjudication of the claim. the provisions of 31 U.S.C. 3721. The au- If a claimant requests reconsideration thority for pursuing recovery action is and if it is determined that the original found at 31 U.S.C. 3711. action was erroneous or incorrect, it shall be modified and, when appro- § 751.22 Carrier recovery: In general. priate, a supplemental payment shall (a) Responsibility. Recovery of be approved. If full additional payment amounts due for personal property lost is not granted, the file shall be for- or damaged while in transit or in stor- warded for reconsideration to the next age at Government expense is a joint higher adjudicating authority. The Personal Property Office/Naval Legal next higher adjudicating authority Service Office responsibility. In order may be the commanding officer of the to establish liability and to effectively Naval Legal Service Office if a properly pursue a recovery claim against a car- delegated subordinate has acted ini- rier, warehouseman, or other third tially on the claim. For claims origi- party, it is essential that all required
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action be accomplished in an expedi- Property, from the transportation of- tious manner. Failure of the property fice. owner or any Government agent to ex- (7) When necessary, DD Form 619–1, ercise diligence in the performance of Statement of Accessorial Services Per- duties may render collection of the formed, from the transportation office. claim impossible and thereby deprive (d) Carrier inspection. Claims office the Government of rightful revenue. personnel should inform claimants that Claims approving and settlement au- the carrier has the right to inspect thorities will ensure that all actions damaged goods within 75 days of deliv- required of the property owner and ery, or 45 days of dispatch of DD Form naval personnel are accomplished 1840R, whichever is later, and that promptly. damaged items must be held out for (b) Elements of collection. There are carrier inspection during that period. four elements in the successful asser- Essential items such as washer, dryer, tion and collection of a recovery claim. television etc., may be repaired prior They are: to that time if necessary. (1) Proving that a transit loss oc- (e) Repair estimates. Claims personnel curred; must ensure that repair estimates de- (2) Determining who had responsi- scribe the specific location and damage bility for the goods at the time of the claimed and that the same damage is transit loss; claimed on DD Form 1844, Schedule of (3) Calculating the amount of dam- Property and Claims Analysis Chart. ages; and Repair estimates that merely note ‘‘re- (4) Pursuing the responsible party or finished’’ or ‘‘repaired’’ are not accept- parties vigorously. able. (f) DD Form 1844. Claims personnel § 751.23 Responsibilities. must ensure that DD Form 1844 is prop- (a) Notice of loss. Claims office per- erly completed with the nature and ex- sonnel must ensure that Notice of Loss tent of the loss or damage to each item or Damage, DD Form 1840R, is properly fully described, the correct inventory completed and dispatched to the liable numbers supplied, and correct item third party or parties within 75 days of weights utilized from the Military-In- delivery of the property. dustry Table of Weights (when these (b) Counseling of claimant. Claims of- weights are required for the code of fice personnel should coordinate with service involved). the local personal property office to (g) Demands on third parties. Claims ensure proper counseling regarding po- personnel must ensure that written de- tential claim procedures. mands against appropriate third par- (c) Documents. Claims office per- ties are prepared as described in § 751.26 sonnel must obtain from the claimant and § 751.27. No demand will be made or from the transportation office the where it conclusively appears that the following documents needed to process loss or damage was caused solely by recovery actions: Government employees or where a de- (1) A copy of the GBL or other docu- mand would otherwise be clearly im- ment used for shipment or storage. proper under the circumstances. If it is (2) A copy of the inventory. determined that a demand is not re- (3) A copy of the DD Form 1840 and quired, a brief written statement set- DD Form 1840R. ting forth the basis for this determina- (4) Where storage in transit was ex- tion will be included on the chronology tended from 180 days to 270 days, a copy sheet. Pursuant to the Joint Military- of the authorization from the transpor- Industry Agreement on Claims of $25.00 tation office allowing this extension at or Less, claims of $25.00 or less will not Government expense. be pursued because administrative (5) Where storage converted from costs outweigh recovery proceeds. Government paid storage to storage at owner’s expense, a copy of the claim- § 751.24 Notice of loss or damage. ant’s contract with the warehouse. (a) Exceptions. The claimant is re- (6) When necessary, a copy of DD quired to take exceptions and note any Form 1164, Service Order for Personal loss of damage at the time of delivery
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on the DD Form 1840 (Joint Statement carrier’s released valuation (the car- of Loss or Damage at Delivery). Later rier’s maximum liability for loss and discovered damage must be noted on damage) increased from $.60 per pound the DD Form 1840R (Notice of Loss or per article to $1.25 multiplied by the Damage) and delivered to the claims net weight of the shipment ($2.50 for office or Personal Property Office with- shipments to and from Alaska). For in 70 days of delivery. Failure to take Codes 1 and 2 shipments picked up exceptions at delivery and note and re- prior to these dates, carrier liability port later discovered damage will re- remains at $.60 per pound per article sult in deduction on any lost potential and is calculated the same as for Code carrier recovery from payment of the 4 shipments. There are also two higher claim. Failure to note on the DD Form levels of coverage available in which 1840 items missing at the time of deliv- the owner pays the difference between ery may result in denial of claims for the basic coverage and the higher level those items. requested: High or higher increased re- (b) DD Form 1840/1840R. The DD Form leased valuation (Option 1) and full re- 1840/1840R is printed in carbon sets of placement protection (Option 2). These five with DD Form 1840 on the front higher carrier released valuation rates side and DD Form 1840R on the reverse only apply to Codes 1 and 2 shipments side. DD Form 1840/1840R is provided by and they do not affect the liability of a the carrier to the member at delivery. non-temporary storage (NTS) ware- Carriers were required to use this re- house which remains at $50.00 per line vised DD Form 1840/1840R beginning 15 item. August 1988 for international ship- (1) Increased Released Valuation (IRV). ments and 15 September 1988 for domes- IRV is the basic valuation for service tic shipments. This is the only docu- Codes 1 and 2 and is fully paid by the ment the carriers will accept for re- Government. If the claimant is due ad- porting loss and damage to household ditional recovery money, the words goods. The requirement to list all know ‘‘claimant due carrier recovery’’ must loss and damage at the time of delivery be added on the claims file to ensure on the DD Form 1840 is a joint respon- the recovered amount is provided to sibility of the claimant and the carrier. the claimant if eligible. IRV is not re- If the carrier fails to give the claimant flected on the GBL by an special lan- a DD Form 1840 at the time of the de- guage. For Codes 1 and 2 shipments livery, the carrier is liable for all dam- picked up after the effective dates age and does not have to be notified in mentioned above, the carrier’s released the 75-day timeframe valuation is $1.25 multiplied by the new (c) Military-Industry Memorandum of weight of the shipment ($2.50 multi- Understanding on Loss and Damage plied times the net weight of the ship- Rules. The Military-Industry Memo- ment for shipments to and from Alas- randum of Understanding on Loss and ka). For example, if the weight of an Damage Rules became effective in 1985 IRV shipment moved from Kansas to with the implementation of the new New York is 10,000 pounds, the most DD Form 1840/1840R. This document the carrier could be held liable for should be thoroughly studied and com- would be $12,500 (10,000 pounds times pletely understood. $1.25=$12,500). If the same shipment was moved from Alaska to New York, the § 751.25 Types of shipments and liabil- maximum carrier liability would in- ity involved. stead be $25,000 (10,000 pounds times (a) Codes 1 and 2 (domestic including $2.50=$25,000). Alaska). Increased released valuation, (2) Higher Increased Released Valuation also referred to as ‘‘Basic Coverage,’’ (Option 1). This type of coverage may became effective within CONUS and be purchased by an owner who desires Alaska on 1 April 1987 for intrastate protection for items whose value ex- shipments (shipments within a single ceeds a maximum allowance or for a State), and on 1 May 1987 for interstate shipment whose value exceeds the stat- shipments (shipments from one State utory maximum. If the claimant is due to another). For Codes 1 and 2 ship- additional recovery money, the words ments picked up after these dates, the ‘‘claimant due carrier recovery’’ must
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be added in the claims file. Option 1 maximum allowances. The claimant must be annotated on the original should be informed that any additional GBL. A GBL correction notice is ac- amount will be forwarded after recov- ceptable only if the carrier or his agent ery action is effected against the car- has notice of the correction before rier. Option 2 must be annotated on the pick-up. Option 1 may be listed in original GBL. A GBL correction notice block 27 or block 30 either as a lump is acceptable only if the carrier or his sum, such as ‘‘Option 1—$30,000,’’ or as agent receives notice of the correction a multiple, such as ‘‘Option 1—$3.00 before pick-up. Option 2 may be listed times the net weight.’’ The carrier’s in block 27 or block 30 either as a lump maximum liability is whatever higher sum, such as ‘‘Full Replacement Pro- valuation the claimant places on the tection—$50,000.00,’’ or as a multiple, shipment. For example: The owner of a such as ‘‘Full Replacement Protec- 10,000 pound shipment requests Option tion—$3.50 times the net weight.’’ The 1 coverage of $30,000.00 and has this carrier’s maximum liability is the listed on the GBL. The carrier’s max- higher valuation the claimant places imum liability is $30,000.00. Under basic on the shipment. For example: The coverage, the carrier’s maximum li- owner of a 10,000 pound shipment re- ability for this shipment would only be quests full replacement protection of $12,500.00. The claimant must initially $3.50 times the net weight of the ship- file a claim with the carrier. The Gov- ment and has this listed on the GBL. ernment will only accept a claim if the The carrier’s maximum liability is carrier denies the claim, if delay would $35,000.00 (10,000 pounds times cause hardship, or if the carrier fails to $3.50=$35,000.00). Under basic coverage, satisfactorily settle the claim within 30 the carrier’s maximum liability for days. The claim is adjudicated in the this shipment would only be $12,500.00. normal fashion, applying depreciation (4) Calculating liability on IRV, Option and maximum allowances. Demand is 1, and Option 2 shipments. (i) Under IRV then made on the carrier for the full and Option 1, the carrier’s maximum li- value of the item lost or damaged. ability for loss or damage to a single When recovery is effected, the Govern- item is limited to the repair cost or de- ment keeps an amount equal to that preciated replacement cost of the item. paid to the claimant and disperses the Under Option 2, the carrier’s maximum remaining recovery to the claimant. liability for a single item is the repair (3) Full Replacement Protection (Option cost or the undepreciated replacement 2). This type of coverage may be pur- cost of the item. The carrier’s max- chased by an owner who desires protec- imum liability for the entire claim is tion for items whose value exceeds a limited to the released valuation, maximum allowance, for a shipment which is either the lump sum declared whose value exceeds the statutory by the owner or the net weight of the maximum, or because the claimant shipment times the applicable multi- does not wish to have the replacement plier. The net weight of the shipment is cost of destroyed or missing items de- normally listed in block 4 of DD Form preciated to their fair market value. 1840 (block 3 of DD Form 1840 dated The minimum coverage available under September 84). If the net weight is Full Replacement Protection is missing, it should be obtained from the $21,000.00 or $3.50 times the net weight transportation office. of the shipment, whichever is greater. (ii) In completing the carrier liabil- A member who chooses this coverage ity section of DD Form 1844, ignore the must initially file a claim with the car- Joint Military-Industry Table of rier, allowing the carrier the right to Weights. Assert the amount adju- repair or replace items. The Govern- dicated on each item for which the car- ment will only accept a claim if the rier is liable in the carrier liability col- carrier denies the claim, if delay would umn. Where the Government payment cause hardship, or if the carrier fails to was limited by application of a max- satisfactorily settle the claim within 30 imum allowance (or by depreciation on days. If a claim is submitted to the full replacement cost claims), assert Government, the claim is adjudicated the full, substantiated value. Total the normally, applying depreciation and amounts for which the carrier is liable
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in the carrier liability column. If this ping containers (wooden boxes) and total exceeds the maximum carrier li- where a carrier provides line-haul serv- ability for the entire claim, the max- ice from origin residence to a military imum carrier liability should be en- ocean terminal. The Government, tered on DD Form 1843 as the amount through the Military Sealift Command demanded. Do not, however, change the (MSC), provides ocean transportation total of the amounts for which the car- to the designated port of discharge, and rier is liable on the DD Form 1844. the carrier provides line-haul service (iii) If the amount the claimant re- to the destination residence. ceives from the Government is limited (2) A Code T shipment is the move- by application of a maximum allow- ment of household goods where the car- ance (or by depreciation on full re- rier provides containerization at origin placement protection claims) leaving and transportation to the designated the claimant with an uncompensated Military Airlift Command (MAC) ter- loss, the claimant may be due reim- minal. MAC provides terminal services bursement from recovery money after at both origin and destination, and air recovery is effected on the claim. transportation to a designated MAC Claimants with uncompensated losses terminal. The carrier provides trans- who have basic coverage are only enti- portation to the destination residence. tled to reimbursement from recovery (3) On Code 5 and T shipments, it is money if the amount recovered exceeds often difficult to decide whether the the amount paid by the Government Government or the carrier was in ac- (unless the loss was in excess of the tual custody of the shipment at the statutory maximum). Claimants with time of loss or damage. In order to re- uncompensated losses who purchased duce liability disputes in such situa- Option 1 or Option 2 are entitled to re- tions, a 50-percent compromise agree- imbursement up to the value of their ment between industry and the mili- additional coverage. Such files should tary has been reached. be marked: ‘‘claimant due carrier re- (4) When the 50-percent compromise covery.’’ The claimant should be in- is appropriate or applicable, the DD formed that recovery from the carrier Form 1844 is prepared in the normal is dependent on the amount and qual- fashion utilizing weights indicated in ity of the substantiation the claimant the Military-Industry Table of Weights provided, and that the actual recovery multiplied by $.60 per pound. Two dif- may be less than anticipated. The ferent sums should be listed for carrier claimant should further be informed liability at the bottom of the DD Form that considerable time will elapse be- 1844, the amount of liability due under fore recovery is effected and reimburse- the 50-percent compromise and the full ment made. Such claims should be amount that will be offset if carrier processed for recovery action as expe- fails to pay, e.g., ‘‘$100.00 Code T, ditiously as possible. $200.00 Full Liability.’’ This same com- (b) Codes 4 and 6 (International and putation should be reflected in the Hawaii). On Codes 4 and 6, inter- ‘‘amount of claim’’ box on DD Form national GBL shipments, carrier liabil- 1843 (Demand on Carrier/Contractor). If ity is computed at $.60 per pound mul- a carrier refuses to make a satisfactory tiplied by the weight of the article or settlement or fails to make a timely carton as prescribed by the Joint Mili- response to the demand, the carrier’s tary-Industry Table of Weights. In full liability will be collected. cases where the entire shipment is lost (d) Codes 7, 8, and J (Unaccompanied or damaged, liability will be computed Baggage Shipments). Gross Weight Rules. on the net weight of the shipment Government payment to the carrier for times $.60 per pound. The net weight of transportation of unaccompanied bag- the shipment may be obtained from the gage (Codes 7, 8, and J) is based upon origin transportation office. gross weight of the shipment. Unless (c) Codes 5 and T (International and the inventory is prepared as a ‘‘Proper Hawaii). (1) A Code 5 shipment is the Household Goods Descriptive Inven- movement of household goods in Mili- tory,’’ computation of carrier liability tary Traffic Management Command for loss or damage incurred in a Code 7, (MTMC) approved door-to-door ship- 8, or J shipment will also be based upon
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gross weight. Gross weight is defined as chase order prepared by the transpor- the total weight of all articles, includ- tation office which lists the services ing necessary packing materials and required of the carrier in accordance packing containers. The shipping con- with the provisions of the Federal Ac- tainer is the external crate (tri-wall or quisition Regulation (FAR). The pur- other Government approved container) chase order usually includes packing into which individual articles and/or and picking up the goods at origin resi- packing cartons are placed. For the dence or from storage, transporting the majority of claims, liability will be as- goods within a designated distance, and serted on gross weight of the container. delivering and unpacking the goods at (2) Baggage shipments prepared using a destination. All these services are per- ‘‘Proper Household Goods Descriptive In- formed under the authority of one pur- ventory.’’ The Joint Military/Industry chase order and will usually be accom- Table of Weights will apply to Code 7, plished the same day or within a few 8, or J unaccompanied baggage ship- days of pickup. Timely notice must ments if the inventory has been pre- exist in order to pursue carrier recov- pared as a ‘‘Proper Household Goods ery and liability is usually based on a Descriptive Inventory,’’ in accordance released valuation of $.60 per pound per with Paragraph 54 of the Tender of article. The Joint Military/Industry Service for Personal Property House- Table of Weights is used to calculate li- hold Goods and Unaccompanied Bag- ability. There is no insurance coverage gage (DOD 4500.34–R, appendix A). A required on local contractors; if the properly prepared inventory should re- local contractor is no longer in busi- flect the size of each individual carton, ness or bankrupt, the file may be give a general description of carton closed. contents, and note preexisting damage. (2) Direct delivery from NTS. In cir- The complete inventory, not just a por- cumstances where one contractor is re- tion, must have been prepared as a sponsible for pick-up, NTS, and deliv- proper household goods inventory. If an ery of the shipment, liability for loss inventory is only partially prepared as or damage is assessed against that car- a proper household goods descriptive rier. Nontemporary storage of house- inventory, gross weight will be used. hold goods requires completion of DD (e) Local moves and NTS. There are Form 1164 (Service Order for Personal basically two types of NTS shipments: Property) in accordance with the provi- A direct delivery from NTS by the sions of the Basic Ordering Agreement same company that stored the property (BOA). The ‘‘handling-in’’ portion of and a delivery from NTS which was the shipment is accomplished by picked up at the warehouse by a GBL issuance of the Initial Service Order, carrier. Direct deliveries of household DD Form 1164. The goods are usually goods from NTS are often erroneously stored for a period of 6 months to 4 construed as local moves. It is some- years. The ‘‘handling-out’’ and post- times difficult to tell the difference be- storage services are accomplished by a tween the two since a shipment deliv- supplemental service order. These are ered from NTS by the warehouseman is usually long term storage, short dis- usually also a short distance (local) tance moves processed under the au- move. The type of contract involved thority of at least two documents: the determines whether or not the ship- initial service order and the supple- ment is considered a local move, a di- mental service order. The BOA states rect delivery from NTS, or a carrier de- that the contractor shall be liable ‘‘in livery picked up from NTS. These dis- an amount not exceeding fifty dollars tinctions are important since different ($50.00) per article or package listed on liability is involved. the warehouse receipt or inventory (1) Local move. A local move is a ship- form’’ (i.e., $50.00 per inventory line ment performed under a local contract item). that authorizes property to be moved (3) Carrier delivery picked up from NTS. from one residence to another within a The NTS portion of the shipment re- specified area (usually a move from off quires completion of an Initial Service base to on base, or the reverse). The Order, DD Form 1164, to accomplish the contract for a local move is the pur- ‘‘handling-in’’ of the goods into the
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warehouse for storage, as prescribed by H, K, N, P, R, W, X, or Y. These two the provisions of the BOA. When stor- letter codes identify the GBL as a DPM age is terminated, the ‘‘handling-out’’ contract. and post-storage services are accom- (ii) Block 18, ‘‘consignee,’’ and Block plished by issuance of a GBL in accord- 19, ‘‘from,’’ on the GBL contain the ance with the tender of service. The name and address of another carrier or GBL may be issued to a different com- transportation office rather than the pany or in some cases to the same com- name and address of the claimant. pany that stored the goods. These are (iii) Block 27, ‘‘description of ship- long-term storage, long-distance moves ment,’’ on most GBL’s contains the processed under the authority of two statement, ‘‘household goods released documents: the initial service order at a value of 10 cents per pound per ar- and the GBL. Liability is assessed en- ticle.’’ This refers to the motor freight tirely against the delivering carrier at carrier’s liability only. The origin and whatever rate is appropriate for the destination contractors’ liability is code of service involved, unless the car- still $.60 per pound times the weight of rier prepares an exception sheet (rider) the article or carton, as indicated in noting damage or loss at the time the the Joint Military/Industry Table of goods are picked up from the ware- Weights. house. The exception sheet must be (iv) If liability lies against the motor signed by a warehouse representative. freight carrier, the term ‘‘article’’ is If a valid exception sheet exists, liabil- defined as the weight of each packed ity for items noted on the exception item, such as the weight of a broken sheet is assessed against the NTS ware- dish within a carton rather than the house at $50.00 per inventory line item. net weight of a carton, as used against An exception sheet should be prepared the origin and destination contractors. by the GBL carrier who picks up the Liability is computed against the goods from NTS even if that carrier is motor freight carrier at a rate of $.10 the same company that stored the per pound times the weight of the arti- goods. This is necessary in order to re- lieve the carrier from liability as a car- cle. rier. If either the carrier alone, or both (3) Since 1 January 1981 the destina- the carrier and the NTS facility, fail to tion contractor has been held liable for pay their proper liability, the file is loss and damage unless it can prove forwarded to the Naval Material Trans- that it is not at fault, i.e., took excep- portation Office, (NAVMTO), Norfolk, tions prior to receipt of goods. The Virginia for offset action. motor freight carrier is liable for any (f) Direct Procurement Method (DPM). damage or loss noted against it during (1) A DPM move is a method in which its portion of the move. If the motor the Government manages the shipment freight carrier has noted specific dam- from origin to destination. Contracts age when it received the shipment, li- are issued to commercial firms for ability is charged against the origin packing, containerization, local contractor at $.60 per pound times the drayage, and storage services, or Gov- weight of the article or carton. Damage ernment facilities and employees pro- noted against the origin contractor or vide these services. Separate arrange- motor freight carrier should be indi- ments are made with carriers and sepa- cated on a valid shipping document and rate documents are issued for each seg- generally involves distinct damage to ment throughout. DPM contractors are or missing containers. These docu- also known as packing and crating ments must be signed by all parties in- (P&C) contractors, as local drayage volved in the transfer of the goods. contractors, or just as local contrac- (4) The destination contractor must tors. receive timely notice of loss or damage (2) GBL’s for DPM shipments are usu- via DD Form 1840/1840R and a demand ally only issued to motor freight car- packet. If exceptions were taken riers. against the origin contractor or motor (i) Block 3 on the GBL entitled ‘‘serv- freight carrier on a transfer document, ice code’’ will contain the letters A, B, they should receive only demand pack- H, or V, followed by a second letter A, ets.
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(5) In determining destination or ori- other mobile home carrier for trans- gin contractor’s liability, the term ‘‘ar- port, the first carrier will continue to ticle’’ has been defined as each ship- be shown on the GBL and is responsible ping carton or container and the con- for the mobile home from pickup to de- tents thereof, less any exterior crate or livery. The carrier is also responsible shipping carton. The net weight of each for damage caused by third parties it article (carton or box) packed within engages to perform services such as the exterior crate or carton may be auxiliary towing and wrecking. used to determine the contractor’s li- (iv) Water damage. Water damage to a ability for a damaged or missing item double-wide or expando-type mobile originating out of that carton. home is usually due to the carrier’s (6) Claims offices should obtain a failure to provide sufficient protection copy of the DPM contract from the against an unexpected rainstorm. Car- local contracting office or transpor- riers will often assert that this damage tation office in order to identify which is due to an ‘‘act of God’’ and attempt company has the DPM contract and to avoid liability. It is, however, the verify the limits of the liability clause. carrier’s responsibility to ensure safe Contracts are awarded on a calendar- transit of the mobile home from origin year basis. to destination. Not only should car- (g) Mobile homes. Mobile home claims riers be aware of the risk of flash floods represent such a small percentage of and storms in certain locales during claims received that claims personnel certain seasons, but a carrier is sup- are often unfamiliar with the require- posed to provide protective covering ments and documentation necessary to over areas of the mobile home exposed process such claims. For an expla- to the elements. Carrier recovery nation of the adjudication of such should be pursued for water damage to claims and the forms used to effect these types of mobile homes. shipment, see § 751.12(g) above. (v) Waivers signed by the claimant. The (1) Carrier liability—(i) For damage to carrier may attempt to escape liability the mobile home. Carrier liability for by having the owner execute a waiver damage to a mobile home is generally of liability. Such waivers are not bind- the full cost of repairs for damage in- curred during transit. A mobile home ing upon the United States. carrier is excused from liability when (vi) Extensions of storage in transit the carrier can introduce substantial (SIT). The extension of SIT past 180 proof that a latent structural defect days is only applicable to household (one not detectable during the carrier’s goods and holdbaggage shipments. It is preliminary inspection) caused the loss not applicable to the shipment of mo- or damage. bile homes. If a mobile home remains (ii) For damage to contents. The car- in SIT past 180 days, storage is at the rier’s liability for loss or damage to owner’s expense. household or personal effects inside the (2) Notice. Item 306 of the carrier’s mobile home (such as clothing and fur- rate solicitation states that: ‘‘Upon de- niture. or furnishings which were not livery by the carrier, all loss of or dam- part of the mobile home at the time it age to the mobile home shall be noted was manufactured) is limited to $250.00 on the delivery document, the inven- unless a greater value is declared in tory form, the DD Form 1800, and/or writing on the GBL. Under the Mobile the DD Form 1840. Late(r) discovered Home One-Time-Only (MOTO) rate sys- loss or damage, including personal tem, effective for shipments after 1 No- property within the mobile home, will vember 1987 the owner no longer pre- be noted on DD Form 1840R not later pares his own inventory. Under the than 75 days following delivery and MOTO system, the carrier in coordina- shall be accepted by the carrier as tion with the owner is required to pre- overcoming the presumption of cor- pare a legible descriptive inventory on rectness of delivery receipt.’’ Notifica- DD Form 1412, Inventory of Articles tion to the carrier may be made on any Shipped in House Trailer. of the documents. Claims personnel (iii) Agents of the mobile home carrier. will dispatch the DD Form 1840R in ac- If the shipment is transferred to an- cordance with § 751.14.
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(3) Preparation of demands. The car- storing or handling while in the cus- rier is liable for the full amount of sub- tody of the Government, no demand stantiated damage to the mobile home shall be made against the carrier. itself (less estimate fees), plus up to (b) Marine Corps claimants. For Ma- $250.00 for loss or damage to contents rine Corps claimants, the claims inves- (unless the claimant purchased in- tigating officer will prepare the claim creased released valuation on the con- against the carrier, contractor, and/or tents). Prepare a demand for this insurer and will mail it (together with amount. In addition to the DD Form the DD Form 1842 claim package) to 1843 and DD Form 1844, the demand the Commandant of the Marine Corps packet should include the following (MHP–40), who will submit and assume documents: the responsibility of monitoring the (i) DD Form 1800, Mobile Home In- claim against the carrier. spection Record; (c) NTS warehousemen. Whenever (ii) DD Form 1863, Assessorial Serv- property is lost, damaged, or destroyed ices, Mobile Home; while being stored under a basic agree- (iii) DD Form 1840/1840R, Joint State- ment between the Government and the ment of Loss or Damage at Delivery/ warehouseman, the claims inves- Notice of Loss; tigating officer, or appropriate Naval (iv) DD Form 1412, Inventory of Items Legal Service Command (NLSC) activ- Shipped in House Trailer; ity, shall file a written claim for reim- (v) DD Form 1841, Government In- bursement with the warehouseman spection Report; under the terms of the storage agree- (vi) Driver’s statement, from the ment. driver of the towing vehicle; (d) Insurer. When the property lost, (vii) Claimant’s statement con- damaged, or destroyed is insured, the cerning previous moves; claimant must make a demand against (viii) Estimates of repair, preferably the insurer for payment under the two, from firms in the business of re- terms of the insurance coverage within pairing mobile homes; and the time provided in the policy. If the (ix) Engineer’s statement, or state- amount claimed is clearly less than the ment by other qualified professionals. policy deductible, no demand need be (4) References. Chapter 3 and Appen- made. Failure to pursue a claim dix E of DOD 4500.34–R, pertain to mo- against available insurance will result bile home shipment and contain much in reducing the amount paid on the valuable information. Another source claim by the amount which could have is NAVSUP 490, Chapter 10 ‘‘Mobile been recovered from the insurer. When Homes of Military Personnel.’’ an insurer makes a payment on a claim in which the Government has made a § 751.26 Demand on carrier, con- recovery against the carrier or con- tractor, or insurer. tractor, the insurer shall be reimbursed (a) Carrier. When property is lost, a pro rated share of any money recov- damaged, or destroyed during shipment ered. under a GBL pursuant to authorized travel orders, the claims investigating § 751.27 Preparation and dispatch of officer or adjudicating authority demand packets. (whichever can more efficiently per- Demand on a carrier or contractor form the task) shall file a written shall be made in writing on DD Form claim for reimbursement with the car- 1843 (Demand on Carrier) with a copy of rier according to the terms of the bill the adjudicated DD Form 1844 (Sched- of lading or contract. This demand ule of Property) attached. shall be made against the last carrier (a) Demand packets. A demand is a known to have handled the goods, un- monetary claim against a carrier, con- less the carrier in possession of the tractor, or insurer, to compensate for goods when the damage or loss oc- loss or damage incurred to personal curred is known. In this event, the de- property during shipment or storage. mand shall be made against the respon- DD Form 1843 represents the actual de- sible carrier. If it is apparent the dam- mand. The demand packet is a group of age or loss is attributable to packing, documents, stapled together and sent
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to the liable third party. More than § 751.28 Assignment of claimants one demand packet should be prepared rights to the government. when more than one party is deemed to The claimant shall assign to the Gov- be liable. Do not use original docu- ernment, to the extent of any payment ments. Demand packets should be made on the claim, all rights and inter- mailed in official DON envelopes. No est the claimant may have against any demand packet should be prepared for contractor, carrier, or insurer or other claim files that have been closed or party arising out of the incident on when potential recovery is $25.00 or which the claim is based. The claimant less. In those cases the outside of file shall also furnish such evidence as may folders in the upper left-hand corner be required to enable the Government should be marked ‘‘CLOSED.’’ A de- to enforce its claim. If the claimant re- mand packet will include the fol- fuses to cooperate, steps may be taken lowing: to ensure return of monies paid on the item which the Government is trying (1) DD Form 1843, Demand on Carrier/ to collect. Contractor; (2) DD Form 1844, Schedule of Prop- § 751.29 Recoveries from carrier, con- erty and Claim Analysis Chart; tractor, or insurer. (3) DD Form 1841, Government In- (a) Recoveries. If a claimant receives spection Report (if available); payment from the Government under (4) DD Form 1164, Service Order for this instruction and also receives com- Personal Property (when applicable); pensation from a carrier, contractor, or (5) Copies of all repair estimates insurer for the same loss, the Govern- (translated from foreign languages); ment shall collect from the claimant and the amount necessary to prevent the (6) Copies of all other supporting doc- claimant from being compensated uments deemed appropriate. twice for the same loss. If the amount (b) Dispatch of demand packets. (1) The payable on a claim is less than the ad- judicated value of the claim, excess re- demand packets are directly dis- coveries from carriers, and other third patched by the appropriate personal parties shall be paid to the member as property office or the Naval Legal long as the total amount paid does not Service Office to the third party. exceed the value of the claim as adju- (2) Privately Owned Vehicles (POV’s). dicated. Demands for loss or damage to POV’s (b) Recovered property. When lost will not be made directly against ocean property is found, the claimant may, at carriers operating under contract with his option, accept all or part of the the MSC. After payment is made to the property and return the full payment claimant, one copy of the complete or a pro-rated share of the payment re- claim file will be forwarded directly to ceived from the Government on the Commander, MSC. Each file shall in- claim for the recovered property. Sur- clude the following: rendered property shall be disposed of (i) The payment voucher; under applicable salvage and disposal (ii) The completed personnel claim procedures. forms; § 751.30 Settlement procedures and (iii) The estimated or actual cost of third party responses. repair; (a) Settlement procedures. In the inter- (iv) A document indicating the condi- est of expeditious office administra- tions of the items upon delivery to the tion, correspondence to carriers and carrier; and contractors should be kept to a min- (v) a document indicating the for- imum. Normally, one rebuttal to a warding condition of the POV upon its third party’s denial of liability is suffi- return to Government control. cient, unless the carrier or contractor The letter of transmittal should iden- raises new arguments or provides new tify the vessel by name, number, and if information. available, the sailing date. (1) Checks from third parties. Accept checks for the amount demanded from
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carriers and contractors. If a carrier or tractor’s basis for denying liability in contractor forwards a check for less the light of all the evidence. than the amount demanded, review the (i) Acceptable third party reasons for carrier’s arguments for reducing liabil- denial. Mark the front upper left-hand ity to determine if they are acceptable. corner of such files as ‘‘CLOSED.’’ If the third party’s basis for reducing (ii) Partially acceptable and unaccept- liability is acceptable in the light of all able third party reasons for denial. If the evidence, deposit the check and dis- carrier or contractor’s basis for deny- patch the unearned freight letter, if ap- ing liability is acceptable only in part plicable. Mark the front upper left- or is completely unacceptable, follow hand corner of the file as ‘‘CLOSED.’’ the procedures in subparagraph (3) (2) Third party offers of settlement. If a above, requesting the amount that is carrier or contractor offers to settle justified under the circumstances in the claim, review the carrier’s argu- the light of all the evidence. If a re- ments for reducing liability to deter- sponse is not received within 45 days, mine if they are acceptable. If the third or if the third party’s reply is not re- party’s basis for reducing liability is sponsive, request NAVMTO, Norfolk acceptable in light of all evidence, in- (or appropriate contract officer) take form the carrier that the offer is ac- offset action as described above. cepted, but that offset action will be (b) Depreciation. In determining pay- initiated if a check for that amount is ments to claimants, the depreciation not received within 45 days. If a check rates from the Allowance List—Depre- ciation Guide are used. In determining in the amount acceptable to the Gov- third party liability, however, a dif- ernment is received, deposit it and dis- ferent depreciation guide, the Joint patch the unearned freight letter, if ap- Military/Industry Depreciation Guide plicable. Mark the front upper left- is used instead. In most instances, the hand corner of the file as ‘‘CLOSED.’’ depreciation rates are the same in both If a check in the proper amount is not guides, and claims personnel are not received within 45 days, send the re- required to consult the Joint Military/ quest to NAVMTO, Norfolk (or appro- Industry Depreciation Guide or alter priate contract officer) for offset ac- the depreciation taken on items prior tion (see § 751.32 of this part). to dispatching demands. If, however, a (3) Unacceptable third party checks and carrier or contractor objects to the de- offers of settlement. If a third party’s preciation rate utilized for certain basis for denying liability is not valid, items, consult the Joint Military/In- respond to that carrier or contractor. dustry Depreciation Guide and use the Return unacceptable checks. Explain depreciation rate found in that guide if the reasons for not accepting the check it differs from the rate in the Allow- or offer, and request the amount that ance List-Depreciation Guide. is justified under the circumstances in the light of all the evidence. If a re- § 751.31 Common reasons for denial by lease was included, amend the release carrier or contractor. to the revised amount and sign, date, The following are common reasons witness, and return it. Warn the carrier given for denial of an entire claim, or or contractor that the claim will be for individual items on a claim. Each forwarded for offset action if a check reason for denial is followed by a short for the amount justified under the cir- discussion of the validity of such a de- cumstances is not received within 45 nial. days. Suspend the file for 45 days and if (a) The carrier alleges that valid excep- a check in the proper amount is re- tions were made at the time of pickup ceived, deposit it and dispatch the un- from the NTS facility. When a carrier earned freight letter, if applicable. If a provides an exception sheet it contends check in the proper amount is not re- was made at time of transfer, this ex- ceived within 45 days, request ception sheet must bear the signature NAVMTO, Norfolk (or appropriate con- of a representative of the NTS facility. tract officer) to take offset action. Without a signed exception sheet there (4) Third party denials of liability. is no evidence that the NTS facility Upon receipt, review the carrier or con- was made aware of these exceptions
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and given the opportunity to confirm does not relieve the carrier of liability or deny the alleged condition of the and is insufficient to rebut a well-es- items in question. The burden of proof tablished prima facie case of liability. is on the carrier to provide the valid (f) The carrier denies liability on miss- exception sheet and establish its free- ing items because the items do not appear dom from liability. on the new inventory made at pickup (b) The carrier denies liability for miss- from the NTS facility. When a carrier ing or damaged item packed in cartons be- picks up a shipment from NTS and cause it did not pack the shipment and chooses to prepare a new inventory, it the cartons did not show outside damage. must use identical or cross-referenced When a carrier accepts a shipment in numbers. If an article such as a chair apparent good order, it is responsible or a lawnmower is missing, it must be for damage to packed items, unless it indicated as ‘‘missing’’ on the new in- can prove that the packing was im- ventory. Whether or not a new inven- proper and was the sole cause of the tory is made, an exception sheet must damage. be prepared and the missing articles (c) The carrier contends that the mildew must be noted thereon. To relieve the damage occurred in NTS and not during carrier of liability, both the new inven- its transport of the shipment. Mildew for- tory and the exception sheet must be mation is more likely to occur in NTS signed by representatives of the NTS than in transport. Unsupported by evi- facility and the carrier. dence, however, an allegation that mil- (g) The carrier denies liability due to dew formation occurred during NTS ‘‘act of God.’’ An act of God is an event does not rebut the established prima that could not have been prevented by facie case of a carrier liability. A car- rier must prepare an exception sheet human prudence. It is generally seen as and note any mold or mildew damage an occurrence in which human skill or when the items were picked up from watchfulness could not have foreseen the NTS facility. The burden of proof is the disaster. The burden of proof is on on the carrier to show that it was free the carrier to establish that an ‘‘act of from negligence and that the damage God’’ existed and that it was the sole was due solely to the formation of mil- cause of the damage claimed. Since the dew or mold during the NTS storage. carrier can rarely establish this burden (d) The carrier claims that damage is of proof, denial due to an ‘‘act of God’’ due to ‘‘inherent vice.’’ Although the is generally not acceptable. The carrier carrier may allege that damage was cannot avoid liability if it has been due to ‘‘inherent vice,’’ the mere alle- negligent in exposing the goods to po- gation of ‘‘inherent vice’’ is insuffi- tential danger or if it failed to take cient to relieve the carrier of liability. reasonable steps to reduce the extent The burden of proof is on the carrier to of the injury once the danger was dis- establish that an ‘‘inherent vice’’ ex- covered. isted and that it was the sole cause of (h) The carrier contends that the claim- the damage claimed. Since the carrier ant’s repair estimate is excessive and that can rarely establish this burden of its own repair firm can do the job cheaper. proof, denial due to ‘‘inherent vice’’ is A claimant has the right to select a re- seldom acceptable. pair firm provided the cost is reason- (e) The carrier contends that it was de- able and not in excess of the item’s nied the right to inspect. Often a carrier value. The carrier is liable for the rea- will state that it made several at- sonable cost of repairing damaged mer- tempts to make an inspection, but the chandise that includes labor, material, shipper failed to keep the appointment. overhead, and other incidental ex- If such a case exists, the proper proce- penses incurred in reconditioning or dure for the carrier to follow is to con- putting the goods in salable condition. tact the claims office for assistance in If the carrier did not provide the accomplishing the inspection within a claims office with an acceptable, lower timely manner. A carrier’s efforts to estimate to use in adjudicating the obtain the inspection should be docu- claim, and if the claimant’s estimate is mented in the file by claims personnel. reasonable, then the carrier is liable Lack of an inspection alone, however, for the amount paid the claimant.
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(i) The carrier contends that liability moves and DPM shipments in which should have been predicated on the the origin and/or destination con- agreed weight of a sofa and not a hide-a- tractor is determined to be liable. bed. This argument only applies when When the contractor fails to reply to a carrier liability is based on weight. At demand within 120 days or fails to the time the inventory is prepared, the make an acceptable offer, the file carrier’s driver must establish whether should be forwarded to the local con- a sofa is merely a sofa, or one that con- tracting office with a request for offset verts into a bed. Failure to properly action. identify the item on the inventory does (c) Unjustified denials and inadequate not relieve the carrier of liability for settlement offers by carrier or contractor— the greater weight of a sofa bed. (1) GBL carriers. If a GBL carrier or in- (j) The carrier argues that it is not re- surer has refused to acknowledge or re- sponsible for warpage, rust, etc., due to spond to a demand within a reasonable climatic changes. This argument does time (usually 30 days), if the claims in- not relieve a carrier of liability unless vestigating officer considers a valid the carrier offers substantial evidence claim to have been denied or not ade- to show that the damages resulted quate settlement offered, or if settle- solely from unusual circumstances be- ment has been delayed beyond 120 days yond its control, as with an ‘‘act of (see § 751.32(a)), the claim shall be for- God,’’ or that it occurred while the warded to the NLSC activity serving property was in the hands of another the geographical location recom- contractor, as reflected upon a valid mending that set-off action be taken NTS exception sheet. The burden of against the carrier or contractor. The proof is on the carrier to establish that 120-day period begins to run on the the damage was not due to its neg- date initial demand is made on the car- ligence and that circumstances beyond rier. The NLSC activity shall review its control were the sole cause of the the file and if the carrier liability is loss. Because the carrier can rarely es- correctly computed, forward a copy of tablish this, denial due to ‘‘climatic the GBL, copies of the DD Forms 1843 changes’’ is rarely acceptable. and 1844, SCAC code, and final demand on carrier to the Commanding Officer, § 751.32 Forwarding claims files for Naval Material Transportation Office, offset action. Code 023, Bldg. Z–133–5, Naval Station, (a) General. Claim files are forwarded Norfolk, VA 23511 directing set-off ac- with a recommendation for offset ac- tion against the carrier or contractor. tion when 120 days have passed since a (2) Nontemporary warehousemen. If a demand and a response has not been re- warehouseman or insurer has refused ceived from the carrier or contractor. to acknowledge or respond to a claim Files are also forwarded for offset ac- within a reasonable time, if the claims tion when an impasse is reached. An investigating officer considers a valid impasse occurs when legitimate efforts claim to have been denied or no ade- to collect the fully justified amount quate settlement offered, or if settle- demanded have reached a standstill ment has been delayed beyond 120 days, and the carrier has no valid basis for the claim shall be referred to the NLSC denial. Prior to forwarding files for off- activity serving the geographic loca- set action, claims personnel must en- tion recommending set-off action be sure that timely notice has been given, taken against the contractor. The 120- that all necessary documents are in- day time period begins to run on the cluded, and that the demand and any date the initial demand was made. The correspondence were mailed to the NLSC activity shall review the file and proper carrier or contractor at its cor- if the warehouseman’s liability is cor- rect address. When applicable, claims rectly computed, forward the file to personnel must also ensure that an un- the appropriate MTMC Regional Stor- earned freight packet is included. age Management Office for set-off. (b) Claim files forward to local con- tracting offices. Claims forwarded to § 751.33 Unearned freight packet. local contracting offices for offset ac- (a) Preparation. An unearned freight tion include claims involving local packet should be prepared when the
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loss or destruction of an item in ship- Household Goods Loss and Damage ment is attributable to a GBL carrier. Claims. Other commands dealing with Unearned freight packets should be ad- carrier recoveries should get a copy of dressed to the carrier, and not to the the manual from the NLSC activity agents of GBL carriers, NTS contrac- servicing the local area. tors, or other contract movers. An un- earned freight packet is required when § 751.35 Forms and instructions. a mobile home is lost or completely de- Copies of all of the forms and instruc- stroyed. An unearned freight packet in- tions discussed in this part may be ob- cludes: tained if needed, from the Commanding (1) A Request For Deduction of Un- Officer, Naval Publications and Forms earned Freight Charges; Center, 5801 Tabor Avenue, Philadel- (2) A copy of DD Form 1843; phia, PA 19120. (3) A copy of DD Form 1844; and (4) A copy of the GBL. PART 752—ADMIRALTY CLAIMS (b) Dispatch. The unearned freight packet is not dispatched to the Sec. NAVMTO, Norfolk until the carrier has 752.1 Scope. paid its agreed liability or when offset 752.2 Organization. has been accomplished. 752.3 Claims against the Navy. 752.4 Affirmative claims. § 751.34 GAO appeals. 752.5 Salvage. (a) General. Sections 1 through 12 and AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 5013, 5148, 52 through 65 of Title 4, GAO Manual, and 7621–7623; 32 CFR 700.206 and 700–1202. Policy and Procedures Manual for § 752.1 Scope. Guidance of Federal Agencies, and 4 CFR parts 30–32 set forth procedures for This part applies to admiralty-tort carriers to appeal setoff action. Before claims. These include claims against a carrier can appeal a setoff action to the United States for damage caused GAO, the command requesting setoff by a vessel in the naval service or by action must make an administrative other property under the jurisdiction report to GAO. of the Navy, or damage caused by a (b) Procedures for appeals. (1) The car- maritime tort committed by an agent rier must request appeal from the com- or employee of the Navy, and affirma- mand requesting setoff action and re- tive claims by the United States for quest a GAO review. damage caused by a vessel or floating (2) The command requesting setoff object to Navy property. action will review the appeal and if it [39 FR 9962, Mar. 15, 1974 is determined the setoff action was ap- propriate, will do an administrative re- § 752.2 Organization. port and notify the carrier when this (a) Administrative authority of the Sec- has been accomplished. retary of the Navy. The Secretary of the (3) The administrative report and Navy has administrative authority for complete claims file will be forwarded settlement and direct payment where to the NLSC activity serving the geo- the amount paid does not exceed graphic location for review prior to for- $1,000,000 and where the matter is not warding to GAO. in litigation, of claims for damage (4) The complete claims package, in- caused by naval vessels or by other cluding all correspondence with the property under the jurisdiction of the carrier, will then be forwarded to GAO. Navy, or damage caused by a maritime (c) The administrative report and en- tort committed by an agent or em- closures must support the setoff ac- ployee of the Navy, and for towage or tion. salvage services rendered to naval ves- (d) GAO Manual. All NLSC activities sels (10 U.S.C. 7622 (1982)). The Sec- have been provided a copy of a manual retary also has authority to settle af- published by the Claims Group General firmative admiralty claims for damage Government Division, U.S. General Ac- caused by a vessel or floating object to counting Office entitled Procedures of property under the jurisdiction of the the U.S. General Accounting Office for Navy (10 U.S.C. 7623 (1982)).
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(b) Admiralty Division of the Office of nature which arise out of these oper- the Judge Advocate General. The Navy’s ations. These include claims for cargo admiralty-tort claims are processed damage, charter hire, redelivery, gen- and adjudicated in the Admiralty Divi- eral average, and claims arising under sion of the Office of the Judge Advo- MSC ship-repair contracts. cate General. All correspondence with (f) Damage caused by Navy contract the Admiralty Division should be ad- stevedores. Office of Counsel, Naval dressed to the Office of the Judge Ad- Supply Systems Command, has cog- vocate General (Code 31), Navy Depart- nizance of admiralty claims for damage ment, 200 Stovall Street, Alexandria, caused by Navy contract stevedores. VA 22332–2400. Under these stevedore contracts, the (c) Mission and policy. The primary stevedoring companies are responsible mission of the Admiralty Division is to for negligent acts of their employees effect prompt and equitable settle- which result in vessel damage. It is im- ments of admiralty claims, both portant that the extent of any such against and in favor of the United damage be accurately determined and States. The settlement procedure has promptly reported to the contracting evolved to eliminate the expenses and officer having cognizance of the par- delays arising out of litigation and to ticular stevedore contract involved. obtain results advantageous to the fi- (g) Resolving conflicts. Admiralty-tort nancial interests of the United States. claims, such as collision, personal-in- Where settlements cannot be made, jury, and death claims, are dealt with litigation ensues in the Federal Courts. by the Admiralty Division, irrespective The final test of whether a settlement of whether an MSC vessel or other is justified is the probable result of naval vessel is involved. Whether any litigation. Settlements are therefore particular claim is to be handled by considered and determined by the prob- JAG or by MSC, therefore, is deter- able results of litigation. The policy of mined by the nature of the claim. the Navy is to effect fair and prompt Cases may arise which could be han- settlements of admiralty claims wher- dled by either office. If doubt exists, ever legal liability exists. such matters should be reported both (d) Admiralty-tort claims. As indicated to JAG and to MSC. An agreement will above, the Admiralty Division pri- then be reached between the Admiralty marily handles admiralty-tort claims. Division and the Office of Counsel, These are claims for damage caused by MSC, as to how the incident should be vessels in the naval service or by other handled. property under the jurisdiction of the Navy, or damage caused by a maritime [39 FR 9962, Mar. 15, 1974, as amended at 55 tort committed by an agent or em- FR 12173, Apr. 2, 1990] ployee of the Navy, and claims for damage caused by a privately owned § 752.3 Claims against the Navy. vessel to a vessel or property of the (a) Settlement authority. 10 U.S.C. 7622 Navy (affirmative claims). The Admi- (1982) provides settlement authority for ralty Division also handles claims for ‘‘(1) Damage caused by a vessel in the towage and salvage services rendered naval service or by other property to a vessel in the naval service. under the jurisdiction of the Depart- (e) Admiralty-contract claims. Admi- ment of the Navy; (2) compensation for ralty-contract claims arising out of the towage or salvage service, including operations of the Military Sealift Com- contract salvage, rendered to a vessel mand (MSC) are handled by its Office in the naval service or to other prop- of Counsel. MSC is responsible for the erty of the Navy; or (3) damage caused procurement of vessels and space for by a maritime tort committed by any the commercial ocean transportation agent or employee of the Department of Department of Defense cargo, mail, of the Navy or by property under the and personnel. It is also responsible for jurisdiction of the Department of the the maintenance, repair, and alteration Navy.’’ The limit on the Secretary’s of Government-owned vessels assigned settlement authority is payment of to it. The Office of Counsel, MSC, deals $1,000,000. A claim which is settled for with the various claims of a contract an amount over $1,000,000 is certified to
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Congress for payment. Section 7622 pro- ceive the approval of the Secretary of vides that the Secretary may delegate the Navy or his designee, depending on his settlement authority in matters the amount involved, prior to the expi- where the amount to be paid is not ration of the two-year period. over $100,000. Under the Secretary’s (e) Matters in litigation. When suit is delegation, settlements not exceeding filed, the matter comes within the cog- $100,000 may be effected by the Judge nizance of the Department of Justice, Advocate General, Deputy Judge Advo- and the Secretary of the Navy is no cate General, Assistant Judge Advo- longer able to entertain a claim or to cate General (General Law), and the make administrative settlement. Deputy Assistant Judge Advocate Gen- [39 FR 9962, Mar. 15, 1974, as amended at 55 eral (Admiralty). Authority has also FR 12173, Apr. 2, 1990] been delegated to Deputy Commander in Chief, U.S. Naval Forces, Europe, § 752.4 Affirmative claims. and to Commander Sixth Fleet, to pay admiralty claims against the Navy not (a) Settlement authority. The Navy has exceeding $10,000, and to Commander the same authority to settle affirma- Fleet Air, Caribbean, for damage to tive admiralty claims as it does claims fishing equipment arising in Culebra- against the Navy. The statute confer- Vieques waters, not to exceed $3,000. ring this authorization is codified in 10 (b) Settlement is final. The legislation U.S.C. 7623 (1982), and is the reciprocal specifically authorizes the Secretary to of 10 U.S.C. 7622 (1982) referred to in settle, compromise, and pay claims. § 752.3. The settlement, upon acceptance of (b) Scope. 10 U.S.C. 7623 is a tort payment by the claimant, is final and claims-settlement statute. It is not conclusive for all purposes. limited to affirmative claims arising (c) Settlement procedures. Where the out of collision, but embraces all in- amount paid is over $100,000, after stances of damage caused by a vessel or agreement is reached with counsel or floating object to property of the claimants, the procedure is to prepare United States under the jurisdiction of a settlement recommendation for the the Department of the Navy. Perhaps approval of the Secretary of the Navy. the most frequent instance is where a When settlement has been approved, privately owned vessel damages a Navy the voucher required for effecting pay- pier or shore structure. To eliminate ment is prepared. The settlement any issue of whether the damaging in- check is then exchanged, in keeping strumentality was a vessel, the words with the commercial practice, for an ‘‘or floating object’’ were included. executed release. In some situations, (c) Statute of limitation. The United where the exchange of documents is States is subject to a three-year stat- impracticable, a claimant is requested ute of limitation when it asserts an af- to forward the executed release by firmative claim for money damages mail, on the understanding that the re- grounded in tort. This limitation is lease does not become effective until subject to the usual exclusions, such as the check is received in payment. inability to prosecute due to war, un- Claims settled under 10 U.S.C. 7622 are availability of the ‘‘res’’ or defendant, paid out of annual Department of De- and certain exemptions from legal fense appropriations. process (28 U.S.C. 2415, 2416 (1982)). (d) Limitation period. The Secretary’s (d) Litigation. 10 U.S.C. 7623 does not settlement authorization is subject to apply to any claim where suit is filed. a two-year limitation. This limitation If the Admiralty Division is unable to is not extended by the filing of claim effect settlement, the matter is re- nor by negotiations or correspondence. ferred to the Department of Justice for A settlement agreement must be the filing of a complaint against the of- reached before the end of the two-year fending party. Thereafter, as in the period. If settlement is not accom- case of adverse litigated claims, the plished, then the claimant must file Navy has no further authority to effect suit under the appropriate statute to settlement. avoid the limitation bar. The agree- [39 FR 9962, Mar. 15, 1974, as amended at 55 ment reached in negotiations must re- FR 12174, Apr. 2, 1990]
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§ 752.5 Salvage. 755.7 Action where offenders are members of different commands. (a) Scope. This section relates to sal- 755.8 Reconsideration and appeal. vage claims against or by the Navy for 755.9 Effect of court-martial proceedings. compensation for towage and salvage services, including contract salvage, AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, and5148; E.O. 11476, as reported in 3 CFR, 1969 rendered to a vessel in the naval serv- Comp., p. 132; 32 CFR 700.206 and 700.1202. ice or to other property under the ju- risdiction of the Department of the SOURCE: 56 FR 42232, Aug. 27, 1991, unless Navy, or for salvage services rendered otherwise noted. by the Department of the Navy. Suits NOTE 1: This part 755 is chapter IV of the Manual of the Judge Advocate General of the for salvage may be maintained under Navy. the Public Vessels Act, and salvage NOTE 2: The Uniform Code of Military Jus- claims are within the Secretary of the tice (10 U.S.C. 801-940) is referred to in this Navy’s administrative-settlement au- part 755 as the ‘‘UCMJ’’. The Manual for thority under 10 U.S.C. 7622. Salvage Courts-Martial, United States, 1984 (E.O. claims against the Navy are reported 12473 of August 1, 1984) is referred to in this to and processed by the Judge Advo- part 755 as ‘‘MCM 1984’’. cate General (Admiralty Division). Both claims and suits for salvage § 755.1 Statutory authority. against the United States are subject Article 139, UCMJ, redress of injuries to the two-year limitation of the Pub- to property, is the basis for this chap- lic Vessels Act and the Navy’s settle- ter. ment authority. (b) Affirmative claims. Authorization § 755.2 Scope. for the settlement of affirmative sal- This chapter provides for assess- vage claims is contained in 10 U.S.C. ments against the pay of members of 7365 (1982). Assertion of such claims is the naval service in satisfaction of handled in the first instance by the As- claims for property damage caused sistant Supervisor of Salvage (Admi- under certain circumstances. Claims ralty), USN, Naval Sea Systems Com- for damage, loss, or destruction of pri- mand (SEA OOCL), Washington, DC vately owned property caused by a per- 20362–5101. Salvage claims are referred son or persons in the naval service, are to the Admiralty Division only if the payable under Article 139, UCMJ, only Assistant Supervisor of Salvage (Admi- if such damage, loss, or destruction is ralty) is unsuccessful in making collec- caused by riotous conduct, willful con- tion. Any money received in settle- duct, or acts showing such reckless or ment of affirmative salvage claims is wanton disregard of the property rights credited to appropriations for main- of others that willful damage or de- taining salvage facilities by the Navy, struction is implied. Acts of the type pursuant to 10 U.S.C. 7367 (1982). punishable under Article 109, UCMJ, are cognizable under Article 139, [39 FR 9962, Mar. 15, 1974, as amended at 41 FR 26866, June 30, 1976; 55 FR 12174, Apr. 2, UCMJ. Charges against pay under 1990] these regulations shall be made only against the pay of persons shown to have been principal offenders or acces- PART 755—CLAIMS FOR INJURIES sories. TO PROPERTY UNDER ARTICLE 139 OF THE UNIFORM CODE OF § 755.3 Claims not cognizable. MILITARY JUSTICE The following claims are not cog- nizable under this chapter. Sec. (a) Claims resulting from simple neg- 755.1 Statutory authority. ligence. 755.2 Scope. (b) Claims of subrogees. 755.3 Claims not cognizable. 755.4 Limitation on claims. (c) Claims for personal injury or 755.5 Complaint by the injured party and in- death. vestigation. (d) Claims arising from acts or omis- 755.6 Action where offenders are members of sions within the scope of employment one command. of the offender.
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(e) Claims for reimbursement for or the Commandant of the Marine damage, loss, or destruction of Govern- Corps, as appropriate, for action. ment property. (c) The investigation shall inquire into the circumstances surrounding the § 755.4 Limitation on claims. claim, gather all relevant information (a) Time limitations. A claim must be about the matter (answering the who, submitted within 90 days of the inci- what, where, when, why, and how ques- dent giving rise to it. tions) and make findings and opinions, (b) Acts of property owner. When the as appropriate, about the validity of acts or omissions of the property the claim under Article 139, UCMJ, and owner, his lessee, or agent were a prox- these regulations. The investigation imate contributing factor to the loss or shall determine the amount of damage damage of the property, assessments suffered by the property owner. will not be made against members of (d) The investigation shall make rec- the naval service in excess of the ommendations about the amount to be amount for which they are found to be assessed against the pay of the respon- directly responsible, i.e., comparative sible parties. If more than one person is responsibility for the loss will be the found responsible, recommendations standard for determining financial re- shall be made about the assessments sponsibility. against all individuals. (c) Only direct damages considered. As- sessment will be made only for direct § 755.6 Action where offenders are members of one command. physical damages to the property. Indi- rect, remote, or inconsequential dam- (a) Action by commanding officer. The age will not be considered. commanding officer shall ensure the alleged offenders are shown the inves- § 755.5 Complaint by the injured party tigative report and are advised they and investigation. have 20 days within which to submit a (a) A claim shall contain a statement statement or additional information on setting forth the amount of the claim, the incident. If the member declines to the facts and circumstances sur- submit information, he shall so state rounding the claim and any other in- in writing within the 20 day period. formation that will assist in the inves- The commanding officer shall review tigation and resolution of the matter. the investigation and determine wheth- When there is more than one complaint er the claim is properly within the pro- resulting from a single incident, each visions of Article 139, UCMJ, and these claimant must file a claim separately regulations, and whether the facts indi- and individually. The claim shall be cate responsibility for the damage on personally signed by the claimant or members of the command. If the com- his duly authorized representative or manding officer finds the claim pay- agent. able under these regulations, he shall (b) Where the claim alleges mis- fix the amount to be assessed against conduct by members of the command, a the offenders. commanding officer to whom the claim (b) Review. If the commanding officer is submitted shall convene an inves- has authority to convene a general tigation under this Manual to inquire court-martial, no further review of the into the matter. Where a complaint is investigation is required as to the re- received by a commanding officer to dress of injuries to property. If the whose command the alleged offenders commanding officer does not have gen- do not report, he shall forward the eral court-martial convening author- claim and other pertinent information ity, the investigation and the com- about the matter to the member’s com- manding officer’s action thereon shall manding officer who will convene an be forwarded to the officer exercising investigation into the incident. Where general court-martial jurisdiction the command of the alleged offenders (OEGCM) over the command for review cannot be determined, the claim and and action on the claim. That officer’s supporting materials shall be for- action on the claim shall be commu- warded to the Chief of Naval Personnel nicated to the commanding officer who
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will take action consistent with the de- General) who will take action in the termination. matter. Commanding officers, in such a (c) Charge against pay. Where the situation, are not to make charges amount does not exceed $5,000.00, the against the pay of their members until amount ordered by the commanding of- directed by the Secretary of the Navy ficer shall, as provided in the Navy (Judge Advocate General). Comptroller Manual, be charged against the pay of the offenders and § 755.8 Reconsideration and appeal. the amounts so collected will be paid to the claimant. Where the amount ex- (a) Reconsideration. The OEGCM may, ceeds $5,000.00, the claim, the investiga- upon a receipt of a request for recon- tion, and the commanding officer’s rec- sideration by either the claimant or a ommendation shall be forwarded for re- member who has been assessed pecu- view prior to checkage to Head- niary liability, reopen the investiga- quarters, U.S. Marine Corps (Code tion or take any other action he be- JAR) or the Judge Advocate General, lieves is necessary in the interests of as appropriate. The amount charged in justice. If the OEGCM contemplates any single month against the pay of of- acting favorably on the request, he will fenders shall not exceed one-half of provide all individuals interested in basic pay, as defined in paragraph the claim with notice and an oppor- 126h(2), Manual for Courts-Martial. The tunity to respond. The basis for any action of the commanding officer in or- change will be noted in the OEGCM’s dering the assessment shall be conclu- decision. sive on any disbursing officer for pay- (b) Appeal. In claims involving ment to the claimant of the damages $5,000.00 or less, a claimant or member assessed, approved, charged, and col- who has been assessed pecuniary liabil- lected. ity may appeal the decision to the § 755.7 Action where offenders are OEGCM. An appeal must be submitted members of different commands. within 5 days of the receipt of the (a) Action by common superior. The in- OEGCM’s decision. Appeals will be for- vestigative report shall be forwarded to warded, via the OEGCM, to the Judge the common superior exercising gen- Advocate General for review and final eral court-martial jurisdiction over the action. In the event of an appeal, the commands to which the alleged offend- imposition of the OEGCM’s decision ers are assigned. That officer shall en- will be held in abeyance pending the sure the alleged offenders are shown final action by JAG. If it appears that the investigative report and permitted good cause exists that would make it to comment on it, should they desire, impracticable for an appeal to be sub- before action is taken on the claim. mitted within 5 days, the OEGCM may, That officer shall review the investiga- in his discretion, grant an extension of tion and determine whether the claim time, as appropriate. His decision on is properly within the provisions of Ar- extensions is final and nonappealable. ticle 139, UCMJ, and these regulations, and whether the facts indicate respon- § 755.9 Effect of court-martial pro- sibility for the damage on members of ceedings. his command. If the claim is found pay- Administrative action under these able under these regulations, he shall regulations is separate and distinct fix the amount to be assessed against from and is not affected by any dis- the offenders and direct the appro- ciplinary action against the offender. priate commanding officers to take ac- tion accordingly. The two proceedings are independent. (b) Forwarding to SECNAV (JAG). Acquittal or conviction of the alleged Where it is not practical or possible to offender by court-martial is evidence carry out the procedure in § 755.7(a) of for the administrative action, but is this section, the investigation or inves- not determinative on the issue of re- tigations shall be forwarded to the Sec- sponsibility for damages under these retary of the Navy (Judge Advocate regulations.
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PART 756—NONAPPROPRIATED- mander, Naval Supply Systems Com- FUND CLAIMS REGULATIONS mand determine whether NAFI’s with- in their cognizance shall carry liability Sec. insurance or become self-insurers, in 756.1 Scope. whole or in part. 756.2 Definitions. (b) The Marine Corps requires manda- 756.3 Notification. tory participation in the Morale, Wel- 756.4 Responsibility. 756.5 Investigation. fare and Recreation (MWR) Composite 756.6 Negotiation. Insurance Program by the following 756.7 Payment. operations: MWR operations and retail 756.8 Denial. services, food and hospitality, recre- 756.9 Claims by employees. ation; and special NAFI activities in- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, cluding flying clubs, rod and gun clubs, and 5148; E.O. 11476 (3 CFR, 1969 Comp., p. Interservice Rifle Fund, Marine Corps 132); 32 CFR 700.206 and 700.1202. Marathon and Dependent Cafeteria SOURCE: 57 FR 4736, Feb. 7, 1992, unless oth- Fund. The following organizations may erwise noted. also participate in the MWR Composite § 756.1 Scope. Insurance Program, if desired: Child welfare centers, billeting funds, chapel This part explains how to settle funds, and civilian welfare funds. claims for and against the United States for property damage, personal (c) When the operations of NAFI’s re- injury, or death arising out of the oper- sult in property damage or personal in- ation of nonappropriated-fund instru- jury, the insurance carrier, if any, mentalities. should be given immediate written no- tification. Notification should not be § 756.2 Definitions. postponed until a claim is filed. When (a) Nonappropriated-fund instrumen- the activity is self-insured, the self-in- tality (NAFI). An instrumentality of the surance fund shall be notified of the po- Federal Government established to tential liability by the activity. generate and administer non- appropriated-funds for programs and § 756.4 Responsibility. services contributing to the mental The primary responsibility for the and physical well-being of Department negotiation and settlement of claims of Defense personnel and their depend- resulting from nonappropriated-fund ents. A NAFI is not incorporated under activities is normally with the NAFI the laws of any State and enjoys the and its insurer. NAFI’s, however, are privileges and immunities of the Fed- Federal agencies within the meaning of eral Government. the Federal Tort Claims Act if charged (b) Nonappropriated-funds. Funds gen- erated through the use and patronage with an essential function of the De- of NAFI’s, not including funds appro- partment of the Navy and if the degree priated by Congress. of control and supervision by the Navy (c) Employees of NAFI. Civilian per- is more than casual or perfunctory. sonnel employed by NAFI’s whose sala- Compare United States v. Holcombe, 277 ries are paid from nonappropriated- F.2d 143 (4th Cir. 1960) and Scott v. funds. Also, military personnel work- United States, 226 F. Supp. 846, (D. Ga. ing part-time at NAFI’s when com- 1963). Consequently, to the extent sov- pensated from nonappropriated-funds. ereign immunity is waived by the Fed- eral Tort Claims Act, 28 U.S.C. 1346(b), § 756.3 Notification. 2671–2672, 2674–2680, the United States (a) Some NAFI’s, such as flying remains ultimately liable for payment clubs, carry private commercial insur- of NAFI claims. ance to protect them from claims for property damage and personal injury § 756.5 Investigation. attributable to their operations. The Claims arising out of the operation of Commandant of the Marine Corps, the NAFI’s, in and outside the United Chief of Naval Personnel, and the Com-
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States, shall be investigated in accord- that can be settled for $1000.00 or less, ance with the procedures for inves- may be adjudicated by the com- tigating similar claims against appro- manding officer of the activity con- priated fund activities in order to pro- cerned or designee. The claim shall be tect the residual liability of the United paid out of funds available to the com- States. All claims should be submitted manding officer. to the command having cognizance (b) Claims that cannot be settled for less over the NAFI involved. than $1000.00. A claim negotiated by the § 756.6 Negotiation. Navy, not covered by insurance, that cannot be settled for less than $1000.00, (a) General. Claims from NAFI’s shall be forwarded to the appropriate should be processed primarily through nonappropriated-fund headquarters NAFI claims procedures, using as command for payment from its non- guidelines the regulations and statutes appropriated-funds. applicable to similar appropriated fund activity claims. (c) When payment is possible under an- (b) When the NAFI is insured. When a other statute. In some cases neither the NAFI is insured, the insurer or the con- NAFI nor its insurer may be legally re- tracted third-party claims adminis- sponsible. In those instances, when trator (TPA) will normally conduct ne- there is no negligence, and payment is gotiations with claimants. The appro- authorized under some other statute, priate naval adjudicating authority as such as the Foreign Claims Act, 10 shown in 32 CFR 750.34(c)(2)(ii) has the U.S.C. 2734–2736, the claim may be con- responsibility of monitoring the nego- sidered for payment from appropriated tiations conducted by the insurer or funds or may be referred to the Judge TPA. Monitoring is normally limited Advocate General for appropriate ac- to ascertaining someone has been as- tion. signed to negotiate, to obtain periodic (d) Other claims. A NAFI’s private in- status reports, and to close files on set- surance policy is usually not available tled claims. Any dissatisfaction with to cover losses which result from some the insurer’s or TPA’s handling of the act or omission of a mere participant negotiations should be referred di- in a nonappropriated-fund activity. In rectly to the Judge Advocate General the event the NAFI declines to pay the for appropriate action. Under special claim, the file shall be forwarded to the circumstances, even when there is an Judge Advocate General for determina- insurer or TPA, the appropriate naval tion. adjudicating authority may conduct negotiations, provided the command § 756.8 Denial. involved and the insurer agree to it. When an appropriate settlement is ne- Claims resulting from non- gotiated by the Navy, the rec- appropriated-fund activities may be de- ommended award will be forwarded to nied only by the appropriate naval ad- the insurer or TPA for payment. judicating authority. Such a denial is (c) When the NAFI is not insured. necessary to begin the 6-month limita- When there is no private, commercial tion on filing suit against the United insurer and the NAFI has made no States for claims filed under the Fed- independent arrangements for negotia- eral Tort Claims Act. Denial of a claim tions, the appropriate Navy adjudi- shall be in writing and in accordance cating authority is responsible for con- with subparts A or B of part 750 of this ducting negotiations. When an appro- chapter, as appropriate. The appro- priate settlement is negotiated by the priate naval adjudicating authority Navy, the recommended award will be should not deny claims which have ini- forwarded to the NAFI for payment tially been processed and negotiated by from nonappropriated-funds. a nonappropriated-fund activity, its in- surer or TPA until the activity or its § 756.7 Payment. insurer has clearly stated in writing (a) Claims that can be settled for less that it does not intend to pay the than $1000.00. A claim not covered by claim and has elected to defend in insurance (or not paid by the insurer), court.
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§ 756.9 Claims by employees. 757.17 Statute of limitations. 757.18 Asserting the claim. (a) Personal injury or death of citizens 757.19 Waiver and compromise. or permanent residents of the United 757.20 Receipt and release. States employed anywhere, or foreign na- AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 939, 5013, tionals employed within the United and 5148; E.O. 11476, 3 CFR, 1969 Comp., p. 132; States. Compensation is provided by the 32 CFR 700.206 and 700.1202. Longshore and Harbor Workers’ Com- SOURCE: 57 FR 5072, Feb. 12, 1992, unless pensation Act (33 U.S.C. 901–950) for otherwise noted. employees of NAFI’s who have suffered injury or death arising out of and in the course of their employment (5 Subpart A—Property Damage U.S.C. 8171). That Act is the exclusive Claims basis for Government liability for inju- § 757.1 Scope of subpart A. ries or deaths that are covered (5 U.S.C. 8173). A claim should first be Subpart A describes how to assert, made under that Act if there is a sub- administer, and collect claims for dam- stantial possibility the injury or death age to or loss or destruction of Govern- is covered. ment property through negligence or (b) Personal injury or death of foreign wrongful acts. nationals employed outside of the conti- § 757.2 Statutory authority. nental United States. Employees who are not citizens or permanent residents, (a) General. With the exception of and who are employed outside the con- MCRA claims, all affirmative claims tinental United States, are protected for money or property in favor of the by private insurance of the NAFI or by United States shall be processed in ac- other arrangements (5 U.S.C. 8172). cordance with the Federal Claims Col- When a nonappropriated-fund activity lection Act (31 U.S.C. 3711). Depart- 1 has neglected to obtain insurance cov- ment of Defense Directive 5515.11 of 10 erage or to make other arrangements, December 1966 delegates to the Sec- the matter shall be processed as a For- retary of the Navy, and designees, the eign Claims Act or a Military Claims authority granted to the Secretary of Act claim if appropriate, and any Defense under the Federal Claims Col- award will be paid from non- lection Act. appropriated-funds. (b) Statute of limitations. There is a 3- year statute of limitations on affirma- tive Government tort claims pursuant PART 757—AFFIRMATIVE CLAIMS to 28 U.S.C. 2415(b). REGULATIONS § 757.3 Regulatory authority. Subpart A—Property Damage Claims The regulations published in 4 CFR Sec. chapter II control the collection and 757.1 Scope of subpart A. settlement of affirmative claims. This 757.2 Statutory authority. section supplements the material con- 757.3 Regulatory authority. tained in those regulations. Where this 757.4 Claims that may be collected. section conflicts with the materials 757.5 Assertion of claims and collection pro- and procedure published in 4 CFR chap- cedures. ter II, the latter controls. 757.6 Waiver, compromise, and referral of claims. § 757.4 Claims that may be collected. 757.7–757.10 [Reserved] (a) Against responsible third parties for Subpart B—Medical Care Recovery Act damage to government property, or the (MCRA) Claims property of nonappropriated-fund activi- ties. It should be noted, however, that 757.11 Scope of subpart B. 757.12 Statutory authority. as a general rule, the Government does 757.13 Responsibility for MCRA action. 757.14 Claims asserted. 1 Copies may be obtained if needed, from 757.15 Claims not asserted. the Commanding Officer, U.S. Naval Publica- 757.16 Claims asserted only with JAG ap- tions and Forms Center, 5801 Tabor Avenue, proval. Philadelphia, PA 19120.
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not seek payment from action on affirmative claims of servicemembers and Government em- $20,000.00 or less. ployees for damages caused by their (d) Determining liability. Liability simple negligence. Exceptions to this must be determined in accordance with general policy will be made when the the law of the place in which the dam- incident involves aggravating cir- age occurred, including the applicable cumstances. traffic laws, elements of tort, and pos- (b) For medical costs from third party sible defenses. payers in accordance with 10 U.S.C. 1095. (e) Assertion of a claim. (1) Assertion These claims are asserted and collected of the claim is accomplished by mail- by the medical treatment facilities ing to the tortfeasor a ‘‘Notice of under the coordination of benefits pro- Claim.’’ The notice is to be mailed cer- gram. tified mail, return receipt requested, (c) For money paid or reimbursed by the and should include the following infor- government for damage to a rental car in mation: accordance with the Joint Federal Travel (i) Reference to the statutory right Regulations (volume 1, paragraph U 3415– to collect; C and volume 2, paragraph C 2101–2). (ii) A demand for payment or restora- Collection action shall be taken tion; against third parties liable in tort. Col- (iii) A description of damage; lection action shall not be taken (iv) The date and place of the inci- against Government personnel who dent; and rented the vehicle. (v) The name, phone number, and of- (d) Other claims. Any other claim for fice address of the claims personnel to money or property in favor of the contact. United States cognizable under the Federal Claims Collection Act not spe- (2) See also 4 CFR part 102. cifically listed above. (f) Full payment. When a responsible party or insurer tenders full payment § 757.5 Assertion of claims and collec- or a compromise settlement on a tion procedures. claim, the payment should be in the form of a check or money order made (a) General. The controlling proce- payable to the collection activity, such dures for administrative collection of as the ‘‘Commanding Officer, Naval claims are established in 4 CFR part Legal Service Office, (Name).’’ The 102. check or money order shall then be for- (b) Officials authorized to pursue warded to the disbursing officer serving The following officers are au- claims. the collecting activity for deposit in thorized to pursue and collect all af- accordance with the provisions of the firmative claims in favor of the United Navy Comptroller Manual. States: (g) Installment payments. See 4 CFR (1) The Judge Advocate General; the 102.11 for specific procedures. In gen- Deputy Judge Advocate General; any eral, if the debtor is financially unable Assistant Judge Advocate General; and to pay the debt in one lump sum, an in- the Deputy Assistant Judge Advocate stallment payment plan may be ar- General (Claims and Tort Litigation); ranged. Installment payments will be and required on a monthly basis and the (2) Commanding officers of Naval size of payment must bear a reasonable Legal Service Offices and applicable relation to the size of the debt and the Detachments, except Naval Legal Serv- debtor’s ability to pay. The install- ice Offices in countries where another ment agreements should specify pay- service has single service responsibility ments of such size and frequency to liq- in accordance with DOD Directive uidate the Government’s claim in not 2 5515.8. more than 3 years. Installment pay- (c) Dollar limitations. All of the offi- ments of less than $50.00 per month cers listed in § 757.5(b) are authorized to should be accepted only if justified on compromise and terminate collection the grounds of financial hardship or for some other reasonable cause. In all in- 2 See footnote 1 to § 757.2. stallment arrangements, a confession
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of judgment note setting out a repay- tion action on all claims of $20,000.00 or ment schedule should be executed. less. Collection action may be termi- (h) Damage to nonappropriated-fund nated for the convenience of the Gov- instrumentality (NAFI) property. Any ernment if the tortfeasor cannot be lo- amount collected for loss or damage to cated, is found to be judgment-proof, property of a NAFI shall be forwarded has denied liability, or has refused to to the headquarters of the non- respond to repeated correspondence appropriated-fund activity for deposit concerning legal liability involving a with that activity. In those situations small claim. A termination for the con- where the recovery involves damage to venience of the Government is made both NAFI-owned property and other after it is determined that the case Government property, e.g., destruction does not warrant litigation or that it is of an exchange building resulting in not cost-effective to pursue recovery damage to both the building and the exchange-owned property inside, recov- efforts. ery for the exchange-owned property (b) Claims over $100,000.00. Claims in shall be forwarded to the NAFI. Recov- excess of $100,000.00 may not be com- ery for building damage shall be depos- promised for less than the full amount ited in accordance with § 757.5(f) above. or collection action terminated with- (i) Damage to industrial-commercial out approval from the Department of property. When a loss or cost of repair Justice (DOJ). has been borne by an industrial-com- (c) Notification. The Judge Advocate mercial activity, payment shall be de- General shall be notified prior to all re- posited in the Navy Industrial Fund of quests made to the DOJ to com- the activity in accordance with the promise, terminate collection, or refer- provisions of the Navy Comptroller ral for further collection action or liti- Manual. When a claim is based on a gation. loss or damage sustained by such an (d) Litigation Reports. Litigation re- activity, a notation to this effect shall ports prepared in accordance with 4 be included in any claim file forwarded CFR part 103 shall be forwarded to the to the Judge Advocate General. DOJ along with any case file forwarded (j) Replacement in kind or repair. The for further collection action or litiga- responsible party, or insurer, may want tion as required by the Federal Claims to repair or replace in kind damaged Collections Standards. property. The commanding officer or officer in charge of the activity sus- §§ 757.7–757.10 [Reserved] taining the loss is authorized to accept repair or replacement if, in his discre- tion, it is considered to be in the best Subpart B—Medical Care interests of the United States. Recovery Act (MRCA) Claims (k) Release. The commanding officer or officer in charge is authorized to § 757.11 Scope of subpart B. execute a release of the claim when all Subpart B describes the assertion and repairs have been completed to the collection of claims for medical care Government’s satisfaction, and when under the Medical Care Recovery Act all repair bills have been paid. No prior (MCRA). The MCRA states that when approval from the Judge Advocate Gen- the Federal Government provides eral is required for this procedure. If treatment or pays for treatment of an repair or replacement is made, a nota- individual who is injured or suffers a tion shall be made in any investigation disease, the Government is authorized or claims file. to recover the reasonable value of that § 757.6 Waiver, compromise, and refer- treatment from any third party legally ral of claims. liable for the injury or disease. (a) Officials authorized to compromise § 757.12 Statutory authority. claims. The officers identified in § 757.5(b) may collect the full amount Medical Care Recovery Act, 42 U.S.C. on all claims, and may compromise, 2651–2653 (1982). execute releases or terminate collec-
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§ 757.13 Responsibility for MCRA ac- patient’s care is transferred to another tion. facility. A narrative summary should (a) JAG designees. (1) Primary respon- accompany the final report in all cases sibility for investigating, asserting, involving inpatient care. In addition, and collecting Department of the Navy the back side of NAVJAG Form 5890/12 (DON) MCRA claims and properly for- is completed as part of the final report warding MCRA claims to other Federal when the value of Federal Government departments or agencies rests with the care exceeds $1,000.00. following officers: (c) The Office of Medical and Dental (i) Commanding officers and officers Affairs (OMA). The office pays emer- in charge, Naval Legal Service Com- gency civilian medical expenses in- mand (NLSC) activities, in their areas curred by active duty members. This of geographic responsibility; office furnishes MCRA claims informa- (ii) Officer in charge, U.S. Sending tion to the NLSC activity or USSSO. State Office, Rome in his area of geo- The address is Bldg. 38H, U.S. Naval graphic responsibility. Training Center, Great Lakes, IL 60088– (2) JAG designees may assert and re- 5200. ceive full payment on any MCRA (d) Civilian Health and Medical Pro- claim. They may, however, agree to gram of the Uniformed Services compromise or waive only claims for (CHAMPUS) contractors. CHAMPUS $40,000.00 or less. Claims in excess of contractors forward reports of pay- $40,000.00 may be compromised or ments in injury cases to the appro- waived only with DOJ approval. Such priate NLSC activity. Responsible JAG claims will be forwarded to the Judge designees should, however, initiate reg- Advocate General in accordance with ular contact with contractors within § 757.6. See § 757.7 for further discussion their geographic area to ensure all rel- of waiver and compromise. evant cases have been reported. (b) Navy Medical Treatment Facilities (e) Department of Justice (DOJ). Only (MTF). (1) Naval MTF’s are responsible the DOJ may authorize compromise or for ensuring potential MCRA claims waiver of an MCRA claim in excess of are brought to the attention of the ap- $40,000.00; settle an MCRA claim which propriate NLSC activity or U.S. Send- was previously forwarded by the DON ing State Office (USSSO). to DOJ for action; or settle an MCRA (2) The MTF reports all potential claim in which the third party has filed MCRA cases by forwarding a copy of a suit against the United States or the the daily injury log entries and admis- injured person as a result of the inci- sions records to the cognizant NLSC dent which caused the injury. activity or USSSO within 7 days of treatment for which a third party may § 757.14 Claims asserted. be liable. The NLSC activity or USSSO makes the determination of liability. (a) General. The DON asserts MCRA (i) MTF computes the value of the claims when medical care is furnished care it provided on NAVJAG Form 5890/ to Navy and Marine Corps active duty 12. Rates used to compute this value personnel, retirees, or their depend- are published annually in the FEDERAL ents, and third-party tort liability for REGISTER by the Office of Management the injury or disease exists. Claims are and Budget. asserted when the injured party is (ii) Block 4 of NAVJAG Form 5890/12 treated in a military MTF or when the requires a statement from the patient DON is responsible for reimbursing a describing the circumstances of the in- non-Federal care provider. Claims for jury or disease. medical care furnished are also as- (iii) An ‘‘interim’’ report is prepared serted using alternate theories of re- for inpatients only. An interim report covery if the MCRA does not apply. See is prepared every 4 months until the § 757.14(e). patient is released, transferred or (b) Independent cause of action. The changed to an outpatient status. MCRA creates an independent cause of (iv) A ‘‘final’’ report is prepared for action for the United States. The Gov- all patients when inpatient and out- ernment can administratively assert patient treatment is completed or the and litigate MCRA claims in its own
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name and for its own benefit. Proce- policy. The ability of the Federal Gov- dural defenses, such as a failure of the ernment to recover as a third-party injured person to properly file and/or beneficiary has been upheld in some serve a complaint on the third party, states, while other states have taken that may prevent the injured person the contrary position. from recovering, do not prevent the (2) Recovery may also be possible United States from pursuing its own under State workers’ compensation action to recover the value of medical laws. Case law in this area is still treatment provided to the injured per- emerging, but in most jurisdictions, son. The right arises directly from the the United States stands in the posi- statute; the statutory reference to sub- tion of a lien claimant for services ren- rogation pertain only to one mode of dered. enforcement. In creating an inde- pendent right in the Government, the § 757.15 Claims not asserted. Act prevents a release given by the in- In some cases, the MCRA or public jured person to a third party from af- policy considerations limit the DON’s fecting the Government’s claim. assertion of claims against apparent (c) Liable parties. MCRA claims may third-party tortfeasors. MCRA claims be asserted against individuals, cor- are not asserted against: porations, associations and non-Fed- (a) Federal Government agencies. eral Government agencies subject to Claims are not asserted against any de- the limitations described in § 757.15. partment, agency or instrumentality of (d) Reasonable value of medical care. the United States. ‘‘Agency or instru- The reasonable value of medical care mentality’’ includes self-insured, non- provided to an injured person is deter- appropriated-fund activities but does mined: not include private associations. (1) By using the rates set by the Of- (b) Injured servicemembers, dependents fice of Management and Budget and and employers of the United States. published in the FEDERAL REGISTER for Claims are not asserted directly care provided in Federal medical care against a servicemember, the depend- facilities; or ent of a servicemember, or an em- (2) By the actual amount paid by the ployee of the United States who is in- Federal Government to non-Federal jured as a result of his willful or neg- medical care providers. ligent acts. The United States does as- (e) Alternate Theories of Recovery. sert, however, against medical care and Often, recovery under the MCRA is not treatment insurance coverage the possible because no third-party tort li- member, employee, or dependent might ability exists. For example, if a mem- have. ber, retiree, or dependent is driving a (c) Employers of merchant seamen. vehicle and is injured in a single-car Claims are not asserted against the accident, there is no tortfeasor. State employer of a merchant seaman who law, including insurance, workers’ receives Federal medical care under 42 compensation, and uninsured motorist U.S.C. 249. coverage provisions, determines the (d) Department of Veterans Affairs care DON’s right to recover in situations for service-connected disability. Claims not covered by the MCRA. If, under the are not asserted for care provided to a law where the injury occurred, the in- veteran by the Department of Veterans jured party is entitled to compensation Affairs when the care is for a service- for medical care received, usually the connected disability. The United Federal Government may recover. The States will, however, claim for the rea- two most common alternate theories sonable value of care provided an indi- are described below. vidual before he is transferred to a De- (1) Recovery may be possible under partment of Veterans Affairs hospital. the injured party’s automobile insur- ance policy. In most cases, the Federal § 757.16 Claims asserted only with JAG Government should seek recovery as a approval. third-party beneficiary under the med- The responsible NLSC activity or ical payments or the underinsured/un- USSSO will investigate potential insured portion of the injured party’s MCRA claims against the following
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third parties and forward a copy of which will assert a resulting MCRA their claims file, along with rec- claim. ommendations on assertion, to the (i) Where Navy or Marine Corps mem- Judge Advocate General: bers, retirees, or their dependents re- (a) Certain Government contractors. ceive medical treatment from another JAG approval is required before assert- Federal agency or department, the ing an MCRA claim against a Federal DON will usually assert any MCRA Government contractor when the con- claim on behalf of the United States tract provides that the contractor will based on information provided by the be indemnified or held harmless by the treating agency or department. Federal Government for tort liability. (ii) Similarly, where a Navy MTF (b) Foreign Governments. JAG ap- provides care to personnel of another proval is required before asserting Federal agency or department, that MCRA claims against foreign govern- other agency or department will usu- ments, their political subdivisions, ally assert any claim on behalf of the Armed Forces members, or civilian em- United States. ployees. (3) If the claim is not one which the (c) U.S. personnel. JAG approval is re- DON should assert, the JAG designee quired before asserting MCRA claims will forward all available information against U.S. servicemembers, their de- to the appropriate department or agen- pendents and employees of the United cy. States, or their dependents for injury (4) If the claim is one which the DON to another person. should assert, the JAG designee will ensure an appropriate investigation § 757.17 Statute of limitations. into the circumstances underlying the (a) Federal. The United States, or the claim is initiated and will provide no- injured party on behalf of the United tice to the injured party and all third States, must file suit within 3 years parties who may be liable to the in- after an MCRA action accrues. 28 jured person and the United States U.S.C. 2415. Generally this is 3 years under the MCRA. from the date of initial Federal treat- (b) Investigating the claim. While there ment or Federal Government payment is no prescribed form or content for in- to a private care provider, whichever is vestigating these claims, the claims first. file will contain sufficient information (b) State. Some State statutes of lim- on which to base valuation, assertion, itations may also apply where recovery settlement, waiver, and/or compromise is based on authority such as workers’ decisions. Usually the file will contain: compensation statutes, no-fault insur- (1) Identification of each person in- ance statutes, no-fault medical pay- volved in the incident including name, ments, or uninsured motorist provi- address, occupation, and nature of in- sions of insurance contracts. volvement; (2) Police, social service, and other § 757.18 Asserting the claim. Federal, State and local agency reports (a) Initial action by JAG designee. on the incident; When advised of a potential MCRA (3) Completed copies of NAVJAG 3 claim, the JAG designee will determine Form 5890/12 or equivalent forms from the Federal agency or department re- other agencies and departments; sponsible for investigating and assert- (4) Inpatient summaries and out- ing the claim. patients records of treatment of the in- (1) When the DON has reimbursed a volved injury in non-Federal facilities; non-Federal provider for health care or (5) Documents reflecting Federal when CHAMPUS has made payment for payment for non-Federal treatment of a Navy health care beneficiary, the the injured person; DON will assert any resulting MCRA (6) Calculations of the reasonable claim. value of the Government’s MCRA (2) When care is provided in a Federal claim; treatment facility, the status of the in- jured person will determine the agency 3 See footnote 3 to § 757.2.
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(7) Itemized repair bills or estimates activity or USSSO receives a similar of repair of damaged Federal Govern- request from another command, unit or ment property; activity within the DOD, every effort (8) Where an identified third-party should be made to honor the request. tortfeasor is a uniformed Assistance will normally be provided servicemember or a U.S. employee, in- without reimbursement from the re- formation and findings concerning that questing service. person’s duty or scope of employment (e) Notice of claim. (1) The JAG des- status at the time of the incident giv- ignee will assert appropriate MCRA ing rise to the injury; claims by mailing, certified mail, re- (9) Where an identified third-party turn receipt requested, a notice of tortfeasor is a uniformed claim (SF 96) to identified third-party servicemember or a U.S. employee or the dependent of a uniformed service tortfeasors and their insurers, if member or U.S. employee, information known. Many insured tortfeasors fail and findings concerning whether that to notify their insurance companies of individual was grossly negligent or incidents. This failure may be a breach willfully culpable and whether that in- of the cooperation clause in the policy dividual had insurance coverage at the and may be grounds for the insurer to time of the incident giving rise to the refuse to defend the insured or be re- injury; sponsible for any liability. The United (10) Financial information on identi- States, as a claimant, may preclude fied third-party tortfeasors including such an invocation by giving the req- names and addresses of insurance car- uisite notification itself. The purpose riers, insurance policy numbers, and of the insurance clause is satisified if extent of coverage; and the insurer receives actual notice of (11) A statement whether the injured the incident, regardless of the inform- person or his attorney will protect the ant. This notice should be mailed as interests of the United States. soon as it reasonably appears an identi- (c) Claims forwarded to JAG or DOJ. In fied third party may be liable for the those cases where the file must be for- injuries to the injured person. It is not warded to JAG or DOJ, the file will necessary or desirable to delay mailing also include: this notice until the completion of the (1) A summary of the case which in- investigation convened to inquire into cludes the circumstances of the inci- the circumstances underlying the inci- dent which caused the injury, the dent causing the injury. The prompt source, extent and value of medical care provided and a brief of the appli- assertion of the claim will ensure that cable law on the liability of the third the Government is named on the set- party; tlement draft. If the United States is (2) Copies of all correspondence; and not so named, and the claim has been (3) Recommended disposition. asserted, the insurer settles at its own (d) Request for assistance in conducting risk. investigation. When an injury for which (2) The JAG designee will also notify the DON may assert an MCRA claim the injured person or his legal rep- occurs at a place where the DON does resentative of the Government’s inter- not have a command, unit, or activity est in the value of the medical care conveniently located for conducting an provided by the United States. This no- inquiry into the circumstances under- tice will advise that: lying the injury, the NLSC activity or (i) The United States may be entitled USSSO having responsibility for ad- to recover the reasonable value of med- ministering any resulting MCRA claim ical care furnished or paid for by the may request assistance from any other Federal Government; command, unit, or activity within the (ii) The injured person is required to DOD. Such assistance may take the cooperate in the efforts of the United form of a complete inquiry into the cir- States to recover the reasonable value cumstances underlying the incident or it may only cover part of the necessary of medical care furnished or paid for by inquiry and fact gathering. If a NLSC the Federal Government;
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(iii) The injured person is required to JAG to refer the claim to the DOJ for furnish a statement regarding the cir- possible suit. In such cases, the JAG cumstances surrounding the care and designee will forward the complete file treatment; to JAG in accordance with §§ 757.18 (b) (iv) The injured person may seek and (c). legal guidance concerning any possible (g) Access to DON records and informa- claim for personal injury; tion. (1) The medical records of the in- (v) The injured person is required to jured person will be released to the in- furnish information concerning legal jured person or his legal representative action brought against any individual upon request. This release will be with- involved in the incident and provide out cost except in unusual cir- the name of counsel representing the cumstances. These records may not be parties to such an action; and released to anyone else outside the (vi) The injured person should not DON except in accordance with the execute a release or settle a claim aris- provisions of the Privacy Act, 5 U.S.C. ing from the incident causing the in- 552a. Usually such a release will re- jury without first notifying the JAG quire authorization from the injured designee. individual or legal representative or an (f) Administering the claim. (1) After order from a court of competent juris- investigating and asserting the claim, diction. A clerk or attorney signed sub- the JAG designee will maintain con- poena is not ‘‘an order from a court of tact with all parties, their legal rep- competent jurisdiction.’’ resentatives, and insurers. (2) In appropriate cases, military (2) An effort should be made to co- health care providers who have exam- ordinate collection of the Federal Gov- ined or treated the injured person may ernment’s MCRA interest with the in- be made available by their commands jured person’s action to collect his own to testify regarding the medical care claim for damages. provided to the injured person. Re- (i) Attorneys representing an injured quests for such testimony will be proc- person may be authorized to include essed in accordance with DOD Direc- the Federal Government’s MCRA claim tive 5405.2, 28 CFR part 725, and 32 CFR as an item of special damages with the part 725, except when the injured party injured person’s claim or suit. is asserting the Federal Government’s (ii) An agreement that the Govern- MCRA claim as part of his action for ment’s claim will be made a party of damages. In that situation, the injured the injured person’s action should be in person or legal representative is con- writing and state that counsel fees will sidered also to be a representative of not be paid by the Government or com- the United States and the foregoing puted on the basis of the Government’s regulations are not applicable. In such portion of recovery. a case, the JAG designee may, if appro- (3) If the injured person is not bring- priate, request the command of an in- ing an action for damages or is refusing volved military health care provider to to include the Federal Government’s make the provider available for testi- MCRA interest, the JAG designee will mony on behalf of the injured person. pursue independent collection. The United States is specifically allowed to § 757.19 Waiver and compromise. intervene or join in any action at law (a) General. A JAG designee may au- brought by or through the injured per- thorize waiver or compromise of any son against the liable third person or MCRA claim under his authority which bring an original suit in its own name does not exceed $40,000.00. A third par- or in the name of the injured person. ty’s liability for medical costs to the The JAG designee will ensure all par- United States arising from a particular ties are aware that the United States incident will be considered as a single must be a party to all subsequent col- claim in determining whether the lection negotiation. claim is more than $40,000.00 for the (4) When the MCRA interests are not purpose of waiver and compromise. being represented by the injured person When the JAG designee considers waiv- and independent collection efforts have er or compromise appropriate in a failed, the JAG designee will request claim which exceeds $40,000.00, the
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claim file will be forwarded to JAG in (7) Any other factors which objec- accordance with §§ 757.18 (b) and (c). tively indicate fairness requires waiv- (b) Waiver. The JAG designee may er. waive the Federal Government’s MCRA (c) Compromise. The JAG designee interest when a responsible third-party may, upon written request of the in- tortfeasor cannot be located, is judg- jured person or legal representative, ment proof, or has refused to pay and compromise the Federal Government’s litigation is not feasible. Waiver is also MCRA interest using the criteria listed appropriate when, upon written request above. by the injured person or legal rep- resentative, it is determined that col- § 757.20 Receipt and release. lection would cause undue hardship to the injured person. In assessing undue (a) Payment. The JAG designee may hardship, the following circumstances receive payment in part or in full for of the injured person should be consid- any claim for which he is responsible. ered: Written acknowledgment of this re- (1) Permanent disability or disfigure- ceipt will be mailed to the party mak- ment; ing payment and a copy of the ac- (2) Lost earning capacity; knowledgement kept in the claim file. (3) Out-of-pocket expenses; (b) Release. The JAG designee will (4) Financial status; execute and deliver a release to third (5) Disability, pension and similar parties making full or compromised benefits available; payment on the Federal Government’s (6) Amount of settlement or award MCRA interest. A copy of the release from third-party tortfeasor; and will be kept in the claims file.
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PART 761—NAVAL DEFENSIVE SEA (2) Areas placed under the Secretary AREAS; NAVAL AIRSPACE RES- of the Navy for administrative pur- ERVATIONS, AREAS UNDER NAVY poses by Executive order of the Presi- dent (see § 761.3(b)). ADMINISTRATION, AND THE (3) The Trust Territory of the Pacific TRUST TERRITORY OF THE PACIFIC Islands (see § 761.3(c)). ISLANDS (b) The entry authorizations issued under the authority of this part do not Subpart A—Introduction supersede or eliminate the need for Sec. visas or other clearances or permits re- 761.1 Scope. quired by other law or regulation. 761.2 Background and general policy. [28 FR 13778, Dec. 18, 1963, as amended at 35 761.3 Authority. FR 10008, June 18, 1970] 761.4 Special provisions. 761.5 Definitions. § 761.2 Background and general policy. Subpart B—Criteria and Basic Controls (a) Certain areas, due to their stra- tegic nature or for purposes of defense, 761.6 Criteria. have been subjected to restrictions re- 761.7 Basic controls. garding the free entry of persons, ships, and aircraft. Free entry into the areas Subpart C—Entry Authorization listed and defined in this part, and 761.8 General. military installations contiguous to or 761.9 Entry Control Commanders. within the boundaries of defense areas, 761.10 Persons: Group authorizations. is subject to control as provided for by 761.11 Persons: Individual authorizations. Executive order or other regulation. 761.12 Ships: Group authorizations. The object of controls over entry into 761.13 Ships: Individual authorizations. naval defensive sea areas, naval air- 761.14 Aircraft: Group authorizations. space reservations, administrative 761.15 Aircraft: Individual authorizations. areas, and the Trust Territory of the 761.16 Notice of action. 761.17 Revocation. Pacific Islands, is to provide for the 761.18 Appeals. protection of military installations as 761.19 Forms. well as other facilities, including the personnel, property, and equipment as- Subpart D—Additional Instructions signed to or located therein. Persons, ships, and aircraft are excluded unless 761.20 Additional regulations governing per- and until they qualify for admission sons and vessels in Naval Defensive Sea Areas. under the applicable Executive order or regulation. AUTHORITY: 5 U.S.C. 301, 10 U.S.C. 5031, 6011, (b) The control of entry into or move- 18 U.S.C. 2152. The text of part 761 contains ment within defense areas by persons, additional references, including Executive Orders. ships, or aircraft will be exercised so as to fully protect the physical security SOURCE: 28 FR 13778, Dec. 18, 1963, unless of, and insure the full effectiveness of, otherwise noted. bases, stations, facilities and other in- stallations within or contiguous to de- Subpart A—Introduction fense areas. However, unnecessary in- terference with the free movement of § 761.1 Scope. persons, ships, and aircraft is to be (a) This part provides regulations avoided. governing the entry of persons, ships, (c) This part will be administered so and aircraft into: as to provide for the prompt processing (1) Naval Defensive Sea Areas and of all applications and to insure uni- Naval Airspace Reservations estab- formity of interpretation and applica- lished by Executive order of the Presi- tion, insofar as changing conditions dent (see § 761.3(a)). permit.
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(d) In cases of doubt, the determina- 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., tion will be made in favor of the course p. 919) and Executive Order 9881 of Au- of action which will best serve the in- gust 4, 1947 (12 FR 5325; 3 CFR, 1943–1948 terests of the United States and na- Comp., p. 662). tional defense as distinguished from (vi) Midway Island Naval Defensive the private interests of an individual or Sea Area; Midway Island Naval Air- group. space Reservation: Executive Order [28 FR 13778, Dec. 18, 1963, as amended at 35 8682 of February 14, 1941 (6 FR 1015; 3 FR 10008, June 18, 1970] CFR, 1943 Cum. Supp., p. 894) as amend- ed by Executive Order 8729 of April 2, § 761.3 Authority. 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., (a) Naval Defensive Sea Areas and p. 919) and Executive Order 9881 of Au- Naval Airspace Reservations. By Execu- gust 4, 1947 (12 FR 5325; 3 CFR, 1943–1948 tive orders, as amended, the President Comp., p. 662). has reserved, set aside, and established (vii) Wake Island Naval Defensive the following Naval Defensive Sea Sea Area; Wake Island Naval Airspace Areas and Naval Airspace Reservations Reservation: Executive Order 8682 of under the control of the Secretary of February 14, 1941 (6 FR 1015; 3 CFR, 1943 the Navy. Incorporated therein are pro- Cum. Supp., p. 894) as amended by Ex- visions for the exercise of control by ecutive Order 8729 of April 2, 1941 (6 FR the Secretary over the entry of per- 1791; 3 CFR, 1943 Cum. Supp., p. 919) and sons, ships, and aircraft into the areas Executive Order 9881 of August 4, 1917 so described. (See § 761.4(b) for delinea- (12 FR 5325; 3 CFR, 1943–1948 Comp., p. tion of areas where entry controls are 662). suspended.) (viii) Kiska Island Naval Defensive (1) Atlantic areas. Guantanamo Bay Sea Area; Kiska Island Naval Airspace Naval Defensive Sea Area; Guanta- Reservation: Executive Order 8680 of namo Bay Naval Airspace Reservation: February 14, 1941 (6 FR 1014; 3 CFR 1943 Executive Order 8749 of May 1, 1941 (6 Cum. Supp., p. 892) as amended by Ex- FR 2252; 3 CFR, 1943 Cum. Supp., p. 931). ecutive Order 8729 of April 2, 1941 (6 FR (2) Pacific areas. (i) Honolulu Defen- 1791; 3 CFR, 1943 Cum. Supp., p. 919). sive Sea Area: Executive Order 8987 of December 20, 1941 (6 FR 6675; 3 CFR, (ix) Kodiak Naval Defensive Sea 1943 Cum. Supp., p. 1048). Area: Executive Order 8717 of March 22, (ii) Kaneohe Bay Naval Defensive Sea 1941 (6 FR 1621; 3 CFR, 1943 Cum. Supp., Area; Kaneohe Bay Naval Airspace p. 915). Kodiak Naval Airspace Reserva- Reservation: Executive Order 8681 of tion: Executive Order 8597 of November February 14, 1941 (6 FR 1014; 3 CFR, 1943 18, 1940 (5 FR 4559; 3 CFR, 1943 Cum. Cum. Supp., p. 893). Supp., p. 837) as amended by Executive (iii) Pearl Harbor Defensive Sea Order 9720 of May 8, 1946 (11 FR 5105; 3 Area: Executive Order 8143 of May 26, CFR, 1943–1948 Comp., p. 527). 1939 (4 FR 2179; 3 CFR, 1943 Cum. Supp., (x) Unalaska Island Naval Defensive p. 504). Sea Area, Unalaska Island Naval Air- (iv) Johnston Island Naval Defensive space Reservation: Executive Order Sea Area; Johnston Island Naval Air- 8680 of February 14, 1941 (6 FR 1014; 3 space Reservation: Executive Order CFR, 1943 Cum. Supp., p. 892) as amend- 8682 of February 14, 1941 (6 FR 1015; 3 ed by Executive Order 8729 of April 2, CFR, 1943 Cum. Supp., p. 894) as amend- 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., ed by Executive Order 8729 of April 2, p. 919). See § 761.4(d) for delineation of 1941 (6 FR 1791; 3 CFR, 1943 Cum. Supp., areas where entry controls are sus- p. 919) and Executive Order 9881 of Au- pended. gust 4, 1947 (12 FR 5325; 3 CFR, 1943–1948 (b) Administrative areas. By Executive Comp., p. 662). orders, as amended, the President has (v) Kingman Reef Naval Defensive reserved, set aside, and placed under Sea Area; Kingman Reef Naval Air- the control and jurisdiction of the Sec- space Reservation: Executive Order retary of the Navy for administrative 8682 of February 14, 1941 (6 FR 1015; 3 purposes the following named areas in- CFR, 1943 Cum. Supp., p. 894) as amend- cluding their appurtenant reefs and ed by Executive Order 8729 of April 2, territorial waters:
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(1) Johnston Island—Executive Order tory, shall be made to the High Com- 6935 of December 29, 1934 as amended by missioner for processing in accordance Executive Order 11048 of September 4, with the laws and regulations of the 1962 (27 FR 8851; 3 CFR, 1962 Supp., p. Trust Territory: Provided, That prior to 241). the issuance of an authorization to (2) Kingman Reef—Executive Order enter the Trust Territory, the High 6935 of December 29, 1934 as amended by Commissioner shall provide the De- Executive Order 11048 of September 4, partment of the Navy in all cases (with 1962 (27 FR 8851; 3 CFR, 1962 Supp., p. the exception of alien individuals who 241). possess a valid U.S. visa and seek ad- (3) Midway Island—Executive Order mission to the Trust Territory for a pe- 11048 of September 4, 1962 (27 FR 8851; 3 riod of 30 days or less for the purpose of CFR, 1962 Supp., p. 241). tourism) information on the applicants (4) Sand Island—Executive Order 6935 for its consideration and comment, of December 29, 1934 as amended by Ex- granting thereby the Department of ecutive Order 11048 of September 4, 1962 the Navy the right to object to the (27 FR 8851; 3 CFR, 1962 Supp., p. 241). issuance of an authorization. (c) Trust Territory of the Pacific Is- (3) Ships and aircraft: (i) The entry of lands. The Trust Territory of the Pa- ships and aircraft, other than U.S. pub- cific Islands is a strategic area admin- lic ships and aircraft, documented istered by the United States under the under either the laws of the United provisions of a trusteeship agreement States or the laws of the Trust Terri- with the United Nations. Under Execu- tory into areas of the Trust Territory, tive Order 11021 of May 7, 1962 (27 FR excepting those areas where entry is 4409; 3 CFR, 1959–1963 Comp., p. 600), the controlled by the Department of the Secretary of the Interior is charged Army (Kwajalein Atoll) and the De- with responsibility for administration fense Nuclear Agency (Eniwetok Atoll), of the civil government of the Trust shall be controlled solely by the High Territory of the Pacific Islands. Under Commissioner. July 1, 1963 amendment two agree- (ii) Applications for entry into the ments effective July 1, 1951 and July 1, Trust Territory, except for those areas 1962 between the Department of the under military control, of ships and Navy and the Department of the Inte- aircraft not documented under the laws rior concerning responsibility for ad- of the United States or the laws of the ministration of the Government of the Trust Territory, shall be made to the Trust Territory, the entry of individ- High Commissioner for processing in uals, ships and aircraft into the Trust accordance with the laws and regula- Territory (other than areas under the tions of the Trust Territory: Provided, control of the Department of the Army That prior to the issuance of an au- (Kwajalein Atoll) and of the Defense thorization to enter the Trust Terri- Nuclear Agency (Eniwetok Atoll) see tory, the High Commissioner shall pro- § 761.4) is controlled by the High Com- vide the Department of the Navy in all missioner of the Trust Territory and cases with information on the appli- the Department of the Navy as follows: cants for its consideration and com- (1) Entry of U.S. citizens and nation- ment, granting thereby the right of the als and citizens of the Trust Territory, Department of the Navy to object to into areas of the Trust Territory other the issuance of an authorization. than those areas under control of the (d) [Reserved] Department of the Army and the De- (e) Exercise of authority. The author- fense Nuclear Agency as outlined ity of the Secretary of the Navy to con- above, shall be controlled by the High trol entry of ships, planes, and persons Commissioner. into the areas listed is exercised (2) All other persons: Applications for through the Chief of Naval Operations entry into the Trust Territory except and certain of his subordinates as pre- for those areas under control of the De- scribed in this part. partment of the Army or of the Defense (f) Penalties. Penalties are provided Nuclear Agency, of all persons who are by law: (1) For violations of orders or not U.S. citizens, U.S. nationals, or regulations governing persons or ships who are not citizens of the Trust Terri- within the limits of defensive sea areas
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(62 Stat. 799; 18 U.S.C. 2152); (2) for en- entry into the following Naval Defen- tering military, naval or Coast Guard sive Sea Areas and Naval Airspace Res- property for prohibited purposes or ervations and Administrative Areas after removal or exclusion therefrom have been suspended subject to rein- by proper authority (62 Stat. 765; 18 statement without notice at any time U.S.C. 1382); (3) for violation of regula- when the purposes of national defense tions imposed for the protection or se- may require. curity of military or naval aircraft, (1) All Naval Airspace Reservations, airports, air facilities, vessels, harbors, except the Guantanamo Bay Naval Air- ports, piers, waterfront facilities, space Reservation bases, forts, posts, laboratories, sta- (2) Honolulu Defensive Sea Area. tions, vehicles, equipment, explosives, (3) Kiska Island Naval Defensive Sea or other property or places subject to Area. the jurisdiction, administration, or in (4) Kodiak Island Naval Defensive the custody of the Department of De- Sea Area. fense, any department or agency of (5) Unalaska Island Naval Defensive which said department or agency con- Sea Area. sists, or any officer of employee of said (6) Wake Island Naval Defensive Sea department or agency (sec. 21 of the In- Area except for entry of foreign flag ternal Security Act of 1950 (50 U.S.C. ships and foreign nationals. 797) and Department of Defense Direc- (7) The portion of Kaneohe Defensive tive 5200.8 of 20 August 1954 (19 FR Sea Area lying beyond a 500 yard buffer 5446)); and (4) for knowingly and will- zone around the perimeter of the fully making a false or misleading Kaneohe Marine Corps Air Station statement or representation in any (Mokapu Peninsula) and eastward matter within the jurisdiction of any therefrom to Kapoho Point, Oahu. department or agency of the United (e) Suspension of restrictions on States (18 U.S.C. 1001). entry into a naval airspace reservation, naval defensive sea area, or naval ad- [28 FR 13778, Dec. 18, 1963, as amended at 35 ministrative area, does not affect the FR 10008, June 18, 1970; 36 FR 21889, Nov. 17, 1971; 41 FR 28957, July 14, 1976] authority of a commanding officer or other appropriate commander to con- § 761.4 Special provisions. trol entry into or passage through any base, station, or other installation or (a) Entry into islands in the Kwaja- area, including port or harbor facilities lein Atoll under military jurisdiction under Navy control. is controlled by the Department of the Army. Inquiries concerning entries [41 FR 28957, July 14, 1976] into islands under military control in the Kwajalein Atoll should be directed § 761.5 Definitions. to: National Range Commander, U.S. (a) Defense area. A naval defensive Army Safeguard System Command, sea area, naval airspace reservation, or ATTN: SSC–R, P.O. Box 1500, Hunts- naval administrative area established ville, AL 35807. by Executive order of the President. (b) Entry into Eniwetok Atoll is con- (b) Department of Defense. The De- trolled by the Defense Nuclear Agency. partment of Defense, including the De- Inquiries concerning entries into Eni- partments of the Army, Navy, and Air wetok Atoll should be directed to: Force. Commander, Field Command, Defense (c) Entry authorization. A document Nuclear Agency, Kirtland Air Force which authorizes a ship, aircraft, or Base, NM 87115. person to enter a defense area. (c) Entry into Johnston Atoll is con- (d) Entry Control Commander. A com- trolled by the Defense Nuclear Agency. mander empowered to issue entry au- Inquiries concerning entries into John- thorizations for one or more defense ston Atoll should be directed to: Com- areas (see § 761.9). mander, Johnston Atoll (FCDNA), APO (e) Excluded person. A person who San Francisco, CA 96305. does not hold a currently valid entry (d) Suspension of restrictions. Restric- authorization for the area concerned tions imposed under the authority of and who has been notified by an Entry the above cited Executive Orders on Control Commander that authority for
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him to enter any defense area has been Subpart B—Criteria and Basic denied, suspended or revoked. Controls (f) Foreign nationals. Persons who are not citizens or nationals of the United § 761.6 Criteria. States. (a) General. (1) Entry authorizations (g) Military installation. A military may be issued only after an Entry Con- (Army, Navy, Air Force, Marine Corps, trol Commander, or a duly authorized and/or Coast Guard) activity ashore, subordinate acting in his behalf, has having a commanding officer, and lo- determined that the presence of the cated in an area having fixed bound- person, ship, or aircraft will not, under aries, within which all persons are sub- existing or reasonably foreseeable fu- ject to military control and to the im- ture conditions, endanger, place an mediate authority of a commanding of- undue burden upon, or otherwise jeop- ficer. ardize the efficiency, capability, or ef- (h) Public vessel or aircraft. A ship or fectiveness of any military installation aircraft owned by or belonging to a located within or contiguous to a de- government and not engaged in com- fense area. Factors to be considered mercial activity. shall include, but not be limited to, the (i) Territorial sea—(1) Trust Territory. true purpose of the entry, the personal In accordance with title 19, section history, character and present or past 101(3), of the Trust Territory Code associates of the individuals involved, ‘‘* * * that part of the sea com- the possible burdens or threats to the prehended within the envelope of all defense facilities which the presence of arcs of circles having a radius of three the ship, aircraft or the individual or marine miles drawn from all points of individuals involved impose or might the barrier reef, fringing reef, or other reasonably be expected to impose on reef system of the Trust Territory, the related base complex. measured from the low water line, or, (2) Requests for entry authorizations in the absence of such reef system, the will be evaluated and adjudged as to distance to be measured from the low whether the entry at the time and for water line of any island, islet, atoll, the purpose stated will or will not be reef, or rocks within the jurisdiction of inimical to the purposes of national de- the Trust Territory.’’ fense. (2) Other areas. That part of the sea (b) Adverse. Substantial evidence of included within the envelope of all arcs any of the following shall preclude the of circles having a radius of three ma- granting of entry authorization except rine miles with centers on the low with the specific approval of the Chief water line of the coast. For the purpose of Naval Operations in each case: of this definition, the term ‘‘coast’’ in- (1) Prior noncompliance with entry cludes the coasts of islands, islets, control regulations or failure to ob- rocks, atolls, reefs and other areas of serve terms under which any entry au- land permanently above the high water thorization may have been granted; 1 mark. (2) Willfully furnishing false, incom- (j) Trust Territory Registry. Registra- plete, or misleading information in an tion of a ship or aircraft in accordance application for an entry authorization;1 with the laws of the Trust Territory. (3) Advocacy of the overthrow or al- (k) U.S. Registry. Registration of a teration of the Government of the ship or aircraft in accordance with the United States by unconstitutional laws and regulations of the United means; States. (4) Commission of, or attempt or (l) U.S. Armed Forces. Military per- preparation to commit, an act of espio- sonnel of the Department of Defense, nage, sabotage, sedition, or treason, or the Departments of the Army, Navy, conspiring with or aiding or abetting Air Force, and the United States Coast another to commit such an act; Guard. [28 FR 13778, Dec. 18, 1963, as amended at 35 1 The criteria so marked are applicable FR 10009, June 18, 1970; 41 FR 28958, July 14, only to those applications concerning entry 1976] into areas under military cognizance.
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(5) Performing, or attempting to per- (13) Conviction of larceny of property form, duties, or otherwise acting so as of the United States, willful injury to to serve the interest of another govern- or destruction of property of the ment to the detriment of the United United States, fraudulent enlistment, States; impersonation of a commissioned offi- (6) Deliberate unauthorized disclo- cer of the United States or any state or sure of classified defense information; territory thereof, or any offense involv- (7) Knowing membership with the ing moral turpitude, except offenses, specific intent of furthering the aims which, in the jurisdiction within which of, or adherence to and active partici- the conviction was obtained, are pun- pation in, any foreign or domestic or- ishable by imprisonment for not more ganization, association, movement, than one year or a fine of not more group, or combination of persons (here- than one thousand dollars. 1 inafter referred to as organizations) which unlawfully advocates or prac- (c) Aliens. (1) Entry of aliens for em- tices the commission of acts of force or ployment or residence in an area en- violence to prevent others from exer- tirely within the borders of a defense cising their rights under the Constitu- area is not authorized except when tion or laws of the United States or of such entry would serve the interests of any State, or which seeks to overthrow National Defense, and then only for the Government of the United States specified periods and under prescribed or any State or subdivision thereof by conditions. unlawful means; (2) Entry of aliens for any purpose (8) Serious mental irresponsibility into areas over which the United evidenced by having been adjudged in- States exercises sovereignty is further sane, or mentally irresponsible, or an subject to requirements imposed by incompetent, or a chronic alcoholic, or law for the obtaining of a United treated for serious mental or neuro- States visa. Naval authorization for logical disorders or for chronic alco- entry into areas covered by this part holism, without evidence of cure;1 will not be issued to foreign nationals (9) Conviction of any of the following for purposes, places, or periods of time offenses under circumstances indic- in excess of those stipulated in the ative of a criminal tendency poten- visa. tially dangerous to the security of a (3) Alien spouses and bona fide de- strategic area containing military es- pendents of U.S. citizen employees of tablishments; arson, unlawful traf- the United States may, if otherwise ficking in drugs, murder, kidnaping, blackmail, or sex offenses involving qualified, be granted entry authoriza- minors or perversion. tion so long as the U.S. citizen sponsor (10) Chronic alcoholism or addiction or principal remains on duty or resi- to the use of narcotic drugs without dent within the defense area. adequate evidence of rehabilitation; 1 (d) Renewals. Entry authorizations (11) Illegal presence in the United having been granted and utilized may States, its territories or possessions, be extended or renewed upon request at having been finally subject to deporta- the expiration of the period for which tion order, or voluntary departure in the entry was originally authorized or lieu of deportation order, by the United extended, provided the justification for States Immigration and Naturalization remaining in the area or for making a Service; 1 reentry meets the criteria set forth in (12) Being the subject of proceedings this part. It shall be the responsibility for deportation or voluntary departure of every applicant to depart the defense in lieu of deportation for any reasons area for which entry was authorized which have not been determined in the upon expiration of the time prescribed applicant’s favor; 1 in the authorization, unless such au- thorization has been extended or re- 1 The criteria so marked are applicable newed. Failure to comply herewith will only to those applications concerning entry be considered as evidence of violation into areas under military cognizance.
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of this part and may result in denial of quest disposition instructions from the future authorizations. appropriate Entry Control Commander. [28 FR 13778, Dec. 18, 1963, as amended at 36 (d) Trust Territory. An authorization FR 21890, Nov. 17, 1971; 41 FR 28958, July 14, from the High Commissioner is re- 1976] quired for all persons desiring to enter the Trust Territory, except for those § 761.7 Basic controls. areas under military jurisdiction where (a) General. Except for such persons, entry is controlled by the Department ship, or aircraft as are issued an au- of the Army (Kwajalein Atoll) and the thorization to enter by an Entry Con- Defense Nuclear Agency (Eniwetok trol Commander: Atoll). (1) No person, except persons aboard (e) Military areas. Entries authorized public vessels or aircraft of the United under this Instruction do not affect the States, shall enter any defense area. authority of a commanding officer or (2) No vessel or other craft, except other appropriate commander to im- public vessels of the United States pose and enforce proper regulations shall enter any naval defensive sea pertaining to movement into or within area or other defense area. naval stations or other military instal- (3) No aircraft, except public aircraft lations. of the United States, shall be navigated (f) Waiver prohibited. No officer of the within any naval airspace reservation U.S. Armed Forces, except as author- of the airspace over other defense ized in writing by the Chief of Naval areas. Operations, has authority to waive the (b) Excluded persons—(1) Entry prohib- requirements of this part, and any ited. Excluded persons, as defined in waiver must be in writing and signed § 761.5(e), are prohibited from entering by an authorized person. any defense area. In a bona fide emer- gency which requires an excluded per- [28 FR 13778, Dec. 18, 1963, as amended at 36 FR 21890, Nov. 17, 1971; 41 FR 28958, July 14, son’s presence in or transit through a 1976] military installation which is also a defense area, the commanding officer of the installation may grant permis- Subpart C—Entry Authorization sion to enter or transit subject to such § 761.8 General. restrictions as may be imposed by reg- ulation or which may, in his discretion, (a) As indicated in § 761.7(a), certain be required. persons, ships, and aircraft must be (2) Carrying prohibited. Except in a specifically authorized under the provi- bona fide emergency and after being sions of this part to enter defense authorized by the appropriate local au- areas. thority, no vessel or aircraft, except (b) When entering or transiting a de- public vessels and aircraft of the fense area each person, ship, or aircraft United States, shall enter into or be must have a valid authorization or sat- navigated within any defense area isfactory evidence thereof. while carrying any excluded person, as defined in this part, as passenger, offi- § 761.9 Entry Control Commanders. cer or crew member. The following commanders are des- (c) Control of violators. No com- ignated Entry Control Commanders manding officer of a military installa- with authority to approve or dis- tion shall permit any ship or aircraft approve individual entry authoriza- which has entered the limits of his tions for persons, ships, or aircraft as command by passing through a defense indicated (Commander Seventeenth area without authorization to land, ex- Coast Guard District has been des- cept in emergency, or, if permitted to ignated an Entry Control Commander land, to disembark passengers or cargo by the authority of the Commandant, except as authorized by the appropriate U.S. Coast Guard and Commander, Entry Control Commander. Com- Western Area, U.S. Coast Guard); manding officers will take appropriate (a) Chief of Naval Operations. Author- action to apprehend violators who ization for all persons, ships, or air- come within their jurisdiction and re- craft to enter all defense areas.
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(b) Commander in Chief, U.S. Atlantic Naval District, as representative of the Fleet. Authorization for all persons, Secretary of the Navy, retains respon- ships, or aircraft to enter defense areas sibility for security of the Honolulu in the Atlantic. Defensive Sea Area, as required by (c) Commander in Chief, U.S. Pacific naval interest, and, as such, issues am- Fleet. Authorization for all persons, plifying instructions relating to the ships, or aircraft to enter defense areas Honolulu Defensive Sea Area. in the Pacific. [41 FR 28958, July 14, 1976] (d) Commander U.S. Naval Forces Car- ibbean. Authorization for all persons, § 761.10 Persons: Group authoriza- ships, and aircraft to enter the Guanta- tions. namo Bay Naval Defensive Sea Area Persons in the following categories, and the Guantanamo Naval Airspace except those persons who have been de- Reservation. (This authority delegated nied individual authorization or have to Commander U.S. Naval Base, Guan- had a prior authorization revoked, may tanamo Bay.) enter the defense areas indicated with- (e) Commander U.S. Naval Base, Guan- out individual authorization: tanamo Bay. Authorization for all per- (a) Persons aboard U.S. public vessels sons, ships, and aircraft to enter the or aircraft entering a Naval Defensive Guantanamo Bay Naval Defensive Sea Sea Area or a Naval Airspace Reserva- Area and the Guantanamo Naval Air- tion. space Reservation. (b) Military members of the U.S. (f) Commander Third Fleet. Authoriza- Armed Forces or U.S. civil service em- tion for U.S. citizens and U.S. reg- ployees of the Department of Defense istered private vessels to enter Midway when traveling on official orders. Island, Kingman Reef, Kaneohe Bay (c) U.S. ambassadors, cabinet mem- Naval Defensive Sea Area, Pearl Har- bers, elected U.S. Government officers bor Defensive Sea Area and Filipino and U.S. citizen civil service employees workers employed by U.S. contractors of the U.S. Government traveling on to enter Wake Island. official orders on U.S. Government (g) Commander U.S. Naval Forces, Mar- business may enter defense areas as re- ianas. Authorization in conjunction quired by their orders. with the High Commissioner, for non- (d) Dependents of military members U.S. citizens, ships, or aircraft docu- of the U.S. Armed Forces and U.S. cit- mented under laws other than those of izen dependents of U.S. civil service the United States or the Trust Terri- employees traveling on official orders tory to enter those portions of the and entering for purposes of joining a Trust Territory where entry is not con- principal permanently stationed in an trolled by the Department of the Army area covered by this part. or the Defense Nuclear Agency. (e) U.S. Navy Technicians, U.S. Army (h) Senior naval commander in defense Contract Technicians, or U.S. Air area. Emergency authorization for per- Force Contract Technicians, who are sons, ships, or aircraft in cases of emer- traveling on official (does not include gency or distress. In all cases the Chief invitational) travel orders on U.S. Gov- of Naval Operations, and as appro- ernment business, may enter defense priate, the Commander in Chief, U.S. areas as specifically required by such Atlantic Fleet or the Commander in orders. Chief, U.S. Pacific Fleet, and other in- (f) [Reserved] terested commands, shall be informed (g) Individuals on board any foreign immediately of the nature of the emer- public vessel or aircraft which has been gency, and action taken. granted diplomatic or other official (i) U.S. Coast Guard. The U.S. Coast U.S. Government authorization to Guard regulates the movement of ship- enter an area covered by this part. ping within the Honolulu Harbor under (h) Through passengers and bona fide the authority of Executive Orders 10173 regularly employed crew members, un- and 10289; such shipping is considered less otherwise excluded, on nonpublic to be under U.S. authorized supervision vessels authorized to enter areas cov- within the meaning of Executive Order ered by this part. This does not include 8987. The Commandant, Fourteenth an authorization to disembark at a
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port contiguous to or within the areas activity has information regarding the covered in this part. Application for applicant or his employer, appropriate authorization to disembark may be comment and/or recommendation for submitted to an Entry Control Com- disposition will be included in the for- mander having jurisdiction over the warding letter. particular port. (b) Form. (1) Applications for entry (i) Through passengers and bona fide authorizations will be made on the regularly employed crew members, un- standard form Statement of Personal less otherwise excluded, on nonpublic History, DD 398, which is available at aircraft authorized to enter areas cov- most military installations. In addi- ered by this part. Such persons are sub- tion to the information required by the ject to local regulations governing form, an entry application shall in- entry into or movement within mili- clude the following additional informa- tary air stations or facilities. Applica- tion under Item 20, ‘‘Remarks’’: tion for authorization to disembark may be submitted to an Entry Control 21. Purpose of proposed visit: (Detailed statement including names of principal per- Commander having jurisdiction over sons, firms, or establishments to be visited) the air facility. 22. Proposed duration of visit: (j) U.S. citizen news correspondents 23. Estimated date of arrival: and photographers when properly ac- 24. Address to which authorization should credited by the Department of Defense be mailed: to enter areas covered by this part ex- cept that special authorization is re- In the event that a DD 398 form is not quired to enter the restricted areas available, a locally produced form con- listed in § 761.4(a). taining identical information including the certification and signature of ap- [28 FR 13778, Dec. 18, 1963, as amended at 36 plicant and witness may be utilized. FR 21890, Nov. 17, 1971] (2) Incomplete forms will be returned § 761.11 Persons: Individual authoriza- for completion. tions. (3) When time is of the essence, emer- gency applications may be forwarded (a) Application; filing. Applications for authorization to enter defense areas by message to the appropriate Entry shall be filed with one of the following: Control Commander. Such messages (1) Chief of Naval Operations. shall include the following: (2) Commander in Chief, U.S. Atlan- (i) Name of applicant. tic Fleet. (ii) Date and place of birth. (3) Commander in Chief, U.S. Pacific (iii) Citizenship. Fleet. (iv) Residence for last ten (10) years. (4) Any Naval Sea Frontier Com- (v) Employers and their addresses for mander. last ten (10) years. (5) Any Naval Fleet or Force Com- (vi) Results of Local Agency Check, if mander. pertinent. (6) Any Naval District Commandant. (vii) Place to be entered and date of (7) Any Naval Attache. The Com- entry. mander or Attache with whom the ap- (viii) Purpose of entry and duration plication is filed is responsible for tak- of stay. ing such action on the application as (ix) Comments and/or recommenda- he may be empowered to do or for for- tions of forwarding officer as appro- warding the application to the nearest priate. Entry Control Commander authorized (x) A statement that a completed DD by this part to take action thereon. 398 or appropriate substitute has been Applications received in the United mailed prior to the sending of the mes- States and those received indicating sage. that the applicant has resided in the (c) Processing. The Entry Control United States for the major portion of Commander empowered to issue entry ten years immediately prior to date of authorizations shall upon receipt of an request will normally be forwarded to application take the following action: the Chief of Naval Operations for ac- (1) Initiate or conduct such investiga- tion. In all cases where the forwarding tion as may be required to establish
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facts upon which to make a determina- ances, to enter defense areas as author- tion that the entry of the applicant at ized by controlling Defense Depart- the time and for the purpose indicated ment agency. is or is not in accordance with the cri- (c) [Reserved] teria set forth in § 761.6. (d) Privately owned local craft, reg- (2) Request additional information istered with and licensed by appro- from the applicant if required, or priate local U.S. Government authori- (3) Issue an entry authorization as re- ties, and owned and operated by local quested or modified as circumstances inhabitants who have been granted an require, or authorization to enter the local defense (4) Deny the request and advise the area at the discretion of the local com- applicant of his right to appeal, or, manders. (5) Forward the application to the (e) Foreign flag ships traveling on next superior in command together diplomatic or other special clearance with a statement of the investigation or for which special arrangements have conducted and the reason for for- been made under international agree- warding and comments or rec- ments or treaties. ommendations as appropriate. (f) Ships operating under a group au- (d) Authorizations. Entry authoriza- thorization issued by the Chief of tions will state the purpose for which Naval Operations. the entry is authorized and such other (g) Ships in distress, subject to local information and conditions as are per- clearances and control by senior officer tinent to the particular authorization. present. Authorizations to enter and re-enter may be issued to resident U.S. citizens [28 FR 13778, Dec. 18, 1963, as amended at 36 and be valid for a specified time not to FR 21890, Nov. 17, 1971] exceed two years. Authorizations may § 761.13 Ships: Individual authoriza- be issued to U.S. citizens residing tions. abroad and to aliens to enter and re- (a) Applications; form; filing. Applica- enter for a specified period of time re- tions for authorization to navigate quired to accomplish the purpose for ships within the limits of defense areas which the authorization was issued not shall be filed with the cognizant Entry to exceed one year. Control Commander by letter or tele- [28 FR 13778, Dec. 18, 1963, as amended at 41 gram including the following informa- FR 28958, July 14, 1976] tion and any additional information that may be relative to the proposed § 761.12 Ships: Group authorizations. operation: Ships or other craft in the following (1) Name of ship. categories, except those ships which (2) Place of registry and registry have been denied individual authoriza- number. tion or have had a prior authorization (3) Name, nationality and address of revoked, may enter the defense areas operator. indicated without individual authoriza- (4) Name, nationality and address of tions: owner. (a) U.S. Public vessels, to enter all (5) Gross tonnage of ship. defense areas. (6) Nationality and numbers of offi- (b) U.S. private vessels which are: (1) cers and crew (include crewlist when Under charter to the Department of practicable). Defense (including the Military Sealift (7) Number of passengers (include list Command), or (2) operating under a when practicable). contract or charter with the Depart- (8) Last port of call prior to entry ment of Defense providing for the em- into area for which clearance is re- ployment of such vessels, or (3) routed quested. by a Naval Control of Shipping Office, (9) Purpose of visit. or (4) employed exclusively in support (10) Proposed date of entry and esti- of and in connection with a Depart- mated duration of stay. ment of Defense construction, mainte- (b) Processing. Authorization for sin- nance, or repair contract and whose gle entries or for multiple entries for a crews carry individual entry clear- period not to exceed one year may be
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granted or denied by an Entry Control (2) If landing at U.S. Air Force avia- Commander. Authorizations for mul- tion facilities, a Civil Aircraft Landing tiple entries for a period to exceed one Permit must be obtained, in accord- year or for special group entries must ance with Department of the Airforce be forwarded to the Chief of Naval Op- Regulation 55–20, Use of United States erations with appropriate comments Air Force installations by other than and recommendations. United States Department of Defense aircraft. § 761.14 Aircraft: Group authoriza- (3) Foreign public aircraft must ob- tions. tain diplomatic clearance or clearance Aircraft in the following categories, under applicable special agreements or except those aircraft which have been treaties. denied individual authorization or have (b) Application; Form; Filing. Applica- had a prior authorization revoked, may tions for authorization to navigate air- enter the defense areas indicated with- craft within the limits of defense areas out individual authorization: shall be made by letter or telegram ad- (a) U.S. public aircraft to enter all dressed to the appropriate entry con- defense areas. trol commander as indicated in § 761.9 (b) U.S. private aircraft which are with information copies to the Chief of under charter to the Department of De- Naval Operations, Commander in Chief, fense (including the Military Airlift U.S. Atlantic (or Pacific) Fleet, as ap- Command), or operating under a con- propriate, and other local commanders tract with the Department of Defense who are known to be concerned. Appli- providing for the employment of such cations shall include the following: aircraft to overfly U.S. island positions (1) Type and serial number of aircraft to enter defense areas as authorized by (the number of aircraft in flight if a controlling Defense Department agen- mass movement is involved), nation- cy. If landing at U.S. military facilities ality and name of registered owner. is required, see § 761.15(a). (2) Name and rank of senior pilot. (c) Foreign flag aircraft for which *(3) Number in crew. special arrangements have been made *(4) Number of passengers and wheth- under international agreements or er military or civilian; include name treaties. (and rank) of distinguished passengers. (d) Aircraft operated by companies (5) Purpose of flight. authorized to utilize naval facilities in (6) Plan of flight route, including: defense areas for regular commercial (i) Point of origin of flight and its activity, to enter defense areas associ- destination. ated therewith. For landing clearance (ii) Estimated date and times of ar- at U.S. military facilities, see rival and departure at all airspaces § 761.15(a). covered by this part 761 including stops (e) Any aircraft in distress, subject to within the Trust Territory, when perti- local clearance and control by senior nent. officer present. (7) Radio call signs of aircraft and radio frequencies available. [41 FR 28958, July 14, 1976] (8) Whether cameras are to be carried and whether they will be used. § 761.15 Aircraft: Individual authoriza- tions. *(9) Whether arms are to be carried. *(10) Whether authorization to land (a) Special procedures. In addition to as indicated in § 761.15(a) has been ob- the entry authorization to enter or tained. navigate within the defense area con- NOTE: Information on those items marked cerned, certain special procedures must with an asterisk (*) need not be reported be followed by aircraft: when the aircraft will only overfly the areas (1) If landing at U.S. naval aviation covered by this part. facilities, an Aviation Facility License (c) Processing. Authorization for indi- must be obtained, in accordance with vidual entries or for multiple entries Secretary of the Navy Instruction for a period not to exceed three months 3770.1B, Use of Department of the Navy may be granted by an Entry Control aviation facilities by other than United States Department of Defense aircraft. *See ‘‘Note’’ to this paragraph.
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Commander. Authorizations for mul- (b) Appeal letters shall be forwarded tiple entries over a period to exceed promptly to the next superior Entry three months and applications for Control Commander with an endorse- group authorizations must be for- ment setting forth the reasons for the warded to the Chief of Naval Oper- denial or revocation and a rec- ations with appropriate comments and ommendation as to the action to be recommendations. taken by the superior. (c) The superior may act on the ap- [41 FR 28958, July 14, 1976] peal and notify the applicant of the de- cision, or he may forward the appeal to § 761.16 Notice of action. the next superior and notify the appli- All applicants will be kept advised of cant of this referral. action being taken relative to the proc- essing of applications. Individuals [28 FR 13778, Dec. 18, 1963, as amended at 41 FR 28959, July 14, 1976] whose applications cannot be processed promptly (usually within ten working § 761.19 Forms. days) or whose applications must be forwarded to another office for proc- The following forms shall be used in essing will be notified of the antici- connection with the processing of ap- plications for authorization to enter pated delay and advised of the approxi- defense areas and for revocation of au- mate time when action may be ex- thorizations as indicated: pected to be taken. Under no cir- (a) Application. Statement of Per- cumstances will a notice of disapproval sonal History (Form DD 398, Stock include a statement of the reason Number 0102–004–220) may be obtained therefor. Copies of all notices will be from NAVPUBFORMCEN, Building 26, distributed to commands and Entry 5801 Tabor Ave., Philadelphia, PA 19120. Control Commanders concerned. Copies (b) Entry authorization. (1) Defense of all notices of disapproval will be Area Entry Authorization mailed to the Chief of Naval Oper- (OPNAVForm 4600–2 (Rev. 5–59) may be ations concurrently with the mailing obtained from Office of the Chief of to the applicant. Naval Operations (OP–09B33), Navy De- partment, Washington, DC 20350. § 761.17 Revocation. (2) Letter or message authorization. Entry authorizations will be revoked (c) Disapproval of request for entry au- only by an Entry Control Commander thorization. upon being advised of the discovery of llllll information which would have been MY DEAR : Your application of lll has been reviewed and we regret to ad- ground for denial of the initial request. vise you that the requested authorization for Such a revocation will be confirmed in llllllll to enter llllllll is writing to the holder of an entry au- not granted as the entry at this time for the thorization. No reason for revocation purpose stated is not considered to be in the of the entry authorization will be interest of national defense. given. When an entry authorization is The application may be resubmitted again revoked, a one-way permit will be in six months at which time it will be recon- sidered in the light of then existing cir- issued as appropriate, to permit the cumstances. ship, aircraft, or person to transit the If you desire to appeal this decision, you defense area in order to depart from a may do so by submitting a letter to this of- contiguous area. fice setting forth in full why you consider that the granting of the application would be § 761.18 Appeals. in the interest of national defense and any other information that you believe will be of (a) Appeals may be filed with the value of this person considering the appeal. Entry Control Commander who issued Your letter will be forwarded to the appro- the denial or revocation. It shall con- priate authority for review and you will be tain a complete statement of the pur- advised in due course of his determination. pose of the proposed entry and a state- Sincerely yours, ment of reasons why the entry should be authorized, including a showing that (d) Revocation of entry authorization. the entry will be consistent with the MY DEAR llllll: This is to notify you purposes of national defense. that entry authorization to enter
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llllllll granted by (issuing activity) regulations prescribed in Executive on llll is hereby revoked effective this Order 9275. date. (4) Any person violating section 1 of Sincerely yours, Executive Order 9275 (restated in para- [41 FR 28959, July 14, 1976] graph (a)(1) of this section) shall be lia- ble to prosecution as provided in sec- tion 44 of the Criminal Code as amend- Subpart D—Additional Instructions ed and reenacted in 18 U.S.C. 2152. § 761.20 Additional regulations gov- (b) The regulations stated in para- erning persons and vessels in Naval graph (a) of this section are not a limi- Defensive Sea Areas. tation on prosecution under any other (a) By virtue of the authority vested statute that may have been violated by in the President by section 44 of the acts or omissions prohibited by Execu- United States Criminal Code, as tive Order 9275. amended and reenacted in 18 U.S.C. 2152, the President has prescribed the PART 762—MIDWAY ISLANDS following additional regulations in Ex- CODE ecutive Order 9275 of November 23, 1942 (7 FR 9767; 1943 Cum. Supp. p. 1227) to Subpart A—General govern persons and vessels within the limits of defensive sea areas thereto- Sec. 762.1 Applicability. fore or thereafter established. 762.3 Purpose. (1) No person shall have in his posses- 762.4 Scope. sion within the limits of any defensive sea area, any camera or other device Subpart B—Executive Authority; Authorized for taking pictures, or any film, plate Powers; Emergency Authority or other device upon or out of which a photographic imprint, negative or posi- 762.6 Executive authority; duration. 762.8 Authorized functions, powers, and du- tive, can be made, except in the per- ties. formance of official duty or employ- 762.10 Emergency authority. ment in connection with the national defense, or when authorized pursuant Subpart C—Criminal Law; Petty Offenses; to the provisions of the Act approved Penalties June 25, 1942 (Pub. L. 627, 77th Con- 762.15 General. gress), as amended (50 U.S.C. App. 781– 762.16 Adoption of certain criminal provi- 785), and the regulations promulgated sions of the Hawaii Revised Statutes. thereunder (7 FR 7307; 32 CFR 765.19(b)). 762.17 Conflicts of laws. (2) It shall be the duty of the master 762.18 Time limitations. or officer in charge of any vessel to 762.19 Petty offenses; general. take custody of and safeguard all cam- 762.20 Breach of the peace offenses. eras or other devices for taking pic- 762.22 Offenses against property. 762.24 Moral offenses. tures, or film, plate or other device 762.26 Alcoholic beverages offenses. upon or out of which a photographic 762.28 Vehicle offenses. imprint, positive or negative, can be 762.30 Weapons offenses. made, the possession of which is pro- 762.32 Offenses against the environment. hibited by Executive Order 9275, from 762.34 Miscellaneous offenses. any person, prior to the time any ves- 762.35 Attempt. sel enters any defensive sea area or 762.40 Penalties for petty offenses. 762.42 Penalties for motor vehicle viola- upon the boarding by any person of any tions. vessel while within a defensive sea 762.44 Contempt. area, and to retain custody thereof until such vessel is outside the defen- Subpart D—Midway Islands Court; Rules of sive sea area or the person is about to Criminal Procedure disembark. (3) There shall be prominently dis- 762.50 Establishment; members; sessions. 762.52 Attorney for the United States. played on board all vessels, except pub- 762.54 Criminal jurisdiction. lic war vessels of the United States 762.55 Venue. manned by personnel in the naval serv- 762.56 Rules of criminal procedure. ice, a printed notice containing the 762.58 Release prior to trial and bail.
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762.62 Information. States, and those laws made applicable 762.64 Motions and pleas. under the special maritime jurisdiction 762.66 Trial. 762.68 Sentence. contained in the Act of June 15, 1950 762.70 Subpoenas. (ch. 253, 64 Stat. 217). 762.72 Appeals. (b) For the purposes of this part, the 762.74 New trial. Midway Islands include all public lands on, and all territorial waters and the Subpart E—Warrants; Arrests; Special contiguous zone adjacent to or sur- Procedures rounding, the Midway Islands, Hawai- 762.80 Warrants. ian Group, between the parallels of 762.82 Arrests. 28°5′ and 28°25′ North Latitude, and be- 762.84 Citation in place of arrest. tween the meridians of 177°10′ and 762.86 Abatement of nuisance. 177°30′ West Longitude, as were placed Subpart F—Registration and Permit under the jurisdiction and control of Regulations the Navy Department by the provisions of Executive Order No. 199–A of Janu- 762.90 Registration of certain property. 762.92 Permits. ary 20, 1903, as superseded by Executive 762.94 Expiration of permits. Order No. 11048 of September 5, 1962. 762.96 Revocation or suspension of permits. § 762.3 Purpose. Subpart G—Civil Small Claims Law The purpose of this part 762 is to pro- 762.100 Applicable law and jurisdiction over vide: small claims. (a) For the civil administration of 762.102 Small claims procedure; complaint the Midway Islands; and service. 762.104 Time limitations. (b) For vesting powers and duties in 762.106 Costs and fees; waiver. appropriate officers of the United 762.108 Set-off or counterclaim; pleading; States for the civil administration of retention of jurisdiction. the Midway Islands, including judicial 762.109 Jury trial; demand. and executive functions; 762.110 Pre-trial settlement. 762.112 Trial. (c) Certain criminal provisions appli- 762.114 Judgments. cable to the Midway Islands not other- 762.116 Award of costs. wise provided for, and penalties for 762.118 No appeal. their violations; 762.120 Judgment creditors and remedies. 762.126 Parties. (d) A judicial system for the Midway 762.128 Forms and public information. Islands not otherwise provided for; and (e) Certain civil laws for the Midway Subpart H—Savings Clause Islands not otherwise provided for. 762.130 Severability of subparts, sections, paragraphs, or provisions. § 762.4 Scope. AUTHORITY: Sec. 48, Pub. L. 86–624, 74 Stat. (a) This part is applicable to all civil- 424; 3 U.S.C. 301: E.O. 11048, 3 CFR 1959—1963 ian and nonmilitary persons, and to all Comp., p. 632 (1962). military personnel for matters involv- SOURCE: 41 FR 29672, July 19, 1976, unless ing civil administration, civil law, or otherwise noted. criminal offenses not otherwise cov- EDITORIAL NOTE: Nomenclature changes to ered by the Uniform Code of Military part 762 appear at 51 FR 22283, June 19, 1986. Justice, while such persons are on the Midway Islands. Subpart A—General (b) In no event shall the provisions of this part supersede federal law, or the § 762.1 Applicability. Uniform Code of Military Justice, nor (a) The local criminal and civil laws shall the provisions of this part dero- of the Midway Islands consist of this gate the inherent or delegated author- part, the provisions of the laws of the ity, responsibility, and powers of the State of Hawaii adopted pursuant to Officer–in–Charge, U.S. Naval Air Fa- § 762.16(a) and § 762.112(a), applicable cility, Midway Island, under U.S. Navy provisions of the laws of the United Regulations, 1973, the Uniform Code of
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Military Justice, other pertinent Navy (i) Take possession of lost or aban- directives, and federal law. doned property and dispose of it under the provisions of 10 U.S.C. 2575 and ap- [41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986] plicable Navy directives; (j) Delay or restrict the departure of any aircraft for reasonable cause; Subpart B—Executive Authority; (k) Impose quarantines; Authorized Powers; Emer- (l) Impound and destroy unsanitary gency Authority food, fish, or beverages; (m) Evacuate any person from a haz- § 762.6 Executive authority; duration. ardous area; The executive authority at the Mid- (n) Establish and maintain a facility way Islands is vested in the Secretary for the lawful restraint or confinement of the Navy. The Officer–in–Charge, of persons and provide for their care; U.S. Naval Air Facility, Midway Is- (o) Remove any person from the Mid- land, is the agent of the Secretary or way Islands for cause; his disignee in carrying out any func- (p) Issue traffic regulations that are tion, power, or duty under this part 762. not inconsistent with this part, and The Officer–in–Charge’s authority com- post traffic signs; mences upon his assumption of com- (q) Perform any other acts, not in- mand of U.S. Naval Air Facility, Mid- consistent with this part or other ap- way Island, and continues until he is plicable laws or regulations, that he relieved of that command by replace- considers necessary for protecting the ment. In the event of the absence, dis- health and safety of persons and prop- ability, or death of the Officer–in– erty on the Midway Islands: and Charge, the Acting Commanding Offi- (r) Issue any order or notice nec- cer of U.S. Naval Air Facility, Midway essary to implement this section. Island, is vested with the authority [41 FR 29672, July 19, 1976, as amended at 51 prescribed in this part for the Officer– FR 22283, June 19, 1986] in–Charge and shall remain so vested until the return, recovery, or replace- § 762.10 Emergency authority. ment of the Officer–in–Charge. During the imminence and duration [41 FR 29672, July 19, 1976, as amended at 51 of any emergency, the Officer–in– FR 22283, June 19, 1986] Charge may perform any acts nec- essary to protect life and property. § 762.8 Authorized functions, powers, [41 FR 29672, July 19, 1976, as amended at 51 and duties. FR 22283, June 19, 1986] The Officer–in–Charge may, person- ally or through his staff: Subpart C—Criminal Law; Petty (a) Issue citations for violations of Offenses; Penalties subpart C of this part; (b) Abate any public nuisance upon § 762.15 General. the failure of the person concerned to In addition to any act made criminal comply with a removal notice; in this part, any act committed on (c) Make sanitation and fire-preven- Midway Islands which would be a viola- tion inspections; tion of the laws of the United States; (d) Perform marriages, and maintain or of the provisions of title 37, ‘‘Hawaii records of vital statistics, including Revised Statutes,’’ as they now appear birth, marriage, and death certificates; or as they may be amended or recodi- (e) Inspect vehicles, including bicy- fied; or any act committed on the Mid- cles, for roadworthiness, and boats for way Islands that would be criminal if seaworthiness; committed on board a merchant vessel (f) Confiscate property used in com- or other vessel belonging to the United mitting a crime; States, is a criminal offense and shall (g) Investigate accidents and sus- be punished, respectively, according to pected crimes; this part; the laws of the United (h) Move unlawfully parked vehicles, States; title 37, ‘‘Hawaii Revised Stat- boats, or aircraft; utes,’’ as it now appears or as it may be
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amended or recodified; or according to (c) A prosecution is commenced ei- the laws applicable on board United ther when an information is filed, or States vessels on the high seas. [The when an arrest warrant or other proc- Act of June 15, 1950 (ch. 253, 64 Stat. ess is issued, provided that such war- 217).] rant or process is executed without un- reasonable delay. § 762.16 Adoption of certain criminal (d) The period of limitation does not provisions of the Hawaii Revised run: Statutes. (1) During any time when the accused (a) Offenses adopted. Whoever on the is absent from the Midway Islands or Midway Islands is guilty of any act or has no reasonably ascertainable place omission, which, although not made of abode or work within the Midway Is- punishable by an enactment of Con- lands, but in no case shall this provi- gress or under §§ 762.20 through 762.39, sion extend the period of limitation would be punishable if committed otherwise applicable by more than within the State of Hawaii by the laws three years; or thereof at the time of such act or omis- (2) During any time when a prosecu- sion, shall be guilty of a like offense tion against the accused for the same and subject to a like punishment. conduct is pending in the Midway Is- (b) Jurisdiction over such offenses. The lands Court. (e) Except those offenses which are United States District Court for the subject, under title 37 of the ‘‘Hawaii District of Hawaii shall have jurisdic- Revised Statutes,’’ as they now appear tion to try all such offenses except or as they may be amended or recodi- those which are subject, under title 37, fied, to a penalty of imprisonment for ‘‘Hawaii Revised Statutes,’’ as it now six months or less or a fine of not more appears or as it may be amended or re- than $500, or both, offenses charged and codified, to a penalty of imprisonment treated under § 762.16 (a) and (b), shall for six months or less or a fine of not be subject to the appropriate time-lim- more than $500 or both. Those offenses itation rules set forth in section 108, falling within the above-stated excep- title 37, ‘‘Hawaii Revised Statutes,’’ as tion shall be tried in the Midway Is- it now appears or as it may be amended lands Court. or recodified.
§ 762.17 Conflicts of laws. § 762.19 Petty offenses; general. In no event shall the provisions of All offenses contained in §§ 762.20 this part supersede the Uniform Code through 762.39 and those offenses of Military Justice when the latter is adopted under § 762.16(a), as they now applicable. Any adopted provisions of appear or as they may be amended or title 37, ‘‘Hawaii Revised Statutes,’’ as recodified, which are subject, under they now appear or as they may be title 37, ‘‘Hawaii Revised Statutes,’’ to amended or recodified, which duplicate a penalty of imprisonment for six or conflict with any other provisions of months or less or a fine of not more this part shall be of no effect. than $500, or both, shall be termed ‘‘Petty Offenses’’ and subject to the § 762.18 Time limitations. penalties set forth in §§ 762.40 through (a) A prosecution for any petty of- 762.49. fense under this part must be com- menced within two years after it is § 762.20 Breach of the peace offenses. committed. It shall be unlawful for any person, (b) An offense is committed either while on the Midway Islands: when every element occurs, or, if a leg- (a) With intent to cause public incon- islative purpose to prohibit a con- venience, annoyance, or alarm, or reck- tinuing course of conduct plainly ap- lessly creating a risk thereof, to en- pears, at the time when the course of gage in fighting, threatening, or other conduct or the defendant’s complicity violent or tumultuous behavior; or to therein is terminated. Time starts to make unreasonable noise or offensively run on the day after the offense is com- coarse utterances, gestures, or dis- mitted. plays, or address abusive language to
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any person present; or to create a haz- any parent, guardian, or other person ardous or physically offensive condi- having the legal care, custody, or con- tion by any act which is not performed trol of any minor under the age of 18 under any authorized license or permit; years, except a person in the military, (b) Having no legal privilege to do so, to allow or permit such minor to vio- knowingly or recklessly to obstruct late this ordinance. any roadway, alley, runway, private driveway, or public passage, or inter- § 762.22 Offenses against property. fere with or unreasonably delay any It shall be unlawful for any person, emergency vehicle or equipment or au- while on the Midway Islands: thorized vehicle, boat, vessel, or plane, (a) To loiter, prowl, or wander upon or any peace officer, fireman, or other or near the assigned living quarters public official engaged in or attempt- and adjacent property of another with- ing to discharge any lawful duty or of- fice, whether alone or with others. out lawful purpose, or, while being ‘‘Obstruction’’ as used in this para- upon or near the assigned living quar- graph means rendering impassable ters and adjacent property of another, without unreasonable inconvenience or to peek in any door or window of any hazard; inhabited building or structure located (c) When in a gathering, to refuse to thereon without lawful purpose; obey a reasonable request or order by a (b) To enter upon any assigned resi- peace officer, fireman, or other public dential quarter or areas immediately official to move; adjacent thereto, without permission (1) To prevent an obstruction of any of the assigned occupant; public road or passage; (c) Who is a male to enter any area, (2) To maintain public safety by dis- building, or quarter reserved for persing those gathered in dangerous women, except in accordance with es- proximity to a public hazard. An order tablished visiting procedures; to move under this paragraph ad- (d) Who is a female to enter any area, dressed to a person whose speech or building, or quarter reserved for men, other lawful behavior attracts an ob- except in accordance with established structing audience, is not reasonable if visiting procedures; the obstruction can be readily rem- (e) To enter or remain in, without edied by police control; lawful purpose, any office building, (d) To be substantially intoxicated on warehouse, plant, theater, club, school, any street, road, beach, theater, club, or other building after normal oper- or other public place from the vol- ating hours for that building; untary use of intoxicating liquor, (f) To enter or remain in any area or drugs, or other substance. As used in building designated and posted as ‘‘re- this paragraph, ‘‘substantially intoxi- stricted’’ unless authorized by proper cated’’ is defined as an actual and con- authority to be there; or siderable disturbance of mental or (g) To steal any services or property physical capacities; of a value of less than $50 belonging to (e) With intent to arouse or gratify or property of another. sexual desire of any other person, to expose one’s genitals to a person to § 762.24 Moral offenses. whom one is not married under cir- cumstances in which one’s conduct is It shall be unlawful for any person, likely to cause affront or alarm; or while on the Midway Islands: (f) Who is a minor under the age of 18 (a) To engage in prostitution. ‘‘Pros- years, except a person in the military, titution’’ means the giving or receiving to loiter about or otherwise be on any of the body for sexual intercourse for street, road, beach or other public hire or for indiscriminate sexual inter- place or in any theater, club, or other course with or without hire; or facility between the hours of 12:00 mid- (b) To do any lewd act in a public night and 5:30 a.m. unless accompanied place which is likely to be observed by by an adult over the age of 21 years and others who would be affronted or with the express permission of such mi- alarmed. ‘‘Lewd Act’’ includes any in- nor’s parent or legal guardian; and for decent or obscene act.
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§ 762.26 Alcoholic beverages offenses. (g) To operate any automobile, truck, bicycle, motorcycle, or other vehicle, It shall be unlawful for any person, aircraft, or boat or other vessel, or while on the Midway Islands: other means of conveyance while under (a) To sell any alcoholic beverages to the influence of alcoholic beverages, any person who, because of age, would narcotic drugs, central nervous system be prohibited from purchasing that stimulants, hallucinogenic drugs or beverage in a civilian establishment in barbiturates; or Hawaii. It shall not be unlawful, how- (h) To exceed the speed limit for ever, for persons authorized to sell al- automobiles, trucks, bicycles, motor- coholic beverages to sell beer with an cycles, or other vehicles. Unless other- alcoholic content of not more than 3.2 wise posted, the speed limit throughout percent by weight to military per- the Midway Islands is 15 miles per sonnel regardless of age; or hour. (b) To present or have in his posses- sion any fraudulent evidence of age for § 762.30 Weapons offenses. the purpose of obtaining alcoholic bev- erages in violation of § 762.26(a). It shall be unlawful for any person, while on the Midway Islands: § 762.28 Vehicle offenses. (a) Other than a security patrolman It shall be unlawful for any person, or shore patrolman or other duly ap- while on the Midway Islands: pointed official in the performance of (a) To operate or use intentionally an official duty, to carry a concealed any automobile, truck, bicycle, motor- pistol or other concealed firearm, or a cycle or other vehicle, aircraft, or boat concealed knife with a blade more than or other vessel, for any purpose, with- four inches long or with a blade capa- out consent of the owner thereof or his ble of being opened by a mechanical de- authorized agent; vice, commonly known as a switch- blade knife; or (b) To operate any bicycle that has not been properly registered with the (b) Without proper authority, to keep Security Department, U.S. Naval Air or use in any place any dangerous Facility, Midway Island, within one weapons including rifles, shotguns, pis- week after entering U.S. Naval Air Fa- tols, airguns, CO 2 guns, pellet guns, cility, Midway Island, with such bicy- and BB guns. cle, or within 72 hours after ownership § 762.32 Offenses against the environ- or possession thereof has been obtained ment. on the Midway Islands. (c) To operate any automobile, truck, It shall be unlawful for any person, bicycle, motorcycle or other vehicle, while on the Midway Islands: aircraft, or boat or other vessel, with- (a) Knowingly to place, throw, drop, out due regard for safety of others; or allow to drop any litter on any prop- (d) To operate any automobile, truck, erty or in any waters or beach. ‘‘Lit- bicycle, motorcycle, or other vehicle ter’’ means rubbish, refuse, and debris and disregard or disobey any traffic of whatever kind or description, wheth- regulation, sign, or marking erected, er or not it is of value; inscribed, or placed by competent au- (b) To grossly waste potable water; or thority on the Midway Islands, includ- (c) To remove, injure, or destroy any ing, but not limited to, ‘‘Stop,’’ wild bird, egg, or seal, or for any owner ‘‘Yield,’’ ‘‘Speed,’’ and ‘‘No Parking’’ of a dog or other pet to allow know- signs; ingly such dog or other pet to remove, (e) To operate a United States Gov- injure, or destroy any wild bird, egg, or ernment vehicle without holding a cur- seal, or for the parent or legal guardian rent United States Government opera- of any minor child to allow knowingly tor’s license for that type of vehicle; such minor child to remove, injure, or (f) To operate a privately owned destroy any wild bird, egg, or seal. automobile, truck, motorcycle, or like motor vehicle without holding a valid § 762.34 Miscellaneous offenses. operator’s license from some State or It shall be unlawful for any person, territory of the United States; while on the Midway Islands:
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(a) To engage in a trade, business, or fense shall be subject to the same ap- other commercial activity on Midway propriate penalties authorized under Islands without first obtaining written §§ 762.40 through 762.49 for the commis- permission from the Officer–in–Charge, sion of the offense attempted, except U.S. Naval Air Facility, Midway Is- that attempts of all offenses adopted land; under § 762.16, except those which are (b) To smoke or ignite any fire in any subject, under title 37, ‘‘Hawaii Revised designated and posted ‘‘No Smoking’’ Statutes,’’ as it now appears or as it area, or in the immediate proximity of may be amended or recodified, to a any aircraft, fueling pit, or ordnance or penalty of imprisonment of six months pyrotechnic storage areas; or less or a fine of not more than $500, (c) Knowingly to report or cause to shall be punished as directed by appro- be reported to the Security Depart- priate sections of title 37, ‘‘Hawaii Re- ment, Fire Department, or any official vised Statutes,’’ as they now appear or thereof, or to any other public official, as they may be amended or recodified. or willfully to activate, or cause to be activated, any alarm, that an emer- § 762.40 Penalties for petty offenses. gency exists, knowing that such report Whoever is found guilty of a viola- or alarm is false. ‘‘Emergency,’’ as used tion of any petty offense under this herein, includes any condition which subpart, other than § 762.28 (b) through results, or could result, in the response (h), is subject to a fine of not more of a public official in an emergency ve- than $500 or imprisonment for not more hicle, or any condition which jeopard- than six months, or both. izes, or could jeopardize, public lives or safety, or results or could result in the § 762.42 Penalties for motor vehicle evacuation of an area, building, struc- violations. ture, vehicle, aircraft, or boat or other Whoever is found guilty of a viola- vessel, or any other place by its occu- tion of any one of § 762.28 (b) through pants; or (h), is subject to a fine of not more (d) Intentionally to report to any than $100, imprisonment of not more shore patrolman, security patrolman, than 30 days, or suspension or revoca- fireman, officer of the day, junior offi- tion of his privilege to drive a motor cer of the day, or other public official vehicle aboard U.S. Naval Air Facility, authorized to issue a warrant of arrest Midway Island, or any combination of, or make an arrest, that a crime has or all of, these punishments. been committed, or make any oral or written statement to any of the above § 762.44 Contempt. officials concerning a crime or alleged Judges of the Midway Islands Court crime or other matter, knowing such may, in any criminal case or pro- report or statement to be false. ceeding, punish any person for disobe- [41 FR 29672, July 19, 1976, as amended at 51 dience of any order of the court, or for FR 22283, June 19, 1986] any contempt committed in the pres- ence of the court, by a fine of not more § 762.35 Attempt. than $100, or imprisonment of not more (a) A person is guilty of attempt to than 30 days, or both. commit a crime if he commits an act, done with the specific intent to com- Subpart D—Midway Islands Court; mit an offense, amounting to more Rules of Criminal Procedure than mere preparation and tending, even though failing, to effect its com- § 762.50 Establishment; members; ses- mission. sions. (b) It shall be unlawful for any per- (a) There is created a ‘‘Midway Is- son, while on the Midway Islands to at- lands Court’’ which is vested with the tempt to violate any section of subpart judicial authority provided in this part C, including all offenses adopted from 762. The court shall consist of such title 37, ‘‘Hawaii Revised Statutes,’’ as Navy judge advocates as are designated they now appear or as they may be by the Officer–in–Charge, U.S. Naval amended or recodified. Any person con- Air Facility, Midway Island, or such victed of an attempt to commit an of- other command as may be designated
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by the Commander in Chief, U.S. Pa- They shall be construed to ensure sim- cific Fleet. In the absence of an ap- plicity in procedure and fairness in ad- pointment to the contrary, the most ministration, and to eliminate unjusti- senior in date of rank of those ap- fiable expenses and delay. pointed shall act as senior judge. (b) The judge of the court who pre- (b) The Senior Judge shall appoint sides at any trial or other criminal pro- someone under his authority to act as ceeding is responsible for the making Clerk of the Court who will be respon- of an appropriate record of the pro- sible for maintaining a public docket ceeding. containing such information as the Senior Judge may prescribe. § 762.58 Release prior to trial and bail. (c) Sessions of the court are held on (a) The release of any person arrested the Midway Islands at times and places on the Midway Islands for a violation designated by the Senior Judge. of this part shall be in accordance with (d) Normally, not more than one 18 U.S.C. 3146 as it now appears or as it judge shall be required to hear any in- may be amended or recodified. dividual case. (b) When an offense has been charged [41 FR 29672, July 19, 1986, as amended at 51 by a citation issued by a security pa- FR 22283, June 19, 1986] trolman, shore patrolman, or other duly designated peace officer or the Of- § 762.52 Attorney for the United States. ficer–in–Charge, U.S. Naval Air Facil- The Senior Judge may appoint any ity, Midway Island, bail shall be set in judge advocate or attorney to rep- the amount prescribed by the Senior resent the United States in any crimi- Judge for the violation. The bail shall nal case in the Midway Islands Court be paid in cash to the Clerk of the or on appeal to the Commander, U.S. Court. The bail may be forfeited by the Naval Base, Pearl Harbor or such other accused and the proceedings thereby command as may be designated by the terminated in the case of a violation of Commander in Chief, U.S. Pacific § 762.28 that does not involve a moving Fleet. vehicle collision or intoxication while driving, or with permission of the court § 762.54 Criminal jurisdiction. in the case of any other offense charged The Midway Islands Court has juris- by citation pursuant to § 762.84. diction over all petty offenses and [41 FR 29672, July 19, 1976, as amended at 51 other minor violations of this part. The FR 22283, June 19, 1986] United States District Court for the District of Hawaii shall have jurisdic- § 762.62 Information. tion over all other offenses adopted (a) Any petty offense may be pros- under § 762.16, over offenses against the ecuted by a written information signed laws of the United States, and over by the attorney charged with pros- those offenses committed within the ecuting the case. If, however, the of- special maritime jurisdiction con- fense is one for which issue of a cita- tained in the Act of June 15, 1950 (chap- tion is authorized by this part and a ci- ter 253, 64 Stat. 217). tation for the offense has been issued, the citation serves as the information. § 762.55 Venue. Offenses against the laws of the United Trial of all offenses under the juris- States, offenses committed against the diction of the Midway Islands Court laws made applicable by the Act of shall be had at the U.S. Naval Air Fa- June 15, 1950 (chapter 253, 64 Stat. 217), cility, Midway Island; trial of all other and offenses adopted under § 762.16, ex- offenses shall be in the United States cept those which are subject, under District Court for the District of Ha- title 37, ‘‘Hawaii Revised Statutes,’’ as waii. it now appears or as it may be amended or recodified, to a penalty of imprison- § 762.56 Rules of criminal procedure. ment for six months or less or a fine of (a) Sections 762.56 through 762.79 gov- not more than $500, or both, shall be re- ern the procedure in criminal pro- ferred to the United States Attorney, ceedings in the Midway Islands Court. Hawaii, for appropriate disposition.
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(b) A copy of the information shall be the record of the case the plea made to delivered to the accused or his counsel each charge. as soon as practicable after it is filed. (d) The accused may plead ‘‘guilty’’ (c) Each count of an information may to any or all of the charges against charge one offense only and must be him, except that the court may at its particularized sufficiently to identify discretion refuse to accept a plea of the place, the time, and the subject guilty, and may not accept a plea with- matter of the alleged offense. It shall out first determining that the plea is refer to the provision of law under made voluntarily and with under- which the offense is charged, but any standing of the nature of the charge. error in this reference or its omission (e) The accused may plead ‘‘not may be corrected by leave of court at guilty’’ to any or all of the charges any time before sentence and is not against him. The court shall enter a grounds for reversal of a conviction if plea of not guilty if the answer of the the error or omission did not mislead accused to any charge is such that it the accused to his prejudice. does not clearly amount to a plea of guilty or not guilty. § 762.64 Motions and pleas. (f) The accused may, at any stage of the trial, with the consent of the court, (a) Upon motion of the accused at change a plea of not guilty to one of any time after filing of the information guilty. The court shall then proceed as or copy of citation, the court may if the accused had originally pleaded order the prosecutor to allow the ac- guilty. cused to inspect and copy or photo- (g) Nothing contained in this subpart graph designated books, papers, docu- shall be construed to diminish any ad- ments, or tangible objects obtained ditional rights afforded military per- from or belonging to the accused, or sonnel under the Uniform Code of Mili- obtained from others by seizure or tary Justice. process, upon a showing that the items sought may be material to the prepara- § 762.66 Trial. tion of his defense and that the request (a) If the accused pleads not guilty or is reasonable. if a plea of guilty is not accepted by (b) When the court is satisfied that it the court and a consequent plea of not has jurisdiction to try the accused as guilty entered, the accused is entitled charged, it shall require the accused to to a trial on the charges in accordance identify himself and state whether or with the procedures prescribed in the not he has counsel. If he has no coun- Rules of Criminal Procedure for the sel, but desires counsel, the court shall United States District Courts, 18 give him a reasonable opportunity to U.S.C., except as otherwise provided in procure counsel. If he cannot afford this part. There is no trial by jury for counsel or is unable to procure counsel petty offenses. after reasonable efforts have been ex- (b) All persons shall give their testi- pended, the court shall advise him of mony under oath or affirmation. The his right to have counsel appointed, Senior Judge shall prescribe the oath and shall appoint a judge advocate or and affirmation that may be adminis- other lawyer counsel for the accused tered by any judge or the Clerk of the unless the accused shall have made a Court. voluntary and intelligent waiver of his (c) Upon completion of the trial, the right to counsel. court shall enter a judgment consisting (c) When both sides are ready for ar- of a finding or findings and sentence or raignment, or when the court deter- sentences, or discharge of the accused. mines that both sides have had ade- quate opportunity to prepare for ar- § 762.68 Sentence. raignment, the court shall read the (a) If the court accepts a plea of charges to the accused, explain them guilty to any charge or charges, it (if necessary), and, after the reading or shall make a finding of guilty on that stating of each charge in court, ask the charge. accused whether he pleads ‘‘guilty’’ or (b) After a finding of guilty is made, ‘‘not guilty.’’ The court shall enter in either by virtue of an accepted plea of
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guilty or as the verdict of the court thereof to be inspected by the parties after trial, the court: and their representatives. (1) May delay sentencing pending re- (c) Any peace officer or any other ceipt of any presentencing report or- person who is not a party and who is at dered by it; least 18 years of age may serve a sub- (2) Shall, before imposing sentence, poena. Service of a subpoena shall be hear such statements, whether written made by delivering a copy thereof to or oral, by the prosecution and defense, the person named. if any, in regards to mitigation, ex- (d) This section shall in no way be tenuation, previous good character of construed to limit federal subpoena the accused, matters in aggravation, powers, laws, or rules. and permissible evidence of bad char- § 762.72 Appeals. acter of the accused. In this regard, the accused or his counsel may introduce (a) The defendant in any criminal any reasonable statement he wishes in case may appeal from any judgment of mitigation or extenuation or any evi- the Midway Islands Court to the Com- dence of previous good character. The mander, U.S. Naval Base, Pearl Harbor, prosecution may introduce evidence in or such other command as may be des- aggravation including prior federal, ignated by the Commander in Chief, state, or Midway Islands convictions. U.S. Pacific Fleet, by filing a notice of The prosecution may introduce evi- appeal with the Senior Judge, and serv- dence of previous bad character only if ing a copy on the attorney or judge ad- the accused has introduced evidence of vocate who represented the United previous good character; and States at trial. (b) The notice must be served and (3) Shall thereafter impose any law- filed within 15 days after the judgment ful sentence, including, a suspended or of the Midway Islands Court. partially suspended sentence; revoca- (c) Upon receiving a notice of appeal, tion or suspension of any Midway Is- with proof of service on the attorney or lands automobile, truck, motorcycle, judge advocate who represented the or other motor vehicle, or boat or United States at trial, the Senior other vessel permit in cases involving Judge shall forward the record of the violations of § 762 28; or placement of case to the Commander, U.S. Naval accused on probation. Base, Pearl Harbor. (d) The appellant must serve and file § 762.70 Subpoenas. a memorandum with the Commander, (a) The Clerk of the Court shall issue U.S. Naval Base, Pearl Harbor, within subpoenas for the attendance of wit- 10 days after filing notice of appeal set- nesses. The subpoena must include the ting forth the grounds for appeal. The name of the court and the title, if any, attorney or judge advocate who rep- of the proceeding, and shall command resented the United States at trial may each person to whom it is directed to file a reply memorandum within 10 attend and give testimony at the time days thereafter. and place specified therein. The clerk (e) The Commander, U.S. Naval Base, shall issue a subpoena to a party re- Pearl Harbor, may affirm, dismiss, or questing it, setting forth the name of modify the order of the court, or exer- the witness subpoenaed. cise any of the other powers of the (b) The clerk may also issue a sub- court. The judgment of the Com- poena commanding the person to whom mander, U.S. Naval Base, Pearl Harbor, it is directed to produce the books, pa- is final. pers, documents, or other objects des- (f) Cases tried in the United States ignated therein. The court may direct District Court for the District of Ha- that books, papers, and documents des- waii shall be subject to federal laws ignated in the subpoena be produced and rules applicable to appeals. before the court at a time before the trial or before the time when they are § 762.74 New trial. to be offered in evidence. It may, upon A judge of the court may order a new their production, allow the books, pa- trial as required in the interest of jus- pers, documents, or objects or portions tice, or vacate any judgment and enter
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a new one, on motion made within a fore answering any questions; that he reasonable time after discovery by the may employ civilian counsel of his own moving party of matters constituting choice and at his own expense; that if the grounds upon which the motion for he cannot afford a lawyer, or is a serv- a new trial or vacation of judgment is ice member, the court will appoint one made. for him if he so desires; and that, if he decides to answer questions, he has the Subpart E—Warrants; Arrests; right to stop answering at any time Special Procedures and terminate the interrogation. Be- fore any security patrolman, shore pa- § 762.80 Warrants. trolman, or other duly designated (a) Arrest warrants. (1) Any judge of peace officer questions any person ar- the Midway Islands Court may issue a rested, he must advise the arrested per- warrant for arrest if, upon complaint, son of his rights, as set forth above, it appears that there is probable cause whether such questioning occurs before to believe an offense has been com- or after the arrested person is brought mitted and that the person named in before the appropriate official as des- the warrant has committed it. Prob- ignated above in this section. No warn- able cause, as used herein, means that ings need be given, however, prior to there exist facts which are sufficient to general on-the-scene questioning or lead a reasonably prudent and cautious identification inquiries. man to a natural conclusion that the (b) Search warrants. (1) Any judge of person to be arrested committed the of- the Midway Islands Court may issue a fense for which he is to be arrested. warrant for search and seizure, if, after The issuing officer shall: dispassionate and impartial consider- (i) Place the name of the person ation of all evidence, information, and charged with the offense in the war- circumstances involved, probable cause rant, or, if his name is not known, any is deemed to exist. Probable cause, as name or description by which he can be used herein, means reliable informa- identified with reasonable certainty; tion that would lead a reasonably pru- (ii) Sign the warrant; dent and cautious man to a natural be- (iii) Describe in the warrant the of- lief that: fense charged; (i) An offense probably is about to be, (iv) Issue the warrant to a security is being, or has been committed; patrolman, shore patrolman, or other (ii) Specific fruits or instrumental- duly designated peace officer for execu- ities of the crime, contraband, or evi- tion; and dence exist; and (v) Place in the warrant a command (iii) Such fruits, instrumentalities, that the person charged with the of- contraband, or evidence are probably in fense be arrested and brought before a certain place. him. (2) If, after considering all informa- (2) Each person making an arrest on tion, the judge shall decide to issue a the Midway Islands shall take the ar- search warrant, such warrant shall spe- rested person, without unnecessary cifically include the following informa- delay, before the Officer–in–Charge, tion: U.S. Naval Air Facility, Midway Is- land, or a judge of the Midway Islands (i) The time and date the warrant Court, as appropriate. was requested; (3) The official before whom an ar- (ii) The name and capacity of the per- rested person is brought shall inform son, official, security patrolman, shore him of the complaint against him. The patrolman, or other duly designated official shall also advise the arrested peace officer requesting the warrant; person that he has the right to remain (iii) The name and address of the per- silent and make no statement; that son(s) suspected and the specific of- any statement made, whether oral or fense(s) of which he is suspected; written, may be used against him, that (iv) The address, place, or structure he has the right to consult with a law- which is to be searched; yer and to have a lawyer with him dur- (v) The general nature of the items ing questioning and to seek advice be- intended to be seized;
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(vi) The information presented or (i) The time and date the warrant reasons for suspecting the suspected was requested; person(s) in general; and (ii) The name and capacity of the per- (vii) An authorization to search the son requesting the warrant; described place for the property speci- (iii) Property description or address fied and, if the property is found there, of place or structure to be inspected; to seize it, followed by the date, time, (iv) General purpose of inspection; capacity, and signature of the judge (v) Date and time inspection intended issuing such warrant. to be made; and (3) A search warrant must be exe- (vi) An authorization to inspect the cuted and returned to the issuing au- described place for the purpose speci- thority within five days after date of fied, followed by the date, time, capac- issuance. A search warrant executed ity, and signature of judge issuing the within the five-day period shall be warrant. deemed to have been timely executed [41 FR 29672, July 19, 1976, as amended at 51 and no further showing of timeliness FR 22283, June 19, 1986] need be made. (4) Security patrolmen, shore patrol- § 762.82 Arrests. men, and other duly designated peace (a) Any person may make an arrest officers or other designated personnel on the Midway Islands, without a war- conducting searches shall do so in ac- rant, for any crime (including a petty cordance with the issued warrant. offense) that is committed in his pres- (5) Any property seized as a result of ence. a search or in connection with an al- (b) Any security patrolman, shore pa- leged offense (unless property is highly trolman, or other duly designated perishable) is to be retained in a secure peace officer may, without a warrant, place pending trial in accordance with arrest any person on the Midway Is- the orders of the court. All seized prop- lands who violates any provision of erty shall be securely tagged with the this part 762 or commits a crime that is following information: a violation of the laws of the United (i) Date seized; States or the laws made applicable to the Midway Islands under the Act of (ii) Property searched and location of June 15, 1950 (chapter 253, 64 Stat. 217), seized article(s) when so seized; in his presence, or that he has probable (iii) Person ordering search and war- cause to believe that person to have rant number; committed. (iv) Signatures of person searching (c) In making an arrest, a security and witness; and patrolman, shore patrolman, or other (v) Place where property is now lo- duly designated peace officer must dis- cated and names and addresses of any play a warrant, if he has one, or other- persons who have had custody thereof wise clearly advise the person arrested prior to deposit in the secure place re- of the violation alleged, and thereafter quired by this paragraph. A complete require him to submit and be taken be- chain of custody record is to be kept. fore the appropriate official on the (6) The property must be produced in Midway Islands. court, if practicable. At the termi- (d) In making an arrest, a security nation of the trial, the court shall re- patrolman, shore patrolman, or other store the property or the funds result- duly designated peace officer may use ing from the sale of the property to the only the degree of force needed to ef- owner, or make such other proper order fect submission, and may remove any as may be required and incorporate its weapon in the possession of the person order in the record of the case. arrested. (c) Sanitation and fire prevention in- (e) A security patrolman, shore pa- spection. (1) Any judge of the Midway trolman, or other duly designated Islands Court may issue a warrant to peace officer may, whenever necessary inspect property on the Midway Islands to enter any building, vehicle, aircraft, for purposes of maintaining sanitation or vessel to execute a warrant of ar- and fire prevention. rest, force an entry after verbal warn- (2) Such warrant shall indicate: ing.
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(f) A security patrolman, shore pa- Subpart F—Registration and Permit trolman, or other duly designated Regulations peace officer may force an entry into any building, vehicle, aircraft, or ves- § 762.90 Registration of certain prop- sel whenever: erty. (1) It appears necessary to prevent se- (a) Each person who has custody of rious injury to persons or damage to any of the following on the Midway Is- property, and time does not permit the lands shall register it with the Officer– obtaining of a warrant; in–Charge: (2) To effect an arrest when in hot (1) A privately owned motor vehicle; pursuit; or (2) A privately owned boat; (3) To prevent the commission of a (3) An animal; crime which he reasonably believes is (4) Any device, weapon, or instru- being committed or is about to be com- ment designed for inflicting bodily in- mitted. jury, including a gun, pistol, or other firearm operated by air, gas, spring, or § 762.84 Citation in place of arrest. otherwise; In any case in which a security pa- (5) Any narcotic or dangerous drug trolman, shore patrolman, or other not obtained on prescription, and all duly designated peace officer may poisons other than commonly used make an arrest without a warrant, he household poisons or toxic substances; may, under such limitations as the Of- or ficer–in–Charge may impose, issue and (6) Any known explosive. serve a citation, or serve a citation (b) Each person who obtains custody issued by the Officer–in–Charge, on a of an article described in paragraphs person in place of arresting him if the (a)(4), (5), or (6) of this section shall officer considers that the public inter- register it immediately upon obtaining est does not require an arrest. The ci- custody. Each person who obtains cus- tation must briefly describe the offense tody of any other article described in charged and direct the accused to ap- paragraph (a) of this section shall reg- pear before the Midway Islands Court ister it within 10 days after obtaining at a designated time and place. custody. [41 FR 29672, July 19, 1976, as amended at 51 [41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986] FR 22283, June 19, 1986]
§ 762.86 Abatement of nuisance. § 762.92 Permits. Whenever the Officer–in–Charge de- Subject to reasonable restrictions termines that, on any premises on the and conditions that he considers appro- Midway Islands, a condition exists that priate, the Officer–in–Charge, U.S. is unsanitary or hazardous, that may Naval Air Facility, Midway Island, may require a Midway Islands permit be injurious to the public, or is other- for the following: wise a nuisance, he may order the con- dition abated. If the legal custodian of (a) Any business, commercial, or rec- reational activity conducted for profit, the premises concerned does not take including a trade, profession, calling, action to abate the nuisance within 30 or occupation, or an establishment days after the order is issued, the Offi- where food or beverage is prepared, of- cer–in–Charge may enter on the prem- fered, or sold for human consumption ises and abate the nuisance for, and at (except for personal or family use); the expense of, the custodian. (b) The practice of any medical pro- [41 FR 29672, July 19, 1976, as amended at 51 fession, including dentistry, surgery, FR 22283, June 19, 1986] osteopathy, and chiropractic;
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(c) The erection of any structure or § 762.96 Revocation or suspension of sign, including a major alteration or permits. enlargement of an existing structure; (a) The Officer–in–Charge may, after (d) The discharge of explosives or notifying the holder of a Midway Is- fireworks or of firearms, guns, or pistol lands permit and giving him an oppor- operated by air, gas, spring, or other- tunity to be heard, order the permit wise, or any other weapon; suspended or revoked for cause, includ- (e) The burial of any human or ani- ing: mal remains, except that fish and bait (1) Lack of physical fitness required scrap may be buried at beaches where to hold the permit; fishing is permitted without obtaining (2) Lack of roadworthiness of a vehi- a permit; cle, or of seaworthiness of a boat or (f) Keeping or maintaining any ani- other vessel; mal, including dogs; (3) Lack of need for the permit; (g) All vehicles (including bicycles), (4) Breach of any term or condition of and operators thereof, except aircraft. the permit; or The operator of a vehicle shall display (5) Conviction for violation of any his permit or permit number on the ve- regulation of this part where the viola- hicle in a place and manner prescribed tion is related to activities conducted by the Officer–in–Charge; under the permit. (h) Boats and boat operators. The op- (b) In any case in which he deter- erator of a boat or other vessel shall mines that an emergency exists requir- display his permit or permit number on ing immediate action, the Officer–in– or in the vessel in a place and manner Charge may issue an order of suspen- prescribed by the Officer–in–Charge; sion or revocation, effective imme- (i) Food handlers; diately, without notice. However, the (j) Drugs and narcotics not obtained permit holder may, within 10 days after on prescription, and poisons other than the suspension or revocation, request a commonly used household poisons or hearing. If he so requests a hearing, he toxic substances; or is entitled to it. The emergency order (k) Building construction. is not stayed pending hearing. [41 FR 29672, July 19, 1976, as amended at 51 [41 FR 29672, July 19, 1976, as amended at 51 FR 22283, June 19, 1986] FR 22283, June 19, 1986] § 762.94 Expiration of permits. Subpart G—Civil Small Claims Law (a) Each Midway Islands permit ex- pires on the earliest of the following § 762.100 Applicable law and jurisdic- dates: tion over small claims. (1) Two years after the date it is (a) The Midway Islands Court shall issued; have jurisdiction over civil cases for (2) The date specified on the permit; the recovery of money only where the (3) In the case of a motor vehicle, amount claimed does not exceed $500 boat, or other vessel, or firearm, the exclusive of the interest and costs ex- date its custody is transferred to any cept as provided by § 762.108. person other than the holder of the per- (b) The court’s jurisdiction is further mit therefor; or limited in that no such claim cog- (4) The date it is revoked by the Offi- nizable under paragraph (a) of this sec- cer–in–Charge. tion shall be within the court’s juris- (b) Notwithstanding paragraph (a)(1) diction unless: of this section, the Officer–in–Charge (1) The claim arises or has arisen on may issue a permit for a period longer the Midway Islands; than two years to coincide with the (2) All plaintiffs and all defendants terms of any agreement between the reside, at the time of trial, on the Mid- Department of the Navy and the per- way Islands; and mit holder, applicable to the Midway (3) The claim does not fall within the Islands. special maritime jurisdiction under the [41 FR 29672, July 19, 1976, as amended at 51 Act of June 15, 1950 (Chapter 253, 64 FR 22283, June 19, 1986] Stat. 217).
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(c) Actions shall be commenced and (e) The statement of claim, maintained in the Midway Islands verification, and notice shall be in the Court under the procedures set out following or equivalent form: below and conducted in such a manner as to do substantial justice and equity IN THE MIDWAY ISLANDS SMALL CLAIMS COURT between the parties. When acting on llllllllllllllllllllllll such actions, the court shall be termed (Plaintiff) the Small Claims Court. llllllllllllllllllllllll (Address)
§ 762.102 Small claims procedure; com- vs. plaint and service. llllllllll (a) Actions shall be commenced in llllllllllllllllllllllll the court by the filing of a statement (Defendant) of claim, in concise form and free of technicalities. All claims shall be STATEMENT OF CLAIMS verified by the claimant, whether as a (Here the claimant, whether as party party plaintiff or counterclaimant, or plaintiff or counterclaimant, or at his re- by his agent, by oath or affirmation in quest the clerk, will insert a concise state- the form herein provided, or its equiva- ment of the plaintiff’s claim, and the origi- lent. The Clerk of the Court shall, at nal, to be filed with the clerk, may, if action is on a contract, express or implied, be the request of an individual, prepare verified by the plaintiff or his agent, as fol- the statement of claim and other pa- lows: pers required to be filed in an action in the court, but his services shall not be THE MIDWAY ISLANDS SS available to a corporation, partnership, llllllll being first duly sworn on or association, or to any individual oath says the foregoing is a just and true proprietorship in the preparation of the statement of the amount owing by defendant statements or other papers. A copy of to claimant, whether as party plaintiff or the statement of claim and verification counterclaimant, exclusive of all set-offs and just grounds of defense.) shall be made a part of the notice to be llllllllllllllllllllllll served upon the defendant named [Plaintiff (or agent)] therein. The mode of service shall be by personal service, by registered mail, Subscribed and sworn to before me this ll day of lllllll, 19ll. or by certified mail with return re- ceipt. llllllllllllllllllllllll (b) When notice is to be served by llllllllllllllllllllllll llllllllllllllllllllllll registered mail or by certified mail, Clerk (or notary public) the clerk shall enclose a copy of the statement of claim, verification, and NOTICE notice in an envelope addressed to the To: lllllllllllllllllllll defendant, prepay the postage with Defendant funds obtained from plaintiff, and mail llllllllllllllllllllllll the papers forthwith, noting on the Home address records the day and hour of mailing. llllllllllllllllllllllll When the receipt is returned with the Business address signature thereon of the party to whom You are hereby notified that addressed, the clerk shall attach it to llllllllllllll has made a claim the original statement of claim, and it and is requesting judgment against you in the sum of llllllllllll dollars shall constitute prima facie evidence of ($lll), as shown by the foregoing state- personal service upon the defendant. ment. The court will hold a hearing upon (c) When notice is served personally, this claim on llllllllll at lll m. the server shall make proof of service in the Small Claims Court at by affidavit sworn to before the Clerk llllllllll. llllllllllllllllllllllll of the Court or before any notary pub- lic, showing the time and place of the (Address of court) You are required to be present at the hear- service. ing in order to avoid judgment by default. (d) The actual cost of service shall be If you have witnesses, books, receipts, or taxable as costs. other writings bearing on this claim, you
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should bring them with you at the time of remain unpaid, and likewise deny him the hearing. the right to proceed further in any case If you wish to have witnesses summoned, pending in the court. see clerk at once for assistance. If you admit the claim, but desire addi- tional time to pay, you must come to the § 762.108 Set-off or counterclaim; hearing in person and state the cir- pleading; retention of jurisdiction. cumstances to the court. If the defendant, in an action in the You may come with or without an attor- Small Claims Court, asserts a set-off or ney. counterclaim, the judge may require a (Seal) formal and concise plea of set-off to be ——————————————————————— filed, or may waive the requirement. If Clerk of the Court the plaintiff requires time to prepare Midway Islands Courts his defense against the counterclaim or (f) The foregoing verification entitles set-off, the judge may continue the the plaintiff to a judgment by default, case for that purpose. When the set-off without further proof, upon failure of or counterclaim is for more than the defendant to appear, if the claim of the jurisdictional limit of the Small plaintiff is for a liquidated amount. If Claims Court, as provided by § 762.100, the amount is unliquidated, the plain- but is for less than $1000, the action tiff shall be required to present proof of shall remain in the Small Claims Court his claim. and be tried therein in its entirety. No (g) The clerk shall furnish the plain- set-off or counterclaim for an amount tiff with a notice of the day and hour greater than $1000 may be asserted in set for the hearing. The hearing shall the Small Claims Court. not be less than 15 days nor more than 30 days from the date of the filing of § 762.109 Jury trial; demand. the action unless a continuance is In a case filed or pending in the Mid- granted by the judge for good cause way Islands Court under § 762.100 in shown. All actions filed in the court which a party entitled to a trial by shall be made returnable therein. jury under amendment VII, United States Constitution, files a demand § 762.104 Time limitations. therefor, the case shall be assigned to All claims must be commenced as set and tried in the United States District out in § 762.102, within two years after Court for the District of Hawaii under the claim arises. A claim for money the procedure provided for jury trials arises when it is due, owing, and un- in that court. paid. § 762.110 Pre-trial settlement. § 762.106 Costs and fees; waiver. On the return day specified by The fee for issuing summons and cop- § 762.102(g), or at such later time as the ies, trial, judgment, and satisfaction in judge sets, the trial shall be had. Im- an action in the Small Claims Court mediately prior to the trial of a case, shall be not more than $5. Other fees shall be as the court prescribes. The the judge shall make an earnest effort judge may waive the prepayment of to settle the controversy by concilia- costs or the payment of costs accruing tion. If no settlement is effected, the during the action upon the sworn judge shall proceed with the hearing on statement of the plaintiff or upon the merits pursuant to § 762.112. other satisfactory evidence of his in- § 762.112 Trial. ability to pay the costs. When costs are so waived the notation to be made on (a) The parties and witnesses shall be the records of the court shall be ‘‘Pre- sworn. In any case in which the civil payment of costs waived’’ or ‘‘Costs rights, powers, and duties of any person waived.’’ The terms ‘‘pauper’’ or ‘‘in on the Midway Islands are not other- forma pauperis’’ may not be employed wise prescribed by the laws of the in the court. If a party fails to pay ac- United States or the laws made appli- crued costs, though able to do so, the cable under the Act of June 1950 (chap- judge may deny him the right to file a ter 253, 64 Stat. 217), the judge shall new case in the court while the costs conduct the trial in such manner as to
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do substantial justice between the par- therein the reasonable cost of bonds ties according to the rules of sub- and undertakings, and other reasonable stantive law, as contained in the ‘‘Ha- expenses incident to the action, in- waii Revised Statutes,’’ as they now curred by either party. No attorneys’ appear or as they may be amended or fees or commissions shall be allowed or recodified, and Hawaii case law. In this awarded by any judgment of the Small regard, the judge is not bound by statu- Claims Court. tory provisions or rules of practice, procedure, pleading, or evidence, ex- § 762.118 No appeal. cept provisions related to privileged communications. There shall be no appeal from a judg- (b) If the defendant fails to appear, ment of the court, but the court may judgment shall be entered for the alter or set aside any judgment upon plaintiff by default as provided by application of either party after review § 762.102(f), or under rules of court, or of the record. on ex parte proof. If the plaintiff fails to appear, the action may be dismissed § 762.120 Judgment creditors and rem- for want of prosecution, or a nonsuit edies. may be ordered, or defendant may pro- (a) After any final judgment is ren- ceed to trial on the merits, or have de- dered by the court, the judgment debt- fault judgment entered in his favor on or concerned may deposit the sum ad- any counterclaim filed in the manner judged owed with the court for pay- provided herein for a plaintiff, or the ment of the claim, pay the judgment case may be continued or returned to creditor directly, or make such other the files for further proceedings on a fair and reasonable agreement for pay- later date, as the judge directs. If both ment or settlement of the claim with parties fail to appear, the judge may the judgment creditor. Payment, in return the case to the files, or order full or by agreement or settlement be- the action dismissed for want of pros- tween the parties after final judgment ecution or make any other disposition has been rendered, shall satisfy the thereof as justice requires. (c) Notwithstanding any provision of judgment and extinguish the claim. law requiring the licensing of practi- (b) If voluntary payment is not made tioners, any person may, with the ap- by the judgment debtor after final proval of the court, appear on behalf of judgment is rendered, in an action pur- himself or another in the Small Claims suant to §§ 762.100 through 762.113, the Court. The services of an unlicensed judge shall, upon motion of the party person appearing under this paragraph obtaining judgment, order the appear- shall be without compensation, either ance of the party against whom the by way of direct fee, contingent fee, or judgment has been entered, but not otherwise. more often than once each week for (d) The judge of the court who pre- four consecutive weeks, for oral exam- sides at any trial is responsible for the ination under oath as to his financial making of an appropriate record of the status and his ability to pay the judg- proceeding. ment, and the judge shall make such supplementary orders as seems just § 762.114 Judgments. and proper to effectuate the payment After trial, the judge may imme- of the judgment upon reasonable diately render his decision and enter terms. judgment or take the case under sub- (c) Any final judgment of the Small mission. In all cases, the judge should Claims Court shall upon order of the render a decision and enter appropriate court become a statutory lien upon any judgment within 20 days after the close of the trial. and all personal property owned by the judgment debtor concerned and located § 762.116 Award of costs. on the Midway Islands. Such lien may In any action pursuant to this sub- be enforced by attachment, levy, judi- part the award of costs is in the discre- cial sale, or as the court may otherwise tion of the court, which may include direct.
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§ 762.126 Parties. SOURCE: 47 FR 27553, June 25, 1982, unless otherwise noted. Wherever the term party or parties appears herein, or any reference is made to individuals desiring to present Subpart A—Entry Regulations for a claim, then such term or terms of ref- Kaho’olawe Island, Hawaii erence shall mean and include a party defendant having a counterclaim, off- § 763.1 Purpose. set, or crossclaim to present in the ac- The purpose of this subpart is to pro- tion. mulgate regulations for entry to Kaho’olawe Island, Hawaii, and its ad- § 762.128 Forms and public informa- jacent waters. tion. The Midway Islands Court shall § 763.2 Definition. cause to be published an information For the purpose of this subpart, booklet or sheet describing, in lan- Kaho’olawe Island includes that por- guage readily understandable by a lay- tion reserved for naval purposes by Ex- man, the procedures of the Small ecutive Order No. 10436 of February 20, Claims Court, the remedies available 1953. upon judgment in the Small Claims Court, and such other information as § 763.3 Background. will facilitate the utilization of the (a) Kaho’olawe Island is used by the small claims procedure; and shall also armed forces of the United States as a cause to be made and printed such training area including bombing and standardized forms as may be utilized gunnery training ranges under author- throughout the small claims procedure prior to, upon, and after judgment. ity granted by Executive Order No. 10436. Training operations frequently involve the use of live ordnance, cre- Subpart H—Savings Clause ating an obvious danger to persons on or near the island. Moreover, a large § 762.130 Severability of subparts, sec- amount of unexploded ordnance is tions, paragraphs, or provisions. present on Kaho’olawe Island and in In the event that any subpart, sec- adjacent waters. tion, paragraph, or provision of this (b) Individuals who enter the island part shall be declared unconstitutional of Kaho’olawe without authority ex- or superseded by applicable federal leg- pose themselves to extremely haz- islation, the remainder shall neverthe- ardous conditions. In addition, the less remain valid and shall be applied presence of unauthorized persons on so as to be consistent with such con- Kaho’olawe Island or in adjacent wa- stitutional provisions or overriding ters is likely to interfere with the use legislation. of the island for military training. Ac- cordingly, it is necessary to prohibit PART 763—RULES GOVERNING entry to Kaho’olawe Island except PUBLIC ACCESS under the controlled circumstances set forth in this subpart. Subpart A—Entry Regulations for Kaho’olawe Island, Hawaii § 763.4 Entry restrictions.
Sec. (a) Entry by any person upon 763.1 Purpose. Kaho’olawe Island for any purpose is 763.2 Definition. prohibited without advance authoriza- 763.3 Background. tion from Commander Naval Base. This 763.4 Entry restrictions. prohibition applies to all areas of 763.5 Entry procedures. Kaho’olawe Island reserved for naval 763.6 Violations. purposes by Executive Order 10436. (b) Entry by any person into the re- AUTHORITY: 50 U.S.C. 797; DOD Dir. 5200.8 of August 20, 1954; 5 U.S.C. 301; 10 U.S.C. 6011, 32 stricted waters adjacent to Kaho’olawe CFR 700.702; 32 CFR 700.714; E.O. No. 10436, 3 Island for any purpose is prohibited CFR 1949–1953 Comp. p. 930, (1958). without advance authorization from
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Commander Naval Base. This prohibi- permission to enter Kaho’olawe Island tion applies to all waters described in authorizes one visit only, and shall not 33 CFR 204.223(4). be construed as authorization for more [47 FR 27553, June 25, 1982, as amended at 52 than one entry unless the authoriza- FR 20074, May 29, 1987] tion itself specifically states otherwise. Moreover, entry pursuant to advance § 763.5 Entry procedures. consent, which is not in accordance (a) It is the policy of the Commander with the terms and conditions per- Naval Base to authorize, in accordance mitted by Commander Naval Base, with the spirit of the American Indian shall be deemed a violation of this sub- Religious Freedom Act (1978), reason- part. able access to Kaho’olawe Island dur- (c) For safety reasons, it is not Com- ing periods when it is not used for mili- mander Naval Base policy to permit tary training. However, because there children below the age of 15 access to are bombs and other explosives on and Kaho’olawe Island. under the surface and in the waters of (d) The following safety regulations the island, and because there are sig- are applicable to visitors to nificant archaeological resources Kaho’olawe Island: thereon (in 1981, the island was placed (1) All visitors to the island are re- on the National Register of Historical Places as an Archaeological District), quired to execute and submit a waiver Navy representatives accompany each of government liability form to a des- island visitation to safeguard both the ignated Navy representative prior to vistitor(s) and the island’s archae- arrival at the island. ological resources. In this regard, in (2) Visitors to the island will be es- order to ensure the safety of visitors to corted by Navy designated Explosive the island and its archaeological re- Ordnance Disposal (EOD) technicians sources, persons and organizations to ensure that they stay on cleared wishing access to Kaho’olawe Island paths, avoid impact areas, and do not must comply with the following appro- touch high explosives. For visitor safe- priate procedures: Civilians (except au- ty, the directions of the military es- thorized U.S. and State representa- corts must be followed. tives) must: (3) No person will interfere with any (1) Request, in writing, access au- EOD escort in the performance of his thorization from Commander Naval duties. Base (Code 01K), Pearl Harbor, Hawaii (4) Any actual or suspected ordnance 96860, at least 15 days prior to the ac- found by a visitor shall be reported to cess requested, providing therein con- the Special Assistant for Kaho’olawe as firmed access plans (including the soon as possible. If he is not in the vi- exact number of visitors, time, and lo- cinity, a description and location of cation of access, designation of person the ordnance should be provided to the in charge, and any other pertinent in- nearest EOD technician. Everyone, formation); and other than EOD personnel, shall re- (2) Submit to Commander Naval Base main clear of any ordnance found. (at the aforementioned address) prop- erly endorsed Standard Liability Re- (5) Only the qualified EOD techni- lease Form (obtainable from Com- cians shall touch, examine, remove, at- mander Naval Base), for each access tempt to remove, handle either di- participant, at least five (5) days prior rectly or indirectly, or detonate any to the requested access. ordnance, whether found on the sur- (b) In evaluating each request, the face, beneath the surface or in the wa- factors just enumerated will be ters surrounding Kaho’olawe. weighed against training commit- (6) Any proposed hike and procession ments, safety requirements, specical route shall be provided to the Special projects, and the amount and cost of Assistant for Kaho’olawe (or his des- military supervision necessitated by a ignated representative) for approval granting of the request. Requests for and escort coordination at least twen- entry will be considered on an indi- ty-four hours in advance of the planned vidual basis. If a request is granted, the event. Deviation from approved routes
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will not be allowed. Proposed camp- (11) Visitors are responsible for re- sites for overnight hikes shall be simi- moving their own trash from the is- larly provided to, and approved by, the land. Special Assistant for Kaho’olawe or his (12) Individuals failing to abide by designated representative. these safety guidelines will be pre- (7) No person shall move about the is- cluded from future visitations. land after sunset unless a bonafide emergency situation arises. The senior [47 FR 27553, June 25, 1982, as amended at 52 FR 20074, May 29, 1987; 52 FR 45455, Nov. 30, Naval officer present shall be imme- 1987] diately notified in case of such emer- gency. § 763.6 Violations. (8) No person shall commit any of- (a) Any person who violates this sub- fense proscribed by either Federal law part is subject to prosecution under 18 or the State of Hawaii Penal Code, as U.S.C. 1382, which provides in relevant incorporated under the Federal Assimi- part: lative Crimes Act, while on the island of Kaho’olawe. Any individual who vio- Whoever * * * goes upon any * * * naval lates any provisions of these penal * * * reservation * * * for any purpose pro- codes may be prosecuted by the Fed- hibited by law or lawful regulation * * * eral Government and/or barred from shall be fined not more than $500 or impris- oned not more than six months, or both. any future access to Kaho’olawe. (9) No person shall deface, alter, re- (b) Additionally, persons who violate move, spoil, or destroy any archeo- this Subpart are subject to prosecution logical object, feature, or site on the is- under the Internal Security Act of 1950 land. (50 U.S.C. 797), violations of which may (10) Children shall remain with their result in a maximum penalty of impris- parents at all times while on the is- onment for one year, or a fine of $5,000 land. or both.
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PART 765—RULES APPLICABLE TO thorities. The receipt of Absentee THE PUBLIC Wanted by the Armed Forces (DD Form 553) or oral or written notification Sec. from military officials or Federal law 765.1–765.5 [Reserved] enforcement officials that the person is 765.6 Regulations for Pearl Harbor, Hawaii. absent and that his return to military 765.9–765.11 [Reserved] control is desired is authority for ap- 765.12 Navy and Marine Corps absentees; re- prehension and will be considered as an wards. offer of a reward. When such a reward 765.13 Insignia to be worn on uniform by has been offered, persons or agency rep- persons not in the service. resentatives (except salaried officers or 765.14 Unofficial use of the seal, emblem, employees of the Federal Government, names, or initials of the Marine Corps. or service members) apprehending or AUTHORITY: Secs. 5031, 6011, 70A Stat. 278, delivering absentees or deserters to 375, as amended, sec. 133, 76 Stat. 517, sec. 301, military control will be entitled to a 80 Stat. 379; 5 U.S.C. 301, 10 U.S.C. 133, 5031, payment of 6011, 7881. (i) $50 for the apprehension and de- tention until military authorities as- §§ 765.1–765.5 [Reserved] sume control, or § 765.6 Regulations for Pearl Harbor, (ii) $75 for the apprehension and de- Hawaii. livery to military control. The Commander, U.S. Naval Base, Payment of reward will be made to the Pearl Harbor, Hawaii, is responsible for person or agency representative actu- prescribing and enforcing such rules ally making the arrest and the turn- and regulations as may be necessary over or delivery to military control. If for insuring security and for governing two or more persons or agencies join in the navigation, movements, and an- performing these services, payment chorage of vessels in the waters of may be made jointly or severally but Pearl Harbor and in the entrance chan- the total payment or payments will nel thereto. not exceed $50 or $75 as applicable. Pay- ment of a reward is authorized whether (Sec. 1, 37 Stat. 341, 62 Stat. 799; 18 U.S.C. the absentee or deserter voluntarily 2152, 33 U.S.C. 475; E.O. 8143, 4 FR 2179, 3 CFR surrenders to civil authorities or is ap- 1943 Cum. Supp. 504) prehended. Payment is not authorized [31 FR 16620, Dec. 29, 1966] for information merely leading to the apprehension of an absentee or de- §§ 765.9–765.11 [Reserved] serter. (2) Payment procedure. The disbursing § 765.12 Navy and Marine Corps absen- officer, special disbursing agent or tees; rewards. agent officer of the military activity to The following is set forth as it ap- which an absentee or deserter is first plies to Navy and Marine Corps absen- delivered will be responsible for pay- tees. The term ‘‘absentee,’’ as used in ment of the reward. Payment of re- this section, refers to a service member wards will be made on NAVCOMPT who commits the offense of absence Form 2277 supported by a copy of DD without leave. Cf. article 86 of the Uni- Form 553 or other form or notification form Code of Military Justice (10 that an individual is absent and that U.S.C. 886). his return to military control is de- (a) Payment of rewards—(1) Authority. sired, and a statement signed by the When authorized by military officials claimant specifying that he appre- of the Armed Forces, any civil officer hended (or accepted voluntary sur- having authority to arrest offenders render) and detained the absentee or may apprehend an individual absent deserter until military authorities as- without leave from the military serv- sumed control, or that he apprehended ice of the United States and deliver (or accepted voluntary surrender) and him into custody of the military au- delivered the absentee or deserter to
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military control. If oral notification (2) Payment procedure. The disbursing was made in lieu of written notifica- officer or special disbursing agent of tion, the claimant will so certify and the military activity to which an ab- provide the date of notification and the sentee or deserter is first delivered will name, rank or rate, title, and organiza- be responsible for making reimburse- tion of the person who made the au- ment for actual expenses. Reimburse- thorized notice of reward for apprehen- ment will be effected on NAVCOMPT sion of the absentee or deserter. Form 2277 supported by an itemized (b) Reimbursement for actual expenses— statement in triplicate signed by the (1) Authority. When a reward has not claimant and approved by the com- been offered or when conditions for manding officer. payment of a reward otherwise cannot (c) Reimbursement for subsistence fur- be met, reimbursement, not to exceed $75, may be made to any person or nished—(1) Authority. Civil authorities agency for actual expenses incurred in may be reimbursed for the cost of sub- the apprehension and detention or de- sistence furnished absentees or desert- livery to military control of an absen- ers placed in their custody for safe- tee or deserter. If two or more persons keeping at the request of military au- or agencies join in performing these thorities. Such reimbursement will be services, payment may be made jointly in addition to rewards and reimburse- or severally, but the total payment or ment for actual expenses authorized in payments may not exceed $25. Reim- paragraphs (a) and (b) of this section. bursement may not be made for the (2) Payment procedure. The disbursing same apprehension and detention or de- officer or special disbursing agent of livery for which a reward has been the military activity requesting the paid. Actual expenses for which reim- safekeeping confinement will be re- bursement may be made include: sponsible for making reimbursement (i) Transportation costs, including for subsistence furnished by civil au- mileage at the rate of 20.05 cents per thorities. Reimbursement will be ef- mile for travel by privately owned ve- fected on NAVCOMPT Form 2277 sup- hicle, for a round trip from either the ported by an itemized statement signed place of apprehension or civil police by the claimant and approved by the headquarters to place of return to mili- officer who requested the confinement. tary control; (d) Nothing said in this section shall (ii) Meals furnished the service mem- ber for which the cost was assumed by be construed to restrict or exclude au- the apprehending person or agency rep- thority to apprehend an offender in ac- resentative; cordance with law. (iii) Telephone or telegraph commu- (Sec. 807, 70A Stat. 39; 10 U.S.C. 807. Interpret nication costs; or apply secs. 808, 7214, 70A Stat. 40, 445; 10 (iv) Damages to property of the ap- U.S.C. 808, 7214) prehending person or agency if caused [25 FR 1075, Feb. 6, 1960, as amended at 51 FR directly by the service member during 22283, June 19, 1986] the apprehension, detention, or deliv- ery; § 765.13 Insignia to be worn on uni- (v) Such other reasonable and nec- form by persons not in the service. essary expenses incurred in the actual apprehension, detention, or delivery as (a) Under title 10 U.S.C., section 773, may be considered justifiable and reim- members of military societies com- bursable by the commanding officer. posed of persons discharged honorably Reimbursement will not be made for: or under honorable conditions from the (a) Lodging at nonmilitary confine- United States Army, Navy, Air Force ment facilities; or Marine Corps, regular or reserve, (b) Transportation performed by the may, when authorized by regulations use of official Federal, State, county, prescribed by the President, wear the or municipal vehicles; uniform duly prescribed by such soci- (c) Personal services of the appre- eties to be worn by the members there- hending, detaining, or delivering per- of. son or agency.
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(b) The law cited in paragraph (a) of (f) Marine Corps Uniform Regulations this section further provides that in- may be examined and individual copies structors and members of duly orga- of pertinent provisions thereof may be nized cadet corps at certain institu- purchased in accordance with § 701.1 of tions of learning may wear the uniform this chapter. duly prescribed by the authorities of (Sec. 773, 70A Stat. 35; 10 U.S.C. 773) such institutions. [13 FR 8971, Dec. 28, 1948, as amended at 26 (c) The law cited in paragraph (a) of FR 11794, Dec. 12, 1961; 37 FR 6472, Mar. 30, this section further provides that the 1972; 44 FR 37610, June 28, 1979] uniform worn by members of the mili- tary societies or by members and in- § 765.14 Unofficial use of the seal, em- structors of the cadet corps referred to blem, names, or initials of the Ma- in paragraph (a) of this section shall rine Corps. include some distinctive mark or insig- (a) Purpose. To establish procedures nia prescribed by the Secretary of the to determine whether to grant permis- military department concerned to dis- sion to use or imitate the seal, em- tinguish such uniforms from the uni- blem, names, or initials of the Marine forms of the Army, Navy, Air Force, or Corps in connection with commercial Marine Corps. and certain noncommercial activities (d) Accordingly, except as otherwise pursuant to 10 U.S.C. 7881. The Sec- provided in this paragraph, the fol- retary of the Navy, in Secretary of the lowing mark is hereby designated to be Navy Instruction 5030.7, has provided worn by all persons wearing the Navy the policy and delegated to the Com- or Marine Corps uniform as provided in mandant of the Marine Corps (CMC), paragraphs (a), (b), and (c) of this sec- power to subdelegate to certain subor- dinate officers in writing, the author- tion: A diamond, 31⁄2 inches long in the ity to grant permission required by vertical axis, and 2 inches wide in the section 7881(b) of 10 U.S.C. for such use horizontal axis, of any cloth material, or imitation. white on blue clothing, forestry green (b) Scope. The provisions of this Order on khaki clothing, and blue on white requiring prior approval of the Sec- clothing. The figure shall be worn on retary of the Navy, CMC, or the des- all outer clothing on the right sleeve, ignee apply only to the use or imita- at the point of the shoulder, the upper tion of the seal, emblem, names, or ini- tip of the diamond to be one-fourth tials of the Marine Corps that suggest inch below the shoulder seam. For per- official approval, endorsement, or au- sons who are participating in United thorization is in connection with a pro- States Marine Corps Junior ROTC pro- motion, goods, services, or commercial grams, the following mark is des- activity. ignated to be worn: A round patch, (c) Standards—(1) No unofficial use or three inches in diameter, which con- imitation of the Marine Corps seal. Re- tains a gold Marine Corps emblem cen- production and use of the Marine Corps tered on a scarlet field. The scarlet seal, as designated in Executive Order field is surrounded with a blue border No. 10538 of June 22, 1954, is restricted containing the words ‘‘United States to materials emanating from Head- Marine Corps Junior ROTC’’ in white quarters Marine Corps. Except for man- lettering. Surrounding the blue field ufacture of official letterhead sta- will be a gold border. Unless otherwise tionery and related items of official directed, the patch will be worn in the Marine Corps use, reproduction and use manner described above in connection of the Marine Corps seal is prohibited. with the ‘‘diamond’’ insignia. (2) Unofficial use or imitation of the (e) Within the meaning of paragraph Marine Corps emblem, names, or initials. (a) of this section, the occasions when Requests from civilian enterprises to members of the military societies may use or imitate the Marine Corps em- wear the uniform of their respective so- blem, names, or initials will ordinarily ciety are official functions which such be approved where use or imitation a member attends in his capacity as a merely provides a Marine Corps accent war veteran or as a member of such or flavor to otherwise fungible goods. military society. Disapproval, however, usually may be
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expected where such use or imitation Marine Corps emblem, names, or ini- reasonably would: tials to the Director of Headquarters (i) Imply any official or unofficial Support (CMC (HQSP)). Prior to grant- connection between the Marine Corps ing approval for commercial usage of and the user; the Marine Corps insignia, the CMC (ii) Tend to create the impression (HQSP) shall forward such requests to that the Marine Corps or the United the Head, Marine Corps Exchange Serv- States is in any way responsible for ice Branch, Facilities and Services Di- any financial or legal obligation of the vision, Installations and Logistics De- user; partment (CMC) (LFE)) and to the (iii) Give the impression that the Ma- Counsel for the Commandant (CMC rine Corps selectively benefits the par- (CL)) for comment and concurrence. ticular manufacturer, commercial enti- All other requests shall be routed to ty, or other user, as in displaying the the Director, Judge Advocate Division Marine Corps emblem, names, or ini- (CMC (JAR)) for comment and concur- tials on musical instruments, weapons, rence. or the like, and in using the emblem, (3) Procedures for obtaining written per- names, or initials in connection with mission. Requests for written permis- advertising, naming, or describing sion to use or imitate the Marine Corps products and services such as insur- emblem, names, or initials shall be in ance, real estate, or financial services; writing and shall be directed to the or CMC (HQSP). The request should, at a (iv) Tend to subject the Marine Corps minimum, contain the following infor- to discredit or would be inimical to the mation: health, safety, welfare, or morale of (i) Name and address of the re- the members of the Marine Corps. quester. (3) Acceptable use of imitation of the (ii) A description of the type of activ- Marine Corps insignia. No request for ity in which the requester is engaged permission is required when a use or or proposes to engage. imitation of the Marine Corps emblem, (iii) A statement of whether the re- names, or initials includes prominent quester considers the proposed use or display of the disclaimer, ‘‘Neither the imitation to be commercial or non- United States Marine Corps nor any commercial, and why. other component of the Department of (iv) A brief description and illustra- Defense has approved, endorsed, or au- tion or sample of the proposed use or thorized this product (or promotion, or imitation, as well as a description of service, or activity)’’ as an integral the product or service in connection part of the use of imitation. A ‘‘promi- with which it will be used. This de- nent display’’ is one located on the scription will provide sufficient detail same page as the first use of the insig- to enable the Marine Corps to deter- nia, prominent in that use, and printed mine whether there is a reasonable in letters at least one half the size and tendency to suggest such use or imita- density of the insignia. tion is approved, endorsed, or author- (d) Action—(1) When permission re- ized by the Marine Corps or any other quired. Commercial or noncommercial component of the Department of De- use or imitation of the Marine Corps fense. emblem, names, or initials is prohib- (v) In the case of a noncommercial ited unless permission is first obtained use of imitation, a copy of the charter, in writing from the CMC, except when constitution, bylaws, and similar orga- such use does not suggest that the use nizational documents of the requester, or imitation is approved, endorsed, or together with a detailed description of authorized by the Marine Corps or any its function or purpose. Insufficiently other component of the Department of specific requests will be returned for Defense. additional information. (2) Redelegation of authority. The CMC (e) Reserve applicability. This Order is hereby redelegates, pursuant to the au- applicable to the Marine Corps Re- thorization in paragraph 4 of the Sec- serve. retary of the Navy 5030.7, authority to grant written permission to use the [51 FR 45467, Dec. 19, 1986]
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PART 766—USE OF DEPARTMENT OF (2) Leased aircraft. U.S. Government- THE NAVY AVIATION FACILITIES owned aircraft delivered by the Gov- BY CIVIL AIRCRAFT ernment to a lessee subject to terms prescribed in an agreement which does Sec. not limit the lessee’s use of the aircraft 766.1 Purpose. to Government business. 766.2 Definition of terms. (c) Civil aviation. All flying activity 766.3 Authority. by civil aircraft including: 766.4 Policy. (1) Commercial aviation. Transpor- 766.5 Conditions governing use of aviation tation by aircraft of passengers or facilities by civil aircraft. 766.6 Approving authority for landings at cargo for hire and the ferrying of air- Navy/Marine Corps aviation facilities. craft as a commercial venture. 766.7 How to request use of naval aviation (2) General aviation. All types of civil facilities. aviation other than commercial avia- 766.8 Procedure for review, approval, execu- tion as defined above. tion and distribution of aviation facility (d) Facility. A separately located and licenses. 766.9 Insurance requirements. officially defined area of real property 766.10 Cancellation or suspension of the in which the Navy exercises a real aviation facility license (OPNAV Form property interest and which has been 3770/1). designated as a Navy or Marine Corps 766.11 Fees for landing, parking and storage. aviation facility by cognizant author- 766.12 Unauthorized landings. ity; or where the Department of the 766.13 Sale of aviation fuel, oil, services and supplies. Navy has jurisdiction over real prop- erty agreements, expressed or implied, AUTHORITY: 49 U.S.C. 1507. with foreign governments, or by rights SOURCE: 35 FR 14451, Sept. 15, 1970, unless of occupation. (This definition does not otherwise noted. include aircraft carriers nor any other NOTE: The provisions of this part 766 are type of naval vessel with a landing area SECNAV Instruction 3770.1B of 30 June 1970. for aircraft.) § 766.1 Purpose. (e) Government aircraft. Aircraft owned or operated by any department This part establishes the policy and or agency of either the United States procedures for the use of Navy and Ma- or a foreign government (except a for- rine Corps aviation facilities by air- eign government-owned aircraft oper- craft other than U.S. Department of ated for commercial purposes). Also Defense aircraft. aircraft owned by any department, § 766.2 Definition of terms. agency, or political subdivision of a State, territory, or possession of the For the purpose of this part certain United States when such local govern- terms are defined as follows: ment has sole responsibility for oper- (a) Alternate use. Use of the aviation ating the aircraft. Government aircraft facility, specified in the flight plan, to includes: which an aircraft may divert when a landing at the point of first intended (1) Military aircraft. Aircraft used in landing becomes impractical because of the military services of any govern- weather. (Aircraft may not be dis- ment. patched, prior to takeoff from the air- (2) Bailed aircraft. U.S. Government- port of origin, to a facility licensed for owned aircraft delivered by the Gov- alternate use.) ernment to a Government contractor (b) Civil aircraft. Domestic or foreign for a specific purpose directly related aircraft operated by private individuals to a Government contract. or corporations, or foreign govern- (3) Loaned aircraft. U.S. Government- ment-owned aircraft operated for com- owned aircraft delivered gratuitously mercial purposes. This includes: by any Department of Defense agency (1) Contract aircraft. Civil aircraft op- to another Government agency, to a erated under charter or other contract U.S. Navy or Marine Corps Flying to any U.S. Government department or Club, or to a U.S. Army or Air Force agency. Aero Club.
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(f) Joint-use facility. A Navy or Marine § 766.3 Authority. Corps facility where a specific agree- Section 1107(a) of the Federal Avia- ment between the Department of the tion Act of 1958 (49 U.S.C. 1507, 1508) Navy and a civilian community, or be- states that ‘‘Air navigation facilities tween the U.S. Government and a for- owned or operated by the United States eign government, provides for civil air- may be made available for public use craft use of the runways and taxiways. under such conditions and to such ex- Civil aircraft terminal, parking, and tent as the head of the department or servicing facilities are established and other agency having jurisdiction there- controlled by civil authorities in an of deems advisable and may by regula- area separate from those of the Navy tion prescribe.’’ (See § 766.13 for restric- or Marine Corps. tions imposed by the Federal Aviation (g) Official business. Business, in the Act of 1958.) interest of the U.S. Government, which personnel aboard an aircraft must § 766.4 Policy. transact with U.S. Government organi- Navy and Marine Corps aviation fa- zations or personnel at or near the cilities are established to support the naval aviation facility concerned. Use operation of Navy and Marine Corps of a facility to solicit U.S. Government aircraft. Equipment, personnel and ma- business is not ‘‘official business.’’ terial are maintained only at a level (h) Provisional use. Use of a naval necessitated by these requirements and aviation facility for the purpose of pro- shall not be used to support the oper- viding adequate service to a commu- ation or maintenance of civil aircraft nity where, because of repair, construc- or non U.S. Government aircraft, ex- tion or the performance of other work, cept as noted below. (Nothing in this the regular civil airport servicing the part, however, should be interpreted to community is not available for an ex- prohibit any aircraft from landing at tended period. (An aircraft may be dis- any suitable Navy or Marine Corps patched prior to takeoff from the air- aviation facility in case of a bona fide port of origin to a naval aviation facil- emergency.) (See § 766.5(i).) ity authorized for provisional use.) (a) General. Subject to the procedures (i) Scheduled use. Use of a facility on established elsewhere in this part, civil aircraft and government aircraft, other a scheduled or regularly recurring than those belonging to the U.S. Gov- basis by an air carrier certified by the ernment may use Navy or Marine Civil Aeronautics Board to provide pas- Corps facilities, if necessary, Provided, senger and cargo service to a commu- That: nity or area. (1) They do not interfere with mili- (j) Services in connection with Govern- tary requirements, and the security of ment contracts. This type of operation, military operations, facilities, or cited on the Aviation Facility License, equipment is not compromised. indicates the use of a facility for trans- (2) No adequate civil airport is avail- porting the contractor’s supplies and able. (Exception to this provision may personnel for the performance of work be made when the aircraft is operated at the facility under the terms of a spe- in connection with official business as cific U.S. Government contract. defined in this part.) (k) Technical stop. An en route land- (3) Pilots comply with regulations ing for the purpose of obtaining fuel, promulgated by the cognizant military oil, minor repairs, or crew rest. This agency and the commanding officer of does not include passenger accom- the facility. modations nor passenger/cargo enplan- (4) Civil aircraft users assume the ing or deplaning privileges unless spe- risk in accordance with the provisions cifically authorized by the Chief of of the Aviation Facility License. Naval Operations. (5) Each aircraft is equipped with (l) User. An individual, corporation, two-way radio which provides a capa- or company named in the Aviation Fa- bility for voice communications with cility License and the Certificate of In- the control tower on standard Navy/ surance. Marine Corps frequencies.
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(6) The user, or requesting govern- mental purposes, if the contract so pro- ment, has obtained permission through vides, or if it is determined to be in the diplomatic channels from the host best interests of the U.S. Government country wherein the facility of in- to do so. Unless otherwise provided in tended landing is located, if applicable. the contract, an Aviation Facility Li- (b) Civil Aircraft owned and operated cense is required, and the user shall by—(1) Military personnel. Private air- furnish a Certificate of Insurance as craft owned and operated by active provided in this part. duty U.S. military personnel or by (e) Aircraft demonstrations. Manufac- Navy/Marine Corps Reservists on inac- turers of aircraft or installed equip- tive duty may be authorized to land at ment may be authorized to use Navy/ a facility, provided such aircraft is not Marine Corps facilities in dem- engaging in air commerce, and such onstrating and/or showing aircraft or landing is for official business required installed equipment to officials of the by written orders. Under no conditions U.S. Government when: shall such aircraft be allowed to base (1) It is determined to be in the best or operate from a facility for personal interest of the U.S. Government. convenience nor base at a facility (2) The aircraft was produced in ac- under the guise of official business. cordance with U.S. Government speci- (2) Civil employees of the U.S. Govern- fications either with or without the aid ment. Private aircraft owned and oper- of Federal funds. ated by civil employees of the U.S. (3) There is an expressed interest on Government may be authorized to land the part of the U.S. Government offi- at a facility, provided such aircraft is cials responsible for procurement, ap- not engaging in air commerce, and proval, or certification of the aircraft. such landing is for official business re- (f) Joint use. When a specific agree- quired by written orders. Such aircraft ment is entered into by the Depart- shall not be allowed to base or operate ment of the Navy pertaining to joint from a facility for personal conven- civil/military use of a Navy or Marine ience. (Employees of U.S. Government Corps facility, the terms of that agree- contractors are not considered civil ment shall take precedence over the employees of the U.S. Government.) provisions of this part. (3) Non-U.S. Government personnel. An (g) Diplomatic agreements. For diplo- individual or corporation owned and/or matic agreements and clearances to operated aircraft may be authorized to use U.S. Navy and Marine Corps avia- land at a facility for: tion facilities in foreign countries, the (i) Sales or service representation to provisions of this part are subject to authorized military agents (e.g. the ex- the provisions of status of forces agree- change, commissary, or contracting of- ments, treaties of mutual cooperation ficer). or other international agreements. (ii) Services in connection with U.S. This part shall be used as a guide in ne- Government contracts. Contracting gotiating agreements at the local level agency and contract number(s) must be with representatives of a foreign mili- cited in the application for an Aviation tary service, the U.S. Embassy, and the Facility License. host government concerning the use of (c) Department of defense charter or naval facilities by other than U.S. contract. Aircraft operating under a military aircraft. Approval shall be ob- Military Traffic Management and Ter- tained from the Chief of Naval Oper- minal Service (MTMTS), Military Air- ations for proposed terms which are in lift Command (MAC), or Navy charter conflict with this part. or contract for the movement of DOD passengers or cargo may be authorized § 766.5 Conditions governing use of to use Navy or Marine Corps aviation aviation facilities by civil aircraft. facilities when required for loading, en (a) Risk. The use of Navy or Marine route or terminal stops. Corps aviation facilities by civil air- (d) Test and experimental use. Aircraft craft shall be at the risk of the oper- being produced for a military agency ator. Except as hereinafter provided for under contract may use Navy/Marine U.S. Government contractors, the De- Corps facilities for testing and experi- partment of the Navy shall assume no
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liability or responsibility by reason of tion (en Route) Instrument Flight the condition of the landing area, Rules—Supplement, then the ceiling taxiways, radio and navigational aids, and visibility must be at or above these or other equipment or for notification minimums in the applicable control of such condition; or by the acts of its zone. agents in connection with the granting (2) Instrument flight operations shall of the right to use such naval facility. be conducted in accordance with FAR, No responsibility is assumed for the se- § 91.116 of this title. curity of or damage to aircraft while (f) Inspection. The commanding offi- on property owned or controlled by the cer may conduct such inspection of a U.S. Government. transiting civil aircraft and its crew, (b) Military rules. Operators of civil passengers and cargo as he may con- aircraft utilizing a Navy or Marine sider appropriate or necessary to the Corps aviation facility shall be re- carrying out of his duties and respon- quired to comply with the air and sibilities. ground rules promulgated by the De- (g) Customs, immigration, agriculture, partment of the Navy and the com- and public health inspection. (1) The manding officer of the aviation facil- civil aircraft commander shall be re- ity. Such compliance shall pertain spe- sponsible for compliance with all appli- cifically to clearance authorization for cable customs, immigration, agri- the entry, departure, or movement of culture, and public health laws and aircraft within the confines of the ter- regulations. He shall also be respon- minal area normally controlled by the sible for paying fees, charges for over- commanding officer of the aviation fa- time services, and for all other costs cility. connected with the administration of (c) Federal aviation regulations. Opera- such laws and regulations. tors of civil aircraft shall be required (2) The commanding officer of the to comply with all Federal Aviation Navy/Marine Corps aviation facility Administration (FAA) rules and regu- will inform the appropriate public offi- lations including filing of flight plans. cials of the arrival of civil aircraft sub- When such flight plans are required, ject to such laws and regulations. He they shall be filed with the com- will not issue clearances for a civil air- manding officer or his authorized rep- craft to takeoff until such laws and resentative prior to the departure of regulations have been complied with. the aircraft. When such a flight plan is Procedures for insuring compliance not required, a list of passengers and with such laws and regulations shall be crew members, the airport of first in- as mutually agreed to by the com- tended landing, the alternate airport, manding officer of the aviation facility and fuel supply in hours shall be placed and the local public officials. on file prior to takeoff, with the com- (h) Weather alternate. If a Navy/Ma- manding officer or with the local com- rine Corps aviation facility has been pany representative as appropriate. approved for use as an alternate air- (d) Hours of operation. The use of a port, radio clearance must be obtained Navy/Marine Corps aviation facility by from such facility as soon as the deci- civil aircraft shall be limited to the sion is made en route for such use. hours when the facility is normally in (i) Emergency landings. Any aircraft operation. may land at a Navy/Marine Corps avia- (e) Weather minimums. Civil aircraft tion facility when necessary as a result shall comply with weather minimums of a bona fide emergency. However, as follows: whenever the nature of the emergency (1) Visual Flight Operations shall be permits the pilot to select the time and conducted in accordance with Federal place of landing, it is preferred that the Aviation Regulations (FAR), § 91.105 of pilot land his aircraft at a civil field. this title. If more stringent visual (1) The commanding officer of the flight rules minimums have been estab- aviation facility will require that the lished for the point of departure or des- pilot of the aircraft pay all fees and tination, as noted in the aerodrome re- charges and execute the Aviation Fa- marks section of the Department of cility License. A statement explaining Defense Flight Information Publica- the circumstances of the emergency
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landing must be noted in § 766.5 of the Government as a direct result of the license application. If a narrative re- emergency landing. Such costs will in- port from the pilot is available, it may clude those associated with labor, ma- be attached to the application. terial, rental of equipment, vehicles or (2) Clearance of runway. The Depart- tools, etc., for: ment of the Navy reserves the right to (a) Spreading foam on runway before use any method to clear a runway of the aircraft attempts emergency land- aircraft or wreckage consistent with ing. operational requirements. Care will be (b) Fire and crash control and rescue. exercised to preclude unnecessary dam- (c) Movement and storage of aircraft age in removing wrecked aircraft; how- or wreckage. ever, the Navy assumes no liability as (d) Damage to runway, lights, navi- a result of such removal. gation aids, etc. (3) Repairs. (i) Aircraft requiring major repairs may be stored tempo- (ii) There will be no charge for naval rarily in damaged condition. If repairs meteorological services and naval com- cannot be completed within a reason- munications facilities for the handling able time, the aircraft must be re- of arrival and departure reports, air moved from the facility by the owner traffic control messages, position re- or operator of the aircraft without ports and safety messages. delay. (iii) The determination as to whether (ii) No aircraft will be given a major landing fees shall be charged pursuant or minor overhaul. to an emergency landing for mainte- (iii) Engine or air frame minor com- nance or repair shall be the prerogative ponents may be furnished, when not of the commanding officer of the facil- available through commercial sources, ity. provided such supplies can be spared [35 FR 14451, Sept. 15, 1970, as amended at 51 and are not known to be in short sup- FR 22804, June 23, 1986] ply. The issuance of such supplies must be approved by the commanding offi- § 766.6 Approving authority for land- cer. ings at Navy/Marine Corps aviation (iv) Minor components in short sup- facilities. ply or major components for which (a) Except as indicated in paragraphs there is a repeated demand can be fur- (b) and (c) of this section, the com- nished only on message authority ob- manding officer of an active Navy/Ma- tained from the Aviation Supply Of- rine Corps aviation facility may ap- fice, Philadelphia, PA (for continental prove or disapprove landings of civil facilities) or local fleet air command or aircraft at his facility when such land- major aviation supply depot (for ing is: extracontinental facilities). Complete (1) Directly connected with or in sup- engines, airplane wings, or other major port of U.S. Government business (ex- items of equipment shall not be fur- cept those listed in paragraph (c) of nished under this authority. this section). (v) If the commanding officer be- lieves it is desirable to furnish re- (2) In connection with U.S. Govern- quested material or services in excess ment or community interests on an in- of the restrictions stated herein, he frequent basis when no adequate civil shall request instructions from the airport is reasonably available. Chief of Naval Operations, giving a (3) By aircraft owned and operated by brief description of the material or Navy/Marine Corps Flying Clubs or services requested together with his U.S. Army or Air Force Aero Clubs recommendations. which are operated as instrumental- (4) Reimbursement for costs. (i) The ities of the U.S. Government. civil user making an emergency land- (4) By aircraft owned and operated by ing will be billed in accordance with U.S. Government personnel when such paragraphs 032500–032503 of the use is in accordance with § 766.4(b) (1) NAVCOMPT Manual and paragraphs and (2). 25345–25363 of the NAVSUP Manual for (5) By civil aircraft either owned or payment of all costs incurred by the personally chartered by:
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(i) The President or Vice President of ment and the government of the air- the United States or a past President craft’s registry, or of the United States. (ii) The facility is located in a coun- (ii) The head of any Federal depart- try other than that in which the for- ment or agency. eign aircraft is registered. (iii) A Member of Congress. (6) By a bailed, leased, or loaned air- § 766.7 How to request use of naval craft (as defined in § 766.2) when oper- aviation facilities. ated in connection with official busi- (a) Forms required. Each applicant de- ness only. siring use of a Navy/Marine Corps avia- (7) By aircraft owned and operated by tion facility will be required to: States, counties, or municipalities of (1) Execute an application for an the United States when used for offi- Aviation Facility License (OPNAV cial business of the owner. Form 3770/1 (Rev. 7–70)). (b) Except as limited by paragraph (c) (2) Submit a Certificate of Insurance of this section, the Commander in (NAVFAC 7–11011/36) showing coverage Chief, U.S. Naval Forces, Europe; Chief as provided by § 766.9 of this part. of Naval Material; Commander in (b) Exceptions. Exceptions to the fore- Chief, U.S. Atlantic Fleet; Commander going requirements are: in Chief, U.S. Pacific Fleet; Chief of (1) Aircraft owned and operated by Naval Air Training; Commander, Pa- departments or agencies of the U.S. cific Missile Range; Commander, Ma- Government for official business. rine Corps Air Bases, Eastern Area; (2) Aircraft owned and operated or Commander, Marine Corps Air Bases, noncommercial purposes by agencies of Western Area; and Commanding Gen- a foreign government, except in cases eral, Fleet Marine Force, Pacific may where the foreign government charges approve civil aircraft use of any active fees for U.S. Government aircraft. aviation facility under their control. (3) Aircraft owned and operated by (At overseas locations, aircraft landing States, possessions, and territories of authorizations must be in consonance the United States and political subdivi- with the provisions of applicable inter- sions, thereof, when used for official national agreements.) business of the owner. (c) The Chief of Naval Operations (4) Aircraft owned and operated by ei- may approve any of the above requests, ther Navy/Marine Corps Flying Clubs and is the only agency empowered to or Aero Clubs of other military serv- approve all other requests for use of ices which are operated as instrumen- naval facilities by civil and govern- talities of the U.S. Government. ment aircraft, for example: (5) Bailed aircraft, provided the bail- (1) Applications for use of more than ment contract specifies that the U.S. one facility when the facilities are not Government is the insurer for liability. under the control of one major com- (c) Obtaining forms. The applicant mand. may obtain the required forms listed in (2) Application for use of naval avia- paragraph (a) of this section, from the tion facilities when participating in commanding officer of any Navy or U.S. Government or Department of De- Marine Corps aviation facility or from fense single-manager contract and the Chief of Naval Operations (OP–53C). charter airlift operations; i.e., Military Navy units may obtain the forms Airlift Command (MAC) or Military through regular supply channels as a Traffic Management and Terminal Cog ‘‘I’’ item. Service (MTMTS). (d) Preparation of forms. (1) The li- (3) Application for a facility to be cense application will be completed in used as a regular civil airfield for a quadruplicate by the applicant in ac- community, by either commercial or cordance with detailed instructions set general aviation. forth in Aviation Facility License (4) Requests for use of a facility by (OPNAV Form 3770/1 (REV. 7–70)). foreign civil or government aircraft (2) The Certificate of Insurance will when: be completed by the insurer. Only the (i) Such use is not covered by an signed original certificate and one copy agreement between the U.S. Govern- are required to be submitted.
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(e) Submission of forms. (1) The forms nish a security deposit as stipulated in executed by the applicant shall be sub- § 766.7(f). mitted to the commanding officer of (b) Processing application. The com- the aviation facility concerned, except manding officer will approve/dis- that applications requiring approval by approve the application or forward it higher authority shall be submitted to to higher authority for approval as re- the appropriate approving authority, quired by § 766.6(b) or (c). If the applica- as indicated in paragraph (b) or (c) of tion is approved, the approving author- this section at least 30 days prior to ity will then forward all copies of the the first intended landing. license and Certificate of Insurance to (2) Once the NAVFAC 7–11011/36, Cer- the Commander, Naval Facilities Engi- tificate of Insurance, is on file with an neering Command or his designated executing authority, it is valid until representative for review and execu- insurance expiration date and may be tion of the license. used by that executing authority as a (c) Action by the Commander, Naval basis for his action on any subsequent Facilities Engineering Command or his OPNAV Forms 3770/1 submitted for ap- designated representative. (1) Upon re- proval. ceipt, the Commander, Naval Facilities Engineering Command, or his des- (f) Security deposit. All applications, ignated representative, will review the other than those listed in § 766.11(a) license and Certificate of Insurance. He contemplating more than one landing shall determine whether the insurance per month, will be accompanied by a coverage conforms to the requirements security deposit in the form of a cer- prescribed by § 766.9 of this part or to tified check payable to the ‘‘Treasurer such requirements as may be promul- of the United States’’ in payment of gated from time to time by the Chief of the estimated costs of landing, hangar Naval Material. and outside parking fees, for 3 months (2) Upon approval, he will then exe- in advance, calculated as provided in cute the license in triplicate, conform § 766.11 (c) and (d). Security deposits all additional copies, and make dis- will be handled as set forth in para- tribution as provided in paragraph (d) graph 032102 of the NAVCOMPT Man- of this section. Applications which are ual. not approved will be returned to the (g) Nonexclusive use airports. When ei- applicant with an explanation of defi- ther the Chief of Naval Operations or ciencies which must be corrected prior Commandant of the U.S. Marine Corps to execution. does not have exclusive operational (d) Distribution. (1) After execution of control over a landing area, the air- a license, distribution will be made as craft operator will obtain permission follows: to land from the appropriate civil or military authority. Original—To the licensee. Executed copy—To the commanding officer. Executed copy—To the Commander, Naval § 766.8 Procedure for review, approval, Facilities Engineering Command or his execution and distribution of avia- designated representative. tion facility licenses. Conformed copy—To the Chief of Naval Oper- (a) Review of application by the com- ations (OP–53). manding officer. The commanding offi- Conformed copy—To the cognizant com- cer will review each application for mander under § 766.6(b). Conformed copy—To the disbursing officer Aviation Facility License and Certifi- serving the performing activity in the case cate of Insurance received and deter- of local deposits, and to the Office of the mine whether such forms have been Navy Comptroller (NAFC3) in the case of completed by the applicant in accord- central deposits held at the Washington, ance with the instructions for their DC level. preparation as indicated in the Avia- Conformed copy—To the Military Airlift tion Facility License (OPNAV Form Command (MAC) for DOD contract or char- ter airlift operations. 3770/1 (REV. 7–70)) and the Certificate Conformed copy—To the Military Traffic of Insurance (NAVFAC 7–11011/36(7–70)). Management and Terminal Service As appropriate, the commanding offi- (MTMTS) for DOD contract or charter air- cer will require each applicant to fur- lift operations.
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(2) Licenses issued under this author- (ii) Property damage liability. At least ity are to be disposed of under provi- $1 million for each accident. sions of paragraph 4280 of (iii) Passenger liability. At least SECNAVINST 5212.5B, Disposal of $100,000 for each passenger, with a min- Navy and Marine Corps Records. In ac- imum for each accident determined as cordance therewith, official executed follows: multiply the minimum for copies of licenses are to be retained for each passenger, $100,000 by the next a period of 6 years after completion or highest whole number resulting from termination of the agreement. They taking 75 percent of the total number may be transferred to the nearest Fed- of passenger seats (exclusive of crew eral records center when superseded, seats). For example: The minimum pas- revoked, canceled, or expired for reten- senger coverage for each accident for tion by the center until expiration of an aircraft with 94 passenger seats is the 6-year retention period. computed: 94×0.75=70.5—next highest whole number resulting in 71. There- § 766.9 Insurance requirements. fore, 71×$100,000=$7,100,000. (a) Control of insurance. The Com- (3) Privately owned noncommer- mander, Naval Facilities Engineering cially-operated aircraft of less than Command, or his designee, shall be re- 12,500 pounds will be insured for: sponsible for requiring aircraft owners (i) Bodily injury liability (excluding or operators to procure and maintain passengers). At least $100,000 for each liability insurance conforming to the person in any one accident with at standards prescribed by the Chief of least $500,000 for each accident. Naval Material. The insurance policy (ii) Property damage liability. At least must be obtained at the expense of the $500,000 for each accident. civil aircraft owner or operator and (iii) Passenger liability. At least with a company acceptable to the U.S. $100,000 for each passenger, with a min- Navy. imum for each accident determined by (b) Insurance coverage. Except for multiplying the minimum for each pas- those aircraft exempted by paragraph senger, $100,000 by the total number of (c) below, each civil aircraft is required passenger seats (exclusive of crew to be covered by insurance of the types seats). and minimum limits established by the (4) Aircraft insured for a single limit Chief of Naval Material. The Certifi- of liability must have coverage equal cate of Insurance, must state all cov- to or greater than the combined re- erages in U.S. dollars. Current mini- quired minimums for bodily injury, mums are: property damage, and passenger liabil- (1) Privately owned commercially-op- ity for the type of use requested and erated aircraft used for cargo carrying for the passenger capacity and gross only and aircraft being flight-tested or takeoff weight of the aircraft being op- ferried without passengers will be in- erated. For example: the minimum sin- sured for: gle limit of liability acceptable for an (i) Bodily injury liability. At least aircraft operating as described in para- $100,000 for each person in any one acci- graph (b)(2) of this section is $1,000,000 dent with at least $1 million for each + $1,000,000 + $7,100,000 = $9,100,000. accident. (5) Aircraft insured by a combination (ii) Property damage liability. At least of primary and excess policies must $1 million for each accident. have combined coverage equal to or (2) Privately owned commercially-op- greater than the required minimums erated aircraft used for passenger car- for bodily injury, property damage, and rying and privately owned noncommer- passenger liability, for the type of use, cially-operated aircraft of 12,500 pounds and for the passenger capacity and or more certified maximum gross take- gross takeoff weight of the aircraft. off weight will be insured for: (6) Each policy must specifically pro- (i) Bodily injury liability (excluding vide that: passengers). At least $100,000 for each (i) The insurer waives any right to person in any one accident with at subrogation the insurer may have least $1 million for each accident. against the United States by reason of
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any payment under the policy for dam- (b) Suspension. The approving author- age or injury which might arise out of ity, or the commanding officer of the or in connection with the insured’s use facility, may suspend an approved of any Navy installation or facility. Aviation Facility License when such li- (ii) The insurance afforded by the censed use would be inconsistent with policy applies to the liability assumed Navy/Marine Corps or national defense by the insured under OPNAV Form interests. Whenever possible, the De- 3770/1, Aviation Facility License. partment of the Navy will avoid sus- (iii) If the insurer cancels or reduces pension of licenses which have been the amount of insurance afforded under issued for official business or scheduled the listed policy, the insurer shall send air carrier use. In all cases, suspensions written notice of the cancellation or will be lifted as quickly as possible. A reduction to Commander, Naval Facili- suspension will not have the effect of ties Engineering Command, Depart- extending the expiration date of an ap- ment of the Navy, Washington, DC proved Aviation Facility License. 20390 by registered mail at least 30 days in advance of the effective date of the § 766.11 Fees for landing, parking and cancellation; the policy must state storage. that any cancellation or reduction will (a) The commanding officer of a facil- not be effective until at least 30 days ity will collect landing, parking, and after such notice is sent, regardless of storage fees, as applicable, from all the effective date specified therein. users required to have an Aviation Fa- (iv) If the insured requests cancella- cility License by § 766.7 except for the tion or reduction, the insurer shall no- following: tify the Commander, Naval Facilities (1) Government aircraft (see defini- Engineering Command, Department of tion § 766.2(g)) except that foreign gov- the Navy, Washington, DC 20390 imme- ernment aircraft will be charged fees if diately upon receipt of such request. their government charges similar fees (c) Exemption. Government aircraft, for U.S. Government aircraft. as defined in § 766.2(e) are exempt from (2) Aircraft being produced under a the insurance requirements specified contract of the U.S. Government. above. However, this exemption applies (3) Any contract aircraft (see defini- to bailed aircraft only if the contract tion § 766.2(b)(1)) or other civil aircraft under which the aircraft is bailed which is authorized to use the facility specifies that insurance is not required. on official business. (4) Aircraft employed to train opera- § 766.10 Cancellation or suspension of tors in the use of precision approach the aviation facility license (OPNAV systems (GCA, ILS, et al.) provided Form 3770/1). full-stop or touch-and-go landings are (a) Cancellation. (1) If the user fails to not performed. comply with the terms of the Aviation (5) Aircraft owned and operated by ei- Facility License (OPNAV Form 3770/1) ther Navy/Marine Corps Flying Clubs or of any applicable regulations, all or Aero Clubs or other military serv- current Aviation Facility Licenses for ices which are operated as instrumen- that user will be canceled. A canceled talities of the U.S. Government. Aviation Facility License cannot be re- (6) Aircraft owned and operated by instated; a new application must be military personnel on active duty (Reg- submitted for approval as explained in ular and Reserve) or retired, provided § 766.7. the aircraft is not used for commercial (2) If the commanding officer of a purposes. naval aviation facility has reason to (7) Landing fees incident to emer- believe that the use of an Aviation Fa- gency landings for which the landing cility License is not in accordance with fee has been waived by the com- the terms of the license he should im- manding officer in accordance with mediately notify the Chief of Naval Op- § 766.5(i)(5)(i). erations, giving the name of the user, (b) Fee for unauthorized landing. If an the Aviation Facility License number, aircraft lands at a Navy/Marine Corps and citing the circumstances of the aviation facility without obtaining misuse. prior permission (except for a bona fide
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emergency landing), a landing fee in § 766.12 Unauthorized landings. excess of the normal landing fee will be An aircraft that lands at a Navy/Ma- charged to cover the additional ex- rine Corps aviation facility without ob- penses incurred due to special handling taining prior permission from an ap- and processing. The fee for an unau- proving authority, except in a bona thorized landing will be as follows: fide emergency, is in violation of this (1) For aircraft weighing less than part. Civil aircraft landing in violation 12,500 pounds: $100. of this regulation will have to pay the (2) For aircraft weighing 12,500 fee prescribed in § 766.11(b). In those pounds but less than 40,000 pounds: cases where an unauthorized landing is $250. made at a facility within a Naval De- (3) For aircraft weighing 40,000 fense Area, proclaimed as such by Ex- pounds but less than 100,000 pounds: ecutive order of the President, civil $500. aircraft may be impounded and the op- (4) For aircraft weighing above erator prosecuted as indicated in 100,000 pounds: $600. OPNAVINST 5500.11C of November 12, (c) Normal landing fee. The normal 1963. In any event, before the aircraft is landing fee is based on the aircraft authorized to depart, the commanding maximum authorized gross takeoff officer of the facility will: weight, to the nearest 1,000 pounds. The (a) Inform the aircraft operator of maximum gross takeoff weight may be the provisions of this part and the OP determined either from item 7F of NAVINST 5500.11C of November 12, 1963, OPNAV Form 3770/1 or from the ‘‘Air- if applicable. plane Flight Manual’’ carried aboard (b) Require the aircraft operator (or each aircraft. If the weight cannot be owner), before takeoff, to pay all fees determined, it should be estimated. and charges and to comply with the CHARGE PER LANDING following procedure: Inside CONUS—0.20/1,000 pounds or any por- (1) Execute OPNAV Form 3770/1, ex- tion thereof with a minimum of $5. plaining in item 6 of that form the rea- Outside CONUS—0.30/1,000 pounds or any por- son for the landing. tion thereof with a minimum of $7.50. (2) In lieu of submitting a Certificate of Insurance (NAVFAC 7–11011/36), the (d) Parking and storage fees. Fixed and insurer must furnish evidence of suffi- rotary wing aircraft parking and stor- cient insurance to include waiver of age fees are based upon the gross take- any right of subrogation against the off weight of the aircraft as follows: United States, and that such insurance (1) Outside a hangar. Charges begin 6 applies to the liability assumed by the hours after the aircraft lands. The rate insured under OPNAV Form 3770/1. is 10 cents per thousand pounds for each 24-hour period or fraction thereof, (3) When it appears that the violation with a minimum charge of $1.50 per air- may have been deliberate, or is a re- craft. peated violation, departure authoriza- (2) Inside a hangar. Charges begin as tion must be obtained from the Chief of soon as the aircraft is placed inside the Naval Operations. hangar. The rate is 20 cents per 1,000 (4) Waiver of the requirements in pounds for each 24-hour period or frac- paragraphs (b)(1) and (2) of this section tion thereof, with a minimum charge of may be obtained from the Chief of $5 per aircraft. Naval Operations to expedite removal (e) Reimbursement. Collections inci- of these aircraft when such waiver is dent to direct (out of pocket) costs will considered appropriate. be credited to local operating and [35 FR 14451, Sept. 15, 1970, as amended at 51 maintenance funds. All other collec- FR 22804, June 23, 1986] tions, such as for landing, parking, and storage fees will be credited to Navy § 766.13 Sale of aviation fuel, oil, serv- General Fund Receipt Account 172426. ices and supplies. Accumulation of costs and preparation (a) General policy. In accordance with of billing documents are prescribed in sections 1107 and 1108 of the Federal paragraphs 032500–032503 of the Aviation Act of 1958 (72 Stat. 798 as NAVCOMPT Manual. amended, 49 U.S.C. 1507, 1508), Navy/
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Marine Corps Aviation fuel, oil, serv- Subpart A—Regulations and ices, and supplies are not sold to civil Obligations aircraft in competition with private enterprise. Sections 1107 and 1108 of § 767.1 Purpose. Federal Aviation Act of 1958 (72 Stat. 798 as amended, 49 U.S.C. 1507, 1508), (a) The purpose of this part is to es- however, does authorize the sales of tablish the requirement and procedural fuel, oil, equipment, supplies, mechan- guidelines for permits to conduct re- ical service, and other assistance by search on and/or recover Department of reason of an emergency. Such sales will the Navy (DON) ship and aircraft be made only where there is no com- wrecks. mercial source and only in the amount (b) The U.S. Naval Historical Cen- necessary for the aircraft to continue ter’s (NHC) Office of Underwater on its course to the nearest airport op- Archeology is the DON command re- erated by private enterprise. sponsible for managing DON ship and (b) Contract aircraft. The sale of avia- aircraft wrecks under the guidelines of tion fuel, oil, supplies, etc. to aircraft the Federal Archeological Program. In under U.S. Government contract or order for the NHC’s management policy charter is permitted at, and limited to, to be consistent with the Federal points where passengers or cargo are Archeology Program, and the goals of loaded into or discharged from the air- the NHPA, DON has implemented a craft under terms of the contract or permitting process applicable to DON charter. Sales are not authorized at property consistent with and applying naval aviation facilities where com- the Archeological Resources Protec- mercial supplies and service are avail- tion Act of 1979 as amended (ARPA), 16 able. U.S.C. 470aa–mm, permitting criteria. Department of the Navy policies re- PART 767—APPLICATION GUIDE- garding its ship and aircraft wrecks are LINES FOR ARCHEOLOGICAL RE- consistent with ARPA permitting re- SEARCH PERMITS ON SHIP AND quirements. Department of the Navy AIRCRAFT WRECKS UNDER THE application of ARPA permitting cri- teria promotes consistency among fed- JURISDICATION OF THE DEPART- eral agencies and meets DON’s respon- MENT OF THE NAVY sibilities under the NHPA while allow- ing qualified non-federal and private Subpart A—Regulations and Obligations individuals and entities access to DON Sec. historic ship and aircraft wrecks. 767.1 Purpose. (c) To assist NHC in managing, pro- 767.2 Definitions. tecting, and preserving DON ship and 767.3 Policy. aircraft wrecks.
Subpart B—Permit Guidelines § 767.2 Definitions.
767.4 Application for permit. Aircraft wreck means the physical re- 767.5 Evaluation of permit application. mains of an aircraft, intact or other- 767.6 Credentials of principal investigator. wise, its cargo, and other contents. 767.7 Conditions of permits. Aircraft wrecks are classified as either 767.8 Requests for amendments or exten- historic structures or archeological sions of active permits. sites. 767.9 Content of permit holder’s final re- Archeological site means the location port. of an event, a prehistoric or historic 767.10 Monitoring of performance. occupation or activity, or a building or 767.11 Violations of permit conditions. structure, whether standing, ruined, or 767.12 References for submission of permit vanished, where the location itself application to conduct archeological re- search. maintains historical or archeological value regardless of the value of any ex- AUTHORITY: 5 U.S.C. 301; 16 U.S.C. 470. isting structure. A ship or aircraft SOURCE: 65 FR 31080, May 16, 2000, unless wreck, along with its debris field, is an otherwise noted. archaeological site when it lacks the
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structural integrity of an intact air- § 767.3 Policy. craft or vessel and when it and its loca- (a) The Naval Historical Center’s pol- tion retain archeological or historical icy has been to evaluate each DON ship value regardless of the value of any ex- and aircraft wreck on an individual isting remains. basis. In some cases, the removal of Artifact means any object or assem- DON ship and aircraft wrecks may be blage of objects, regardless of age, necessary or appropriate to protect the whether in situ or not, that may carry cultural resource and/or to fulfill other archeological or historical information NHC goals, such as those encompassing that yields or is likely to yield infor- research, education, public access, and mation to the scientific study of cul- appreciation. Recovery of DON ship ture or human history. and aircraft wrecks may be justified in Cultural resource means any pre- specific cases where the existence of a historic or historic district, site, build- cultural resource may be threatened. ing, structure, or object, including ar- Therefore, recovery of some or all of a tifacts, records, and material remains cultural resource may be permitted for related to such a property or resource. identification and/or investigation to Historic aircraft wrecks or shipwrecks answer specific questions; or the recov- are classified as either archeological ery presents an opportunity for public sites or historic structures. research or education. Gravesite means any natural or pre- (b) Generally, DON ship and aircraft pared physical location, whether origi- wrecks will be left in place unless arti- nally below, on, or above the surface of fact removal or site disturbance is jus- the earth, where individual human re- tified and necessary to protect DON mains are deposited. ship and aircraft wrecks, to conduct re- Historic structure means a structure search, or provide public education and made up of interdependent and inter- information that is otherwise inacces- related parts in a definite pattern or sible. While NHC prefers non-destruc- organization. Constructed by humans, tive, in situ research on DON ship and it is often an engineering project large aircraft wrecks, it recognizes that site in scale. An aircraft wreck or ship- disturbance and/or artifact recovery is wreck is a historic structure when it is sometimes necessary. At such times, relatively intact and when it and its lo- cation retain historical, architectural, site disturbance and/or archeological or associative value. recovery may be permitted, subject to conditions specified by NHC. Permit holder means any person au- thorized and given the exclusive right by the NHC to conduct any activity Subpart B—Permit Guidelines under these regulations. Permitted activity means any activity § 767.4 Application for permit. that is authorized by the NHC under (a) To request a permit application the regulations in this part. form, please write to: Department of Research vessel means any vessel em- the Navy, U.S. Naval Historical Center, ployed for scientific purposes under the Office of the Underwater Archeologist, regulations in this part. 805 Kidder Breese St. SE, Washington Ship wreck means the physical re- Navy Yard, DC 20374–5060. Telefax num- mains of a vessel, intact or otherwise, ber: 202–433–2729. its cargo, and other contents. Ship- (b) Applicants must submit three wrecks are classified as either historic copies of their completed application structures or archeological sites. at least 120 days in advance of the re- Wrecksite means the location of a ship quested effective date to allow suffi- or aircraft that has been sunk, crashed, cient time for evaluation and proc- ditched, damaged, or stranded. The essing. Requests should be sent to the wreck may be intact or scattered, may Department of the Navy, U.S. Naval be on land or in water, and may be a Historical Center, Office of the Under- structure or a site. The site includes water Archeologist, 805 Kidder Breese the physical remains of the wreck and St. SE, Washington Navy Yard, DC all other associated artifacts. 20374–5060.
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(c) If the applicant believes that com- or authorizations, such as from a state pliance with one or more of the factors, or foreign government or agency, pri- criteria, or procedures in the guidelines vate individual or organization, or contained in this part is not prac- from another federal agency, is on the ticable, the applicant should set forth applicant. why and explain how the purposes of (d) Based on the findings of the NHC NHC are better served without compli- evaluation, the NHC Underwater Ar- ance with the specified requirements. cheologist will recommend an appro- Permits are valid for one year from the priate action to the NHC Director. If issue date. approved, NHC will issue the permit; if § 767.5 Evaluation of permit applica- denied, applicants are notified of the tion. reason for denial and may appeal with- (a) Permit applications for archeo- in 30 days of receipt of the denial. Ap- logical research are reviewed for com- peals must be submitted in writing to: pleteness, compliance with program Director of Naval History, Naval His- policies, and adherence to the guide- torical Center, 805 Kidder Breese St. lines of this subpart. Incomplete appli- SE, Washington Navy Yard, DC 20374– cations will be returned to the appli- 5060. cant for clarification. Complete appli- cations are reviewed by NHC personnel § 767.6 Credentials of principal investi- and, when necessary, outside experts. gator. In addition to the criteria set forth in A resume or curriculum vitae detail- § 767.6, applications are also judged on ing the professional qualifications and the basis of: relevance or importance; professional publications and papers of archeological merits; appropriateness the principal investigator (PI) must be and environmental consequences of submitted with the permit application. technical approach; and qualifications The PI must have: a graduate degree in of the applicants. archeology, anthropology, maritime (b) Under certain circumstances, it history, or a closely related field; at may be necessary to consult with the least one year of professional experi- State Historic Preservation Officer ence or equivalent specialized training (SHPO) and the Advisory Council on in archeological research, administra- Historic Preservation (ACHP) about tion or management; at least four the need to comply with section 106 of months of supervised field and analytic the NHPA. A section 106 review may require the NHC to consult with the experience in general North American appropriate SHPO and the ACHP. The historic archaeology and maritime his- ACHP review can take up to 60 days be- tory; the demonstrated ability to carry yond the NHC’s required 120-day re- research to completion; and at least view. Therefore, the entire review proc- one year of full-time professional expe- ess may take up to 180 days. rience at a supervisory level in the (c) The NHC shall send applications study of historic marine archeological for research at sites located in units of resources. This person shall be able to the national park system, national demonstrate ability in comprehensive wildlife refuge system, and national analysis and interpretation through marine sanctuary system to the appro- authorship of reports and monographs. priate Federal land manager for re- view. The Federal land manager is re- § 767.7 Conditions of permits. sponsible for ensuring that the pro- (a) Upon receipt of a permit, permit posed work is consistent with any man- holders must counter-sign the permit agement plan or established policy, ob- and return copies to the NHC and the jectives or requirements applicable to applicable SHPO, Federal or State land the management of the public lands manager, or foreign government offi- concerned. NHC shall send applications cial prior to conducting permitted ac- for research at sites located on state bottomlands to the appropriate state tivities on the site. Copies of agency for review. The burden of ob- countersigned permits should also be taining any and all additional permits provided to the applicable federal land
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manager when the sunken vessel or air- § 767.8 Requests for amendments or craft is located within a unit of the na- extensions of active permits. tional park system, the national wild- (a) Requests for amendments to ac- life refuge system, or the national ma- tive permits (e.g., a change in study de- rine sanctuary system. sign or other form of amendment) must (b) Permits must be carried aboard conform to the regulations in this part. research vessels and made available All necessary information to make an upon request for inspection to regional objective evaluation of the amendment preservation personnel or law enforce- should be included as well as reference ment officials. Permits are non-trans- to the original application. ferable. Permit holders must abide by (b) Permit holders desiring to con- all provisions set forth in the permit as tinue research activities must reapply well as applicable state or Federal reg- for an extension of their current per- ulations. Permit holders should abide mit before it expires. A pending exten- by applicable regulations of a foreign sion or amendment request does not government when the sunken vessel or guarantee extension or amendment of aircraft is located in foreign waters. To the original permit. Therefore, you the extent reasonably possible, the en- must submit an extension request to vironment must be returned to the NHC at least 30 days prior to the origi- condition that existed before the activ- nal permit’s expiration date. Reference ity occurred. to the original application may be (c) Upon completion of permitted ac- given in lieu of a new application, pro- tivities, the permit holder is required vided the scope of work does not to submit to NHC a working and diving change significantly. Applicants may log listing days spent in field research, apply for one-year extensions subject activities pursued, and working area to annual review. positions. (c) Permit holders may appeal denied (d) The permit holder must prepare requests for amendments or extensions and submit a final report as detailed in to the appeal authority listed in § 767.5. § 767.9, summarizing the results of the permitted activity. § 767.9 Content of permit holder’s final (e) The permit holder must agree to report. protect all sensitive information re- The permit holder’s final report shall garding the location and character of include the following: the wreck site that could potentially (a) A site history and a contextual expose it to non-professional recovery history relating the site to the general techniques, looters, or treasure hunt- history of the region; ers. Sensitive information includes spe- (b) A master site map; cific location data such as latitude and (c) Feature map(s) of the location of longitude, and information about a any recovered artifacts in relation to wreck’s cargo, the existence of arma- their position within the wrecksite; ments, or the knowledge of gravesites. (d) Photographs of significant site (f) All recovered DON cultural re- features and significant artifacts both sources remain the property of the in situ and after removal; United States. These resources and (e) If applicable, a description of the copies of associated archaeological conserved artifacts, laboratory con- records and data will be preserved by a servation records, and before and after suitable university, museum, or other photographs of the artifacts at the con- scientific or educational institution servation laboratory; and must meet the standards set forth (f) A written report describing the in 36 CFR part 79, Curation of Feder- site’s historical background, environ- ally Owned and Administered Archeo- ment, archeological field work, results, logical Collections, at the expense of and analysis; the applicant. The repository shall be (g) A summary of the survey and/or specified in the permit application. excavation process; and
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(h) An evaluation of the completed ulations, 43 CFR part 7, subpart A. permitted activity that includes an as- These regulations establish basic gov- sessment of the permit holder’s success ernment-wide standards for the of his/her specified goals. issuance of permits for archeological research, including the authorized ex- § 767.10 Monitoring of performance. cavation and/or removal of archeo- Permitted activities will be mon- logical resources on public lands or In- itored to ensure compliance with the dian lands. conditions of the permit. NHC on-site (d) Secretary of the Interior’s regula- personnel, or other designated authori- tions, Curation of Federally-Owned and ties, may periodically assess work in Administered Archeological Collec- progress by visiting the study location tions, 36 CFR part 79. These regulations and observing any activity allowed by establish standards for the curation the permit or by reviewing any re- and display of federally-owned artifact quired reports. The discovery of any collections. potential irregularities in performance (e) Antiquities Act of 1906, Public under the permit will be promptly re- Law 59–209, 34 Stat. 225 (codified at 16 ported and appropriate action will be U.S.C. 431 et seq. (1999)). taken. Permitted activities will be (f) Executive Order 11593, 36 FR 8291, evaluated and the findings will be used 3 CFR, 1971–1975 Comp., p. 559 (Protec- to evaluate future applications. tion and Enhancement of the Cultural Environment). § 767.11 Violations of permit condi- (g) Department of Defense Instruc- tions. tion 4140.21M (DoDI 4120.21M, August The Director of Naval History, the 1998). Subject: Defense Disposal Man- Underwater Archeologist for DON, or ual. his/her designee may, amend, suspend, (h) Secretary of the Navy Instruction or revoke a permit in whole or in part, 4000.35 (SECNAVINST 4000.35, 17 Au- temporarily or indefinitely, if in his/ gust 1992). Subject: Department of the her view the permit holder has acted in Navy Cultural Resources Program. violation of the terms of the permit or (i) Naval Historical Center Instruc- of other applicable regulations, or for tion 5510.4. (NAVHISTCENINST 5510.4, other good cause shown. Any such ac- 14 December 1995). Subject: Disclosure tion will be communicated in writing of Information from the Naval Ship- to the permit holder and will set forth wreck Database. the reason for the action taken. The permit holder may appeal the action to PARTS 768–769 [RESERVED] the appeal authority listed in § 767.5. PART 770—RULES LIMITING PUBLIC § 767.12 References for submission of ACCESS TO PARTICULAR INSTAL- permit application to conduct ar- cheological research. LATIONS (a) National Historic Preservation Subpart A—Hunting and Fishing at Marine Act of 1966, as amended (NHPA), 16 Corps Base, Quantico, Virginia U.S.C. 470 et seq. (1999), and Protection of Historic Properties, 36 CFR part 800. Sec. These regulations govern the Section 770.1 Purpose. 106 Review Process established by the 770.2 Licenses. 770.3 Fishing regulations. NHPA. 770.4 Hunting regulations. (b) Secretary of the Interior’s Stand- 770.5 Safety regulations. ards and Guidelines for Archeology and 770.6 Restrictions. Historic Preservation published on 770.7 Violations. September 29, 1983 (48 FR 44716). These 770.8 Reports. guidelines establish standards for the 770.9 Miscellaneous. preservation planning process with Subpart B—Base Entry Regulations for guidelines on implementation. Naval Submarine Base, Bangor, Brem- (c) Archeological Resources Protec- erton, Washington tion Act of 1979, as amended (ARPA), 16 U.S.C. 470aa-mm, and the Uniform Reg- 770.15 Purpose.
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770.16 Definition. Subpart A—Hunting and Fishing at 770.17 Background. 770.18 Entry restrictions. Marine Corps Base, Quantico, 770.19 Entry procedures. Virginia 770.20 Violations. SOURCE: 41 FR 22345, June 3, 1976, unless Subpart C—Base Entry Regulations for otherwise noted. Naval Installations in the State of Hawaii 770.25 Purpose. § 770.1 Purpose. 770.26 Definitions. This subpart provides regulations 770.27 Background. and related information governing 770.28 Entry restrictions. hunting and fishing on the Marine 770.29 Entry procedures. Corps Base Reservation, Quantico, VA. 770.30 Violations. 770.31 List of major naval installations in § 770.2 Licenses. the State of Hawaii and cognizant com- manders authorized to grant access (a) Every person who hunts or fishes under these regulations. on Marine Corps Base, Quantico, VA, must possess appropriate valid licenses Subpart D—Entry Regulations for Naval in compliance with the Laws of the Installations and Property in Puerto Rico United States and the State of Vir- 770.35 Purpose. ginia. 770.36 Definitions. (b) In addition, hunting and fishing 770.37 Background. privilege cards, issued by the authori- 770.38 Entry restrictions. ties at Marine Corps Base, Quantico, 770.39 Entry procedures. VA, are required for all persons be- 770.40 Violations. tween the ages sixteen and sixty-four, Subpart E—Base Entry Regulations for inclusive. Naval Submarine Base New London, (1) The privilege card may be pur- Groton, Connecticut chased from the Game Warden at the Natural Resources Management Divi- 770.41 Purpose. sion Headquarters, Building 5–9, Ma- 770.42 Background. rine Corps Base, Quantico, VA. 770.43 Responsibility. (2) The privilege cards are effective 770.44 Entry restrictions. for the same period as the Virginia 770.45 Entry procedures. 770.46 Violations. hunting and fishing licenses. (c) All hunters must obtain a Base Subpart F—Base Entry Regulations for hunting permit, and a parking permit, Puget Sound Naval Shipyard, Brem- if applicable, from the Game Warden erton, Washington for each day of hunting. The hunting permit must be carried by the hunter 770.47 Purpose. and the parking permit must be dis- 770.48 Definition. played on the left dashboard of parked 770.49 Background. 770.50 Entry restrictions. vehicles. The hunting and parking per- 770.51 Entry procedures. mits must be returned within one hour 770.52 Violations. after either sunset or the hour hunting is secured on holidays or during special Subpart G—Entry Regulations for Ports- season. mouth Naval Shipyard, Portsmouth, (d) Eligibility for a Base hunting per- New Hampshire mit is predicated on: 770.53 Purpose. (1) Possession of required Federal and 770.54 Background. State licenses for the game to be hunt- 770.55 Responsibility. ed including Marine Corps Base hunt- 770.56 Entry restrictions. ing privilege card; 770.57 Entry procedures. (2) Attendance at a safety lecture 770.58 Violations. given daily except Sunday during the AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 6011; 32 hunting season given at the Game CFR 700.702; 32 CFR 700.714, unless otherwise Checking Station located at the inter- noted. section of Russell Road and MCB–1.
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The lectures commence an hour before day’s fishing and returned to any fish- sunrise, 0800, and 1200; ing report box. (3) Understanding of Federal, State and Base hunting regulations; [41 FR 22345, June 3, 1976, as amended at 48 (4) And, if civilian, an executed re- FR 23205, May 24, 1983] lease of U.S. Government responsi- § 770.4 Hunting regulations. bility in case of accident or injury. All persons possessing the proper [41 FR 22345, June 3, 1976, as amended at 48 State, Federal and Base licenses and FR 23205, May 24, 1983] permits are permitted to hunt in the § 770.3 Fishing regulations. areas designated daily by the Game (a) All persons possessing the proper Warden on Marine Corps Base, state license and Base permit are per- Quantico, VA, on any authorized hunt- mitted to fish in the areas designated ing day. In addition, a minimum of ten by the Base Game Warden on Marine percent of the daily hunting spaces will Corps Base, Quantico, VA, on any au- be reserved to civilians on a first come, thorized fishing day. A Base Fishing first served basis until 0600 on each Privilege Card is required for all per- hunting day, at which time, the Game sons aged 16 to 65. Warden may fill vacancies from any (b) Fishing is permitted on all waters authorized persons waiting to hunt. within the boundaries of Marine Corps Base, Quantico, VA, unless otherwise § 770.5 Safety regulations. posted, during the periods provided and (a) Hunting is not permitted within under the conditions and restrictions, 200 yards of the following: Ammunition by the Marine Corps Base, Quantico, dumps, built-up areas, rifle or pistol VA, Game Warden. Information regard- ranges, dwelling or other occupied ing specific regulations for each fishing structures, and areas designated by the area must be procured from the Game Game Warden as recreation areas. Warden located in Natural Resources (b) From the end of the special arch- Management Division Headquarters ery season until the end of the regular Building 5–9 prior to utilization of Base winter hunting season, except for duck fishing facilities. hunters in approved blinds, hunters (c) In addition to the requirements of will wear an outer garment with at the Laws of Virginia, the following ad- least one square foot of blaze orange ditional prohibitions and requirements visible both front and back above the are in effect at Marine Corps Base, waist and a blaze orange cap while Quantico, VA. hunting, or while in the woods for any (1) Live minnows will not be used as reason, during the hours that hunting bait in any impounded waters on the is authorized. Any person traveling on Marine Corps Base, Quantico, VA; foot in or adjacent to an area open for (2) No trot lines are permitted in Ma- hunting will comply with the above re- rine Corps Base waters; quirement. (3) No Large Mouth Bass will be taken, creeled or possessed under the (c) Weapons will be unloaded while size of twelve (12) inches in length. All being transported in vehicles, and will Large Mouth Bass under this size will be left in vehicles by personnel check- be immediately returned to the water; ing in or out at the Game Warden’s Of- (4) No Striped Bass will be taken, fice. Weapons will not be discharged creeled or possessed under the size of from vehicles, or within 200 yards of twenty (20) inches in length. All hard surfaced roads. Striped Bass under this size will be im- (d) Certain hunting areas contain nu- mediately returned to the water; merous unexploded munitions (duds) (5) All persons fishing in the waters which are dangerous and must not be of Marine Corps Base, Quantico, VA, removed or disturbed. Hunters should will possess and utilize a creel card. mark such duds with stakes or other The card may be obtained from the re- means and report their location to the port boxes located in the vicinity of all Game Warden. fishing areas. The creel report must be (e) Hunters must stay in their as- completed at the conclusion of the signed areas when hunting.
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§ 770.6 Restrictions. (a) The Marine Corps Base Game Warden and Wildlife Manager are com- (a) There will be no hunting on missioned as Virginia and Federal Christmas Day; New Year’s Day, or game wardens and they can issue sum- after 1200 on Thanksgiving Day and mons to appear in civil court for viola- Christmas Eve. tions of Federal and State game laws. (b) Hunters under 16 years of age (b) Offenders in violation of a Federal must be accompanied by an adult (18 or State hunting or fishing law will be years of age or older) while hunting or referred to a civil court. in a hunting area. The adult is limited (c) Offenders in violation of a Fed- to a maximum of two underage hunt- eral, State or Base hunting or fishing ers, and must stay within sight and law or regulation will receive the fol- voice contact and no more than 100 lowing administrative actions. yards away from the underage hunters. (1) The Base Game Warden or the (c) The following practices or actions Wildlife manager shall have the au- are expressly forbidden: Use of rifles, thority to temporarily suspend hunting except muzzleloaders of .40 caliber or and fishing privileges. larger as specified below, revolvers or (2) And for the first minor offense a pistols; use of shotguns larger than 10 letter of warning will be issued. gauge or crossbows (this prohibition (3) For the second minor offense extends to carrying such weapons on hunting or fishing privileges will be re- the person or in a vehicle while hunt- voked for one year. ing), use of buckshot to hunt any (4) For the first serious offense hunt- game; use of a light, attached to a ve- ing or fishing privileges will be revoked hicle or otherwise, for the purpose of for a minimum of one year. spotting game; use of dogs for hunting (5) For the second serious offense or tracking deer; training deer dogs on hunting or fishing privileges will be the Reservation; training or running permanently revoked. dogs in hunting areas between 1 March (d) Civilians found in violation of a and 1 September; driving deer; baiting hunting or fishing regulation or law or salting traps or blinds; hunting on may be permanently restricted from Sunday; molesting beaver or bald ea- entering the base. gles. Those personnel who are author- (e) Serious hunting and fishing of- ized to hunt on Base, desiring to train fenses include, but are not limited to: or exercise dogs other than deer dogs spotlighting, false statement on a li- between 2 September and 28 February, cense, hunting under the influence, em- may do so by obtaining clearance to ployment of a light in an area that enter training areas at the Range Con- deer frequent, and taking game or fish trol Office. This clearance is not per- during closed seasons. mission to hunt, and carrying weapons under these conditions is prohibited. § 770.8 Reports. (d) Hunting will not commence be- Upon killing a deer or turkey, a fore one half hour before sunrise, and hunter must attach the appropriate tab will end not later than sunset. The from his big game license to the car- hours of sunrise and sunset are posted cass before moving the game from the daily at the Game Checking Station. place of kill. The game will then be (e) Weapons will not be loaded out- taken to the Game Checking Station side of hunting hours. where the tab will be exchanged for an [41 FR 22345, June 3, 1976, as amended at 48 official game tag. All other game, not FR 23205, May 24, 1983] requiring a tag, killed on the Reserva- tion will be reported to the Game War- § 770.7 Violations. den when checking out at the end of a Violations of hunting regulations, hunt. fishing regulations, safety regulations, [41 FR 22345, June 3, 1976, as amended at 48 or principles of good sportsmanship are FR 23206, May 24, 1983] subject to administrative restriction of hunting or fishing privileges and pos- § 770.9 Miscellaneous. sible judicial proceedings in State or Hunters are encouraged to build and Federal courts. use tree blinds for hunting deer. Duck
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blinds may be placed on waters within where inherently dangerous conditions the bounds of the Reservation when exist. specifically authorized by the Wildlife (b) For prevention of the interruption Manager. Muzzleloading rifles .40 cal- of the stated use of the base by the iber and larger will be permitted for presence of any unauthorized person deer hunting during the established within the boundaries of SUBASE Ban- seasons in those numbered hunting gor, and prevention of injury to any areas located entirely in Fauquier and such person as a consequence of the Stafford Counties within the bound- dangerous conditions which exist, as aries of the Marine Corps Base. Deer well as for other reasons, it is essential will only be hunted with the bow and to restrict entry upon SUBASE Bangor arrow, and shotguns loaded with slugs, to authorized persons only. with exception of the preceding sen- tence. § 770.18 Entry restrictions. Except for military personnel and ci- [41 FR 22345, June 3, 1976, as amended at 48 vilian employees of the United States FR 23206, May 24, 1983] in the performance of their official du- ties, entry upon Naval Submarine Subpart B—Base Entry Regulations Base, Bangor, or remaining thereon by for Naval Submarine Base, any person whatsoever for any purpose Bangor, Bremerton, Wash- without the advance consent of the ington Commanding Officer, SUBASE Bangor or his authorized representative is pro- hibited. See 18 U.S.C. 1382; the Internal AUTHORITY: 50 U.S.C. 797; DoD Dir. 5200.8 of August 20, 1954; 5 U.S.C. 301; 10 U.S.C. 6011, 32 Security Act of 1950, Section 21 (50 CFR 700.702; 32 CFR 700.714. U.S.C. 797); Department of Defense Di- rective 5200.8 of 20 August 1954; Chief of SOURCE: 44 FR 32368, June 6, 1979, unless Naval Operations Instruction 5510.45B otherwise noted. of 19 April 1971; Chief of Naval Oper- § 770.15 Purpose. ations Instruction 5511.9A of 1 October 1954. The purpose of this subpart is to pro- mulgate regulations governing entry § 770.19 Entry procedures. upon Naval Submarine Base (SUBASE), (a) Any person or group of persons Bangor. desiring the advance consent of the Commanding Officer, SUBASE Bangor § 770.16 Definition. or his authorized representative shall, For the purpose of this subpart, in writing, submit a request to the SUBASE Bangor shall include that Commanding Officer, SUBASE Bangor, area of land in Kitsap and Jefferson at the following address: Commanding Counties, State of Washington which Officer, Naval Submarine Base, Bangor, has been set aside for use of the Fed- Bremerton, WA 98315. eral Government by an Act of the legis- (b) Each request for entry will be lature of the State of Washington, ap- considered on an individual basis proved March 15, 1939 (Session laws of weighing the operational, security, and 1939, chapter 126). safety requirements of SUBASE Ban- gor with the purpose, size of party, du- § 770.17 Background. ration of visit, destination, and mili- (a) SUBASE Bangor has been des- tary resources which would be required ignated as the West Coast home port of by the granting of the request. the Trident Submarine. Facilities for the repair or overhaul of naval vessels § 770.20 Violations. are located at SUBASE Bangor. It is (a) Any person entering or remaining vital to national defense that the oper- on SUBASE Bangor, without the con- ation and use of SUBASE Bangor be sent of the Commanding Officer, continued without undue and unneces- SUBASE Bangor or his authorized rep- sary interruption. Many areas of resentative, shall be subject to the pen- SUBASE Bangor are of an industrial alties prescribed by 18 U.S.C. 1382, nature, including construction sites, which provides in pertinent part:
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Whoever, within the jurisdiction of the has been outleased for agricultural pur- United States, goes upon any military, naval poses. For the purpose of this Subpart, * * * reservation, post, fort, arsenal, yard, outleased areas which are not within station, or installation, for any purpose pro- fenced portions of naval installations hibited by law or lawful regulation * * * shall be fined not more than $500 or impris- are not considered to be a part of naval oned not more than six months or both. installations. Rules for entry onto the outleased areas are made by the les- (b) Moreover, any person who will- sees, except in the case of Waipio Pe- fully violates this subpart is subject to ninsula where the lessee (Oahu Sugar a fine not to exceed $500 or imprison- Company) is not authorized to allow ment for not more than one (1) year or anyone to enter Waipio Peninsula for both as provided in 50 U.S.C. 797. any purpose not connected with sugar cane production. Subpart C—Base Entry Regulations for Naval Installations in the § 770.27 Background. State of Hawaii (a) Naval installations in Hawaii con- stitute a significant element of the na- AUTHORITY: 50 U.S.C. 797; DoD Dir. 5200.8 of tional defense establishment. It is vital Aug. 20, 1954; 5 U.S.C 301; 10 U.S.C. 6011; 32 to the national defense that the use of CFR 700.702, 770.714. such areas be at all times under the SOURCE: 44 FR 76279, Dec. 26, 1979, unless positive control of the Department of otherwise noted. the Navy. Strict control must be exer- cised over access to naval installations § 770.25 Purpose. in order to preclude damage accidental The purpose of this subpart is to pro- and intentional to Government prop- mulgate regulations governing entry to erty, injury to military personnel, and naval installations in the State of Ha- interference in the orderly accomplish- waii. ment of the mission of command. (b) There are several industrial areas § 770.26 Definitions. within naval installations in Hawaii For the purpose of this subpart the wherein construction activities and the following definitions apply: use of heavy machinery pose grave risk (a) Naval installations. A naval instal- of danger to visitors. lation is a shore activity and is any (c) Various types of flammable or in- area of land, whether or not fenced or cendiary materials and ordnance are covered by water, that is administered stored at a number of locations within by the Department of the Navy or by naval installations in Hawaii. any subordinate naval command. The (d) Classified documents and equip- term ‘‘naval installation’’ applies to all ment requiring protection from unau- such areas regardless of whether the thorized disclosure by Executive order areas are being used for purely mili- 12065 for reasons of national security tary purposes, for housing, for support are located at various locations within purposes, or for any other purpose by a naval installations in Hawaii. naval command. Section 770.31 con- (e) In order to effect the positive con- tains a list of the major naval installa- trol of the Navy over its installations tions in Hawaii. This list is not consid- in Hawaii, it is essential that entry ered to be all inclusive and is included onto those installations be restricted only as a representative guide. For the to authorized persons only. purposes of this subpart the area of (f) These entry regulations are being water within Pearl Harbor is consid- promulgated under the authority of ered to be within a naval installation. Commander, Naval Base, Pearl Harbor, (b) Outleased areas. Certain portions who has been assigned as immediate of naval installations in Hawaii which area coordinator for all naval installa- are not for the time needed for public tions in the State of Hawaii by Com- use or for which a dual use is feasible mander-in-Chief, U.S. Pacific Fleet. have been outleased to private inter- ests. Examples of such outleased areas § 770.28 Entry restrictions. are the Moanalua Shopping Center and Each commander is responsible for lands such as Waipio Peninsula, which the security of his/her command.
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Therefore, entry onto a command or onment for not more than six months, into part of a command may be con- or both. See 18 U.S.C. 1382. trolled by the commander through the (b) Moreover, any person who will- imposition of such restrictions as may fully violates this regulation is subject be required by attendant cir- to a fine not to exceed $5,000 or impris- cumstances. Within the State of Ha- onment for one year, or both. See 50 waii, entry into a naval installation is U.S.C. 797. not permitted without the permission of the responsible commander. § 770.31 List of major naval installa- tions in the State of Hawaii and § 770.29 Entry procedures. cognizant commanders authorized to grant access under these regula- (a) Operational, security, and safety tions. considerations take priority over re- (a) On Oahu. (1) Naval Base, Pearl quests by individuals to visit a naval Harbor (including the Naval Station, installation. Consistent with such con- Naval Submarine Base, Naval Ship- siderations, visits by members of the yard, Naval Supply Center, Naval Pub- general public may be authorized at lic Works Center, Marine Barracks, the discretion of the commander. The Ford Island, Bishop Point Dock Area, commitment of resources which would Commander-in-Chief Pacific Fleet and be required to safeguard the persons Commander Naval Logistics Command and property of visitors as well as mili- Headquarters Areas, Johnson Circle tary property and personnel must of Navy Exchange/Commissary Store necessity preclude or severely restrict Area, Navy-Marine Golf Course, mis- such visiting. The purpose and dura- cellaneous other commands, and areas tion of the visit and the size of the within the Naval Base, Pearl Harbor party and areas to be visited are other complex, and the waters of Pearl Har- considerations which may affect the bor). Contact: commander’s decision whether to per- Commander, Naval Base, Pearl Harbor, HI mit visiting by members of the public. 96860. (b) Any person or group desiring to enter a particular naval installation or (2) Naval Western Oceanography Cen- portion thereof, shall submit a written ter, Pearl Harbor. Contact: request to the commander of the in- Commanding Officer, Naval Western Ocean- stallation well enough in advance to ography Center, Box 113, Pearl Harbor, HI allow a reasonable time for reply by 96860. mail. Mailing addresses for com- (3) Naval Air Station, Barbers Point. manders of major installations covered Contact: by this subpart are listed in § 770.31. Full compliance with a naval installa- Commanding Officer, Naval Air Station, Bar- tion’s local visitor registration and bers Point, HI 96862. entry control procedures shall be (4) Naval Communication Area Mas- deemed the equivalent of obtaining the ter Station, Eastern Pacific, Wahiawa. advance consent of the commander for Contact: entrance upon the installation for the Commanding Officer, Naval Communication purpose of this subpart. Authorization Area Master Station, Eastern Pacific, to enter one naval installation or a Wahiawa, HI 96786. portion of one installation does not necessarily include the authorization (5) Naval Magazine (Lualualei, to enter any other naval installation or Waikele, and West Loch). Contact: all portions of an installation. Commanding Officer, Naval Magazine, Lualualei, HI 96792. § 770.30 Violations. (6) Naval Radio Transmitting Facil- (a) Any person entering or remaining ity, Lualualei. Contact: on a naval installation in the State of Hawaii, without consent of the com- Commanding Officer, Naval Base, Pearl Har- mander or his authorized representa- bor, HI 96860. tive, shall be subject to the penalties of (7) Naval and Marine Corps Reserve a fine of not more than $500 or impris- Training Center, Honolulu. Contact:
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Commanding Officer, Naval and Marine (c) Other areas. Corps Reserve Training Center, Honolulu, (1) Kaho’olawe Island. Contact: 530 Peltier Avenue, Honolulu, HI 96818. Commander Naval Base, Pearl Harbor, HI (8) Military Sealift Command Office. 96860. Also see 32 CFR Part 763. Contact: (2) Kaula. Contact: Commander, Naval Base, Pearl Harbor, HI 96860. Commander Naval Base, Pearl Harbor, HI 96860. (9) Mauna Kapu (Pacific Missile Range Facility). Contact: [44 FR 76279, Dec. 26, 1979, as amended at 52 FR 20074, May 29, 1987] Commanding Officer, Pacific Missile Range Facility, Hawaiian Area, Barking Sands, Kekaha, Kauai, HI 96752. Subpart D—Entry Regulations for Naval Installations and Prop- (10) Kunia Facility; FORACS III erty in Puerto Rico Sites; Degaussing Station, Waipio Pe- ninsula; Damon Tract (Remanant) Opana Communciations Site. Contact: SOURCE: 46 FR 22756, Apr. 21, 1981, unless otherwise noted. Commander, Naval Base, Pearl Harbor, HI 96860. § 770.35 Purpose. (11) Outlying areas of the Naval Sup- The purpose of this subpart is to pro- ply Center, Pearl Harbor (including the mulgate standard regulations and pro- Ewa Junction Storage Area, Ewa Drum cedures governing entry upon U.S. Storage Area, Manana Supply Area, Naval installations and properties in Pearl City Supply Area, and the Red Puerto Rico. Hill Fuel Storage Area). Contact: § 770.36 Definitions. Commander, Naval Base, Pearl Harbor, HI 96860. For purposes of these regulations, U.S. Naval installations and properties (12) Pump Stations (Halawa, Waiawa, in Puerto Rico include, but are not Red Hill, and Barbers Point). Contact: limited to, the U.S. Naval Station, Commander, Naval Base, Pearl Harbor, HI Roosevelt Roads (including the Vieques 96860. Island Eastern Annexes, consisting of Camp Garcia, the Eastern Maneuver (13) Halawa Water Storage Area; Bar- Area, and the Inner Range); the Naval bers Point, Independent Water Supply Ammunition Facility, Vieques Island; Reservoir Site; Sewage Treatment and the Naval Security Group Activity, Plant; Fort Kam (tri-service); Utility Sabana Seca. Corridors, Lynch Park (Ohana Nui). Contact: § 770.37 Background. Commander, Naval Base, Pearl Harbor, HI In accordance with 32 CFR 765.4, 96860. Naval installations and properties in (14) Navy housing areas (including Puerto Rico are not open to the gen- Moanalua Terrace, Radford Terrace, eral public, i.e., they are ‘‘closed’’ mili- Makalapa, Maloelap, Halsey Terrace, tary bases. Therefore admission to the Catlin Park, Hale Moku, Pearl Harbor, general public is only by the permis- Naval Shipyard, McGrew Point, sion of the respective Commanding Of- Halawa, Hokulani, Manana, Pearl City ficers in accordance with their respec- Peninsula, Red Hill, Iroquois Point, tive installation instructions. Puuloa, and Camp Stover). Contact: § 770.38 Entry restrictions. Commander, Naval Base, Pearl Harbor, HI 96860. Except for duly authorized military personnel and civilian employees, in- (b) On Kauai. cluding contract employees, of the (1) Pacific Missile Range Facility, United States in the performance of Barking Sands, Kekaha. their official duties, entry upon any Contact: Commanding Officer, Pacific Mis- U.S. Navy installation or property in sile Range Facility, Hawaiian Area, Bark- Puerto Rico at anytime, by any person ing Sands, Kekaha, HI 96752. for any purpose whatsoever without
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the advance consent of the Com- within the jurisdiction of the United manding Officer of the installation or States, goes upon any military, naval property concerned, or an authorized * * * reservation, post, fort, arsenal, representative of that Commanding Of- yard, station, or installation, for any ficer, is prohibited. purpose prohibited by law or lawful regulation * * * shall be fined not more § 770.39 Entry procedures. than $500.00 or imprisoned not more (a) Any person or group of persons than six months, or both,’’ or any other desiring to obtain advance consent for applicable laws or regulations. entry upon any U.S. Naval installation or property in Puerto Rico from the Commanding Officer of the Naval in- Subpart E—Base Entry Regulations stallation or property, or an authorized for Naval Submarine Base representative of that Commanding Of- New London, Groton, Con- ficer, shall present themselves at an necticut authorized entry gate at the installa- tion or property concerned or, in the alternative, submit a request in writ- AUTHORITY: 50 U.S.C. 797; DoD Directive 5200.8 of July 29, 1980; SECNAVINST 5511.36 ing to the following respective address- of December 20, 1980; OPNAVINST 5510.45 of es: April 19, 1971; 5 U.S.C. 301; 10 U.S.C. 6011; 32 (1) Commanding Officer, U.S. Naval CFR 700.702; 32 CFR 700.714. Station, Roosevelt Roads, Box 3001, Ceiba, PR 00635. SOURCE: 48 FR 5555, Feb. 7, 1983, unless oth- (2) Officer in Charge, Naval Ammuni- erwise noted. tion Facility, Box 3027, Ceiba, PR 00635. (3) Commanding Officer, U.S. Naval § 770.41 Purpose. Security Group Activity, Sabana Seca, The purpose of this subpart is to pro- PR 00749. mulgate regulations and procedures (b) The above Commanding Officers governing entry upon Naval Submarine are authorized to provide advance con- Base New London, and to prevent the sent only for installations and prop- interruption of the stated functions erties under their command. Requests and operations of Naval Submarine for entry authorization to any other fa- Base New London, by the presence of cility or property shall be addressed to any unauthorized person within the the following: boundaries of Naval Submarine Base Commander, U.S. Naval Forces, Carib- New London. bean, Box 3037, Ceiba, PR 00635. (c) Each request for entry will be § 770.42 Background. considered on an individual basis and consent will be determined by applica- Naval Submarine Base New London ble installation entry instructions. maintains and operates facilities to Factors that will be considered include support training and experimental op- the purpose of visit, the size of party, erations of the submarine force includ- duration of visit, destination, security ing providing support to submarines, safeguards, safety aspects, and the submarine rescue vessels, and assigned military resources necessary if the re- service and small craft; within capa- quest is granted. bilities, to provide support to other ac- tivities of the Navy and other govern- § 770.40 Violations. mental activities in the area; and to Any person entering or remaining on perform such other functions as may be U.S. Naval installations and properties directed by competent authority. in Puerto Rico, without the advance consent of those officials hereinabove § 770.43 Responsibility. enumerated, or their authorized rep- The responsibility for proper identi- resentatives, shall be considered to be fication and control of personnel and in violation of these regulations and vehicle movement on the Naval Sub- therefore subject to the penalties pre- marine Base New London is vested scribed by 18 U.S.C. 1382, which pro- with the Security Officer. vides in pertinent part: ‘‘Whoever,
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§ 770.44 Entry restrictions. (b) Moreover, any person who will- fully violates this subpart is subject to Except for military personnel, their a fine not to exceed $5000 or imprison- authorized dependents, or guests, and ment for not more than one (1) year or employees of the United States in the both as provided in 50 U.S.C. 797. performance of their official duties, entry upon Naval Submarine Base New London, or remaining thereon by any Subpart F—Base Entry Regulations person for any purpose without the ad- for Puget Sound Naval Ship- vance consent of the Commanding Offi- yard, Bremerton, Washington cer, Naval Submarine Base New Lon- don, or his authorized representative is AUTHORITY: 50 U.S.C. 797; DoD Directive prohibited. See 18 U.S.C. 1382j, the In- 5200.8 of July 29, 1980; SECNAVINST 5511.36 ternal Security Act of 1950 (50 U.S.C. of December 20, 1980; OPNAVINST 5510.45B of April 19, 1971; 5 U.S.C. 301; 10 U.S.C. 6011; 32 797); Chief of Naval Operations Instruc- CFR 700.702; 32 CFR 700.714. tion 5510.45B of April 19, 1971; and Sec- retary of the Navy Instruction 5511.36 SOURCE: 48 FR 9858, Mar. 9, 1983, unless oth- erwise noted. of December 20, 1980. § 770.47 Purpose. § 770.45 Entry procedures. The purpose of this subpart is to pro- (a) Any individual person or group of mulgate policy governing entry upon persons desiring the advance consent of Puget Sound Naval Shipyard. the Commanding Officer, Naval Sub- marine Base New London, or his au- § 770.48 Definition. thorized representative shall, in writ- For the purpose of this subpart, ing, submit a request to the Com- Puget Sound Naval Shipyard is defined manding Officer, Naval Submarine as follows: Base New London, at the following ad- (a) Beginning at a point, latitude dress: Commanding Officer (Attn: Se- 122°39′37″W, longitude 47°33′05″N, a point curity Officer), Box 38, Naval Sub- on the MHHW line of Sinclair Inlet on marine Base New London, Groton, CT an East-West line approximately 100 06349. yards clear off the Southerly end of the (b) Each request for entry will be Naval Shipyard shoreline, piers or dry- considered on an individual basis dock facilities; thence Northeasterly to weighing the operational, security, and the South margin of Primary State safety requirements of Naval Sub- Highway No. 21, thence Northeasterly marine Base New London with the pur- on the Southeasterly margin of Pri- pose, size of party, duration of visit, mary State Highway No. 21 to the Eas- destination, and military resources terly margin of Cambrian Avenue; thence Northerly to the Southerly which would be required by the grant- margin of Farragut Street; thence Eas- ing of the request. terly to the line common to Sections 22 § 770.46 Violations. and 23, Township 24 North, Range 1 East, W.M. which is approximately 100 (a) Any person entering or remaining feet East of the East margin of Mont- on Naval Submarine Base New London, gomery Street; thence Northerly to the without the consent of the Com- corner common to Sections 14, 15, 22, manding Officer, Naval Submarine and 23, Township 24 North, Range 1 Base New London or his authorized East, W.M., which is the South margin representative, shall be subject to the of First Street; thence Easterly on the penalties prescribed in 18 U.S.C. 1382, line common to Sections 14 and 23 to which provides in pertinent part: the Easterly margin of Chester Avenue; thence Northerly approximately 335 Whoever, within the jurisdiction of the feet on the Easterly margin of Chester United States, goes upon any military, naval . . . reservation, post, fort, arsenal, yard, Avenue to the Southerly margin of the station, or installation, for any purpose pro- East-West alley in Block 21, Original hibited by law or lawful regulation . . . shall Town of Bremerton as recorded in Vol- be fined not more than $500 or imprisoned ume 2 of Plats, page 30, Records of not more than six months or both. Kitsap County, Washington; thence
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Easterly to the Easterly margin of Naval Shipyard to authorized persons Warren Avenue; thence Northerly to only. the Southerly margin of Burwell Ave- nue; thence Easterly approximately § 770.50 Entry restrictions. 1315 feet to a point approximately 90 Except for military personnel and ci- feet West of the West margin of Pacific vilian employees of the United States Avenue, to the line common to Lots 22 in the performance of their official du- and 23, Block 13, said Original Town of ties, entry upon Puget Sound Naval Bremerton; thence Southerly to the Shipyard, or remaining thereon by any Northerly margin of the East-West person whoever for any purpose with- alley in said Block 13; thence Easterly out the advance consent of the Com- to the Northerly extension of the West- mander, Puget Sound Naval Shipyard, erly margin of the North-South alley or his authorized representative, is pro- in Block 12, said Original Town of hibited. See 18 U.S.C. 1382; the Internal Bremerton; thence Southerly to the Security Act of 1950, section 21 (50 Southerly margin of First Street; U.S.C. 797); Chief of Naval Operations thence Easterly to the Westerly mar- Instruction 5510.45B of April 19, 1971; gin of First Street; thence Easterly to Secretary of the Navy Instruction the Westerly margin of the North- 551.36 of December 20, 1980; and Depart- South alley in Block 10, said Original ment of Defense Directive 5200.8 of July Town of Bremerton; thence Southerly 29, 1980. to the Northwesterly margin of Wash- ington Avenue; thence Southeasterly § 770.51 Entry procedures. to the Northwesterly corner of Lot 9, (a) Any person or group of persons Block 1, said Original Town of Brem- desiring the advance consent of the erton; thence Southeasterly on the line Commander, Puget Sound Naval Ship- common to Lots 8 and 9, Block 1, and yard, or his authorized representative, its Southeasterly extension to a point shall, in writing, submit a request to near the Washington State Ferry Ter- the Commander, Puget Sound Naval minal at the MHHW line of Sinclair ° ′ ″ Shipyard, at the following address: Inlet located at Latitude 122 37 27 W, Commander, Puget Sound Naval Ship- ° ′ ″ longitude 47 33 44 N. yard, Bremerton, WA 98314. (b) [Reserved] (b) Each request for entry will be considered on an individual basis § 770.49 Background. weighing the operational, security and (a) Puget Sound Naval Shipyard is a safety requirements of Puget Sound major naval ship repair facility, with Naval Shipyard with the purpose, size operational requirements to complete of party, duration of visit, destination, repairs and overhaul of conventionally and military resources which would be powered and nuclear powered naval required by the granting of this re- vessels. It is vital to national defense quest. that the operation and use of the ship- yard be continued without undue or § 770.52 Violations. unnecessary interruptions. Addition- (a) Any person entering or remaining ally, most of Puget Sound Naval Ship- on Puget Sound Naval Shipyard, with- yard is dedicated to heavy industrial out the consent of the Commander, activity where potentially hazardous Puget Sound Naval Shipyard, or his au- conditions exist. thorized representative, shall be sub- (b) For prevention of the interruption ject to the penalties prescribed by 18 of the stated use of Puget Sound Naval U.S.C. 1382, which provides in pertinent Shipyard by the presence of any unau- part: thorized person within the boundaries of Puget Sound Naval Shipyard and Whoever, within the jurisdiction of the prevention of injury to any such unsu- United States, goes upon any military, naval * * * reservation, post, fort, arsenal, yard, pervised person as a consequence to the station or installation, for any purpose pro- hazardous conditions which exist, as hibited by law or lawful regulation * * * well as for other reasons, it is essential shall be fined not more than $500.00 or im- to restrict entry upon Puget Sound prisoned not more than six months or both.
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(b) Moreover, any person who will- ence of any unauthorized person within fully violates this subpart is subject to the boundaries of Portsmouth Naval a fine not to exceed $5000.00 or impris- Shipyard, and prevention of injury to onment for not more than one (1) year any such unsupervised person as a con- or both as provided in 50 U.S.C. 797. sequence of the dangerous conditions which exist, as well as for other rea- Subpart G—Entry Regulations for sons, it is essential to restrict entry Portsmouth Naval Shipyard, upon Portsmouth Naval Shipyard to Portsmouth, New Hampshire authorized persons only.
AUTHORITY: 5 U.S.C. 301; 10 U.S.C. 6011, 18 § 770.55 Responsibility. U.S.C. 1382; 50 U.S.C. 797; DOD Directive The responsibility for proper identi- 5200.8 of July 29, 1980; 32 CFR 700.702; 32 CFR fication and control of personnel and 700.714; SECNAVINST 5511.36 of December 20, 1980; OPNAVINST 5530.14 of June 10, 1983; vehicle movement on the Portsmouth COMNAVSEASYSCOMINST 5510.2A of June Naval Shipyard is vested with the 19, 1981. Shipyard Security Manager (Code 830). SOURCE: 49 FR 34003, Aug. 28, 1984, unless otherwise noted. § 770.56 Entry restrictions. Except for military personnel, their § 770.53 Purpose. authorized dependents, or guests, and To promulgate regulations and proce- civilian employees of the United States dures governing entry upon Ports- in the performance of their official du- mouth Naval Shipyard, and to prevent ties, entry upon Portsmouth Naval the interruption of the functions and Shipyard, or remaining thereon by any operations of Portsmouth Naval Ship- person for any purpose without the ad- yard by the presence of any unauthor- vance consent of the Commander, ized person within the boundaries of Portsmouth Naval Shipyard, or his au- Portsmouth Naval Shipyard. thorized representative, is prohibited. § 770.54 Background. In many instances, Commander, Naval Sea Systems Command, approval is re- (a) Portsmouth Naval Shipyard maintains and operates facilities ‘‘to quired. provide logistic support for assigned § 770.57 Entry procedures. ships and service craft; to perform au- thorized work in connection with con- (a) Any person or group desiring the struction, conversion, overhaul, repair, advance consent of the Commander, alteration, drydocking, and outfitting Portsmouth Naval Shipyard, or his au- of ships and craft, as assigned; to per- thorized representative, shall, in writ- form manufacturing, research, develop- ing, submit a request to the Com- ment, and test work, as assigned; and mander, Portsmouth Naval Shipyard, to provide services and material to at the following address: Commander, other activities and units, as directed Portsmouth Naval Shipyard, Ports- by competent authority.’’ mouth, NH 03801, Attention: Security (b) Portsmouth Naval Shipyard is a Manager (Code 830). For groups, foreign major naval ship repair facility, with citizens, and news media, the request operational requirements to complete must be forwarded to the Commander, repairs and overhaul of conventionally Naval Sea Systems Command, for ap- powered and nuclear-powered naval proval. vessels. It is vital to national defense that the operation and use of the ship- (b) Each request for entry will be yard be continued without undue or considered on an individual basis, unnecessary interruptions. Addition- weighing the operational, security, and ally, most of Portsmouth Naval Ship- safety requirements of Portsmouth yard is dedicated to heavy industrial Naval Shipyard, with the purpose, size activity where potentially hazardous of party, duration of visit, destination, conditions exist. and military resources which would be (c) For prevention of interruption of required by the granting of the request. the stated use of the base by the pres-
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§ 770.58 Violations. National Environmental Policy Act (NEPA). (a) Any person entering or remaining on Portsmouth Naval Shipyard with- § 775.2 Scope. out the consent of the Commander, Portsmouth Naval Shipyard, or his au- The policies and responsibility as- thorized representative, shall be sub- signments of this part apply to the Of- fice of the Secretary of the Navy, the ject to the penalties prescribed in 18 Department of the Navy (DON), and U.S.C. 1382, which provides in pertinent the Navy and Marine Corps operating part: forces and shore establishments. This Whoever, within the jurisdiction of the part is limited to the actions of these United States, goes upon any military, naval elements with environmental effects in . . . reservation, post, fort, arsenal, yard, the United States, its territories, and station, or installation, for any purpose pro- possessions. hibited by law or lawful regulation . . . Shall be fined not more than $500 or imprisoned § 775.3 Policy. not more than six months, or both. (a) The Department of the Navy will (b) Moreover, any person who will- act with care to ensure that, in con- fully violates this instruction is sub- ducting its mission of providing for the ject to a fine not to exceed $5000 or im- national defense, it does so in a manner prisonment for not more than one (1) consistent with national environ- year, or both, as provided by 50 U.S.C. mental policies. In so doing, the Navy 797. recognizes that the NEPA process in- cludes the systematic examination of PARTS 771–774 [RESERVED] the likely environmental consequences of implementing a proposed action. To PART 775—PROCEDURES FOR IM- be an effective decisionmaking tool PLEMENTING THE NATIONAL EN- this process will be integrated with VIRONMENTAL POLICY ACT other Navy-Marine Corps project plan- ning at the earliest possible time. This ensures that planning and decision- Sec. 775.1 Purpose. making reflect environmental values, 775.2 Scope. avoid delays, and avoid potential con- 775.3 Policy. flicts. Care will be taken to ensure 775.4 Responsibilities. that, consistent with other national 775.5 Classified actions. policies and national security require- 775.6 Planning considerations. ments, practical means and measures 775.7 Time limits for environmental docu- are used to protect, restore, and en- ments. hance the quality of the environment, 775.8 Scoping. to avoid or minimize adverse environ- 775.9 Documentation and analysis. mental consequences, and to attain the 775.10 Relations with state, local and re- objectives of: gional agencies. 775.11 Public participation. (1) Achieving the widest range of ben- 775.12 Action. eficial uses of the environment without degradation, risk to health and safety, AUTHORITY: 5 U.S.C. 301; 42 U.S.C. 4321–4361; or other consequences that are undesir- 40 CFR parts 1500–1508. able and unintended; SOURCE: 55 FR 33899, Aug. 20, 1990, unless (2) Preserving important historic, otherwise noted. cultural, and natural aspects of our na- tional heritage, and maintaining, § 775.1 Purpose. where possible, an environment that To supplement Department of De- supports diversity and variety of indi- fense (DOD) regulations (32 CFR part vidual choice; 214) by providing policy and assigning (3) Achieving a balance between re- responsibilities to the Navy and Marine source use and development within the Corps for implementing the Council on sustained carrying capacity of the eco- Environmental Quality (CEQ) regula- system involved; and tions (40 CFR parts 1500–1508) imple- (4) Enhancing the quality of renew- menting procedural provisions of the able resources and working toward the
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maximum attainable recycling of de- ISTER for those actions of national con- pletable resources. cern that the Navy/Marine Corps has (b) The DON shall: determined will not have a significant (1) Assess environmental con- effect on the quality of the human en- sequences of proposed actions that vironment and for which an EIS will could affect the quality of the human not be prepared. environment in the United States, its (5) Approve and forward to the Navy territories, and possessions in accord- JAG, for publishing in the FEDERAL ance with DOD and CEQ regulations; REGISTER, a Record of Decision (ROD) (2) Use a systematic, interdiscipli- which will summarize for the public nary approach that will ensure the in- record the decision made by the Navy/ tegrated use of the natural and social Marine Corps among the alternatives sciences and environmental consider- presented in a Final EIS. ations in planning and decisionmaking (6) Maintain liaison with the Chief of where there may be an impact on Information who will coordinate with man’s environment; the Assistant Secretary of Defense (3) Ensure that presently unmeasured (Public Affairs) those environmental environmental amenities are consid- matters which have significant public ered in the decisionmaking process; affairs implications. (4) Consider the reasonable alter- (7) Maintain liaison with the Office of natives to recommended actions in any Legislative Affairs who will coordinate proposal that would involve unresolved with the Assistant Secretary of De- conflicts concerning alternative uses of fense (Legislative Affairs) and the Con- available resources; gress those environmental matters (5) Make available to states, coun- which have significant legislative im- ties, municipalities, institutions, and plications. individuals advice and information use- (b) The Chief of Naval Operations, or ful in restoring, maintaining, and en- his designee(s), and the Commandant of hancing the quality of the environ- the Marine Corps, or his designee(s), ment; and are responsible, within their respective (6) Use ecological information in services, for NEPA compliance, which planning and developing resource-ori- includes: ented projects. (1) Implementing DON policy regard- ing protection of the environment to § 775.4 Responsibilities. include NEPA compliance. (a) The Assistant Secretary of the (2) Advising commands of the re- Navy for Installations and Environ- quirement for submitting environ- ment (ASN(I&E)) shall: mental assessments or impact state- (1) Advise the Secretary of the Navy ments and identifying major decision on DON policy regarding NEPA compli- points in the chain of command where ance. environmental effects shall be consid- (2) Be the principal point-of-contact ered. with the CEQ, Environmental Protec- (3) Making decisions on environ- tion Agency (EPA), the Deputy Assist- mental assessments as to whether a ant Secretary of Defense for Environ- Finding of No Significant Impact is ap- ment (DASD(E)), other DOD compo- propriate or preparation of an environ- nents and federal agencies concerned mental impact statement is required. with NEPA matters, and with private (4) Coordinating, as appropriate, with environmental groups as applicable. CEQ, EPA, DASD(E), ASN(I&E), other (3) Direct and/or, upon recommenda- DOD components and federal agencies tion, approve the preparation of Envi- concerned with environmental matters. ronmental Impact Statements (EIS); (5) Serving as the point of contact for and, after preparation, approve and for- DON environmental matters. ward said statements to the EPA and (6) Coordinating, as appropriate, with DASD(E) for review and comment. the Chief of Information for the release (4) Approve and forward to the Navy to the public of environmental assess- Judge Advocate General (JAG) Find- ments, impact statements, Findings of ings of No Significant Impact (FONSI) No Significant Impact, and other envi- for publication in the FEDERAL REG- ronmental documents, according to the
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Freedom of Information Act and other (b) It should be noted that a classi- applicable federal laws. fied EA/EIS serves the same ‘‘informed (7) Providing assistance for actions decisionmaking’’ purpose as does a initiated by private persons, state or published unclassified EA/EIS. Even local agencies and other non-DON/DOD though the classified EA/EIS does not entities for which DON involvement undergo general public review and may be reasonably foreseen. comment, it must still be part of the (8) Ensuring that relevant environ- information package to be considered mental documentation accompanies all by the decisionmaker for the proposed proposals for action through the appro- action. The content of a classified EA/ priate review process so that such in- EIS (or the classified portion of a pub- formation is available to the decision lic EA/EIS) will therefore meet the maker. same content requirements applicable (c) The Chief of Naval Operations and to a published unclassified EA/EIS. the Commandant of the Marine Corps § 775.6 Planning considerations. are to comply with these procedures by subsequently directing subordinates to: (a) When integrating the NEPA proc- (1) Ensure all appropriate instruc- ess into early stages of proposed ac- tions, directives, and orders include the tions, action proponents will determine requirement for funding and planning as early as possible the appropriate for environmental documentation, as level of documentation required under required. NEPA, i.e., is the action a major fed- eral action significantly affecting the (2) Conduct analyses of the environ- human environment requiring an envi- mental effects of current and proposed ronmental impact statement (EIS), is actions in accordance with DOD regu- the action one for which the impacts lations, CEQ regulations (40 CFR parts are not known or which may not be sig- 1500–1508), and other applicable regula- nificant and, therefore, an environ- tions. mental assessment (EA), is appro- (3) Encourage, to the extent prac- priate, or is the action one that has no ticable, citizen participation in envi- potential for significant impacts and ronmental evaluations of projects or can be categorically excluded from fur- programs. ther NEPA documentation. In addition, (4) Evaluate environmental impacts CEQ regulations (40 CFR 1501.5 and at initial planning stages and at each 1501.6) require early identification of following significant step or decision lead and cooperative agencies for prep- milestone in the development of a aration of an EIS for which more than project or program, as warranted. one agency is involved or has special expertise in environmental issues to be § 775.5 Classified actions. addressed in the EIS. (a) The fact that a proposed action is (b) The command responsible for of a classified nature does not relieve preparation of the appropriate docu- the proponent of the action from com- mentation may prepare an EA on any plying with NEPA and the CEQ regula- action at any time in order to assist in tions. Therefore, environmental docu- planning and decisionmaking, includ- ments shall be prepared, safeguarded ing the decision whether or not to pre- and disseminated in accordance with pare an EIS. If a determination is made the requirements applicable to classi- based on information presented in an fied information. When feasible, these environmental assessment that an EIS documents shall be organized in such a is not required, a Finding of No Signifi- manner that classified portions are in- cant Impact (FONSI) will be prepared cluded as appendices so that unclassi- and made available to the public in ac- fied portions can be made available to cordance with CEQ regulations (40 CFR the public. Review of classified NEPA 1506.6). documentation will be coordinated (c) CEQ regulations (40 CFR with the Environmental Protection 1508.18(a)) define major federal actions Agency (EPA) to fulfill requirements of subject to evaluation under NEPA to section 309 of the Clean Air Act (42 include, among other things, ‘‘new and U.S.C. 7609 et seq.). continuing activities’’. The term new
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activities is intended to encompass fu- environment, individually or cumula- ture actions, i.e., those which are not tively, under normal circumstances, ongoing at the time of the proposal. and for which, therefore, neither an EA The term continuing activities which nor an EIS is required. Categorical ex- may necessitate the preparation of a clusions are applicable to those kinds NEPA document will be applied by the of Navy actions which do not signifi- Department of Navy to include activi- cantly affect the quality of the human ties which are presently being carried environment, which do not result in out in fulfillment of the Navy mission any significant change from existing and function, including existing train- conditions at the site of the proposed ing functions, where: action, and whose effect is primarily (1) The currently occurring environ- economic or social. ‘‘Normal cir- mental effects of which have not been cumstances’’ means that the proposal, previously evaluated in a NEPA docu- when analyzed with respect to context ment, and there is a discovery that and intensity, can reasonably be ex- substantial environmental degradation pected to not cause significant im- is occurring, or is likely to occur, as a pacts. Even though a proposal gen- result of ongoing operations (e.g., a dis- erally fits the description set out below covery that significant beach erosion is for categorical exclusions, the categor- occurring as a result of continuing am- ical exclusion should not be used if the phibious exercises, new designation of proposed action: wetland habitat, or discovery of an en- (1) Would affect public health or safe- dangered species residing in the area of ty; the activity), or (2) Involves a site that includes wet- (2) There is a discovery that the envi- lands, endangered or threatened spe- ronmental effects of an ongoing activ- cies, historical or archaeological re- ity are significantly and qualitatively sources, or hazardous wastes; different or more severe than predicted (3) Involves effects on the human en- in a NEPA document prepared in con- vironment that are highly uncertain, nection with the commencement of the involve unique or unknown risks, or activity. which are scientifically controversial; A substantial change in a continuing (4) Establishes precedents or makes activity (such as a substantial change decisions in principle for future actions in operational tempo, area of use, or in with significant effects, or; methodology/equipment) which has the (5) Threatens a violation of federal, potential for significant environmental state or local law or requirements im- impacts should be considered a pro- posed for protection of the environ- posal for a new action and be docu- ment. mented accordingly. Preparation of a (f) A decision to forego preparation of NEPA document is not a necessary pre- an EA or EIS on the basis of one or requisite, nor a substitute, for compli- more categorical exclusions shall be ance with other environmental laws. documented, including the exclusions (d) Where emergency circumstances found applicable, the facts supporting require immediate action, for the pro- their use and specific consideration of tection of lives and for public health whether the exceptions to the use of and safety, which could result in sig- categorical exclusions, set out above, nificant harm to the environment, the were applicable. The following are ac- activity Commanding Officer or his tions which, under normal conditions, designee shall report the emergency are categorically excluded from further action to CNO (OP–44E)/CMC (LFL) documentation requirements under who will facilitate the appropriate con- NEPA: sultation with CEQ as soon as prac- (1) Routine personnel, fiscal, and ad- ticable. ministrative activities involving mili- (e) CEQ regulations provide for the tary and civilian personnel, e.g., re- establishment of categorical exclusions cruiting, processing, paying, and (40 CFR 1508.4) for those actions which, records keeping. after consideration by the Department (2) Reductions in force wherein im- of the Navy, have been found not to pacts are limited to socioeconomic fac- have a significant effect on the human tors.
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(3) Routine movement of mobile as- (11) Day-to-day manpower resource sets, such as ships and aircraft, in management and research activities home port reassignments (when no new that are in accordance with approved support facilities are required) to per- plans and inter-agency agreements and form as operational groups, and/or re- which are designed to improve and/or pair and overhaul. upgrade Navy ability to manage those (4) Relocation of personnel into exist- resources. ing federally-owned or commercially- (12) Decisions to close facilities, de- leased space which does not involve a commission equipment, and/or tempo- substantial change in the supporting rarily discontinue use of facilities or infrastructure (e.g., an increase in ve- equipment (where such equipment is hicular traffic beyond the capacity of not used to prevent/control environ- the supporting road network to accom- mental impacts). This paragraph (f)(12) modate such an increase). does not apply to permanent closure of (5) Studies, data and information- gathering that involve no physical public roads. change to the environment, e.g., topo- (13) Contracts for activities con- graphic surveys, bird counts, wetland ducted at established laboratories and mapping, forest inventories, and tim- plants, to include contractor-operated ber cruising. laboratories and plants, within facili- (6) Routine repair and maintenance ties where all airborne emissions, wa- of facilities and equipment in order to terborne effluents, external radiation maintain existing operations and ac- levels, outdoor noise, and solid and tivities, including maintenance of im- bulk waste disposal practices are in proved and semi-improved grounds compliance with existing applicable such as landscaping, lawn care, and federal, state, and local laws and regu- minor erosion control measures. lations. (7) Alteration of and additions to ex- (14) Routine movement, handling and isting structures to conform or provide distribution of materials, including conforming use specifically required by hazardous materials/wastes that when new or existing applicable legislation moved, handled, or distributed are in or regulations, e.g., hush houses for accordance with applicable regula- aircraft engines and scrubbers for air tions. emissions. (15) Demolition, disposal, or improve- (8) Routine actions normally con- ments involving buildings or structures ducted to operate, protect, and main- not on or eligible for listing on the Na- tain Navy-owned and/or controlled tional Register of Historic Places and properties, e.g., maintaining law and when in accordance with applicable order, physical plant protection by military police and security personnel, regulations, including those regula- and localized pest management activi- tions applying to removal of asbestos, ties on improved and semi-improved PCBs, and other hazardous materials. lands conducted in accordance with ap- (16) Acquisition, installation, and op- plicable federal and state directives. eration of utility and communication (9) New construction that is con- systems, data processing cable, and sistent with existing land use and, similar electronic equipment which use when completed, the use or operation existing rights of way, easements, dis- of which complies with existing regu- tribution systems, and/or facilities. latory requirements and constraints, (17) Renewals and/or initial real es- e.g., a building on a parking lot with tate ingrants and outgrants involving associated discharges/runoff within ex- existing facilities and land wherein use isting handling capacities, a bus stop does not change significantly. This in- along a roadway, and a foundation pad cludes, but is not limited to, existing for portable buildings within a building federally-owned or privately-owned complex. housing, office, storage, warehouse, (10) Procurement activities that pro- laboratory, and other special purpose vide goods and support for routine op- space. erations.
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(18) Grants of license, easement, or trocution prevention devices, fencing similar arrangements for the use of ex- to restrict wildlife movement onto air- isting rights-of-way or incidental ease- fields, and fencing and grating to pre- ments complementing the use of exist- vent accidental entry to hazardous ing rights-of-way for use by vehicles areas. (not to include significant increases in (30) Natural resources management vehicle loading); electrical, telephone, actions undertaken or permitted pursu- and other transmission and commu- ant to agreement with or subject to nication lines; water, wastewater, regulation by federal, state, or local or- stormwater, and irrigation pipelines, ganizations having management re- pumping stations, and facilities; and sponsibility and authority over the for similar utility and transportation natural resources in question, includ- uses. ing hunting or fishing during hunting (19) Transfer of real property from or fishing seasons established by state the Navy to another military depart- authorities pursuant to their state fish ment or to another federal agency, and and game management laws. With re- the granting of leases (including leases gard to natural resources regulated by granted pursuant to the agricultural another federal agency, the responsible outleasing program where soil con- command may cooperate in any envi- servation plans are incorporated), per- ronmental analysis that may be re- mits and easements where there is no quired by the other agency’s regula- substantial change in land use or where tions. subsequent land use would otherwise be (31) Approval of recreational activi- categorically excluded. ties which do not involve significant (20) Disposal of excess easement in- physical alteration of the environment terests to the underlying fee owner. or increase human disturbance in sen- (21) Renewals and minor amendments sitive natural habitats and which do of existing real estate grants for use of not occur in or adjacent to areas inhab- government-owned real property where ited by endangered or threatened spe- no significant change in land use is an- cies. ticipated. (32) Routine maintenance of timber (22) Pre-lease exploration activities stands, including issuance of down- for oil, gas or geothermal reserves, e.g., wood firewood permits, hazardous tree geophysical surveys. removal, and sanitation salvage. (23) Return of public domain lands to (33) Reintroduction of endemic or na- the Department of the Interior. tive species (other than endangered or (24) Land withdrawal continuances or threatened species) into their historic extensions which merely establish time habitat when no substantial site prepa- periods and where there is no signifi- ration is involved. cant change in land use. [55 FR 33899, Aug. 20, 1990, as amended at 55 (25) Temporary closure of public ac- FR 39960, Oct. 1, 1990] cess to Navy property in order to pro- tect human or animal life. § 775.7 Time limits for environmental (26) Engineering effort undertaken to documents. define the elements of a proposal or al- (a) The timing of the preparation, ternatives sufficiently so that the envi- circulation, submission and public ronmental effects may be assessed. availability of environmental docu- (27) Actions which require the con- ments is important in achieving the currence or approval of another federal purposes of NEPA. Therefore, the agency where the action is a categor- NEPA process shall begin as early as ical exclusion of the other federal possible in the decisionmaking process. agency. (b) The EPA publishes a weekly no- (28) Maintenance dredging and debris tice in the FEDERAL REGISTER of envi- disposal where no new depths are re- ronmental impact statements filed quired, applicable permits are secured, during the preceding week. The min- and disposal will be at an approved dis- imum time periods set forth below posal site. shall be calculated from the date of (29) Installation of devices to protect publication of notices in the FEDERAL human or animal life, e.g., raptor elec- REGISTER. No decision on the proposed
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action may take place until the later (b) CEQ regulations encourage the of the following dates: use of tiering whenever appropriate to (1) Ninety days after publication of eliminate repetitive discussions of the the notice of availability for a draft en- same issues and to focus on the actual vironmental impact statement (DEIS). issues ripe for discussion at each level Draft statements shall be available to of environmental review (40 CFR the public for 15 days prior to any pub- 1502.20). Tiering is accomplished lic hearing on the DEIS (40 CFR through the preparation of a broad pro- 1506.6(c)(2)). grammatic environmental impact (2) Thirty days after publication of statement discussing the impacts of a the notice of availability for a final en- wide ranging or long term stepped pro- vironmental impact statement (FEIS). gram followed by narrower statements If the FEIS is available to the public or environmental assessments concen- within ninety days from the avail- trating solely on issues specific to the ability of the DEIS, the minimum thir- analysis subsequently prepared (40 CFR ty day period and the minimum nintey 1508.28). day period may run concurrently. How- (1) Appropriate use of tiering: Tiering ever, not less than 45 days from publi- is appropriate when it helps the lead cation of notice of filing shall be al- agency to focus on issues which are lowed for public comment on draft ripe for decision and exclude from con- statements prior to filing of the FEIS sideration issues already decided or not (40 CFR 1506.10(c)). yet ripe. (40 CFR 1508.28(b).) The se- quence of statements or analyses is: § 775.8 Scoping. (i) From a broad program, plan, or As soon as practicable after the deci- policy environmental impact state- sion to prepare an EIS is made, an ment (not necessarily site specific) to a early and open process called subordinate/smaller scope program, ‘‘scoping’’ shall be used to determine plan, or policy statement or analysis the scope of issues to be addressed and (usually site specific) (40 CFR 1508.28 to identify the significant issues to be (a)). analyzed in depth related to the pro- (ii) From an environmental impact posed action (40 CFR 1501.7). This proc- statement on a specific action at an ess also serves to deemphasize insig- early stage (such as need and site selec- nificant issues, narrowing the scope of tion) to a supplement (which is pre- the EIS process accordingly (40 CFR ferred) or a subsequent statement or 1500.4(g)). Scoping results in the identi- analysis at a later stage (such as envi- fication by the proponent of the range ronmental mitigation) (40 CFR of actions, alternatives, and impacts to 1508.28(b)). be considered in the EIS (40 CFR (iii) In addition to the discussion re- 1508.25). For any action, this scope may quired by these regulations for inclu- depend on the relationship of the pro- sion in environmental impact state- posed action to other existing environ- ments, the programmatic environ- mental documentation. mental impact statement shall also discuss: § 775.9 Documentation and analysis. (A) A description of the subsequent (a) Environmental documentation stages or sites that may ultimately be and analyses required by this rule proposed in as much detail as presently should be integrated as much as prac- possible; ticable with any environmental stud- (B) All of the implementing factors ies, surveys and impact analyses re- of the program that can be ascertained quired by other environmental review at the time of impact statement prepa- laws and executive orders (40 CFR ration; 1502.25). When a cost-benefit analysis (C) All of the environmental impacts has been prepared in conjunction with that will result from establishment of an action which also requires a NEPA the overall program itself that will be analysis, the cost-benefit analysis shall similar for subsequent stages or sites be integrated into the environmental as further implementation plans are documentation. proposed; and
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(D) All of the appropriate mitigation following are among the factors to be measures that will be similarly pro- weighed by the command: posed for subsequent stages or sites. (a) The magnitude of the environ- (iv) The analytical document used for mental considerations associated with stage or site specific analysis subse- the proposed action; quent to the programmatic environ- (b) The extent of anticipated public mental impact statement shall also be interest; and an environmental impact statement (c) Any relevant questions of na- when the subsequent tier itself may tional security and classification. have a significant impact on the qual- ity of the human environment or when § 775.12 Action. an impact statement is otherwise re- The Chief of Naval Operations and quired. Otherwise, it is appropriate to the Commandant of the Marine Corps document the tiered analysis with an shall, each, as appropriate: environmental assessment to fully as- (a) Provide guidelines and procedures sess the need for further documenta- for administrative direction and imple- tion or whether a FONSI would be ap- mentation of this part and CEQ regula- propriate. tions; and (2) [Reserved] (b) Maintain a focal point for the co- § 775.10 Relations with state, local and ordination of the preparation of envi- regional agencies. ronmental assessments and impact statements. Close and harmonious planning rela- tions with local and regional agencies and planning commissions of adjacent PART 776—PROFESSIONAL CON- cities, counties, and states, for co- DUCT OF ATTORNEYS PRAC- operation and resolution of mutual TICING UNDER THE COG- land use and environment-related prob- NIZANCE AND SUPERVISION OF lems should be established. Additional THE JUDGE ADVOCATE GENERAL coordination may be obtained from state and area-wide planning and devel- Subpart A—General opment ‘‘clearinghouses’’. These are agencies which have been established Sec. pursuant to Executive Order 12372 of 776.1 Purpose. 776.2 Applicability. July 14, 1982 (3 CFR, 1982 Comp., p. 197). 776.3 Policy. The clearinghouses serve a review and 776.4 Attorney-client relationships. coordination function for Federal ac- 776.5 Judicial conduct. tivities and the proponent may gain in- 776.6 Conflict. sights on other agencies’ approaches to 776.7 Reporting requirements. environmental assessments, surveys, 776.8 Professional Responsibility Com- and studies in relation to any current mittee. proposal. The clearinghouses would 776.9 Rules Counsel. 776.10 Informal ethics advice. also be able to assist in identifying pos- 776.11 Outside part-time practice of law. sible participants in scoping proce- 776.12 Maintenance of files. dures for projects requiring an EIS. 776.13–776.17 [Reserved]
§ 775.11 Public participation. Subpart B—Rules of Professional Conduct The importance of public participa- 776.18 Preamble. tion (40 CFR 1501.4(b)) in preparing en- 776.19 Principles. vironmental assessments is clearly rec- 776.20 Competence. ognized and it is recommended that 776.21 Establishment and scope of represen- commands proposing an action develop tation. a plan to ensure appropriate commu- 776.22 Diligence. nication with affected and interested 776.23 Communication. parties. The command Public Affairs 776.24 Fees. 776.25 Confidentiality of information. Office can provide assistance with de- 776.26 Conflict of interest: General rule. veloping and implementing this plan. 776.27 Conflict of interests: Prohibited In determining the extent to which transactions. public participation is practicable, the 776.28 Conflict of interest: Former client.
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776.29 Imputed disqualification: General 776.86 Action by JAG. rule. 776.87 Finality. 776.30 Successive Government and private 776.88 Report to licensing authorities. employment. 776.31 Former judge or arbitrator. Subpart D [Reserved] 776.32 Department of Navy as client. 776.33 Client under a disability. 776.34 Safekeeping property. AUTHORITY: 10 U.S.C. 806, 806a, 826, 827; 776.35 Declining or terminating representa- Manual for Courts-Martial, United States, tion. 1998; U.S. Navy Regulations, 1990; Secretary 776.36 Prohibited sexual relations. of the Navy Instruction 5430.27 (series), Re- 776.37 Advisor. sponsibility of the Judge Advocate General 776.38 Mediation. for Supervision of Certain Legal Services. 776.39 Evaluation for use by third persons. 776.40 Meritorious claims and contentions. SOURCE: 65 FR 15060, Mar. 21, 2000, unless 776.41 Expediting litigation. otherwise noted. 776.42 Candor and obligations toward the tribunal. Subpart A—General 776.43 Fairness to opposing party and coun- sel. § 776.1 Purpose. 776.44 Impartiality and decorum of the tri- bunal. In furtherance of the authority cita- 776.45 Extra-tribunal statements. tions (which, if not found in local li- 776.46 Attorney as witness. braries, are available from the Office of 776.47 Special responsibilities of a trial the Judge Advocate General, 1322 Pat- counsel. 776.48 Advocate in nonadjudicative pro- terson Avenue, SE., Suite 3000, Wash- ceedings. ington Navy Yard DC 20374–5066), which 776.49 Truthfulness in statements to others. require the Judge Advocate General of 776.50 Communication with person rep- the Navy (JAG) to supervise the per- resented by counsel. formance of legal services under JAG 776.51 Dealing with an unrepresented per- cognizance throughout the Department son. 776.52 Respect for rights of third persons. of the Navy (DON), this part is promul- 776.53 Responsibilities of the Judge Advo- gated: cate General and supervisory attorneys. (a) To establish Rules of Professional 776.54 Responsibilities of a subordinate at- Conduct (subpart B of this part) for at- torney. torneys subject to this part; 776.55 Responsibilities regarding non-attor- ney assistants. (b) To establish procedures (subpart 776.56 Professional independence of a cov- C of this part) for receiving, processing, ered USG attorney. and taking action on complaints of 776.57 Unauthorized practice of law. professional misconduct made against 776.58–776.65 [Reserved] attorneys practicing under the super- 776.66 Bar admission and disciplinary mat- vision of JAG, whether arising from ters. 776.67 Judicial and legal officers. professional legal activities in DON 776.68 Reporting professional misconduct. proceedings and matters, or arising 776.69 Misconduct. from other, non-U.S. Government re- 776.70 Jurisdiction. lated professional legal activities or 776.71 Requirement to remain in good personal misconduct which suggests standing with licensing authorities. 776.72–776.75 [Reserved] the attorney is ethically, profes- sionally, or morally unqualified to per- Subpart C—Complaint Processing form legal services within the DON; Procedures and (c) To ensure quality legal services at 776.76 Policy. 776.77 Related investigations and actions. all proceedings under the cognizance 776.78 Informal complaints. and supervision of the JAG. 776.79 The complaint. 776.80 Initial screening and Rules Counsel. § 776.2 Applicability. 776.81 Charges. (a) This part defines the professional 776.82 Interim suspension. 776.83 Preliminary inquiry. ethical obligations of, and applies to, 776.84 Ethics investigation. all ‘‘covered attorneys.’’ 776.85 Effect of separate proceeding. (b) ‘‘Covered attorneys’’ include:
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(1) The following U.S. Government ney’s DON activities, while normally (USG) attorneys, referred to, collec- outside the ambit of these rules, may tively, as ‘‘covered USG attorneys’’ be reviewed under procedures estab- throughout this part: lished in subpart C of this part and (i) All active-duty Navy judge advo- may provide the basis for decisions by cates (designator 2500 or 2505) or Ma- the JAG regarding the covered attor- rine Corps judge advocates (MOS 4402 ney’s continued qualification to pro- or 9914). vide legal services in DON matters. (ii) All active-duty judge advocates (d) Although the Rules in subpart B of other U.S. armed forces who practice of this part do not apply to non-attor- law or provide legal services under the neys, they do define the type of ethical cognizance and supervision of the JAG. conduct that the public and the mili- (iii) All civil service and contracted tary community have a right to expect civilian attorneys who practice law or from DON legal personnel. Covered perform legal services under the cog- USG attorneys who supervise non-at- nizance and supervision of the JAG. torney DON employees are responsible (iv) All Reserve or Retired judge ad- for their ethical conduct to the extent vocates of the Navy or Marine Corps provided for in § 776.55 of this part. Ac- (and any other U.S. armed force), who, cordingly, subpart B of this part shall while performing official DON duties, serve as a model of ethical conduct for practice law or provide legal services the following personnel when involved under the cognizance and supervision with the delivery of legal services of the JAG. under the supervision of the JAG: (v) All other attorneys appointed by (1) Navy legalmen and Marine Corps JAG (or the Director, Judge Advocate legal administrative officers, legal (JA) Division, Headquarters Marine service specialists, and legal services Corps (HQMC), in Marine Corps mat- reporters (stenotype); ters) to serve in billets or to provide (2) Limited duty officers (LAW); legal services normally provided by (3) Legal interns; and Navy or Marine Corps judge advocates. (4) Civilian support personnel includ- This policy applies to officer and en- ing paralegals, legal secretaries, legal listed reservists, to active-duty per- technicians, secretaries, court report- sonnel, and to any other personnel who ers, and others holding similar posi- are licensed to practice law by any tions. Federal or state authorities, but who are not members of the Judge Advocate § 776.3 Policy. General’s Corps or who do not hold the (a) Covered attorneys shall maintain 4402 or 9914 designation in the Marine the highest standards of professional Corps. ethical conduct. Loyalty and fidelity (2) The following non-U.S. Govern- to the United States, to the law, to cli- ment attorneys, referred to, collec- ents both institutional and individual, tively, as ‘‘covered non-USG attor- and to the rules and principles of pro- neys’’ throughout this part: All civil- fessional ethical conduct set forth in ian attorneys representing individuals subpart B of this part must come be- in any matter for which JAG is fore private gain or personal interest. charged with supervising the provision (b) Whether conduct or failure to act of legal services. These matters in- constitutes a violation of the profes- clude, but are not limited to, courts- sional duties imposed by this part is a martial, administrative separation matter within the sole discretion of boards or hearings, and disability eval- JAG or officials authorized to act for uation proceedings. JAG. Rules contained in subpart B of (3) The term ‘‘covered attorney’’ does this part are not substitutes for, and do not include those civil service or civil- not take the place of, other rules and ian attorneys who practice law or per- standards governing DON personnel form legal services under the cog- such as the Department of Defense nizance and supervision of the General Joint Ethics Regulation, the Code of Counsel of the Navy. Conduct, the Uniform Code of Military (c) Professional or personal mis- Justice (UCMJ), and the general pre- conduct unrelated to a covered attor- cepts of ethical conduct to which all
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DON service members and employees forming judicial functions under JAG are expected to adhere. Similarly, ac- supervision within the DON. tion taken per this part is not sup- planted or barred by, and does not, § 776.6 Conflict. even if the underlying misconduct is To the extent that a conflict exists the same, supplant or bar the following between this part and the rules of action from being taken by authorized other jurisdictions that regulate the officials: professional conduct of attorneys, this (1) Punitive or disciplinary action part will govern the conduct of covered under the UCMJ; or attorneys engaged in legal functions (2) Administrative action under the under JAG cognizance and supervision. Manual for Courts-Martial, U.S. Navy Specific and significant instances of Regulations, or under other applicable conflict between the rules contained in authority. subpart B of this part and the rules of (c) Inquiries into allegations of pro- other jurisdictions shall be reported fessional misconduct will normally be promptly to the Rules Counsel (see held in abeyance until any related § 776.9 of this part), via the supervisory criminal investigation or proceeding is attorney. See § 776.53 of this part. complete. However, a pending criminal investigation or proceeding does not § 776.7 Reporting requirements. bar the initiation or completion of a professional misconduct investigation Covered USG attorneys shall report (subpart C of this part) stemming from promptly to the Rules Counsel any dis- the same or related incidents or pre- ciplinary or administrative action, in- vent the JAG from imposing profes- cluding initiation of investigation, by sional disciplinary sanctions as pro- any licensing authority or Federal, vided for in this part. State, or local bar, possessing the power to revoke, suspend, or in any § 776.4 Attorney-client relationships. way limit the authority to practice law (a) The executive agency to which as- in that jurisdiction, upon himself, her- signed (DON in most cases) is the cli- self, or another covered attorney. Fail- ent served by each covered USG attor- ure to report such discipline or admin- ney unless detailed to represent an- istrative action may subject the cov- other client by competent authority. ered USG attorney to discipline admin- Specific guidelines are contained in istered per this part. See § 776.71 of this § 776.32 of this part. part. (b) Covered USG attorneys will not establish attorney-client relationships § 776.8 Professional Responsibility with any individual unless detailed, as- Committee. signed, or otherwise authorized to do (a) Composition. This standing com- so by competent authority. Wrongfully mittee will consist of the Assistant establishing an attorney-client rela- Judge Advocate General (AJAG) for tionship may subject the attorney to Military Justice; the Vice Commander, discipline administered per this part. Naval Legal Service Command (NLSC); See § 776.21 of this part. the Chief Judge, Navy-Marine Corps (c) Employment of a non-USG attor- Trial Judiciary; and in cases involving ney by an individual client does not Marine Corps judge advocates, the Dep- alter the professional responsibilities uty Director, JA Division, HQMC; and of a covered USG attorney detailed or such other personnel as JAG from otherwise assigned by competent au- time-to-time may appoint. A majority thority to represent that client. of the members constitutes a quorum. The Chairman of the Committee shall § 776.5 Judicial conduct. be the AJAG for Military Justice. The To the extent that it does not con- Chairman may excuse members dis- flict with statutes, regulations, or this qualified for cause, illness, or exigen- part, the American Bar Association’s cies of military service, and may re- Code of Judicial Conduct applies to all quest JAG to appoint additional or al- military and appellate judges and to ternate members on a temporary or all other covered USG attorneys per- permanent basis.
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(b) Purpose. (1) When requested by § 776.10 Informal ethics advice. JAG or by the Rules Counsel, the Com- (a) Advisors. Covered attorneys may mittee will provide formal advisory seek informal ethics advice either from opinions to JAG regarding application the officers named below or from su- of rules contained in subpart B of this pervisory attorneys in the field. Within part to individual or hypothetical cases. the Office of the JAG and HQMC, the following officials are designated to re- (2) On its own motion, the Committee spond, either orally or in writing, to may also issue formal advisory opin- informal inquiries concerning this part ions on ethical issues of importance to in the areas of practice indicated: the DON legal community. (1) Head, Military Affairs/Personnel (3) Upon written request, the Com- Law Branch, Administrative Law Divi- mittee will also provide formal advi- sion: administrative boards and related sory opinions to covered attorneys about the propriety of proposed courses matters; of action. If such requests are predi- (2) Deputy Director, Criminal Law cated upon full disclosure of all rel- Division: military justice matters; evant facts, and if the Committee ad- (3) Director, Legal Assistance Divi- vises that the proposed course of con- sion: legal assistance matters; duct is not violative of subpart B of (4) Deputy Director, JA Division, this part, then no adverse action under HQMC: cases involving Marine Corps this part may be taken against a cov- judge advocates, or civil service and ered attorney who acts consistent with contracted civilian attorneys who per- the Committee’s advice. form legal services under the cog- (4) The Chairman will forward copies nizance and supervision of Director, JA of all opinions issued by the Committee Division, HQMC; and to the Rules Counsel. (5) Head, Standards of Conduct/Gov- (c) Limitation. The Committee will ernment Ethics Branch, Administra- not normally provide ethics advice or tive Law Division: all other matters. opinions concerning professional re- (b) Limitation. Informal ethics advice sponsibility matters (e.g., ineffective will not normally be provided by JAG/ assistance of counsel, prosecutorial HQMC advisors concerning professional misconduct, etc.) that are then the responsibility matters (e.g., ineffective subject of litigation. assistance of counsel, prosecutorial misconduct) that are then the subject § 776.9 Rules Counsel. of litigation. Appointed by JAG to act as special (c) Written advice. A request for infor- assistants for the administration of mal advice does not relieve the re- this part, the Rules Counsel derive au- quester of the obligation to comply thority from JAG and, as detailed in with subpart B of this part. Although this part, have ‘‘by direction’’ author- covered attorneys are encouraged to ity. The Rules Counsel shall cause seek advice when in doubt as to their opinions issued by the Professional Re- responsibilities, they remain person- sponsibility Committee of general in- ally accountable for their professional terest to the DON legal community to conduct. If, however, an attorney re- be published in summarized, non-per- ceives written advice on an ethical sonal form in suitable publications. matter after full disclosure of all rel- Unless another officer is appointed by evant facts and reasonably relies on JAG to act in individual cases, the fol- such advice, no adverse action under lowing officers shall act as Rules Coun- this part will be taken against the at- sel: torney. Written advice may be sought (a) Director, JA Division, HQMC, for from either a supervisory attorney or cases involving Marine Corps judge ad- the appropriate advisor in paragraph vocates, or civil service and contracted (a) of this section. JAG is not bound by civilian attorneys who perform legal unwritten advice or by advice provided services under his cognizance; and by personnel who are not supervisory (b) AJAG for Civil Law, in all other attorneys or advisors. See § 776.54 of cases. this part.
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§ 776.11 Outside part-time practice of §§ 776.13—776.17 [Reserved] law. A covered USG attorney’s primary Subpart B—Rules of Professional professional responsibility is to the cli- Conduct ent, as defined by § 776.4 of this part, and he or she is expected to ensure that § 776.18 Preamble. representation of such client is free (a) A covered USG attorney is a rep- from conflicts of interest and otherwise resentative of clients, an officer of the conforms to the requirements of these legal system, an officer of the Federal rules and other regulations concerning Government, and a public citizen who the provision of legal services within has a special responsibility for the the Department of the Navy. The out- quality of justice and legal services side practice of law, therefore, must be provided to the DON and to individual carefully monitored. Covered USG at- clients. The Rules of Professional Con- torneys who wish to engage in the part- duct contained in this subpart govern time, outside practice of law must first the ethical conduct of covered attor- obtain permission from JAG. Failure neys practicing under the Uniform to obtain permission before engaging in Code of Military Justice, the Manual the outside practice of law may subject for Courts-Martial, 10 U.S.C. 1044 the covered USG attorney to adminis- (Legal Assistance), other laws of the trative or disciplinary action, includ- United States, and regulations of the ing professional sanctions adminis- DON. tered per subpart C of this part. Cov- (b) This subpart not only addresses ered USG attorneys may obtain further the professional conduct of judge advo- details in JAGINST 5803.1 (series). This cates, but also applies to all other cov- requirement does not apply to non- ered attorneys who practice under the USG attorneys, or to Reserve or Re- cognizance and supervision of the JAG. tired judge advocates unless serving on See § 776.2 of this part. active-duty for more than 30 consecu- (c) All covered attorneys are subject tive days. to professional disciplinary action im- posed by the JAG for violation of the § 776.12 Maintenance of files. Rules contained in this subpart. Action by the JAG does not prevent other Fed- Ethics complaint records shall be eral, State, or local bar associations or maintained by the Administrative Law other licensing authorities from taking Division, Office of the Judge Advocate professional disciplinary or other ad- General, and, in the case of Marine ministrative action for the same or records, by the Judge Advocate Re- similar acts. search and Civil Law Branch, JA Divi- sion, HQMC. § 776.19 Principles. (a) Requests for access to such The Rules of this subpart are based records should be referred to Deputy on the following principles. Interpreta- Assistant Judge Advocate General (Ad- tion of this subpart should flow from ministrative Law), Office of the Judge common meaning. To the extent that Advocate General (Code 13), 1322 Pat- any ambiguity or conflict exists, this terson Avenue, SE., Suite 3000, Wash- subpart should be interpreted con- ington Navy Yard DC 20374–5066, or to sistent with these general principles. Head, Judge Advocate Research and (a) Covered attorneys shall: Civil Law Branch, JA Division, Head- (1) Obey the law and military regula- quarters Marine Corps, Washington tions, and counsel clients to do so. Navy Yard DC 20380–0001, as appro- (2) Follow all applicable ethics rules. priate. (3) Protect the legal rights and inter- (b) Local command files regarding ests of clients, organizational and indi- professional responsibility complaints vidual. will not be maintained. Commanding (4) Be honest and truthful in all deal- officers and other supervisory attor- ings. neys may, however, maintain personal (5) Not derive personal gain, except files but must not share their contents as authorized, for the performance of with others. legal services.
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(6) Maintain the integrity of the legal choice of counsel, forum, pleas, wheth- profession. er to testify, and settlements. (b) Ethical rules should be consistent (4) A covered attorney’s representa- with law. If law and ethics conflict, the tion of a client does not constitute an law prevails unless an ethical rule is endorsement of the client’s political, constitutionally based. economic, social, or moral views or ac- (c) The military criminal justice sys- tivities. tem is a truth-finding process con- (5) A covered attorney shall not sistent with constitutional law. counsel or assist a client to engage in conduct that the attorney knows is § 776.20 Competence. criminal or fraudulent, but a covered (a) Competence. A covered attorney attorney may discuss the legal and shall provide competent, diligent, and moral consequences of any proposed prompt representation to a client. course of conduct with a client, and Competent representation requires the may counsel or assist a client in mak- legal knowledge, skill, thoroughness ing a good faith effort to determine the and expeditious preparation reasonably validity, scope, meaning, or applica- necessary for representation. Initial tion of the law. determinations as to competence of a (b) [Reserved] covered USG attorney for a particular assignment shall be made by a super- § 776.22 Diligence. vising attorney before case or issue as- (a) Diligence. A covered attorney signments; however, assigned attor- shall act with reasonable diligence and neys may consult with supervisors con- promptness in representing a client, cerning competence in a particular and shall consult with a client as soon case. as practicable and as often as nec- (b) [Reserved] essary upon being assigned to the case or issue. § 776.21 Establishment and scope of (b) [Reserved] representation. (a) Establishment and scope of represen- § 776.23 Communication. tation: (1) Formation of attorney-client (a) Communication: relationships by covered USG attor- (1) A covered attorney shall keep a neys with, and representation of, cli- client reasonably informed about the ents is permissible only when the at- status of a matter and promptly com- torney is authorized to do so by com- ply with reasonable requests for infor- petent authority. Military Rule of Evi- mation. dence 502, the Manual of the Judge Ad- (2) A covered attorney shall explain a vocate General (JAG Instruction 5800.7 matter to the extent reasonably nec- (series)), and the Naval Legal Service essary to permit the client to make in- Office and Trial Service Office Manual, formed decisions regarding the rep- define when an attorney-client rela- resentation. tionship is formed between a covered (b) [Reserved] USG attorney and a client servicemember, dependent, or em- § 776.24 Fees. ployee. (a) Fees: (2) Generally, the subject matter (1) A covered USG attorney shall not scope of a covered attorney’s represen- accept any salary, fee, compensation, tation will be consistent with the or other payments or benefits, directly terms of the assignment to perform or indirectly, other than Government specific representational or advisory compensation, for services provided in duties. A covered attorney shall inform the course of the covered USG attor- clients at the earliest opportunity of ney’s official duties or employment. any limitations on representation and (2) A covered USG attorney shall not professional responsibilities of the at- accept any salary or other payments as torney towards the client. compensation for legal services ren- (3) A covered attorney shall follow dered, by that covered USG attorney in the client’s well-informed and lawful a private capacity, to a client who is decisions concerning case objectives, eligible for assistance under the DON
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Legal Assistance Program, unless so method by which the fee is to be deter- authorized by the JAG. This rule does mined, including the percentage or per- not apply to Reserve or Retired judge centages that shall accrue to the cov- advocates not then serving on extended ered non-USG attorney in the event of active-duty. settlement, trial or appeal, litigation (3) A Reserve or Retired judge advo- and other expenses to be deducted from cate, whether or not serving on ex- the recovery, and whether such ex- tended active-duty, who has initially penses are to be deducted before or represented or interviewed a client or after the contingent fee is calculated. prospective client concerning a matter Upon conclusion of a contingent fee as part of the attorney’s official Navy matter, the covered non-USG attorney or Marine Corps duties, shall not ac- shall provide the client with a written cept any salary or other payments as statement stating the outcome of the compensation for services rendered to that client in a private capacity con- matter and, if there is a recovery, cerning the same general matter for showing the remittance to the client which the client was seen in an official and the method of its determination. capacity, unless so authorized by the (7) A covered non-USG attorney shall JAG. not enter into an arrangement for, (4) Covered non-USG attorneys may charge, or collect a contingent fee for charge fees. Fees shall be reasonable. representing an accused in a criminal Factors considered in determining the case. reasonableness of a fee include the fol- (8) A division of fees between covered lowing: non-USG attorneys who are not in the (i) The time and labor required, the same firm may be made only if: novelty and difficulty of the questions (i) The division is in proportion to involved, and the skill requisite to per- the services performed by each attor- form the legal service properly; ney or, by written agreement with the (ii) The likelihood, if apparent to the client, each attorney assumes joint re- client, that the acceptance of the par- sponsibility for the representation; ticular employment will preclude other (ii) The client is advised of and does employment by the attorney; not object to the participation of all (iii) The fee customarily charged in the attorneys involved; and the locality for similar legal services; (iv) The amount involved and the re- (iii) The total fee is reasonable. sults obtained; (b) Paragraphs (a)(4) through (a)(8) of (v) The time limitations imposed by this section apply only to private civil- the client or by the circumstances; ian attorneys practicing in proceedings (vi) The nature and length of the pro- conducted under the cognizance and su- fessional relationship with the client; pervision of the JAG. The primary pur- (vii) The experience, reputation, and poses of paragraphs (a)(4) through (a)(8) ability of the attorney or attorneys of this section are not to permit the performing the services; and JAG to regulate fee arrangements be- (viii) Whether the fee is fixed or con- tween civilian attorneys and their cli- tingent. ents but to provide guidance to covered (5) When the covered non-USG attor- USG attorneys practicing with non- ney has not regularly represented the USG attorneys and to supervisory at- client, the basis or rate of the fee shall torneys who may be asked to inquire be communicated to the client, pref- into alleged fee irregularities. Absent erably in writing, before or within a paragraphs (a)(4) through (a)(8) of this reasonable time after commencing the section, such supervisory attorneys representation. have no readily available standard (6) A fee may be contingent on the against which to compare allegedly outcome of the matter for which the questionable conduct of a civilian at- service is rendered, except in a matter in which a contingent fee is prohibited torney. by paragraph (a)(7) of this section or § 776.25 Confidentiality of information. other law. A contingent fee agreement shall be in writing and shall state the (a) Confidentiality of Information:
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(1) A covered attorney shall not re- § 776.26 Conflict of interest: General veal information relating to represen- rule. tation of a client unless the client con- (a) Conflict of interest: General rule: sents after consultation, except for dis- (1) A covered attorney shall not rep- closures that are impliedly authorized resent a client if the representation of in order to carry out the representa- that client will be directly adverse to tion, and except as stated in para- another client, unless: graphs (a)(2) and (a)(3) of this section. (2) A covered attorney shall reveal (i) The covered attorney reasonably such information to the extent the cov- believes the representation will not ad- ered attorney reasonably believes nec- versely affect the relationship with the essary to prevent the client from com- other client; and mitting a criminal act that the covered (ii) Each client consents after con- attorney believes is likely to result in sultation. imminent death or substantial bodily (2) A covered attorney shall not rep- harm, or significant impairment of na- resent a client if the representation of tional security or the readiness or ca- that client may be materially limited pability of a military unit, vessel, air- by the covered attorney’s responsibil- craft, or weapon system. ities to another client or to a third per- (3) A covered attorney may reveal son, or by the covered attorney’s own such information to the extent the cov- interests, unless: ered attorney reasonably believes nec- (i) The covered attorney reasonably essary to establish a claim or defense believes the representation will not be on behalf of the covered attorney in a adversely affected; and controversy between the covered attor- (ii) The client consents after con- ney and the client, to establish a de- sultation. fense to a criminal charge or civil (3) When representation of multiple claim against the attorney based upon clients in a single matter is under- conduct in which the client was in- taken, the consultation shall include volved, or to respond to allegations in explanation of the implications of the any proceeding concerning the attor- common representation and the advan- ney’s representation of the client. tages and risks involved. (b) Conduct likely to result in the (b) Reserve judge advocates. These con- significant impairment of national se- flict of interest rules only apply when curity or the readiness or capability of Reservists are actually drilling or on a military unit, vessel, aircraft, or active-duty for training, or, as is the weapon system include, but are not case with Retirees, on extended active- limited to: Divulging the classified lo- duty or when performing other duties cation of a special operations unit such subject to JAG supervision. Therefore, that the lives of members of the unit unless otherwise prohibited by crimi- are placed in immediate danger; sabo- nal conflict of interest statutes, Re- taging a vessel or aircraft to the extent serve or Retired attorneys providing that the vessel or aircraft could not legal services in their civilian capacity conduct an assigned mission, or that may represent clients, or work in firms the vessel or aircraft and crew could be whose attorneys represent clients, with lost; and compromising the security of interests adverse to the United States. a weapons site such that the weapons Reserve judge advocates who, in their are likely to be stolen or detonated. civilian capacities, represent persons Paragraph (a)(2) of this section is not whose interests are adverse to the DON intended to and does not mandate the will provide written notification to disclosure of conduct which may have a their supervisory attorney and com- slight impact on the readiness or capa- manding officer, detailing their in- bility of a unit, vessel, aircraft, or volvement in the matter. Reserve judge weapon system. Examples of such con- advocates shall refrain from under- duct are: absence without authority taking any official action or represen- from a peacetime training exercise; in- tation of the DON with respect to any tentional damage to an individually as- particular matter in which they are signed weapon; and intentional minor providing representation or services to damage to military property. other clients.
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§ 776.27 Conflict of interests: Prohib- parent, child, sibling, or spouse to the ited transactions. covered attorney, except upon consent (a) Conflict of interests: Prohibited by the client after consultation regard- transactions. ing the relationship; or (1) Covered USG attorneys shall (vii) Acquire a proprietary interest in strictly adhere to current Department the cause of action or subject matter of of Defense Ethics Regulations and shall litigation the covered attorney is con- not: ducting for a client. (i) Knowingly enter into any business (b) [Reserved] transactions on behalf of, or adverse to, a client’s interest which directly or § 776.28 Conflict of interest: Former client. indirectly relate to or result from the attorney-client relationship; or (a) Conflict of interest: Former client. A (ii) Provide any financial assistance covered attorney who has represented a to a client or otherwise serve in a fi- client in a matter shall not thereafter: nancial or proprietorial fiduciary or (1) Represent another person in the bailment relationship, unless otherwise same or a substantially related matter specifically authorized by competent in which the person’s interests are ma- authority. terially adverse to the interests of the (2) No covered attorney shall: former client, unless the former client (i) Use information relating to rep- consents after consultation; resentation of a client to the disadvan- (2) Use information relating to the tage of the client unless the client con- representation to the disadvantage of sents after consultation, except as per- the former client or to the covered at- mitted or required by § 776.25 or § 776.42 torney’s own advantage, except as of this part; § 776.25 or § 776.42 of this part would per- (ii) Prepare an instrument giving the mit or require with respect to a client covered attorney or a person related to or when the information has become the covered attorney as parent, child, generally known; or sibling, or spouse any gift from a cli- (3) Reveal information relating to the ent, including a testamentary gift, ex- representation except as § 776.25 or cept where the client is related to the § 776.42 of this part would permit or re- donee; quire with respect to a client. (iii) In the case of covered non-USG (b) [Reserved] attorneys, accept compensation for representing a client from one other § 776.29 Imputed disqualification: Gen- than the client unless the client con- eral rule. sents after consultation, there is no in- (a) Imputed disqualification: General terference with the covered attorney’s rule. Covered USG attorneys working independence of professional judgment in the same military law office are not or with the attorney-client relation- automatically disqualified from rep- ship, and information relating to rep- resenting a client because any of them resentation of a client is protected as practicing alone would be prohibited required by § 776.25 of this part; from doing so by § 776.26, § 776.27, (iv) Negotiate any settlement on be- § 776.28, or § 776.38 of this part. Covered half of multiple clients in a single mat- non-USG attorneys must consult their ter unless each client provides fully in- federal, state, and local bar rules gov- formed consent; erning the representation of multiple (v) Prior to the conclusion of rep- or adverse clients within the same of- resentation of the client, make or ne- fice before such representation is initi- gotiate an agreement giving a covered ated, as such representation may ex- attorney literary or media rights for a pose them to disciplinary action under portrayal or account based in substan- the rules established by their licensing tial part on information relating to authority. representation of a client; (b)(1) The circumstances of military (vi) Represent a client in a matter di- (or Government) service may require rectly adverse to a person whom the representation of opposing sides by covered attorney knows is represented covered USG attorneys working in the by another attorney who is related as same law office. Such representation is
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permissible so long as conflicts of in- absence of information to the contrary, terests are avoided and independent it should be inferred that such a cov- judgment, zealous representation, and ered USG attorney in fact is privy to protection of confidences are not com- information about the clients actually promised. Thus, the principle of im- served but not to information of other puted disqualification is not automati- clients. Additionally, a covered USG cally controlling for covered USG at- attorney changing duty stations or torneys. The knowledge, actions, and changing assignments within a mili- conflicts of interests of one covered tary office has a continuing duty to USG attorney are not imputed to an- preserve confidentiality of information other simply because they operate about a client formerly represented. from the same office. For example, the See § 776.25 and § 776.28.7 of this part. fact that a number of defense attorneys (4) Maintaining independent judg- operate from one office and normally ment allows a covered USG attorney to share clerical assistance would not pro- consider, recommend, and carry out hibit them from representing co-ac- any appropriate course of action for a cused at trial by court-martial. Im- client without regard to the covered puted disqualification rules for non- USG attorney’s personal interests or USG attorneys are established by their the interests of another. When such individual licensing authorities and independence is lacking or unlikely, may well proscribe all attorneys from representation cannot be zealous. one law office from representing a co- (5) Another aspect of loyalty to a cli- accused, or a party with an adverse in- ent is the general obligation of any at- terest to an existing client, if any at- torney to decline subsequent represen- torney in the same office were so pro- tations involving positions adverse to a hibited. former client in substantially related (2) Whether a covered USG attorney matters. This obligation normally re- is disqualified requires a functional quires abstention from adverse rep- analysis of the facts in a specific situa- resentation by the individual covered tion. The analysis should include con- attorney involved, but, in the military sideration of whether the following will legal office, abstention is not required be compromised: Preserving attorney- by other covered USG attorneys client confidentiality; maintaining through imputed disqualification. independence of judgment; and avoid- ing positions adverse to a client. See, § 776.30 Successive Government and e.g., U.S. v. Stubbs, 23 M.J. 188 (CMA private employment. 1987). (a) Successive Government and private (3) Preserving confidentiality is a employment: question of access to information. Ac- (1) Except as the law or regulations cess to information, in turn, is essen- may otherwise expressly permit, a tially a question of fact in a particular former covered USG attorney shall not circumstance, aided by inferences, de- represent a private client in connection ductions, or working presumptions with a matter in which the covered that reasonably may be made about USG attorney participated personally the way in which covered USG attor- and substantially as a public officer or neys work together. A covered USG at- employee, unless the appropriate Gov- torney may have general access to files ernment agency consents after con- of all clients of a military law office sultation. If a former covered USG at- (e.g., legal assistance attorney) and torney in a firm, partnership, or asso- may regularly participate in discus- ciation knows that another attorney sions of their affairs; it may be inferred within the firm, partnership, or asso- that such a covered USG attorney in ciation is undertaking or continuing fact is privy to all information about representation in such a matter: all the office’s clients. In contrast, an- (i) The disqualified former covered other covered USG attorney (e.g., mili- USG attorney must ensure that he or tary defense counsel) may have access she is screened from any participation to the files of only a limited number of in the matter and is apportioned no clients and participate in discussion of part of the fee or any other benefit the affairs of no other clients; in the therefrom; and,
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(ii) Must provide written notice thority and which, at the time this promptly to the appropriate Govern- Rule is applied, the Government is pro- ment agency to enable it to ascertain hibited by law or regulations from dis- compliance with the provisions of ap- closing to the public or has a legal plicable law and regulations. privilege not to disclose, and which is (2) Except as the law or regulations not otherwise available to the public. may otherwise expressly permit, a (b) [Reserved] former covered USG attorney, who has information known to be confidential § 776.31 Former judge or arbitrator. Government information about a per- (a) Former judge or arbitrator: son which was acquired while a covered USG attorney, may not represent a pri- (1) Except as stated in paragraph vate client whose interests are adverse (a)(3) of this section, a covered USG at- to that person in a matter in which the torney shall not represent anyone in information could be used to the mate- connection with a matter in which the rial disadvantage of that person. The covered USG attorney participated per- former covered USG attorney may con- sonally and substantially as a judge or tinue association with a firm, partner- other adjudicative officer, arbitrator, ship, or association representing any or law clerk to such a person, unless all such client only if the disqualified cov- parties to the proceeding consent after ered USG attorney is screened from disclosure. any participation in the matter and is (2) A covered USG attorney shall not apportioned no part of the fee or any negotiate for employment with any other benefit therefrom. person who is involved as a party or as (3) Except as the law or regulations attorney for a party in a matter in may otherwise expressly permit, a cov- which the covered USG attorney is par- ered USG attorney shall not: ticipating personally and substantially (i) Participate in a matter in which as a judge or other adjudicative officer. the covered USG attorney participated A covered USG attorney serving as law personally and substantially while in clerk to a judge, other adjudicative of- private practice or nongovernmental ficer, or arbitrator may negotiate for employment, unless under applicable employment with a party or attorney law no one is, or by lawful delegation involved in a matter in which the clerk may be, authorized to act in the cov- is participating personally and sub- ered USG attorney’s stead in the mat- stantially, but only after the covered ter; or, USG attorney has notified the judge, (ii) Negotiate for private employ- other adjudicative officer, or arbi- ment with any person who is involved trator, and been disqualified from fur- as a party or as attorney for a party in ther involvement in the matter. a matter in which the covered USG at- (3) An arbitrator selected as a par- torney is participating personally and tisan of a party in a multi-member ar- substantially. bitration panel is not prohibited from (4) As used in this section, the term subsequently representing that party. ‘‘matter’’ includes: (b) [Reserved] (i) Any judicial or other proceeding, application, request for a ruling or § 776.32 Department of the Navy as cli- other determination, contract, claim, ent. controversy, investigation, charge, ac- cusation, arrest, or other particular (a) Department of Navy as client: matter involving a specific party or (1) Except when representing an indi- parties, and vidual client pursuant to paragraph (ii) Any other matter covered by the (a)(6) of this section, a covered USG at- conflict of interest rules of the Depart- torney represents the DON (or the Ex- ment of Defense, DON, or other appro- ecutive agency to which assigned) act- priate Government agency. ing through its authorized officials. (5) As used in this section, the term These officials include the heads of or- ‘‘confidential Governmental informa- ganizational elements within the Naval tion’’ means information which has service, such as the commanders of been obtained under Governmental au- fleets, divisions, ships and other heads
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of activities. When a covered USG at- warranted by the seriousness of the torney is assigned to such an organiza- matter, referral to the supervisory at- tional element and designated to pro- torney assigned to the staff of the act- vide legal services to the head of the ing official’s next superior in the chain organization, an attorney-client rela- of command; or tionship exists between the covered at- (iv) Advising the acting official that torney and the DON as represented by his or her personal legal interests are the head of the organization as to mat- at risk and that he or she should con- ters within the scope of the official sult counsel as there may exist a con- business of the organization. The head flict of interests for the covered USG of the organization may not invoke the attorney, and the covered USG attor- attorney-client privilege or the rule of ney’s responsibility is to the organiza- confidentiality for the head of the or- tion. ganization’s own benefit but may in- (3) If, despite the covered USG attor- voke either for the benefit of the DON. ney’s efforts per paragraph (a)(2) of this In invoking either the attorney-client section, the highest authority that can privilege or attorney-client confiden- act concerning the matter insists upon tiality on behalf of the DON, the head action or refuses to act, in clear viola- of the organization is subject to being tion of law, the covered USG attorney overruled by higher authority. shall terminate representation with re- (2) If a covered USG attorney knows spect to the matter in question. In no that an officer, employee, or other event shall the attorney participate or member associated with the organiza- assist in the illegal activity. In this tional client is engaged in action, in- case, a covered USG attorney shall re- tends to act or refuses to act in a mat- port such termination of representa- ter related to the representation that tion to the attorney’s supervisory at- is either adverse to the legal interests torney or attorney representing the or obligations of the DON or a viola- next superior in the chain of command. tion of law which reasonably might be (4) In dealing with the officers, em- imputed to the Department, the cov- ployees, or members of the Naval serv- ered USG attorney shall proceed as is ice a covered USG attorney shall ex- reasonably necessary in the best inter- plain the identity of the client when it est of the Naval service. In determining is apparent that the Naval service’s in- how to proceed, the covered USG attor- terests are adverse to those of the offi- ney shall give due consideration to the cer, employee, or member. seriousness of the violation and its (5) A covered USG attorney rep- consequences, the scope and nature of resenting the Naval service may also the covered USG attorney’s representa- represent any of its officers, employ- tion, the responsibility in the Naval ees, or members, subject to the provi- service and the apparent motivation of sions of § 776.26 of this part and other the person involved, the policies of the applicable authority. If the DON’s con- Naval service concerning such matters, sent to dual representation is required and any other relevant considerations. by § 776.26 of this part, the consent Any measures taken shall be designed shall be given by an appropriate offi- to minimize prejudice to the interests cial of the DON other than the indi- of the Naval service and the risk of re- vidual who is to be represented. vealing information relating to the representation to persons outside the (6) A covered USG attorney who has service. Such measures shall include been duly assigned to represent an in- among others: dividual who is subject to disciplinary (i) Asking for reconsideration of the action or administrative proceedings, matter by the acting official; or to provide legal assistance to an in- (ii) Advising that a separate legal dividual, has, for those purposes, an at- opinion on the matter be sought for torney-client relationship with that in- presentation to appropriate authority dividual. in the Naval service; (b) [Reserved] (iii) Referring the matter to, or seek- ing guidance from, higher authority in § 776.33 Client under a disability. the chain of command including, if (a) Client under a disability:
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(1) When a client’s ability to make (ii) The client has used the covered adequately considered decisions in con- attorney’s services to perpetrate a nection with the representation is im- crime or fraud; paired, whether because of minority, (iii) The client insists upon pursuing mental disability, or for some other an objective that the covered attorney reason, the covered attorney shall, as considers repugnant or imprudent; far as reasonably possible, maintain a (iv) In the case of covered non-USG normal attorney-client relationship attorneys, the representation will re- with the client. sult in an unreasonable financial bur- (2) A covered attorney may seek the den on the attorney or has been ren- appointment of a guardian or take dered unreasonably difficult by the cli- other protective action with respect to ent; or a client only when the covered attor- (v) Other good cause for withdrawal ney reasonably believes that the client exists. cannot adequately act in the client’s (3) When ordered to do so by a tri- own interest. bunal or other competent authority, a (b) [Reserved] covered attorney shall continue rep- resentation notwithstanding good § 776.34 Safekeeping property. cause for terminating the representa- (a) Safekeeping property. Covered USG tion. attorneys shall not normally hold or (4) Upon termination of representa- safeguard property of a client or third tion, a covered attorney shall take persons in connection with representa- steps to the extent reasonably prac- tional duties. See § 776.27 of this part. ticable to protect a client’s interests, (b) [Reserved] such as giving reasonable notice to the client, allowing time for assignment or § 776.35 Declining or terminating rep- employment of other counsel, and sur- resentation. rendering papers and property to which (a) Declining or terminating representa- the client is entitled and, where a non- tion: USG attorney provided representation, (1) Except as stated in paragraph refunding any advance payment of fee (a)(3) of this section, a covered attor- that has not been earned. The covered ney shall not represent a client or, attorney may retain papers relating to when representation has commenced, the client to the extent permitted by shall seek to withdraw from the rep- law. resentation of a client if: (b) [Reserved] (i) The representation will result in violation of the Rules contained in this § 776.36 Prohibited sexual relations. subpart or other law or regulation; (a) Prohibited sexual relations: (ii) The covered attorney’s physical (1) A covered attorney shall not have or mental condition materially impairs sexual relations with a current client. his or her ability to represent the cli- A covered attorney shall not require, ent; or demand, or solicit sexual relations (iii) The covered attorney is dis- with a client incident to any profes- missed by the client. sional representation. (2) Except as stated in paragraph (2) A covered attorney shall not en- (a)(3) of this section, a covered attor- gage in sexual relations with another ney may seek to withdraw from rep- attorney currently representing a resenting a client if withdrawal can be party whose interests are adverse to accomplished without material adverse those of a client currently represented effect on the interests of the client, or by the covered attorney. if: (3) A covered attorney shall not en- (i) The client persists in a course of gage in sexual relations with a judge action involving the covered attorney’s who is presiding or who is likely to pre- services that the covered attorney rea- side over any proceeding in which the sonably believes is criminal or fraudu- covered attorney will appear in a rep- lent; resentative capacity.
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(4) A covered attorney shall not en- the covered attorney has to any of the gage in sexual relations with other per- individuals. sons involved in the particular case, ju- (2) While acting as a mediator, the dicial or administrative proceeding, or covered attorney shall consult with other matter for which representation each individual concerning the deci- has been established, including but not sions to be made and the consider- limited to witnesses, victims, co- ations relevant in making them, so accuseds, and court-martial or board that each individual can make ade- members. quately informed decisions. (5) For purposes of this Rule, ‘‘sexual (3) A covered attorney shall withdraw relations’’ means: as a mediator if any of the individuals (i) Sexual intercourse; or so requests, or if any of the conditions (ii) Any touching of the sexual or stated in paragraph (a)(1) of this sec- other intimate parts of a person or tion is no longer satisfied. Upon with- causing such person to touch the sex- drawal, the covered attorney shall not ual or other intimate parts of the cov- represent any of the individuals in the ered attorney for the purpose of arous- matter that was the subject of the me- ing or gratifying the sexual desire of diation unless each individual con- either party. sents. (b) [Reserved] (b) [Reserved]
§ 776.37 Advisor. § 776.39 Evaluation for use by third persons. (a) Advisor. In representing a client, a (a) Evaluation for use by third persons: covered attorney shall exercise inde- (1) A covered attorney may under- pendent professional judgment and take an evaluation of a matter affect- render candid advice. In rendering ad- ing a client for the use of someone vice, a covered attorney should refer other than the client if: not only to law but to other consider- (i) The covered attorney reasonably ations such as moral, economic, social, believes that making the evaluation is and political factors that may be rel- compatible with other aspects of the evant to the client’s situation. covered attorney’s relationship with (b) [Reserved] the client, and, § 776.38 Mediation. (ii) The client consents after con- sultation. (a) Mediation: (2) Except as disclosure is required in (1) A covered attorney may act as a connection with a report of an evalua- mediator between individuals if: tion, information relating to the eval- (i) The covered attorney consults uation is otherwise protected by § 776.25 with each individual concerning the of this part. implications of the mediation, includ- (b) [Reserved] ing the advantages and risks involved, and the effect on the attorney-client § 776.40 Meritorious claims and con- confidentiality, and obtains each indi- tentions. vidual’s consent to the mediation; (a) Meritorious claims and contentions. (ii) The covered attorney reasonably A covered attorney shall not bring or believes that the matter can be re- defend a proceeding, or assert or con- solved on terms compatible with each trovert an issue therein, unless there is individual’s best interests, that each a basis for doing so that is not frivo- individual will be able to make ade- lous, which includes a good faith argu- quately informed decisions in the mat- ment for an extension, modification, or ter, and that there is little risk of ma- reversal of existing law. A covered at- terial prejudice to the interests of any torney representing an accused in a of the individuals if the contemplated criminal proceeding or the respondent resolution is unsuccessful; and, in an administrative proceeding that (iii) The covered attorney reasonably could result in incarceration, discharge believes that the mediation can be un- from the Naval service, or other ad- dertaken impartially and without im- verse personnel action, may neverthe- proper effect on other responsibilities less defend the client at the proceeding
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as to require that every element of the § 776.43 Fairness to opposing party case is established. and counsel. (b) [Reserved] (a) Fairness to opposing party and counsel. A covered attorney shall not: § 776.41 Expediting litigation. (1) Unlawfully obstruct another par- (a) Expediting litigation. A covered at- ty’s access to evidence or unlawfully torney shall make reasonable efforts to alter, destroy, or conceal a document expedite litigation or other pro- or other material having potential evi- ceedings consistent with the interests dentiary value. A covered attorney of the client and the attorney’s respon- shall not counsel or assist another per- sibilities to tribunals. son to do any such act; (b) [Reserved] (2) Falsify evidence, counsel or assist a witness to testify falsely, or offer an § 776.42 Candor and obligations to- inducement to a witness that is prohib- ward the tribunal. ited by law; (a) Candor and obligations toward the (3) In pretrial procedure, make a friv- tribunal: olous discovery request or fail to make (1) A covered attorney shall not reasonably diligent effort to comply knowingly: with a legally proper discovery request (i) Make a false statement of mate- by an opposing party; rial fact or law to a tribunal; (4) In trial, allude to any matter that (ii) Fail to disclose a material fact to the covered attorney does not reason- a tribunal when disclosure is necessary ably believe is relevant or that will not to avoid assisting a criminal or fraudu- be supported by admissible evidence, lent act by the client; assert personal knowledge of facts in (iii) Fail to disclose to the tribunal issue except when testifying as a wit- legal authority in the controlling juris- ness, or state a personal opinion as to diction known to the covered attorney the justness of a cause, the credibility to be directly adverse to the position of of a witness, the culpability of a civil the client and not disclosed by oppos- litigant, or the guilt or innocence of an ing counsel; accused; or (iv) Offer evidence that the covered (5) Request a person other than a cli- attorney knows to be false. If a covered ent to refrain from voluntarily giving attorney has offered material evidence relevant information to another party and comes to know of its falsity, the unless: covered attorney shall take reasonable (i) The person is a relative, an em- remedial measures; or ployee, or other agent of a client; and (v) Disobey an order imposed by a tri- (ii) The covered attorney reasonably bunal unless done openly before the tri- believes that the person’s interests will bunal in a good faith assertion that no not be adversely affected by refraining valid order should exist. from giving such information. (2) The duties stated in paragraph (a) (b) [Reserved] of this section continue to the conclu- sion of the proceedings, and apply even § 776.44 Impartiality and decorum of if compliance requires disclosure of in- the tribunal. formation otherwise protected by (a) Impartiality and decorum of the tri- § 776.25 of this part. bunal. A covered attorney shall not: (3) A covered attorney may refuse to (1) Seek to influence a judge, court offer evidence that the covered attor- member, member of a tribunal, pro- ney reasonably believes is false. spective court member or member of a (4) In an ex parte proceeding, a cov- tribunal, or other official by means ered attorney shall inform the tribunal prohibited by law or regulation; of all material facts known to the cov- (2) Communicate ex parte with such a ered attorney which are necessary to person except as permitted by law or enable the tribunal to make an in- regulation; or formed decision, whether or not the (3) Engage in conduct intended to dis- facts are adverse. rupt a tribunal. (b) [Reserved] (b) [Reserved]
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§ 776.45 Extra-tribunal statements. accusation and that the accused is pre- (a) Extra-tribunal statements: sumed innocent until and unless prov- (1) A covered attorney shall not en guilty; or make an extrajudicial statement about (vii) The credibility, reputation, mo- any person or case pending investiga- tives, or character of civilian or mili- tion or adverse administrative or dis- tary officials of the Department of De- ciplinary proceedings that a reasonable fense. person would expect to be disseminated (3) Notwithstanding paragraphs (a)(1) by means of public communication if and (a)(2)(i) through (a)(2)(vii) of this the covered attorney knows or reason- section, a covered attorney involved in ably should know that it will have a the investigation or litigation of a substantial likelihood of materially matter may state without elaboration: prejudicing an adjudicative proceeding (i) The general nature of the claim, or an official review process thereof. offense, or defense; (2) A statement referred to in para- (ii) The information contained in a graph (a)(1) of this section ordinarily is public record; likely to have such an effect when it (iii) That an investigation of the refers to a civil matter triable to a matter is in progress, including the jury, a criminal matter, or any other general scope of the investigation, the proceeding that could result in incar- ceration, discharge from the Naval offense or claim or defense involved service, or other adverse personnel ac- and, except when prohibited by law or tion, and the statement relates to: regulation, the identity of the persons (i) The character, credibility, reputa- involved; tion, or criminal record of a party, sus- (iv) The scheduling or result of any pect in a criminal investigation, vic- step in litigation; tim, or witness, or the identity of a (v) A request for assistance in obtain- victim or witness, or the expected tes- ing evidence and information necessary timony of a party, suspect, victim, or thereto; witness; (vi) A warning of danger concerning (ii) The possibility of a plea of guilty the behavior of the person involved, to the offense or the existence or con- when there is reason to believe that tents of any confession, admission, or there exists the likelihood of substan- statement given by an accused or sus- tial harm to an individual or to the pect or that person’s refusal or failure public interest; and to make a statement; (vii) In a criminal case, in addition to (iii) The performance or results of paragraphs (a)(3)(i) through (a)(3)(vi) of any forensic examination or test or the this section: refusal or failure of a person to submit (A) The identity, duty station, occu- to an examination or test, or the iden- pation, and family status of the ac- tity or nature of physical evidence ex- cused; pected to be presented; (iv) Any opinion as to the guilt or in- (B) If the accused has not been appre- nocence of an accused or suspect in a hended, information necessary to aid in criminal case or other proceeding that apprehension of that person; could result in incarceration, discharge (C) The fact, time, and place of ap- from the Naval service, or other ad- prehension; and (D) The identity of in- verse personnel action; vestigating and apprehending officers (v) Information the covered attorney or agencies and the length of the inves- knows or reasonably should know is tigation. likely to be inadmissible as evidence (4) Notwithstanding paragraphs (a)(1) before a tribunal and would, if dis- and (a)(2)(i) through (a)(2)(vii) of this closed, create a substantial risk of ma- section, a covered attorney may make terially prejudicing an impartial pro- a statement that a reasonable covered ceeding; attorney would believe is required to (vi) The fact that an accused has protect a client from the substantial been charged with a crime, unless there undue prejudicial effect of recent pub- is included therein a statement ex- licity not initiated by the covered at- plaining that the charge is merely an torney or the attorney’s client. A
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statement made pursuant to this para- known to the trial counsel that tends graph shall be limited to such informa- to negate the guilt of the accused or tion as is necessary to mitigate the re- mitigates the offense, and, in connec- cent adverse publicity. tion with sentencing, disclose to the (5) The protection and release of in- defense all unprivileged mitigating in- formation in matters pertaining to the formation known to the trial counsel, DON is governed by such statutes as except when the trial counsel is re- the Freedom of Information Act and lieved of this responsibility by a pro- the Privacy Act, in addition to those tective order or regulation; governing protection of national de- (5) Exercise reasonable care to pre- fense information. In addition, other vent investigators, law enforcement laws and regulations may further re- personnel, employees, or other persons strict the information that can be re- assisting or associated with the trial leased or the source from which it is to counsel from making an extrajudicial be released (e.g., the Manual of the statement that the trial counsel would Judge Advocate General). be prohibited from making under (b) [Reserved] § 776.45 of this part; and (6) Except for statements that are § 776.46 Attorney as witness. necessary to inform the public of the (a) Attorney as witness: nature and extent of the trial counsel’s (1) A covered attorney shall not act actions and that serve a legitimate law as advocate at a trial in which the cov- enforcement purpose, refrain from ered attorney is likely to be a nec- making extrajudicial comments that essary witness except when: have a substantial likelihood of height- (i) The testimony relates to an ening public condemnation of the ac- uncontested issue; cused. (ii) The testimony relates to the na- (b) Role of the trial counsel. (1) The ture and quality of legal services ren- trial counsel represents the United dered in the case; or States in the prosecution of special and (iii) Disqualification of the covered general courts-martial. See Article attorney would work substantial hard- 38(a), UCMJ, and R.C.M. 103(16), ship on the client. 405(d)(3)(A), and 502(d)(5), MCM, 1998. (2) A covered attorney may act as ad- Accordingly, a trial counsel has the re- vocate in a trial in which another at- sponsibility of administering justice torney in the covered attorney’s office and is not simply an advocate. This re- is likely to be called as a witness, un- sponsibility carries with it specific ob- less precluded from doing so by § 776.26 ligations to see that the accused is ac- or § 776.28 of this part. corded procedural justice and that (b) [Reserved] guilt is decided upon the basis of suffi- cient evidence. Paragraph (a)(1) of this § 776.47 Special responsibilities of a section recognizes that the trial coun- trial counsel. sel does not have all the authority (a) Special responsibilities of a trial vested in modern civilian prosecutors. counsel. A trial counsel shall: The authority to convene courts-mar- (1) Recommend to the convening au- tial, and to refer and withdraw specific thority that any charge or specifica- charges, is vested in convening au- tion not warranted by the evidence be thorities. Trial counsel may have the withdrawn; duty, in certain circumstances, to (2) Make reasonable efforts to assure bring to the court’s attention any that the accused has been advised of charge that lacks sufficient evidence to the right to, and the procedure for ob- support a conviction. See United States taining, counsel and has been given v. Howe, 37 M.J. 1062 (NMCMR 1993). reasonable opportunity to obtain coun- Such action should be undertaken only sel; after consultation with a supervisory (3) Not seek to obtain from an unrep- attorney and the convening authority. resented accused a waiver of important See also § 776.42 of this part, governing pretrial rights; ex parte proceedings. Applicable law (4) Make timely disclosure to the de- may require other measures by the fense of all evidence or information trial counsel. Knowing disregard of
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those obligations or a systematic abuse (b) [Reserved] of prosecutorial discretion could con- stitute a violation of § 776.69 of this § 776.51 Dealing with an unrepre- part. sented person. (2) The ‘‘ABA Standards for Criminal (a) Dealing with an unrepresented per- Justice: The Prosecution Function,’’ son. When dealing on behalf of a client (3rd ed. 1993), has been used by appel- with a person who is not represented by late courts in analyzing issues con- counsel, a covered attorney shall not cerning trial counsel conduct. To the state or imply that the covered attor- extent consistent with this part, the ney is disinterested. When the covered ABA standards may be used to guide attorney knows or reasonably should trial counsel in the prosecution of know that the unrepresented person criminal cases. See United States v. misunderstands the covered attorney’s Howe, 37 M.J. 1062 (NMCR 1993); United role in the matter, the covered attor- States v. Dancy, 38 M.J. 1 (CMA 1993); ney shall make reasonable efforts to United States v. Hamilton, 41 M.J. 22 correct the misunderstanding. (CMA 1994); United States v. Meek, 44 (b) [Reserved] M.J. 1 (CMA 1996). § 776.52 Respect for rights of third per- § 776.48 Advocate in nonadjudicative sons. proceedings. (a) Respect for rights of third persons. (a) Advocate in nonadjudicative pro- In representing a client, a covered at- ceedings. A covered attorney rep- torney shall not use means that have resenting a client before a legislative no substantial purpose other than to or administrative tribunal in a non- embarrass, delay, or burden a third adjudicative proceeding shall disclose person, or use methods of obtaining that the appearance is in a representa- evidence that violate the legal rights tive capacity and shall conform to the of such a person. provisions of § 776.42, § 776.43, and § 776.44 (b) [Reserved] of this part. (b) [Reserved] § 776.53 Responsibilities of the Judge Advocate General and supervisory § 776.49 Truthfulness in statements to attorneys. others. (a) Responsibilities of the Judge Advo- (a) Truthfulness in statements to others. cate General and supervisory attorneys. In the course of representing a client a (1) The JAG and supervisory attorneys covered attorney shall not knowingly; shall make reasonable efforts to ensure (1) Make a false statement of mate- that all covered attorneys conform to rial fact or law to a third person; or this part. (2) Fail to disclose a material fact to (2) A covered attorney having direct a third person when disclosure is nec- supervisory authority over another essary to avoid assisting a criminal or covered attorney shall make reason- fraudulent act by a client, unless dis- able efforts to ensure that the other at- closure is prohibited by § 776.25 of this torney conforms to this part. part. (3) A supervisory attorney shall be (b) [Reserved] responsible for another subordinate covered attorney’s violation of this § 776.50 Communication with person part if: represented by counsel. (i) The supervisory attorney orders (a) Communication with person rep- or, with knowledge of the specific con- resented by counsel. In representing a duct, ratifies the conduct involved; or client, a covered attorney shall not (ii) The supervisory attorney has di- communicate about the subject of the rect supervisory authority over the representation with a party the cov- other attorney and knows of the con- ered attorney knows to be represented duct at a time when its consequences by another attorney in the matter, un- can be avoided or mitigated but fails to less the covered attorney has the con- take reasonable remedial action. sent of the other attorney or is author- (4) A supervisory attorney is respon- ized by law to do so. sible for ensuring that the subordinate
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covered attorney is properly trained (ii) The covered attorney has direct and is competent to perform the duties supervisory authority over the person, to which the subordinate covered at- and knows of the conduct at a time torney is assigned. when its consequences can be avoided (b) [Reserved] or mitigated but fails to take reason- able remedial action. § 776.54 Responsibilities of a subordi- (b) [Reserved] nate attorney. (a) Responsibilities of a subordinate at- § 776.56 Professional independence of torney: a covered USG attorney. (1) A covered attorney is bound by (a) Professional independence of a cov- this part notwithstanding that the cov- ered USG attorney. ered attorney acted at the direction of (1) Notwithstanding a judge advo- another person. cate’s status as a commissioned officer (2) In recognition of the judge advo- subject, generally, to the authority of cate’s unique dual role as a commis- superiors, a judge advocate detailed or sioned officer and attorney, subordi- assigned to represent an individual nate judge advocates shall obey lawful member or employee of the DON is ex- directives and regulations of super- pected to exercise unfettered loyalty visory attorneys when not inconsistent and professional independence during with this part or the duty of a judge the representation consistent with advocate to exercise independent pro- these Rules and remains ultimately re- fessional judgment as to the best inter- sponsible for acting in the best interest est of an individual client. of the individual client. (3) A subordinate covered attorney (2) Notwithstanding a civilian USG does not violate this part if that cov- attorney’s status as a Federal em- ered attorney acts in accordance with a ployee subject, generally, to the au- supervisory attorney’s written and rea- thority of superiors, a civilian USG at- sonable resolution of an arguable ques- torney detailed or assigned to rep- tion of professional duty. See § 776.10. resent an individual member or em- (b) [Reserved] ployee of the DON is expected to exer- cise unfettered loyalty and professional § 776.55 Responsibilities regarding independence during the representation non-attorney assistants. consistent with these Rules and re- (a) Responsibilities regarding non-attor- mains ultimately responsible for act- ney assistants. With respect to a non-at- ing in the best interest of the indi- torney acting under the authority, su- vidual client. pervision, or direction of a covered at- (3) The exercise of professional judg- torney: ment in accordance with paragraphs (1) The senior supervisory attorney (a)(1) and (a)(2) of this section shall in an office shall make reasonable ef- not, standing alone, be a basis for an forts to ensure that the person’s con- adverse evaluation or other prejudicial duct is compatible with the profes- action. sional obligations of a covered attor- (b)(1) This section recognizes that a ney; judge advocate is a military officer re- (2) A covered attorney having direct quired by law to obey the lawful orders supervisory authority over the non-at- of superior officers. It also recognizes torney shall make reasonable efforts to the similar status of a civilian USG at- ensure that the person’s conduct is torney. Nevertheless, the practice of compatible with the professional obli- law requires the exercise of judgment gations of a covered attorney; and solely for the benefit of the client and (3) A covered attorney shall be re- free of compromising influences and sponsible for conduct of such a person loyalties. Thus, when a covered USG that would be a violation of this part if attorney is assigned to represent an in- engaged in by a covered attorney if: dividual client, neither the attorney’s (i) The covered attorney orders or, personal interests, the interests of with the knowledge of the specific con- other clients, nor the interests of third duct, explicitly or impliedly ratifies persons should affect loyalty to the in- the conduct involved; or dividual client.
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(2) Not all direction given to a subor- ment requires knowledge of law; for ex- dinate covered attorney is an attempt ample, claims adjusters, social work- to influence improperly the covered at- ers, accountants and persons employed torney’s professional judgment. Each in Government agencies. In addition, a situation must be evaluated by the covered USG attorney may counsel in- facts and circumstances, giving due dividuals who wish to proceed pro se or consideration to the subordinate’s non-attorneys authorized by law or training, experience, and skill. A cov- regulation to appear and represent ered attorney subjected to outside themselves or others before military pressures should make full disclosure proceedings. of them to the client. If the covered at- torney or the client believes the effec- §§ 776.58–776.65 [Reserved] tiveness of the representation has been or will be impaired thereby, the cov- § 776.66 Bar admission and discipli- ered attorney should take proper steps nary matters. to withdraw from representation of the (a) Bar admission and disciplinary mat- client. ters. A covered attorney, in connection (3) Additionally, a judge advocate has with any application for bar admission, a responsibility to report any instances appointment as a judge advocate, em- of unlawful command influence. See ployment as a civilian USG attorney, R.C.M. 104, MCM, 1998. certification by the JAG or his des- ignee, or in connection with any dis- § 776.57 Unauthorized practice of law. ciplinary matter, shall not: (a) Unauthorized practice of law. A (1) Knowingly make a false state- covered USG attorney shall not: ment of fact; or (1) Except as authorized by an appro- (2) Fail to disclose a fact necessary to priate military department, practice correct a misapprehension known by law in a jurisdiction where doing so is the person to have arisen in the mat- prohibited by the regulations of the ter, or knowingly fail to respond to a legal profession in that jurisdiction; or lawful demand for information from an (2) Assist a person who is not a mem- admissions or disciplinary authority, ber of the bar in the performance of ac- except that this section does not re- tivity that constitutes the unauthor- quire disclosure of information other- ized practice of law. wise protected by § 776.25 of this part. (b) Limiting the practice of law to (b) The duty imposed by this section members of the bar protects the public extends to covered attorneys and other against rendition of legal services by attorneys seeking admission to a bar, unqualified persons. A covered USG at- application for appointment as a cov- torney’s performance of legal duties ered USG attorney (military or civil- pursuant to a military department’s ian) or certification by the JAG or his authorization, however, is considered a designee. Hence, if a person makes a Federal function and not subject to false statement in connection with an regulation by the states. Thus, a cov- application for admission or certifi- ered USG attorney may perform legal cation (e.g., misstatement by a civilian assistance duties even though the cov- attorney before a military judge re- ered attorney is not licensed to prac- garding qualifications under Rule for tice in the jurisdiction within which Courts-Martial 502), it may be the basis the covered attorney’s duty station is for subsequent disciplinary action if located. Paragraph (a)(2) of this section the person is admitted or certified, and does not prohibit a covered USG attor- in any event may be relevant in a sub- ney from using the services of non-at- sequent admission application. The torneys and delegating functions to duty imposed by this section applies to them, so long as the covered attorney a covered attorney’s own admission or supervises the delegated work and re- discipline as well as that of others. tains responsibility for it. See § 776.55 Thus, it is a separate professional of- of this part. Likewise, it does not pro- fense for a covered attorney to make a hibit covered USG attorneys from pro- knowing misrepresentation or omission viding professional advice and instruc- in connection with a disciplinary inves- tion to non-attorneys whose employ- tigation of the covered attorney’s own
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conduct. This section also requires af- (3) Engage in conduct involving dis- firmative clarification of any mis- honesty, fraud, deceit, or misrepresen- understanding on the part of the ad- tation; missions, certification, or disciplinary (4) Engage in conduct that is preju- authority of which the person involved dicial to the administration of justice; becomes aware. (5) State or imply an ability to influ- ence improperly a government agency § 776.67 Judicial and legal officers. or official; or (6) Knowingly assist a judge or judi- (a) Judicial and legal officers. A cov- cial officer in conduct that is a viola- ered attorney shall not make a state- tion of applicable rules of judicial con- ment that the covered attorney knows duct or other law. to be false or with reckless disregard as (b)(1) Judge advocates hold a com- to its truth or falsity concerning the mission as an officer in the Navy or qualifications or integrity of a judge, Marine Corps and assume legal respon- investigating officer, hearing officer, sibilities going beyond those of other adjudicatory officer, or public legal of- citizens. A judge advocate’s abuse of ficer, or of a candidate for election or such commission can suggest an inabil- appointment to judicial or legal office. ity to fulfill the professional role of (b) [Reserved] judge advocate and attorney. This con- cept has similar application to civilian § 776.68 Reporting professional mis- USG attorneys. conduct. (2) Covered non-USG attorneys, Re- (a) Reporting professional misconduct: servists, and Retirees (acting in their (1) A covered attorney having knowl- civilian capacity), like their active- edge that another covered attorney has duty counterparts, are expected to committed a violation of this part that demonstrate model behavior and exem- raises a substantial question as to that plary integrity at all times. JAG may covered attorney’s honesty, trust- consider any and all derogatory or ben- worthiness, or fitness as a covered at- eficial information about a covered at- torney in other respects, shall report torney, for purposes of determining the such violation in accordance with the attorney’s qualification, professional procedures set forth in subpart C of competence, or fitness to practice law this part. in DON matters, or to administer dis- (2) A covered attorney having knowl- cipline under this part. Such consider- edge that a judge has committed a vio- ation shall be made, except in emer- lation of applicable rules of judicial gency situations necessitating imme- conduct that raises a substantial ques- diate action, according to the proce- tion as to the judge’s fitness for office dures established in subpart C of this shall report such violation in accord- part. ance with the procedures set forth in § 776.70 Jurisdiction. subpart C of this part. (3) This Rule does not require disclo- (a) Jurisdiction. All covered attorneys, sure of information otherwise pro- as defined in § 776.2 of this part, shall be tected by § 776.25 of this part. governed by this part. (b) [Reserved] (b)(1) Many covered USG attorneys practice outside the territorial limits § 776.69 Misconduct. of the jurisdiction in which they are li- censed. While covered attorneys re- (a) Misconduct. It is professional mis- main subject to the governing author- conduct for a covered attorney to: ity of the jurisdiction in which they (1) Violate or attempt to violate this are licensed to practice, they are also subpart, knowingly assist or induce an- subject to these Rules. other to do so, or do so through the (2) When covered USG attorneys are acts of another; engaged in the conduct of Navy or Ma- (2) Commit a criminal act that re- rine Corps legal functions, whether flects adversely on the covered attor- serving the Navy or Marine Corps as a ney’s honesty, trustworthiness, or fit- client or serving an individual client as ness as an attorney in other respects; authorized by the Navy or Marine
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Corps, the rules contained in this sub- in good standing and has no discipli- part supersede any conflicting rules ap- nary action pending. plicable in jurisdictions in which the (3) Each covered USG attorney shall covered attorney may be licensed. immediately report to the JAG if any However, covered attorneys practicing jurisdiction in which the covered USG in State or Federal civilian court pro- attorney is or has been a member in ceedings will abide by the rules adopt- good standing commences disciplinary ed by that State or Federal civilian investigation or action against him or court during the proceedings. As for her or if the covered USG attorney is covered non-USG attorneys practicing disciplined, suspended, or disbarred under the supervision of the JAG, vio- from the practice of law in any juris- lation of the rules contained in this diction. subpart may result in suspension from (4) Each covered non-USG attorney practice in DON proceedings. representing an accused in any court- (3) Covered non-USG attorneys, Re- martial or administrative separation servists, or Retirees (acting in their ci- proceeding shall be a member in good vilian capacity) who seek to provide standing with, and authorized to prac- legal services in any DON matter under tice law by, the bar of a Federal court JAG cognizance and supervision, may or of the bar of the highest court of a be precluded from such practice of law State, or a lawyer otherwise authorized if, in the opinion of the JAG (as exer- by a recognized licensing authority to cised through this instruction) the at- practice law and found by the military torney’s conduct in any venue renders judge to be qualified to represent the that attorney unable or unqualified to accused. practice in DON programs or pro- (b)(1) The licensing authority grant- ing the certification or privilege to ceedings. practice law within the jurisdiction § 776.71 Requirement to remain in generally defines the phrase ‘‘in good good standing with licensing au- standing.’’ At a minimum it means thorities. that the individual is subject to the ju- risdiction’s disciplinary review process; (a) Requirement to remain in good has not been suspended or disbarred standing with state licensing authority: from the practice of law within the ju- (1) Each officer of the Navy appointed risdiction; is up-to-date in the payment as a member of the Judge Advocate of all required fees; has met applicable General’s Corps, each officer of the Ma- continuing legal education require- rine Corps designated a judge advocate, ments which the jurisdiction has im- and each civil service and contracted posed (or the cognizant authority has civilian attorney who practices law waived those requirements in the case under the cognizance and supervision of the individual); and has met such of the JAG shall maintain a status con- other requirements as the cognizant sidered ‘‘in good standing’’ at all times authority has set to remain eligible to with the licensing authority admitting practice law. So long as these condi- the individual to the practice of law tions are met, a covered USG attorney before the highest court of at least one may be considered ‘‘inactive’’ as to the State, Territory, Commonwealth, or practice of law within a particular ju- the District of Columbia. risdiction and still be considered ‘‘in (2) The JAG, the Director, JA Divi- good standing’’ for purposes of this sec- sion, HQMC, or any other supervisory tion. attorney may require any covered USG (2) Rule for Courts-Martial attorney over whom they exercise au- 502(d)(3)(A) requires that any civilian thority to establish that the attorney defense counsel representing an ac- continues to be in good standing with cused in a court-martial be a member his or her licensing authority. Rep- of the bar of a Federal court or of the resentatives of the JAG or of the Direc- bar of the highest court of a State. tor, JA Division, HQMC, may also in- This civilian defense counsel qualifica- quire directly of any such covered USG tion only has meaning if the attorney attorney’s licensing authority to estab- is a member ‘‘in good standing,’’ see lish whether he or she continues to be U.S. v. Waggoner, 22 M.J. 692 (AFCMR
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1986), and is then authorized to practice nary inquiry or formal investigation law within that jurisdiction. It is ap- into an alleged violation of subpart B propriate for the military judge, in of this part or the Code of Judicial each and every case, to ensure that a Conduct. The Rules Counsel will notify civilian defense counsel is qualified to the JAG prior to the commencement of represent the accused. any preliminary inquiry or investiga- (3) Failure of a judge advocate to tion. The preliminary inquiry and any comply with the requirements of this subsequent investigation will be con- Rule may result in professional dis- ducted according to the procedures set ciplinary action as provided for in this forth in this subpart. instruction, loss of certification under Articles 26 and/or 27(b), UCMJ, adverse § 776.77 Related investigations and ac- entries in military service records, and tions. administrative separation under Sec- Acts or omissions by covered attor- retary of the Navy Instruction 1920.6 neys may constitute professional mis- (series) based on the officer’s failure to conduct, criminal misconduct, poor maintain professional qualifications. performance of duty, or a combination In the case of civil service and con- of all three. Care must be taken to tracted civilian attorneys practicing characterize appropriately the nature under the JAG’s cognizance and super- of a covered attorney’s conduct to de- vision, failure to maintain good stand- termine who may and properly should ing or otherwise to comply with the re- take official action. quirements of this Rule may result in (a) Questions of legal ethics and pro- adverse administrative action under fessional misconduct by covered attor- applicable personnel regulations, in- neys are within the exclusive province cluding termination of employment. of JAG. Ethical or professional mis- (4) A covered USG attorney need only conduct will not be attributed to any remain in good standing in one juris- covered attorney in any official record diction. If admitted to the practice of without a final JAG determination, law in more than one jurisdiction, how- made in accordance with this part, ever, and any jurisdiction commences that such misconduct has occurred. disciplinary action against or dis- (b) Criminal misconduct is properly ciplines, suspends or disbars the cov- addressed by the covered USG attor- ered USG attorney from the practice of ney’s commander through the discipli- law, the covered USG attorney must so nary process provided under the UCMJ advise the JAG. and implementing regulations, or (5) Certification by the United States through referral to appropriate civil Court of Appeals for the Armed Forces authority. that a covered attorney is in good (c) Poor performance of duty is prop- standing with that court will not sat- erly addressed by the covered USG at- isfy the requirement of this section, torney’s reporting senior through a va- since such status is normally depend- riety of administrative actions, includ- ent on Article 27 UCMJ certification ing documentation in fitness reports or alone. employee appraisals. (d) Prior JAG approval is not re- §§ 776.72–776.75 [Reserved] quired to investigate allegations of criminal conduct or poor performance Subpart C—Complaint Processing of duty involving covered attorneys. Procedures When, however, investigations into criminal conduct or poor performance § 776.76 Policy. reveal conduct that constitutes a viola- (a) It is JAG’s policy to investigate tion of this part, or of the Code of Judi- and resolve, expeditiously and fairly, cial Conduct in the case of judges, such all allegations of professional impro- conduct shall be reported to the Rules priety lodged against covered attor- Counsel immediately. neys practicing under JAG cognizance (e) Inquiries into allegations of pro- and supervision. fessional misconduct will normally be (b) Rules Counsel approval will be ob- held in abeyance until any related tained before conducting any prelimi- criminal investigation or proceeding is
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complete. However, a pending criminal Corps judge advocates or civil service investigation or proceeding does not and contracted civilian attorneys who bar the initiation or completion of a perform legal services under the cog- professional misconduct investigation nizance and supervision of Director, JA stemming from the same or related in- Division, HQMC, to JAR. cidents or prevent the JAG from im- (b) JAG(13) and JAR shall log all posing professional disciplinary sanc- complaints received and will ensure tions as provided for in this subpart. that a copy is provided to the covered attorney who is the subject of the com- § 776.78 Informal complaints. plaint. Informal, anonymous, or ‘‘hot line’’ (c) The covered attorney concerned type complaints alleging professional may elect to provide an initial state- misconduct must be referred to appro- ment regarding the complaint for the priate authority (such as the JAG In- Rules Counsel’s consideration. The cov- spector General or the concerned su- ered attorney will promptly inform pervisory attorney) for inquiry. Such JAG(13) or JAR if he or she intends to complaints are not, by themselves, cog- submit any such statement. At this nizable under this subpart but may, if screening stage, forwarding of the com- reasonably confirmed, be the basis of a plaint to the Rules Counsel will not be formal complaint described in § 776.79 unduly delayed to await the covered of this part. attorney’s submission. § 776.79 The complaint. (d) The Rules Counsel shall initially review the complaint, and any state- (a) The complaint shall: ment submitted by the covered attor- (1) Be in writing and be signed by the ney complained of, to determine complainant; whether it complies with the require- (2) State that the complainant has ments set forth in § 776.79 of this part. personal knowledge, or has otherwise (1) Complaints that do not comply received reliable information indi- with the requirements may be returned cating, that: (i) The covered attorney concerned to the complainant for correction or is, or has been, engaged in misconduct completion, and resubmission to that demonstrates a lack of integrity, JAG(13) or JAR. If the complaint is not that constitutes a violation of subpart corrected or completed, and resub- B of this part or a failure to meet the mitted within 30 days of the date of its ethical standards of the profession; or return, the Rules Counsel may close (ii) The covered attorney concerned the file without further action. JAG is ethically, professionally, or morally (13) and JAR will maintain copies of all unqualified to perform his or her du- correspondence relating to the return ties; and and resubmission of a complaint, and (3) Contain a complete, factual state- shall notify the covered attorney con- ment of the acts or omissions consti- cerned if and when the Rules Counsel tuting the substance of the complaint, takes action to close the file. as well as a description of any at- (2) Complaints that comply with the tempted resolution with the covered requirements shall be further reviewed attorney concerned. Supporting state- by the Rules Counsel to determine ments, if any, should be attached to whether the complaint: the complaint. (i) Establishes probable cause to be- (b) A complaint may be initiated by lieve that a violation of this part or of any person, including the Administra- the Judicial Code has occurred; or tive Law Division of the Office of JAG (ii) Alleges ineffective assistance of (JAG (13)), or the Judge Advocate Re- counsel, or other violations of subpart search and Civil Law Branch, JA Divi- B of this part, as a matter of defense in sion, HQMC (JAR). a court-martial, administrative separa- tion, or nonjudicial punishment pro- § 776.80 Initial screening and Rules ceeding. If so, the Rules Counsel shall Counsel. forward a copy of the complaint to the (a) Complaints shall be forwarded to proper appellate authority for appro- JAG(13) or, in cases involving Marine priate action and comment.
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(e) The Rules Counsel shall close the attorney to conduct a preliminary in- file without further action if the com- quiry into the matter. plaint does not establish probable (b) The Rules Counsel shall provide a cause to believe that a violation has copy of the charges, complaint, and occurred. The Rules Counsel shall no- any allied papers to the covered attor- tify the complainant and the covered ney against whom the complaint is attorney concerned that the file has made and notify him or her that a pre- been closed. JAG(13) and JAR will liminary inquiry will be conducted. maintain copies of all correspondence Service of complaints, charges, and related to the closing of the file. other materials shall be made by per- (f) The Rules Counsel may close the sonal service, or by registered or cer- file if there is a determination that the tified mail sent to the covered attor- complaint establishes probable cause ney’s last known address reflected in but the violation is of a minor or tech- official Navy or Marine Corps records nical nature appropriately addressed or in the records of the state bar(s) through corrective counseling. The which licensed the attorney to practice Rules Counsel shall report any such de- law. cision to the JAG. The Rules Counsel (c) The Rules Counsel shall also pro- shall ensure the covered attorney con- vide a copy of the charges to the com- cerned receives appropriate counseling manding officer, or equivalent, of the and shall notify the complainant and covered USG attorney concerned if the the covered attorney concerned that complaint involves a covered USG at- the file has been closed. JAG(13) and torney on active duty or in civilian JAR will maintain copies of all cor- Federal service. respondence related to the closing of (d) The Rules Counsel shall also for- the file. The covered attorney con- ward a copy of the charges as follows: cerned is responsible, under these cir- (1) In cases involving Navy or Marine cumstances, to determine if his or her Corps judge advocates serving in Naval Federal, state, or local licensing au- Legal Service Command (NLSC) units, thority requires reporting of such ac- to Vice Commander, NLSC; tion. (2) In cases involving Navy attorneys § 776.81 Charges. serving in Marine Corps units, or in- volving Marine Corps attorneys serving (a) If the Rules Counsel determines in Navy units, to the Commandant of that there is probable cause to believe the Marine Corps (Attn: JA); that a violation of this part or of the Code of Judicial Conduct has occurred, (3) In cases involving members of the the Rules Counsel shall draft charges Navy-Marine Corps Trial Judiciary, to alleging violations of this part or of the Trial Judiciary Chief Judge; and the Code of Judicial Conduct and for- (4) To the appropriate military serv- ward the charges, together with the ice attorney discipline section if the original complaint and any allied pa- complaint involves covered attorneys pers, as follows: certified by the Judge Advocates Gen- (1) In cases involving Marine Corps eral/Chief Counsel of the other uni- attorneys not serving as defense coun- formed services. sel or attached to Navy units, to the officer exercising general court-martial § 776.82 Interim suspension. jurisdiction (OEGCMJ) over the (a) Where the Rules Counsel deter- charged covered attorney, and request, mines there is probable cause to be- on behalf of JAG, that the OEGCMJ ap- lieve that a covered attorney has com- point a covered attorney (normally the mitted misconduct or other violations concerned attorney’s supervisor) to of this part, and poses a substantial conduct a preliminary inquiry into the threat of irreparable harm to his or her matter; clients or the orderly administration of (2) In all other cases, to the super- military justice, the Rules Counsel visory attorney in the charged attor- shall so advise the JAG. Examples of ney’s chain of command (or such other when a covered attorney may pose a officer as JAG may designate), and di- ‘‘substantial threat of irreparable rect, on behalf of JAG, the supervisory harm’’ include:
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(1) When charged with the commis- (f) Any professional responsibility in- sion of a crime which involves moral vestigation involving a covered attor- turpitude or reflects adversely upon ney who has been suspended pursuant the covered attorney’s fitness to prac- to this section shall proceed and be tice law, and where substantial evi- concluded without appreciable delay. dence exists to support the charge; However, JAG may determine it nec- (2) When engaged in the unauthorized essary to await completion of a related practice of law (e.g., failure to main- criminal investigation or proceeding, tain good standing in accordance with or completion of a professional respon- § 776.71 of this part); or sibility action initiated by other li- (3) Where unable to represent client censing authorities. In such cases, JAG interests competently. shall cause the Rules Counsel to so no- (b) Upon receipt of information from tify the covered attorney under in- the Rules Counsel, JAG may order the terim suspension. Where necessary, covered attorney to show cause why he continuation of the interim suspension or she should not face interim suspen- shall be reviewed by JAG every 6 sion, pending completion of a profes- months. sional responsibility investigation. The covered attorney shall have 10 calendar § 776.83 Preliminary inquiry. days in which to respond. (a) The purpose of the preliminary in- (c) If an order to show cause has been quiry is to determine whether, in the issued under paragraph (b) of this sec- opinion of the officer appointed to con- tion, and the period for response has duct the preliminary inquiry (PIO), the passed without a response, or after con- questioned conduct occurred and, if so, sideration of any response and finding whether it constitutes a violation of sufficient evidence demonstrating this part or the Code of Judicial Con- probable cause to believe that the cov- duct. The PIO is to recommend appro- ered attorney is guilty of misconduct priate action in cases of substantiated and poses a substantial threat of irrep- violations. arable harm to his or her client or the (b) Upon receipt of the complaint and orderly administration of military jus- charges, the PIO shall promptly inves- tice, JAG may direct an interim sus- tigate the charges, generally following pension of the covered attorney’s cer- the format and procedures set forth in tification under Articles 26(b) or 27(b), the Manual of the Judge Advocate Gen- UCMJ, or R.C.M. 502(d)(3), or the au- eral for the conduct of command inves- thority to provide legal assistance, tigations. Reports of relevant inves- pending the results of the investigation tigations by other authorities includ- and final action under this instruction. ing, but not limited to, State bar asso- (d) Within 10 days of JAG’s decision ciations may be used. The PIO should to impose an interim suspension, the also: covered attorney may request an op- (1) Identify and obtain sworn affida- portunity to be heard before an impar- vits or statements from all relevant tial officer designated by JAG. Where and material witnesses to the extent so requested, that opportunity will be practicable; scheduled within 10 calendar days of (2) Identify, gather, and preserve all the request. The designated officer other relevant and material evidence; shall receive any information that the and covered attorney chooses to submit on (3) Provide the covered attorney con- the limited issue of whether to con- cerned an opportunity to review all tinue the interim suspension. The des- evidence, affidavits, and statements ignated officer shall submit a rec- collected and a reasonable period of ommendation to JAG within 5 calendar time (normally not exceeding 7 days) days of conclusion. to submit a written statement or any (e) A covered attorney may, based other written material that the cov- upon a claim of changed circumstances ered attorney wishes considered. or newly discovered evidence, petition (c) The PIO may appoint and use for dissolution or amendment of JAG’s such assistants as may be necessary to imposition of interim suspension. conduct the preliminary inquiry.
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(d) The PIO shall personally review report any such decision to the JAG. the results of the preliminary inquiry The Rules Counsel shall ensure that to determine whether, by a preponder- the covered attorney concerned re- ance of the evidence, a violation of this ceives appropriate counseling and shall part or of the Judicial Code has oc- notify the complainant, the covered at- curred. torney concerned, and all officials pre- (1) If the PIO determines that no vio- viously provided copies of the com- lation has occurred or that the viola- plaint that the file has been closed. tion is minor or technical in nature JAG(13) and/or JAR, as appropriate, and warrants only corrective coun- will maintain copies of all correspond- seling, then he or she may recommend ence related to the closing of the file. that the file be closed. The covered attorney concerned is re- (2) If the PIO determines by a prepon- sponsible, under these circumstances, derance of the evidence that a viola- to determine if his or her Federal, tion did occur, and that corrective ac- state, or local licensing authority re- tion greater than counseling may be quires reporting such action. warranted, he or she shall then rec- (3) If the Rules Counsel determines, ommend what further action is deemed either consistent with a PIO rec- appropriate. ommendation or through the Rules (e) The PIO shall forward (via the Counsel’s own review of the report, OEGCMJ in appropriate Marine cases) that further professional discipline or the results of the preliminary inquiry corrective action may be warranted, to the Rules Counsel, providing copies the Rules Counsel shall: to the covered attorney concerned and all parties to whom the charges were (i) In cases involving Marine Corps previously sent. attorneys not serving as defense coun- (f) The Rules Counsel shall review all sel or attached to Navy units, request, preliminary inquiries. If the report is on behalf of JAG, that the subject at- determined by the Rules Counsel to be torney’s OEGCMJ appoint a disin- incomplete, the Rules Counsel shall re- terested covered attorney (normally turn it to the PIO, or to another in- senior to the covered attorney com- quiry officer, for further or supple- plained of and not previously involved mental inquiry. If the report is com- in the case) to conduct an ethics inves- plete, then: tigation into the matter; (1) If the Rules Counsel determines, (ii) In all other cases, appoint, on be- either consistent with the PIO rec- half of JAG, a disinterested covered at- ommendation or through the Rules torney (normally senior to the covered Counsel’s own review of the report, attorney complained of and not pre- that a violation of this part or Code of viously involved in the case) to con- Judicial Conduct has not occurred and duct an ethics investigation; and that further action is not warranted, (iii) Notify those supervisory attor- the Rules Counsel shall close the file neys listed in § 776.81(c) and § 776.81(d) of and notify the complainant, the cov- this part. ered attorney concerned, and all offi- cials previously provided copies of the § 776.84 Ethics investigation. complaint. JAG(13) and/or JAR, as ap- (a) Whenever an ethics investigation propriate, will maintain copies of all is initiated, the covered attorney con- correspondence related to the closing cerned will be so notified, in writing, of the file. by the Rules Counsel. (2) If the Rules Counsel determines, either consistent with a PIO rec- (b) The covered attorney concerned ommendation or through the Rules will be provided written notice of the Counsel’s own review of the report, following rights in connection with the that a violation of this part has oc- ethics investigation: curred but that the violation is of a (1) To request a hearing before the in- minor or technical nature, then the vestigating officer (IO); Rules Counsel may determine that cor- (2) To inspect all evidence gathered; rective counseling is appropriate and (3) To present written or oral state- close the file. The Rules Counsel shall ments or materials for consideration;
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(4) To call witnesses at his or her own (1) If the IO believes that no violation expense (local military witnesses has occurred or that the violation is should be made available at no cost); minor or technical in nature and war- (5) To be assisted by counsel (see rants only corrective counseling, then paragraph (c) of this section); he or she may recommend that the file (6) To challenge the IO for cause be closed. (such challenges must be made in writ- (2) If the IO believes that a violation ing and sent to the Rules Counsel via did occur, and that corrective action the challenged officer); and greater than counseling is warranted, (7) To waive any or all of these he or she shall then recommend what rights. further action is deemed appropriate. (c) The covered attorney may be rep- (g) The IO shall forward the ethics in- resented by counsel at the hearing. vestigation, including the IO’s rec- Such counsel may be: ommendations, to the Rules Counsel, (1) A civilian attorney retained at no as follows: expense to the Government; or, (1) In cases involving Navy or Marine (2) In the case of a covered USG at- Corps attorneys serving with NLSC torney, another USG attorney: units, via Vice Commander, NLSC; (i) Detailed by the cognizant Naval (2) In cases involving Navy attorneys Legal Service Office (NLSO), Law Cen- serving with Marine Corps units, via ter, or Legal Service Support Section the Commandant of the Marine Corps (LSSS); or (Attn: JA); (ii) Requested by the covered attor- (3) In cases involving Navy or Marine ney concerned, if such counsel is at- Corps attorneys serving in subordinate tached to the cognizant NLSO, Law Navy fleet or staff billets, via the fleet Center, LSSS, or to a Navy or Marine or staff judge advocate attached to the Corps activity located within 100 miles appropriate second-echelon com- of the hearing site at the time of the mander; scheduled hearing, and if such counsel (4) In cases involving members of the is reasonably available, as determined Navy-Marine Corps Trial Judiciary, via by the requested counsel’s reporting the Trial Judiciary Chief Judge; senior in his or her sole discretion. (5) In cases involving Marine Corps There is no right to detailed counsel if attorneys serving in defense billets, via requested counsel is made available. the Chief Defense Counsel of the Ma- (d) If a hearing is requested, the IO rine Corps; will conduct the hearing after reason- (6) In cases involving Marine Corps able notice to the covered attorney attorneys not serving in defense coun- concerned. The hearing will not be un- sel billets or in Navy units, via the reasonably delayed. The hearing is not OEGCMJ over the concerned attorney; adversarial in nature and there is no and right to subpoena witnesses. Rules of (7) In cases involving covered attor- evidence do not apply. The covered at- neys certified by the Judge Advocates torney concerned or his or her counsel General/Chief Counsel of the other U.S. may question witnesses that appear. Armed Forces, via the appropriate The proceedings shall be recorded but military service attorney discipline no transcript of the hearing need be section of that U.S. Armed Force. made. Evidence gathered during, or (h) The Rules Counsel shall review all subsequent to, the preliminary inquiry ethics investigations. If the report is and such additional evidence as may be determined by the Rules Counsel to be offered by the covered attorney shall incomplete, the Rules Counsel shall re- be considered. turn it to the IO, or to another inquiry (e) The IO may appoint and use such officer, for further or supplemental in- assistants as may be necessary to con- quiry. If the report is complete, then: duct the ethics investigation. (1) If the Rules Counsel determines, (f) The IO shall prepare a report either consistent with the IO rec- which summarizes the evidence, to in- ommendation or through the Rules clude information presented at any Counsel’s own review of the investiga- hearing. tion, that a violation of this part or
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Code of Judicial Conduct has not oc- equal to that provided by a preliminary curred and that further action is not inquiry under this instruction, to have warranted, the Rules Counsel shall committed misconduct which forms close the file and notify the complain- the basis for ethics charges under this ant, the covered attorney concerned, instruction, the Rules Counsel may dis- and all officials previously provided pense with the preliminary inquiry and copies of the complaint. JAG(13) and/or proceed directly with an ethics inves- JAR, as appropriate, will maintain cop- tigation. ies of all correspondence related to the (c) In those cases in which a covered closing of the file. attorney is determined to have com- (2) If the Rules Counsel determines, mitted misconduct at a separate pro- either consistent with the IO rec- ceeding which the Rules Counsel deter- ommendation or through the Rules mines has afforded procedural protec- Counsel’s own review of the investiga- tion equal to that provided by an eth- tion, that a violation of this part or ics investigation under this instruc- Code of Judicial Conduct has occurred tion, the previous determination re- but that the violation is of a minor or garding the underlying misconduct is technical nature, then the Rules Coun- res judicata with respect to that issue sel may determine that corrective during an ethics investigation. A sub- counseling is appropriate and close the sequent ethics investigation based on file. The Rules Counsel shall report any such misconduct shall afford the cov- such decision to the JAG. The Rules ered attorney a hearing into whether Counsel shall ensure that the covered the underlying misconduct constitutes attorney concerned receives appro- a violation of this part, whether the priate counseling and shall notify the violation affects his or her fitness to complainant, the covered attorney con- practice law, and what sanctions, if cerned, and all officials previously pro- any, are appropriate. vided copies of the complaint that the (d) The Rules Counsel may dispense file has been closed. JAG(13) and/or with the preliminary inquiry and eth- JAR, as appropriate, will maintain cop- ics investigation, and if warranted, rec- ies of all correspondence related to the ommend to JAG that the covered at- closing of the file. The covered attor- torney concerned be disciplined, con- ney concerned is responsible, under sistent with this subpart, after pro- these circumstances, to determine if viding the covered attorney concerned his or her Federal, state, or local li- censing authority requires reporting written notice and an opportunity to such action. be heard in writing, in those cases in (3) If the Rules Counsel believes, ei- which a covered attorney has been: ther consistent with the IO rec- (1) Decertified or suspended from the ommendation or through the Rules practice of law or otherwise subjected Counsel’s own review of the investiga- to professional responsibility discipline tion, that professional disciplinary ac- by the Judge Advocate General of an- tion greater than corrective counseling other Military Department; is warranted, the Rules Counsel shall (2) Disbarred or suspended from the forward the investigation, with rec- practice of law or otherwise subjected ommendations as to appropriate dis- to professional responsibility discipline position, to JAG. by the Court of Appeals for the Armed Forces or by any Federal, State, or § 776.85 Effect of separate proceeding. local bar; or (a) For purposes of this section, the (3) Convicted of a felony (or any of- term ‘‘separate proceeding’’ includes, fense punishable by one year or more of but is not limited to, court-martial, imprisonment) in a civilian or military non-judicial punishment, administra- court which, in the opinion of the tive board, or similar civilian or mili- Rules Counsel, renders the attorney tary proceeding. unqualified or incapable of properly or (b) In cases in which a covered attor- ethically representing the DON or a ney is determined, at a separate pro- client when the Rules Counsel has de- ceeding determined by the Rules Coun- termined that the attorney was af- sel to afford procedural protection forded procedural protection equal to
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that provided by an ethics investiga- justice, the practice of law under the tion under this instruction. cognizance of JAG, or the armed serv- ices as a whole, that certification § 776.86 Action by JAG. under Article 27(b), UCMJ (10 U.S.C. (a) JAG is not bound by the rec- 827(b)), or R.C.M. 502(b)(3), MCM, 1998, ommendation rendered by the Rules should be suspended or is no longer ap- Counsel, IO, PIO, or any other inter- propriate, directing such certification ested party, but will base any action on to be suspended for a prescribed or in- the record as a whole. Nothing in this definite period or to be removed perma- instruction limits JAG authority to nently; suspend from the practice of law in (v) In the case of a judge, where find- DON matters any covered attorney al- ing that the misconduct so prejudices leged or found to have committed pro- the reputation of military trial and ap- fessional misconduct or violated this pellate judges that certification under part, either in DON or civilian pro- Article 26(b), UCMJ (10 U.S.C. 826(b)), ceedings. should be suspended or is no longer ap- (b) JAG may, but is not required to, propriate, directing such certification refer any case to the Professional Re- to be suspended for a prescribed or in- sponsibility Committee for an advisory opinion on interpretation of subpart B definite period or to be removed perma- of this part or its application to the nently; and facts of a particular case. (vi) Directing the Rules Counsel to (c) Upon receipt of the ethics inves- contact appropriate authorities such as tigation, and any requested advisory the Chief of Naval Personnel or the opinion, JAG will take such action as Commandant of the Marine Corps so JAG considers appropriate in JAG’s that pertinent entries in appropriate sole discretion. JAG may, for example: DON records may be made; notifying (1) Direct further inquiry into speci- the complainant, covered attorney con- fied areas. cerned, and any officials previously (2) Where determining the allega- provided copies of the complaint; and tions to be unfounded, or that no fur- notifying appropriate tribunals and au- ther action is warranted, direct the thorities of any action taken to sus- Rules Counsel to make appropriate file pend, decertify, or limit the practice of entries and to notify the complainant, a covered attorney as counsel before covered attorney concerned, and all in- courts-martial or the U.S. Navy-Ma- terested parties of such determination. rine Corps Court of Appeals, adminis- (3) Where determining the allega- trative boards, as a legal assistance at- tions to be supported by clear and con- torney, or in any other legal pro- vincing evidence, take appropriate cor- ceeding or matter conducted under rective action including, but not lim- JAG cognizance and supervision. ited to: (i) Limiting the covered attorney to § 776.87 Finality. practice under direct supervision of a Any action taken by JAG is final, supervisory attorney; (ii) Limiting the covered attorney to subject to any remedies afforded by practice in certain areas or forbidding Navy Regulations or any other regula- him or her from practice in certain tion to the covered attorney concerned. areas; § 776.88 Report to licensing authori- (iii) Suspending or revoking, for a ties. specified or indefinite period, the cov- ered attorney’s authority to provide Upon determination by JAG that a legal assistance; violation of the Rules or the Code of (iv) Where finding that the mis- Judicial Conduct has occurred, JAG conduct so adversely affects the cov- may cause the Rules Counsel to report ered attorney’s continuing ability to that fact to the Federal, State, or local practice law in the naval service or bar or other licensing authority of the that the misconduct so prejudices the covered attorney concerned. If so re- reputation of the DON legal commu- ported, notice to the covered attorney nity, the administration of military shall be provided by the Rules Counsel.
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The JAG’s decision in no way dimin- Subpart D [Reserved] ishes a covered attorney’s responsi- bility to report adverse professional disciplinary action as required by the PARTS 777–799 [RESERVED] attorney’s Federal, State, and local bar or other licensing authority.
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